Barber v. Chase

delivered the opinion of the Court. — By the act of 1823, it is provided, that every _ person who shall be imprisoned on an execution, issued on a judgement, recovered in an action of trespass on the case, or in any of the other actions therein specified, if poor, shall be entitled to take the oath prescribed in the act relating to jails and jailers and for the relief of persons imprisoned therein, and be discharged from his imprisonment, unless the court, at the time of rendering the judgement, shall adjudge that the cause of action accrued from the wilful and malicious act or neglect of such person, and a minute thereof be inserted in, or endorsed and certified upon, the execution.—(Comp. Stat. p. 240, s. 1.)

The plea in bar, in the case before us, sets forth the proceedings, by which the prisoner, for whose escape the defendant is sued, was discharged from imprisonment; and they appear to be in all respects conformable to the provisions of the act relating to jails and jailers and for the relief of persons imprisoned therein. The matter contained in the plea, therefore, independent of the special act recited in it, shews a regular discharge of the prisoner, and is a sufficient defence to the action, unless it appears that there was an adjudication, that the cause of action accrued from the wilful and malicious act or neglect of the prisoner, and that a minute of the adjudication was inserted in, or endorsed and certified upon, the execution. Though the declaration, after stating the judgement, and the nature of the action in which it was rendered, alleges that it was adjudged by the court, at the time of rendering the judgement, that the cause of action accrued from the wilful and malicious act of the prisoner, there is no averment, that a minute of the adjudication was inserted in,or endorsed and certified upon, the execution ; nor is this deficiency supplied by any statement *344or admission of the fact in the defendant’s plea. If the expfes-sions, “ notwithstanding the certificate made on the execution,” which are contained in the special act recited in the plea, could be regarded as an affirmation or admission in"the plea of there being a certificate on the execution, they do not state or shew, what is certainly necessary, that it contained a minute of the adjudication,that the cause of action accrued from the wilful and malicious act of the prisoner. This ought to appear with certainty ; and it not appearing from any part of the pleadings, the jail commissioners had jurisdiction and authority to admit the prisoner to the poor debtor’s oath, and discharge him from imprisonment, under the general laws. The defendant’s plea, therefore, without the aid of the special act recited in it, is a sufficient bar to the plain-tifi’s action ; and as the validity of that act does not necessarily come in question, it is unnecessary to give any opinion upon it.

Judgement reversed.