
    Commonwealth versus Rufus Waite.
    Where, upon the commitment of a debtor on an execution then in force, a copy was left with the gaoler, from which the execution seemed not to be in force, and upon a habeas corpus the gaoler returned this copy as the cause of detention, but immediately afterwards a correct copy was left with him and he then returned (ms ¿as copy, the Court refused to discharge the debtor.
    Upon such commitment it is necessary that a copy of the execution be left with the gaoler. Semble.
    Waite was committed to the gaol in this county in July, 1824, on an execution bearing date of June 1824, but the copy left with the gaoler bore date of June 1823. Upon a habeas corpus issued on the 5th of October the gaoler returned this incorrect copy as the cause of detention. The next day, before the Court had made any order upon the return, a correct copy was left with him, and his counsel were allowed time to advise what course to pursue ; and the parties agreed, with the consent of the Court, to have a hearing at the term to be held at Taunton. On the 12th of October the gaoler made a return, that Waite was held by virtue of the original execution and of the true copy.
    At the hearing at Taunton Merrick contended, that the gaoler could not make the new return, for as he had returned the facts truly as they existed, when he made his first return, he had made no mistake and there was no occasion to amend. The officer who committed Waite ought to have left a correct copy of the execution with the gaoler in July. He could not leave one in October, which was after the return day, the execution being then functus officio. The debtoi has a right then to say that he was committed on a void process, and not on the one which is in the clerk’s office, and he is entitled to be discharged.
    
      M. Morton and Sibley, contra, contended that in civil cases it was not necessary, although convenient and customary, to leave with the gaoler a copy of the process on which a commitment is made. Randall v. Bridge, 2 Mass. R. 553. It is not required by St. 1784, c. 41, § 6, the only statute which speaks of copies being left; and the necessity of doing it is not to be inferred from St. 1784, c. 72, § 6, which provides, that " if any officer in whose custody any prisoner shall be, shall not, within six hours after demand made, deliver such prisoner a true copy of the warrant or process &c., such officer shall forfeit &c. fifty pounds,” for the officer may within six hours procure a copy either from the officer who made the commitment, or from the clerk of the court. Randall v. Bridge, ubi supra. The original execution being valid, the legality of the commitment is not affected by the leaving of an erroneous copy. Rex v. Fowler, 1 Salk. 350. The copy left was amendable; Bissell v. Kip, 5 Johns. R. 89 ; Williams v. Rogers, ibid. 163 ; Morrell v. Waggoner, ibid. 233 ; and so likewise was the return on the habeas corpus. Warman's case, 2 W. Bl. 1204 ; Anon. 1 Mod. 103 ; Mackie v. Smith, 4 Taunt. 322 ; Shaw v. Maxwell, 6 T. R. 450 ; Green v. Rennett, 1 T. R. 782 ; Stevenson v. Danvers, 2 Bos. & Pul. 109. If this return could not be amended, it must be on the ground that it had been filed and become a matter of record, but there are cases where amendments have been allowed after several years. Hutchinson v. Crossen, 10 Mass. R. 251 ; Welles v. Battelle, 11 Mass. R. 477 ; Atkins v. Sawyer, 1 Pick. 351 ; Adams v. Robinson, ibid. 461 ; Campbell v. Stiles, 9 Mass. R. 217 ; Phelps v. Ball, 1 Johns. Cas. 31 ; Schoonmaker v. Trans, 2 Caines’s R. 110 ; Day v. Wilber, ibid. 139. It was said that the respondent made no mistake in his first return. We say that he did, and that he should have returned that he held the prisoner by virtue of the execution in the clerk’s office, rather than by virtue of the copy left with himself. The return as now amended will justify the detention, and the Court will not on this process inquire whether all the previous proceedings have been regular.
    
      In Connecticut a copy of the execution is required by statute to be left with the gaoler, (2 Backus’s Sheriff, 233,) and the case of Towsey v. Dimon, 1 Back. Sheriff, 249, if it is an authority, is decisive of the present case.
    
      
      
        Vid. Watson v. Clarke, Carth. 75 ; Harrison v. Potter, 2 Barnes, 25 ; Ex varte Eden, 2 Maule & Sel. 226.
    
   Parker C. J.

said, in substance, that the Court had come to the result, that the prisoner be not discharged. If the copy of the execution annexed to the gaoler’s first return were a true copy, he ought to be set at liberty; but it appears by the additional return, that he was committed on an execution in full force at the time. It has been contended to be essential, that a copy of the execution should be left with the gaoler upon the commitment. Though this is not required by any statute, which is a little surprising, yet as the habeas corpus act (St. 1784, c. 72, § 6) seems to take it for granted, and the practice has been to leave such copy, we are inclined to think it is necessary. We do not however decide the point. But although the statute imposes a penalty on the officer for refusing to furnish the prisoner with a copy of the process on which he stands committed, it does ’ not follow that the commitment will be unlawful if no copy has been left with such officer. The commitment must be lawful in the beginning, since the officer is allowed six hours after demand made to furnish a copy. The question then is, whether, if the commitment was originally lawful, a mistake in the copy left shall render the detention unlawful. If an incorrect copy is left on the day of the commitment, we should think a true copy might be left the 'next day or afterwards, if no injury is thereby done to the debtor. In the present case, where it appears that the debtor was lawfully committed originally, and the provision of law requiring a true copy of the execution to be left with the gaoler, if there be such provision, has now been complied with ; where the creditor has pursued the law of the land and got his debtor imprisoned, and where the debtor may obtain his liberty by paying the debt or by taking the debtor’s oath ; we think it would be going too far to say, that for this mere slip of the pen in the first copy of the execution the debtor is entitled to be discharged.  