Superior Ct., Sp. T., 1859, McGregory . Willett, 17 How. Pr., 439.

3. Legislature, imprisonment by, not to extend beyond the same session. 1 Rev. Stat., 155, $14.

4. Contempts. Imprisonment on proceedings to enforce civil remedy. 2 Rev. Stat., 538, § 20 (as amended by Laws of 1843, ch. 9); Id., § 25. for criminal contempts. 2 Rev. Stat., 278,

5.

$11.

6.

for contempts in justices' courts. 2 Rev. Stat., 273, § 275.

7. Imprisonment for costs. Under the act for the relief of debtors (1 Rev. L. of 1813, 348), and before the amendment by ch. 203 of that year, no person could be imprisoned more than thirty days for costs only; nor for any sum of costs together, with debt or damages, not exceeding $25. Supreme Ct., 1815, Cuyler v. Rust, 12 Johns., 872.

8. Final process. Imprisonment of persons arrested on execution in courts of record. 2 Rev. Stat., 376, §§ 76, 77.

As to the Act to abolish imprisonment for debt, see ARREST.

As to imprisonment for Crimes and misdemeanors, see PUNISHMENT.

As to obtaining Discharge, see HABEAS CORPUS.

As to Executions, see that title, and the titles there referred to.

As to actions for Malicious prosecution and False imprisonment, see those titles.

II. JAIL LIBERTIES.

9. Constitutionality of the act. The act of 1798 (1 Rev. L. of 1802, 350), establishing jail liberties, is not unconstitutional as impairing the obligation of contracts. Supreme Ct., 1802, Holmes v. Lansing,* 3 Johns. Cas., 73; and see Dash v. Van Kleek, 7 Johns., 477.

10. Liberties. The act of 1798, regulating the liberties of jails (1 Rev. L. of 1802, 350), is to be considered as enlarging the prison to the assigned limits; and as long as the prisoner is within those limits, he is to be considered in

* Approved, Morse v. Goold, 11 N. Y. (1 Kern.), 281.

prison. Ib. Ib. To the same effect [citing 2 T. R., 26], 1810, Peters v. Henry, 6 Johns., 121. 11. The act is imperative on the sheriff to grant the liberties on tender of a sufficient bond. Supreme Ct., 1802, Holmes v. Lansing, 3 Johns. Cas., 73; and see Dole v. Moulton, 2 Id., 205.

12. He is not bound to take a bond until the liberties are defined by law; and if he does, he lets the prisoner go at large at his peril. Supreme Ct., 1809, Bissell v. Kip, 5 Johns., 89.

13. Prisoner's duty. The liberties having been appointed, it is the duty of the sheriff to take the bond; but it is not his duty, but that of the prisoner, to ascertain the lines, and to observe them. Supreme Ct., 1810, Kip v. Brigham, 7 Johns., 168.

14. Waiver. The bond is merely for the sheriff's indemnity, which he may waive, and grant the liberties without a bond. Supreme Ct., 1802, Holmes v. Lansing, 3 Johns. Cas., 73. To the same effect [citing 2 T. R., 26], 1810, Peters v. Henry, 6 Johns., 121.

15. Surrender of bail. Under the act of 1801 (1 Laws of 1801, 350),-directing the sheriff to grant the liberties to all prisoners "in custody on civil process,"—a prisoner in custody in a civil suit, though committed on surrender of bail by a committitur under the hand of the judge, is entitled to the liberties; and his bond for the liberties is assignable under Laws of 1809, ch. 148. Supreme Ct., 1812, Kellogg . Manro, 9 Johns., 300.

16. Attachment for costs. A prisoner in execution under an attachment for costs, is entitled to the liberties. Supreme Ct., 1803, Jackson v. Billings, 1 Cai., 252.

17. Precept. One imprisoned on a precept in the nature of a civil execution, for contempt in non-payment of costs merely, is entitled to the jail liberties, but not to his discharge under the act to abolish imprisonment for debt. Chancery, 1833, People v. Bennett, 4 Paige, 282; 1834, Patrick v. Warner, Id., 397.

18. Civil and criminal process. If a prisoner is confined on civil and criminal process both, the sheriff cannot take such a bond. The enjoyment of the limits by the prisoner is not only the consideration, but the condition of the bail's liability. If the prisoner on the limits is arrested and imprisoned on a complaint for crime, the sureties are exonerated.

Supreme Ct., 1824, Bradford v. Consaulus, 3 Cow., 128.

19. Fine. Where a party is committed for the non-payment of a fine imposed for contempt, he must be confined by the sheriff within the walls of the prison; but if the process of commitment does not show that he was convicted of a contempt, and that the sum he was ordered to pay was a fine, the sheriff cannot be punished for allowing him the liberties. Chancery, 1833, People v. Bennett, 4 Paige, 282.

20. Amount of limit-bond. As the statute directs the bond to be in double the amount of the sum for which the prisoner is confined, it may be in double the amount of the execution, together with poundage. Supreme Ct., 1801, Dole v. Moulton, 2 Johns. Cas., 205; 1811, Smith v. Jansen, 8 Johns., 111.

21. By giving the bond, the obligors acquiesce in the correctness of the sum, where there is no pretence of extortion. Ib.

22. A substantial variance from the statute-e. g., adding a condition that defendant shall, at the request of the sheriff, surrender himself to prison-will make the whole condition void. [10 Co., 100; Plowd., 60; 1 T. R., 418.] Supreme Ct., 1821, Sullivan v. Alexander,* 19 Johns., 233.

23. Extinguishment of judgment. One of two judgment-debtors escaped and the other was subsequently arrested, but was discharged by the plaintiff's assent. Held, that the original judgment was extinguished by this discharge, and that the sheriff's omission to defend himself upon this ground, against an action for the escape, could not enable him to recover upon the bond for the limits. Supreme Ct., 1828, Ransom v. Keyes, 9 Cow., 128.

24. Discharge as insolvent. The prisoner obtained a discharge as an insolvent, and on presenting it was discharged from imprisonment by the sheriff. Held, that this was a defence to an action on the bond. Supreme Ct., 1842, Hayden v. Palmer,† 2 Hill, 205.

25. Who entitled to the liberties, and the form and effect of the bond. 2 Rev. Stat., 433; same stat., Id., 5 ed., vol. 3, 733.

26. License law. Persons imprisoned on judgments on bonds or for penalties under license law, not entitled to the liberties. 2 Laws of 1857, 416, ch. 628, § 32.

* Approved in United States v. Noah, 1 Paine,

875.

+ Affirmed, but no opinion reported, 7 Hill, 385.

III. ASSIGNMENTS BY PRISONERS.

28. Service of petition. Under the act for the relief of debtors, in respect to imprisonment, where the plaintiff, the creditor, resides out of the State, service of a notice of the petition on the attorney in the suit, is sufficient. Supreme Ct., 1799, Bates v. Williams, 1 Johns. Cas., 30; S. C., Col. & C. Cas., 70.

29. A person residing out of the State, as to the service of a notice under the act, is to be considered as not to be found. Supreme Ct., 1800, Matter of Williams, 1 Johns. Cas., 416; S, C., Col. & C. Cas., 114.

30. Defects in schedule. The facts that in the schedule annexed to his inventory, the debtor's arms were not specified, nor the time when the prisoner owned the articles mentioned in it, and that he was in custody in a suit for a tort, is no objection; but the want of a stamp is. Supreme Ct., 1799, Burns v. Baker, 1 Johns. Cas., 134; S. C., Col. & C. Cas., 78.

31

in petition and inventory. It is no objection to the petition that the sum for which the prisoner is charged in execution is not mentioned, nor that the inventory purports to be of his real and personal estate, when, in fact, no real estate is mentioned. Supreme Ct., 1800, Matter of Williams, 1 Johns. Cas., 416; S. C., Col. & C. Cas., 114.

32. The omission of certain debts as being uncollectable, if not in bad faith, may be supplied on the hearing. Supreme Ct., 1807, Brodie . Stephens, 2 Johns., 289.

33. Advertisement. Under the act of 1819, requiring the order for creditors to appear to be published ten weeks, the commissioner has no authority to order an assignment after a shorter advertisement; and if he make such order it is void. Supreme Ct., 1824, Underwood v. Irving, 3 Cow., 59.

36. A judgment for an assault and battery is "a debt," within 1 Rev. L. of 1813, allowing a discharge from imprisonment for debt. Supreme Ct., 1824, People v. Marine Ct. of N. Y., 3 Cow., 366.

37. A judgment for assault and battery is a debt within the provision of the act of 1819 (ch. 101, § 3), confining the act to a debt or debts due, &c., or contracted for before, &c. Supreme Ct., 1825, Exp. Thayer, 4 Cow., 66.

civil cause, may petition for discharge. Proceed38. A debtor imprisoned in execution in a ings thereupon. 2 Rev. Stat., 31.

39. Voluntary assignments by insolvents, in order to exonerate from imprisonment, allow

ed. 2 Rev. Stat., 25.

40. The provisions of the Revised Statutes, of voluntary assignments by insolvents, extend to judgments, whether in tort or contract. [4 Cow., 66; 19 Wend., 629.] Supreme Ct., 1840, Hayden v. Palmer, 24 Wend., 364.

41. Precept for alimony. A person imprisoned on a precept issued to enforce an order for payment of alimony, is entitled to be discharged from imprisonment, by the court, on making an assignment of his property. Chancery, 1831, Van Wezel v. Van Wezel, 3 Paige, 38.

42. An infant is entitled to the benefit of the act relative to voluntary assignments by an imprisoned debtor. [2 Rev. Stat., 33] His assignment under the act would be valid Supreme Ct., 1841, People v. Mullin, 25 Wend., 698.

43. The petition (under 2 Rev. Stat., 2 ed., 690) for the discharge of a debtor, imprisoned upon execution, must be first presented to the court at a regular special term. It cannot be heard at chambers, nor in the first instance at general term. N. Y. Superior Ct., 1853, Matter of Walker, 2 Duer, 655.

44. Proceedings to compel assignments, by debtors imprisoned on execution in civil 2 Rev. Stat., 24.

causes.

INCEST.

What is. The statute (2 Rev. Stat., 688, § 12),-punishing intermarriage, adultery, or fornication, between persons of the degree of consanguinity in which marriages are incestuous,―is only applicable to cases in which the sexual intercourse is by mutual consent. Where it is accomplished by force, it is punishable only as rape. Oyer & T., 1852, People v. Harriden, 1 Park. Cr., 344.

As to Evidence, see EVIDENCE.

INDEMNITY.

[Under this title are presented the cases turning on the Interpretation and effect of contracts of indemnity, and the liability of the indemnitor. The relation of PRINCIPAL AND SURETY, is more fully considered under the subject of PRINCIPAL AND SURETY, and other illustrations of the same principles will be found under GUARANTY.]

1. Implied indemnity. Where A. commits a wrong by the direction of B., the law will not imply a promise on the part of B. to indemnify him, however innocently he may have acted, unless B. was guilty of deceit. [Following Dunl. Pal. on Ag., 153; Cow. Tr., 150; and qualifying Story on Ag., § 339.] Supreme Ct., 1851, St. John o. St. John's Church, 15 Barb., 346.

2. Validity. If the act directed or agreed to be done, is known at the time to be a trespass, an express promise to indemnify would be illegal and void, but if it was not known at the time to be a trespass, the promise of indemnity is a good and valid promise. [Cowp., 343.] Supreme Ct., 1828, Stone v. Hooker, 9 Cow., 154; to the same effect, 1800, Allare v. Ouland, 2 Johns. Cas., 52; 1819, Coventry . Barton, 17 Johns., 142.

3. Past act. A party who has been guilty of a fraudulent act, in the sale of property as the agent of another, can make a valid contract with a stranger, for an indemnity against the consequences of such fraudulent act; for one may indemnify himself against the conse

4. If the makers or indorsers of a note, which has been discounted in violation of the restraining act, indemnify their indorser,e. g., by bond and warrant of attorney,-the indemnity is valid. Chancery, 1820, Parker v. Rochester, 4 Johns. Ch., 329.

5. A bond and mortgage given as concurrent securities, are not separate debts; and an agreement to indemnify the grantor against a mortgage incumbering land conveyed, is broken by not saving him harmless against the bond accompanying the mortgage. Supreme Ct., 1799, White v. De Villiers, 1 Johns. Cas., 173.

6. A bond given to an assignee in bankruptcy, reciting that proceedings to reach supposed property of the bankrupt, might be necessary, and undertaking at all times to pay costs which the assignee might incur therein, and always indemnify him against them, is an absolute obligation to pay such costs. If the proceedings have been unsuccessful, the obligors must pay the costs, although the assignee has in another way obtained a fund. The obligors must submit their claim on such fund, for the costs, to the district judge, who supervises its distribution. Supreme Ct., 1851, Waddell v. Delaplaine, 11 Barb., 284.

7. Damages and costs. On a promise of indemnity against a demand, damages and costs sustained by the indemnitee, in consequence of the suit against him, are recoverable. Supreme Ct., 1823, Mott v. Hicks, 1 Cow., 513.

8. Agents. A promise to indemnify against an act requiring assistants,-Held, to extend to damages the plaintiff sustained in indemnifying his assistants. Supreme Ct., 1828, Stone v. Hooker, 9 Cow., 154.

9. Partners. An agreement to indemnify a firm against suits brought, or to be brought against them, on account of a particular matter, extends to a suit brought against one of the partners for that matter, in a foreign country where by law it is not necessary that an action be against all the partners of a firm; and it may be presumed that his payment of the judgment was made out of the partnership funds, or charged to the firm. Ct. of Errors, 1830, Hill v. Packard, 5 Wend., 375; affirming S. C., 7 Cow., 434.

10. Indemnity to sheriff. The sheriff, to whom an attachment was delivered, was indemnified by the attaching creditor, and his deputy having seized and sold the goods, he was sued by a third party, who claimed to own them. The claimant was unsuccessful in his action, and the sheriff recovered judgment for costs against him; and the sheriff also paid | reasonable charges of his attorney in defending the action.

Held, 1. That the sheriff could recover on the bond of indemnity the amount paid by him in contesting the action. 2. That the indemnifying party was liable for the whole of that amount, although there was a surplus after sale under the process, which was applied by the sheriff to the process of other creditors, who had refused to indemnify him, and under which he had made no levy. Ct. of Appeals, 1858, Chamberlain v. Beller, 18 N. Y. (4 Smith),

115.

11. A surety in an indemnity bond given to a sheriff to induce him to make a levy and sale of property, is liable to an action of trespass, where the levy is illegal, without further proof of his interference in the subsequent levy and sale by the sheriff. Ct. of Appeals, 1857, Herring v. Hoppock, 15 N. Y. (1 Smith), 409; affirming S. C., 3 Duer, 20; 12 N. Y. Leg. Obs., 167; and see EXECUTION, 677.

12. A landlord issued a distress-warrant, directed to an officer, stipulating "fully to indemnify and save him from loss and damage in all respects;" and the officer found the tenant's goods on other than the landlord's premises, and took them away, although forbidden so to do by the tenant. Held, that the landlord was liable in trover for the damages sustained by the tenant, there being some reason to believe the officer acted with his assent. N. Y. Com. Pl., 1843, Delatush v. Renwick, 2 N. Y. Leg. Obs., 137.

13. Usury. The obligor in a bond to the maker of a note, then in the hands of an indorsee, conditioned for the payment of, and to indemnify the maker against it, cannot set up that it was usurious, as a defence to the bond. Supreme Ct., 1846, Churchill v. Hunt, 3 Den., 321.

14. Voluntary payment. Certain notes made by A. having been lost by B. the holder, A. paid them on receiving from B. a bond of indemnity. Afterwards B. refused to settle a demand made by A., unless A. consented to VOL. III.-21

|

his deducting and retaining an amount which B. claimed was still due on the notes, and A. voluntarily did so and took B.'s receipt. Held, that he could not recover on the bond. Supreme Ct., 1802, Bazen v. Roget, 3 Johns. Cas., 87.

15. Judgment against indemnitee binds indemnitor. Where bail are indemnified, and on being sued, give immediate notice to their indemnitor, he should assume the defence, and whether he does or not the recovery is conclusive against him. [1 Johns., 517; 6 Id., 158; 7 Id., 168; 4 Cow., 340.] Supreme Ct., 1884, Beers v. Pinney, 12 Wend., 309.

16. If the indemnitors, being requested to defend a suit, refused or omitted, the judgment is conclusive upon them [1 Johns., 517; 6 Id., 158; 7 Id., 168], and they cannot litigate the question, whether the costs which were recovered against the indemnitee were extravagant or not. Supreme Ct., 1825, Trustees of Newburgh v. Galatian, 4 Cow., 340.

17. A surety for a deputy-sheriff became surety for the sheriff, on the sheriff's promise to indemnify him against his being surety for the deputies. Subsequently, with the sheriff's knowledge, he defended actions brought against the sheriff for the deputy's misconduct. Held, under the circumstances of the case, that the sheriff was liable to him on the promise of indemnity. Supreme Ct., 1826, Hale v. Andrus, 6 Cow., 225.

18. A judgment by default, if without collusion, is within the condition of a bond to save the obligee harmless from what he might be obliged to pay, after due proceedings at law had against him, and adjudged and decreed. Supreme Ct., 1803, Given v. Driggs, 1 Cai., 450.

19. - by confession. Where one was indemnified in a trespass, in which he employed agents, and such agents were severally sued by the person trespassed upon, the original promisor having notice, and one of the agents, after trial and recovery against another, gave a cognovit in his own suit, and paid it, and his promisor paid him,-Held, the agent ap pearing to have acted in good faith, that the original promisee might recover the amount of what he thus paid. [4 Mass., 349.] Supreme Ct., 1828, Stone . Hooker, 9 Cow., 154.

20. Where parties stipulate to pay, or save the plaintiffs harmless, a verdict recov