Keith v. Ware

delivered the opinion of the Court. — The first and second pleas in bar are defective. They exhibit no facts, which evince, that any cause of action accrued, in favor of Dáy and Williams against the plaintiff, more than six years before the commencement of this action. If the sheriff had taken no bond of the prisoner, the statute would run from the time of the escape. *178w^ere sheriff takes a legal bond of the prisoner, the statute is express, that no action li'es against the sheriff for an es-caPeJ or other cause named in the bond, until demand made of the sheriff for the, bond : nor then, if the sheriff assign the bond upon such demand. In such case, all right of action against the sheriff is suspended, until the creditor has pursued his action upon the bond to final judgment, and failed to recover, or failed to collect, through some neglect or fault of the sheriff taking the bond. Our statute of limitation's creates no bar to an action upon a bond : and, if the defendants would urge, as they do, that no action lies upon a prison bond, in favor of the sheriff, unless he has paid the creditor, or the creditor’s claim is discharged,and therefore, that if the creditor’s claim is barred, that discharges the bond, he must show that which bars the creditor of his remedy against the sheriff. For this purpose each of these first and second pleas requires a further averment, that the said Day and Williams on,Sic. demanded of the plaintiff the bond in question,which he refused or neglected to deliver, and that more that six years have elapsed since said demand was made. Without such averment, the defence attempted is not made out. If such a defence can prevail at all, it must be upon the ground that the creditors’ claim is satisfied, or in. some way barred; so that, if the sheriff should now collect, he might pocket the money. There probably has been no de~ mandmade, or it would have been ayerred. Were it averred, it might be presumed from a state of facts which might exist, and had existed for a long time. Whether any such exist in this, or any other case, where the prisoners have relied upon acts of suspension, is unknown to the court.

This second plea in bar avers that the sheriff, the plaintiff, has not been damnified, treating the prison bonds, taken pursuant to the statute., as mere bonds of indemnity. Such, also, is the-whole force of the third plea in bar. It is only sub modo, that*they are bonds pf indemnity. The prisoner is to indemnify the sheriff, by faithfully remaining within the liberties of the prison till lawfully discharged, without committing any escape- before such discharge, or doing any act, by which the sheriff should be damnified in consequence of admitting him to the liberties of said prison ; and, further, is at all times to indemnify the sheriff, and save him harmless in the premises. The whole regulation of the statute is intended to give the creditor an action upon the bond, when assigned, for the recovery and collection of his debt. If the bond is not assigned, and the suit is brought in the name of the sheriff, he stands as trustee for the creditor. If he refuse to assign the *179feoadj'and sues it in his own name, his liability to the creditor for the amount of his debt and cost,with interest, furnishes a sufficient reason why he should recover the same amomit upon the bond in trust for the creditor, and to indemnify himself, though he may not have paid the creditor. His liability to the creditor arises from his admitting the prisoner to the liberties, and his having departed therefrom before the debt was paid to the creditor} and it would be unreasonable to delay the sheriff of his remedy upon the bond, urjtil he had in fact paid the debt. Under all the circumstances in which fh,e sheriff is placed, by following the directions of the statute, he must be saved harmless from any liability to the creditor, or he must have a right to recover upon the bond after it is broken. Hence this third plea in bar is bad. It only avers that the plaintiff has not been damnified; whereas, it should also show the facts, which render it certain, that he never will be damnified,if he interposes a proper defence to any ¡action that may be brought against him.

The fourth plea in bar presents the same question, decided by this court,fin the case of Ward vs. Barnard, cited from Jlikens* * Reports. The creditors had pursued their legal remedy, and had obtained the regular process of law for imprisoning their debtor, till he should pay the debt, or be discharged in the mode pointed out by law for poor debtors. By virtue of this process the debtor was in prison ; and he procured a special act of the legislature, which purported to give him the liberty to go at large, and saying that the very going at large, and departing from the liberties, against which he was bound by his bond, should be deemed no breach of the bond. This statute was framed to" operate directly upon the rights of the creditors, and take away their right to imprison their debtor to enforce payment of their debt. We, in that case, decided, as we now decide, that such a statute is unconstitutional and void. If valid, it would render an execution abortive. It might as well declare the j,udgmetit void, as prohibit the execution <of that judgment. It might as well declare the note void as either. The legislature have no such power, and such statutes have no such force. The pleas in bar are all insufficient.

With regard to the rule of damages in such a case, or the question of chancering the bond — this question was much litigated, and twice argued in FranJdm County, in the case, I believe, of Scotts vs. Weeics, when the court decided, and that upon the authority of a long practice in this state, that, in a suit against a sheriff for taking insufficient - bonds of a prisoner committed on exc-.eution, the creditor must recover his debt. If the sheriff would *180S^0W die circumstances of the prisoner to mitigate the damages* under the statute, one of the circumstances to be weighed is, that he was able to procure bail, and the sheriff might as well have re-ffdred g°°d bail, as received that which was not good.

But the signers of this bond present no mitigating circumstance, but what might as well be extended to an entire defence, as to carry the sum below the debt of the creditors.

Let judgment be entered for the whole sum of the debt.

Before judgment was entered, the defendants had leave, on motion, to withdraw these pleadings and plead anew, on terms, that were complied with,.