pronounced the opinion of the Court. — The only question in this case is, whether the defendant, by the recital in the bond, has admitted the record of the judgement contained in such recital. The form, or mode of recital, adopted in the bond, commencing with a “whereas,” Sic., is, probably, as binding -upon the defendant, as any other mode of recital. It was unquestionably necessary for the plaintiff to set out the condition of the bond ; because it is an official bond, and one which the sheriff would wish to assign to the creditors, pursuant to the statute, and save himself from a suit for the escape ; and it would answer him no such purpose, nor be assignable at all at law, unless taken con-formably to the requisitions of the statute : and the statute has given a form, which has been followed in the present case, and which requires the recital of the judgement, execution, commitment fees, &c. _ It tvas equally necessary to allege, by direct averment, the recovery of the judgement, in order to show the imprisonment • legal. It would seem to involve an absurdity, that the plaintiff should be obliged to aver a material fact, as a substantive ground *190of recovery, which the defendant is not at liberty to deny. The Court are not prepared to say, that any form of recital, directed by the statute in such a case, would amount to an admission of the record, so as to estop the defendant from putting the plaintiff upon proof of the record. The adoption of such a doctrine might often operate with great severity upon prisoners. The statute has prescribed the form of the condition of these prison bonds; and the prisoner, whether legally or illegally imprisoned, must either execute such a bond, or seek relief in some more expenssive, or inconvenient mode. Suppose the execution has issued for a wrong sum in damages and cost; and another issues for the true sum. How is the debtor to avoid either? If he obtains the liberties of the prison by giving a bond in each case, that would acknowledge each to be correct, upon this principle. Again, suppose the judgement to have been rendered by a court having no jurisdiction. In such a case, a person imprisoned upon the execution, which has no judgement to support it, is unlawfully imprisoned, and'is in duress. And if in such a case, he cannot, for the purpose of extricating himself, adopt a remedy, which the statute has prescribed, without acknowledging the validity of the claim, it would seem that the law has furnished a summary method of purging the unlawfulness of false imprisonment. Besides, the bond as clearly admits the official authority of the sheriff, as the existence and validity of the record ; and cannot his authority be denied ? But the Court do not consider the recital asamount-ing in fact to an admission of the record. It is tobe regarded merely as a description of the execution ; as an acknowledgement, merely, that the debtor is in prison upon an execution of such a description, and purporting to have issued upon a judgement rendered at such a time, and before such a court, &c. If the defendant chooses to place his whole defence on the ground of there being no judgement to warrant the execution and the imprisonment, this imposes no hardship upon the plaintiff.'- If there is such a record, he can easily produce a transcript of it. If there is no such record, he ought to fail in his suit. Let judgement be entered, that the replication is insufficient.

Upon a suggestion, that different pleadings, would show merits in the action, the plaintiff had leave to withdraw his replication and reply anew, on payment of costs, &c.