himself, after being properly released, was adjudged a competent witness for the defendant.

2. Bail on mesne process can only be taken by the indorsement of the name of the surety on the back of the writ. Stat. p. 182, $23. The original writ against Newell Ordway shows that no bail was taken by Adams when he served it. He was called as a witness, therefore, to prove that when the writ was delivered to him, for service, he was directed not to require bail. He was not called upon to contradict his doings, as an officer, at the time he served the writ, but to show that he neglected to require an indorser of the writ, by the plaintiff's directions.

He did not return that he had taken any one, by name, as bail, or that any person had indorsed the writ as bail, but only that "he had taken sufficient bail."

The opinion of the court was delivered by

ROYCE, J.-This case is to be considered as if the defendant had personally made the service and return in question, since the statute has declared, that the official acts of a deputy sheriff shall be taken and deemed to be those of the sheriff himself. Two questions arise in the case as presented here: 1. Whether the defendant should have been permitted to prove the facts set up in defence; and, 2. Whether Adams was a competent witness for that purpose, being first duly discharged by the defendant. As the gravamen of the first count in the declaration differs from that in the second, it is proper to examine these questions in reference to each count by itself.

The first count charges a neglect of official duty, in not taking bail of Newell Ordway, when it should have been required. The obligation of an officer to exact bail, upon the arrest of a party in a civil case, is an obligation imposed by law for the benefit of the plaintiff. But the process is so far under the plaintiff's control, that he is at liberty to waive that benefit. And whether he has waived it in any case, is necessarily a fact in pais to be determined by proof. It is a fact independent of what the officer may have actually done under the process, and therefore the proof of it is no contradiction of the officer's return. He may have taken bail, when he was under no obligation to the plaintiff in the pro

ORANGE,

March, 1842.

Ordway

v.

Bacon.

ORANGE,
March,

1842.

Ordway

υ.

Bacon.

cess to do so. Hence, though the return should be held conclusive against the officer that he had taken bail, or pretended to take it, it could not be conclusive that he was bound to take it. Here seems to lie the fallacy in the plaintiff's argument. It is assumed that the duty of the defendant to take bail cannot be controverted, because he has returned that he took bail. But this conclusion, though the duty may be forcibly implied from such a return, is not a necessary and indisputable one. The facts offered in defence might, therefore, well be shown, at least, under the first count in the declaration.

It may be regarded as settled, law in this state, that, for neglect of official duty in any of the sheriff department, the sheriff is the the only person liable to the party injured by such neglect. This was fully decided in the case of Hutchinson v. Parkhurst, 1 Aik. 258, and has never been since questioned. By this rule. Adams, the deputy, was not liable to the present plaintiff for his alleged neglect in not taking bail, but liable only to his principal, the defendant. He was therefore rendered a competent witness by the defendant's release.

The defence will now be shortly considered with reference to the second count in the declaration, which alleges a false return that bail had been taken. It is manifest that the facts, established in answer to the first count, must go far to disprove any substantial ground of complaint upon the second. For if the plaintiff had fully dispensed with the advantage of bail upon his writ, and even directed it not to be required, a false return, that bail had nevertheless been taken, would not be likely to disappoint or deceive him to his prejudice. Had bail been actually taken, it might have proved a benefit, but a benefit which he had previously waived, and which he had, therefore, no right to require or expect. He can only complain that the return had a tendency to inspire a false security, by creating a reliance upon bail which did not exist. But such a pretence can scarcely have any foundation in reason or fact. The return did not state that any one by name had become bail, or that any one had indorsed the writ as bail; but only that the officer had "taken sufficient bail." And as the writ itself furnished evidence that no legal bail had been taken, (for the name of no person was

March, 1842.

indorsed upon it) the plaintiff could have had little difficulty ORANGE, in understanding the return, if he kept in mind his previous directions to the officer. He should have inferred that something short of legal bail, under the statute, was intended; and whether this was the promise of Newell Ordway that he would duly appear in the suit, or something else, it is not material to inquire.

Judgment affirmed.

Ordway

v.

Bacon.

It seems that a forbearance to bid at a public auction, for the sale of the support of the paupers of a town, is a good consideration for a note given for such forbearance.

But such a transaction is contrary to public policy and the note is, therefore, void.

ASSUMPSIT upon a promissory note made by defendant to plaintiff. Plea, general issue and trial by jury.

On the trial in the county court the defendant introduced testimony tending to prove that the note in question was given by the defendant in consideration that the plaintiff would forbear to bid for the support and maintenance of the town paupers of the town of Barre, for the year ensuing the date of said note, at a public auction held for that purpose, -the defendant being himself a bidder at such auction and wishing to bid off the support of such paupers.

The court instructed the jury that, if they found such to be the consideration of the note, it was void, and they should find for the defendant; to which instruction, after verdict and judgment for the defendant, the plaintiff excepted.

N. Kinsman, for plaintiff.

1. The plaintiff insists that the note in question was given for a good consideration, for, on the part of the plaintiff, it was a suspension or forbearance of his right by which he sustained a detriment, at the instance of the defendant, and for his, the defendant's, benefit. And that which is either a matter of advantage to the promissor, or a detriment to the promissee or both, brought about in consequence of a previous request of the promissor, express or implied, is a good consideration. Fell on Guaranties, 3, 4. 1 Swift's Dig. 187. Chitty on Contracts, 7. Burnham v. Burnham, 8 Conn. R. 469. 1 Chitty on Contracts, 516-19 and 535.

WASHINGTON,
March,
1842.
Noyes

2. The plaintiff contends that the suspension of his right to bid for the support of the town's poor, was not contrary to good morals or sound policy, for it would not be morally right nor good policy for the town to have their paupers bid off to for a less sum than any one could afford to keep them be kept for and keep them well. It would be doing injustice to the unfortunate poor. For the person who bid them off, under such circumstances, would not be likely to expend, in taking care of them and making them comfortable, a greater sum than he received from the town. And any other inhabitant of the town, who might suppose that they were being bid off to be kept at an unreasonable price, could have bid against the defendant.

L. B. Peck, for defendants.

The note is without consideration and void. The agreement also upon which it was executed, is against public policy and ought not to be supported. Doolan v. Ward, 6 Johns. R. 194. Jones v. Carswell, 3 Johns.Cas. 29. Bexwell v. Christie, 1 Cowp. 395. Howard v. Castle, 6 T. R. 642. Pingry v. Washburn, 1 Aikens, 264. Gulick v. Ward et al. 5 Halstead, 87. Crowder v. Austin, 3 Bingh. 369. Chitty on Contracts, 520, note. 2 Kent's Com. 2 Ed. 536.

The opinion of the court was delivered by

ROYCE, J.-The defence to the present action is either a want of any sufficient consideration, in a pecuniary view, to render the note binding, or illegality and fraud in the consideration which existed.

v.

Day.