§ 703. But an agreement with a public officer to compensate him for doing an act which it is his legal duty to do without compensation, is void; because every officer is bound to do his duty, conformably to law.10 Thus, a contract with a branch pilot of New York to assist a vessel in distress, for a certain extraordinary compensation, was held to be void; because assistance in such cases is, by statute, imposed upon the pilot as a duty; and such a contract might lead to oppression.1 But if a portion of the seamen desert in a foreign port, so that it is unsafe to go to sea with the diminished crew, a contract by the master to pay the remaining hands a specific sum in addition to their wages, is valid.2 Still, in general, the performance of a legal duty furnishes no consideration for a promise 3 to pay for such service. So, also, demanding and receiving more than the fees prescribed by law, for official duties, is indictable, and the excess may be recovered in an action of assumpsit for money had and received.4 So, also, a promise of reward to a constable for arresting a criminal under a warrant which he is legally bound to execute, is void.5 And, in general, an agreement which interferes with the course of justice is void; as an agreement contrary to the policy of an act of the legislature,6 or a promise to conduct proceedings in bankruptcy so as to injure the debtor's credit as little as possible.7 The same rule applies to a promise to pay extra compensation to a witness to attend upon court;8 to pay sailors extra wages for doing only their duty;9 and, generally, a promise to pay a person for doing any act which such person is already bound to do.10 The plain ground upon which this rule is founded, is, that the contract is extortionate.1 But a note given to a jailer, by a person in jail, for the payment of a fine and costs, is not void as against public policy.2
1 Corley v. Williams, 1 Bailey, 588; Vincent v. Groom, 1 Yerg. 430; Jones v. Rice, 18 Pick. 440.
2 See Johnson v. Ogilby, 3 P. Wms. 277; Drage v. Ibberson, 2 Esp. 643; Coppock v. Bower, 4 M. & W. 361.
3 See Fay v. Oatley, 6 Wis. 55.
4 Jones v. Rice, 18 Pick. 440. 5 9 Q. B. 371.
6 Pilkington v. Green, 2 Bos. & Pul. 151; Sugars v. Brinkworth, 4 Camp. 44; Stonington v. Powers, 37 Conn. 439 (1870).
7 Churchill v. Perkins, 5 Mass. 542; Brett v. Close, 16 East, 293.
8 Johnson v. Ogilby, 3 P. Wms. 279.
9 Weeks v. Lippencott, 42 Penn. St. 474 (1862).
10 Pool v. Boston, 5 Cush. 219; Callagan v. Hallett, 1 Caines, 104; Mitchell v. Vance, 5 Monr. 529; Bac. Abr. Assumpsit, E.; Smith v. Whildin, 10 Barr, 39.
1 Callagan v. Hallett, 1 Caines, 104. See also County Commissioners v. Jones, Breese, 103.
2 Hartley v. Ponsonby, 7 El. & B. 872 (1857), commenting on Stilk v. Myrick, 2 Camp. 317. But see Harris v. Carter, 3 El. & B. 559; The Araminta, 1 Spinks, 224.
3 Tilden v. Mayor of New York, 56 Barb. 340 (1870).
4 Woodgate v. Knatchbull, 2 T. R. 148; Jons v. Perchard, 2 Esp. 507; Bridge v. Cage, Cro. Jac. 103; Badow v. Salter, W. Jones, 65; s. c. Latch, 54; Dew v. Parsons, 2 B. & Al. 562.
6 Smith v. Whildin, 10 Barr, 39; Pool v. Boston, 5 Cush. 219; Stamper v. Temple, 6 Humph. 113; Gillmore v. Lewis, 12 Ohio, 281; Rea v. Smith, 2 Handy, 193.
6 Elliott v. Richardson, Law R. 5 C. P. 744 (1870).
7 Bracewell v. Williams, Law R. 2 C. P. 196 (1866).
8 Willis v. Peckham, 1 Br. & B. 515; Collins v. Godefroy, 1 B. & Ad. 950; Sweany v. Hunter, 1 Murphey, 181.
9 Stilk v. Myrick, 2 Camp. 317; Harris v. Watson, Peake, 72.
10 Crowhurst v. Laverack, 8 Exch. 208; 16 Eng. Law & Eq. 498, and Bennett's note.
§ 704. All contracts to indemnify officers against prospective non-feasance, malfeasance, or misfeasance of their official duties, are void.3 Thus, the rule applies in cases of an agreement to allow a prisoner to escape;4 or to indemnify the officer against such escape, if he will permit it;5 or to deliver an execution debtor to an officer at a future day, in consideration of his forbearing to arrest the debtor, when in his presence and power.6 But an agreement by creditors to indemnify a sheriff for not serving an execution, which they intended to impeach as fraudulent, and for the purpose of trying that question, is valid.7
§ 705. If, however, the act, which forms the consideration of a promise, be supposed at the time to be legal, though it afterwards turn out not to be so, a promise of indemnity therefor would be good and binding. Thus, where Harcot brought one Battersey to an inn, and affirmed to the host that he arrested Battersey by virtue of a commission of rebellion, and requested the host to keep him safely over night, and promised to save him harmless; the promise was held to be binding, though the arrest and imprisonment were illegal.8 So, where the commissioner and overseer of highways ordered the plaintiff to pull down a turnpike gate, supposing it to be a nuisance, and promised "to bear him out," the promise was held to be binding.1 So, also, a promise to indemnify against an act which turns out to be a trespass, is good, unless the promisee knew the act contemplated to be a trespass.2
1 4 Black. Comm. 141.
2 St. Albans Bank v. Dillon, 30 Vt. 122 (1857).
3 Doty v. Wilson, 14 Johns. 381; Given v. Driggs, 1 Caines, 450; Kneeland v. Rogers, 2 Hall, 579; Hodsdon v. Wilkins, 7 Greenl. 113; Ayer v. Hutchins, 4 Mass. 370; Churchill v. Perkins, 5 Mass. 541; Devlin v. Brady, 36 K Y. 531 (1867).
4 Featherston v. Hutchinson, Cro. Eliz. 199; s. c. 3 Leon. 208; Blith-man v. Martin, 2 Bulst. 213; s. C. Godb. 250; Kenworthy v. Stringer, 27 Ind. 498 (1867).
5 Ayer v. Hutchins, 4 Mass. 370; Dive v. Maningham, Plowd. 60; Martyn v. Blithman, Yelv. 197; Hodsdon v. Wilkins, 7 Greenl. 113. Money paid to a jailer, to procure the release of a prisoner on criminal process, without giving bail, is illegally paid, and cannot be recovered back. Smart v. Cason, 50111. 195 (1869).