Freeman v. Davis

Where a prisoner in execution for debt, having given bond for the liberty cf the yard, was in the night-time in a room upon the ground floor of a house owned by the county, within the limits of the yard, and kept by the jailer, the chambers only of which above the rooms on the ground floor had been used by debtors having the liberty of the yard, he was held to have committed an escape. A bond for the liberty of the yard, the penalty of which was less than double the sum for which the prisoner was committed, was not held to be therefore void ; but to be subject to the equitable powe,s of the Court, who rendered judgment upon it for the amount for which the prisoner was committed, with interest and costs.

This was an action of debt on a bond executed by the defendants, and dated Sept. 29th, 1808. Davis, being a prisoner for debt, duly committed to the jail in Concord, in this county, at the suit of the plaintiff, executed the bond, with the other defendants as his sureties, to obtain the liberty of the yard ; the condition of the bond being conformable to the statute of 1784, c. 41. The defendants pleaded that Davis continued a true prisoner, without committing any escape ; on which issue was joined. This issue was tried before the chief justice, at the sittings here, after the last October term, and a verdict found thereon for the plaintiff, subject to the opinion of the Court upon the chief justice’s report. [ * 2<bl ] *The facts given in evidence or admitted at the trial were, that the said jail had been duly recognized by the Court of Sessions, as a public county jail; that the county were also the proprietors in fee simple of a dwelling-house near the jail, the whole of which house was within the limits of the yard belonging to the jail; that the said house was a licensed tavern, kept by the jail-keeper, and that the chambers above the ground floor of the said house have, ever since the recognition aforesaid, been used for lodging-rooms by debtors in execution entitled to the liberty of the yard; but that the defendant, since the execution of the said bond, and before the commencement of this action, had frequently, in the night-time, been in the bar-room of the said tavern on the ground floor thereof, amusing himself with the company that was there; and there was no evidence that the said bar-room had been used by debtors having the liberty of the yard, as an apartment belonging to the said jail, for a chamber or lodging-room. Upon these facts the chief justice directed the jury, that in law the plaintiff had maintained his issue. For this direction the defendants moved for a new trial. The judge added to his report, that if a new trial should not be granted, two other questions were also reserved. One was, whether the bond was not void, the penalty not being double the amount for which the defendant Davis was imprisoned on the execution ; the penalty being 62 dollars 84 cents only ; and the judgment on which the execution in this case was sued out being for 40 dollars 60 cents damage, and 6 dollars 50 cents costs. The other question was whether, if the bond were not void, judgment in this action ought to be rendered for the penalty, or only for the sum due on the execution.