
    Jeremiah Whitehead versus Benjamin F. Varnum.
    If a debtor imprisoned on execution is admitted to the liberties of the yard upon giving a bond with a surety approved by only one justice of the peace, the gaoler is liable for an escape $ for the bond is not conformable to the statutes of 1784, c. 41, § 8 and 1811 c. 167, § 1, unless the surely is approved by the creditor or by two justices of the peace.
    In an action of debt for an escape, it was held, that the plaintiff was entitled to interest from the date of the writ, and not from the time of the escape.
    Upon a case stated it appeared that this was an action of debt against the sheriff of Middlesex, for the alleged escape of one Loring, who had been committed on execution. Loring was admitted to the liberty of the yard, upon giving bond to the defendant’s deputy, the gaoler, conformably to the statutes, except that the surety in the bond was not approved by the plaintiff, and approved by one only, instead of two justices of the peace quorum unus. If upon these facts the plaintiff could sustain his action, the defendant was to be defaulted, and judgment was to be rendered for such sum as the Court should direct; otherwise the plaintiff was to be nonsuit.
    The action was commenced before the enactment of St. 1833, c. 134, abolishing the action of debt for an escape.
    Wilde, for the plaintiff, insisted, that to bring the bond within the statutes, the surety should have been approved either by the creditor, or by two justices of the peace. St. 1784, c. 41, § 8; 1811, c. 167, § 1.
    Buttrick, contra,
    argued that the statute provision for an approval of the surety, was not designed for the benefit of the creditor, but to protect the debtor from oppression by the gaoler; and that if the gaoler was willing to accept the bond offered, no approval of the surety was necessary. Bartlett v. Willis, 3 Mass. R. 86; Cargill v. Taylor, 10 Mass. R. 208 Anc. Chart. 565; 2 Inst. 386; Com. Dig. Parliament, R 16. The clause in St. 1784, c. 41, that two justices of the peace “ shall be called' to approve,” &c., is impliedly repealed by St. 1811, c. 85. Ellis v. Paige, 1 Pick. 43.
   Putnam J.

delivered the opinion of the Court. The defendant is answerable in this action, unless his deputy took a bond conformable to the statute, when he permitted the debtor, who was imprisoned, to have the liberty of the yard.

The St. 1784, c. 41, § 8, provides “ that such prisoner shall give bond with sufficient surety or sureties, in double the sum for which he is imprisoned, conditioned, that from the time of executing such bond, he will continue a true prisoner in the custody of the gaoler, and within the limits of the prison, until he shall be lawfully discharged, without committing any manner of escape ; and in order to prevent any oppression under pretence of the surety or sureties being insufficient, two disinterested justices of the peace, quorum unus, shall be called to approve of the surety or sureties, and the same being approved by them, shall be deemed sufficient.”

In the case at bar, the bond has been approved by only one justice of the peace quorum unus. The St. 1811, c. 85, leaves the statute of 1784, c. 41, in force, but makes it lawful for the prisoner to enter upon any estate within the exterior bounds of the yard, without breach of the condition. The provision in. the statute first cited, remained unaffected by the other statute cited.

The St. 1811, c. 167, provides for the liberty of the yard, if the debtor shall give bond, &c., to be approved by the creditor or two justices quorum unus.

In the case at bar there has not been any approval of the bond by the creditor.

The result is, that before the' statute last cited, the law required the bond to be approved by two justices quorum unus, and afterwards, that there should be either such an approval or the consent of the creditor himself.

It is very clear, therefore, that the bond was not conformable to the law, and that the liberty given to the prisoner without such bond, is an escape.

This action is debt for the jscape, and the measure of damages, is the debt and costs.

According to the agreement of the parties, therefore, the defendant is to be defaulted.

Buttrick objected to the allowance of any interest. Rawson v. Dole, 2 Johns. R. 454.

Per Curiam.

The plaintiff is entitled to interest, not from the time of the escape, but from the date of the writ.

On the part of Shattuck it was said, that the relation of landlord and tenant does not exist in this case. The parties are adverse claimants of the" same property, and the real question between them is the question of title ; which cannot be tried in an action of assumpsit. 3 Stark. Ev. 1513; Codman v. Jenkins, 14 Mass. R. 96; Hildreth v. Thompson, 16 Mass. R. 191; Allen v. Thayer, 17 Mass. R. 299; Henwood v. Cheeseman, 3 Serg. & Rawle, 500 Smith v. Stewart, 6 Johns. R. 46. Nor will assumpsit lie against one man for use and occupation by another, unless such occupation was permitted by the plaintiff upon the defendant’s request. Naish v. Tatlock, 2 H. Bl. 323.  