Samuel Udall, Appellee, against William Rice, Sheriff of Windsor County, Appellant, 1 Tyl. 213

The Chief Judge delivered the opinion of the Court. It is the opinion of the Court, that the facts próferted in the notice under the general issue cannot be admitted in evidence to the Jury.

The sheriff is compelled by the statute to admit prisoners committed upon execution founded on a proper action of debt, covenant, contract or promise, to the liberties of the gaol yard, taking a bond with sufficient surety or sureties, being freeholders resident within the State, with certain conditions prescribed in the form inserted in the statute, the principal of which is, that the prisoner shall not depart the liberties of the gaol yard, unless lawfully discharged.

If an escape is made, the statute restricts the creditor from bringiiig any suit against the sheriff until he hath applied to him for the assignment of such bond. If the sheriff assign the bond to the creditor, he must institute a suit upon it against the bail. If bail proves sufficient to respond the judgment, no action will lie against the sheriff. None is necessary. But if insufficient, the action then lies against the sheriff.

And what more ample proof of the utter insufficiency of such bail can be expected than what is found in the return of non est by the same sheriff made on the execution against the bail ? To say, that at the time of taking the bail, the bailor was sufficient, and to make his being a freeholder resident within the State at the time of the execution of the bond, a criterion of his sufficiency, ‘would be to evade the statute. The sheriff must take such bail as is not merely sufficient at the time of executing the bond, but such as will be sufficient to respond the judgment.

Even if the bail possessed ample freehold, subject to the creditor’s execution, landed estate might not' satisfy the creditor. When he imprisoned the original debtor, nothing but money would satisfy the creditor if he insisted upon it. He might perhaps have satisfied his original execution by levying it upon lands. He preferred imprisoning the debtor Emmons in order to obtain the money, and he has an equal right to insist upon money from the bail. The meaning of the statute is plain.

The sheriff' shall at his own risk take such bail for prisoners admitted to the liberties of the gaol yard, as in case of escape shall be sufficient to satisfy a judgment in favour of the creditor in money. Charles Marsh, for plaintiff. Nathaniel Chipnian and Titus Hutchinson, for defendant. The cause went to the Jury merely for the assessment of damages, which the Court directed the Jury to assess upon the damages and costs recovered by the plaintiff in his former suit against the bail, together with the officer’s fees for the commitment of the bailor upon the alias execution, with simple interest.