
    Holbrook, Bowman & Co. v. Alonzo Pearce, Charles S. Dwinnell and Carlos Bancroft.
    A certificate of jail commmissioners, setting forth an execution for a sum different from that on which the debtor is committed, will not authorize his discharge, although the proper oath may have been administered to him.
    This was an action of debt on jail bond, executed upon the commitment of the defendants, Pearce and Dwinnell, on an execution for the sum of $375.72 damages. The defendants pleaded two pleas in bar, in the first of which, they alleged that the commissioners of jail delivery for the county of Washington, administered to the debtors, Pearce and Dwinnell, the oath by law provided to be administered to poor debtors, and delivered to them certificates, in due form of law, which were, by them, delivered to the jailor, before their departure from the liberties, &c. In the second plea, the defendants alleged the administration to Pearce and Dwinnell of the oath by law provided, and the delivery to them of certificates, which defendants set forth in their plea, and which described the execution on which Pearce and Dwinnell had been committed, as an execution for the sum of $325.72 damages. The first plea was traversed. To the second there wag a demurrer.
    The court rendered judgment that the second plea in bar was sufficient, and that defendants recover their costs ; from which decision the defendants excepted.
    After argument by J. A. Wing for plaintiff, and L. B. Peck for defendant, the opinion of the court was delivered by
   Royce, J.

This case comes before the court upon demurrer to the second plea in bar, which sets forth the whole proceedings before the board of jail commissioners, including a íiterai transcript of the certificates issued by them to the defendants, Pearce and Dwinnell. It is made a question in the argument, whether it should be understood, upon a just construction of the whole plea, that the oath actually administered to the debtors Was the oath given in the present statute, or the one prescribed by the repealed law : — and if the latter, whether that oath was a substantial and sufficient compliance with the existing law, so as to entitle ihe debtors to their certificates of discharge. But since there is another satisfactory ground upon which to rest our decision, I shall pass this part of the case without expressing an opinion.

If it is conceded that a sufficient oath was duly administered, that alone did not effect the legal discharge of the debtors. It was also necesaary, before they could be authorized to depart, that proper certificates should be given, and delivered over to them and the jailor, especially to the latter. Staniford v. Barry, Bray. R. 200; Haight v. Richards, 3 Vt. R. 77. In this respect the requirements of the old and new law are the same. And when these certificates come to be pleaded, they must appear to apply, with requisite certainty, to the execution mentioned in the declaration. Otherwise, the plea can be no answer to the.action. Now the declaration in this instance sets forth a judgment and execution for $375.72 damages, whereas, the certificates describe an execution for $325.72 damages. This is a difference which apparently destroys the' identity of the execution, and must be fatal to the plea, as well upon the ground of repugnancy and variance, as on the ground that no certificates appear to have been granted, which were applicable to the demand sought to be recovered in this action. Sherwin v. Bliss, 4 Vt. R. 96; Avery v. Lewis, 10 Vt. R. 332.

The judgment of the county court is accordingly reversed, and the plea is adjudged insufficient. But as there are other defences undisposed of in that court, the cause is again sent there, to be proceeded wfith in reference to those defences.  