
    Erastus D. Hubbell vs. Samuel Dodge.
    Franklin,
    
      January, 1832.
    In an action on a bond of cognisance, entered Into at the time of suing out a writ of audita querela, conditioned^/br the redelivery of the execution debtor to the custody of the officer, and the payment of all intervening damages, and, in default thereof the payment of the debt damages and costs, — it was held that the recognisor, not having fulfilled the conditions of his recognisance, \vas liable for the whole debtánd •costs.
    This was a scire facias brought on a recognisance entered into by Dodge, the defendant, before one of the assistant judges of the county court, conditioned for the prosecution of a writ of audita ■querela, in favor of one Mark Dodge against the plaintiff, and for the redelivery of the body of said Mark to the custody of the jailer, (if the same should be awarded,) in whose custody he was :at the time of entering into the recognisance, and also for the payment of intervening damages ; and in default thereof, the pay*merit of the debt, damages and cost.
    It appeared that Mark Dodge had beer, committed to jail by virtue of an execution in favor of the plaintiff; that he after-wards prayed out a writ of audita querela for the purpose of setting aside the execution for certain causes therein mentioned ; that on that occasion the defendant entered into the recognisance in question; and that thereupon the said Mark Was discharged 'from imprisonment. The record of the case showed that he did taot prosecute Ins writ of audita querela to effect, that judgement 'was rendered for the plaintiff to recover of said Mark ‡3,80 damages, and ‡34,41 cost, and that the court awarded the redelivery of the body of said Mark to the custody of the jailer who had had him in keeping. The intervening damages and cost had not been paid, nor had the defendant redelivered the said Mark to the jailer. The only question for the consideration of the court wa$ the measure of damages.
    ■It was contended, on the part of the Plaintiff, that the only ■measure of damages was the amount of the execution on which :the said Mark was committed,the officer’s fees thereon, the interest on the same, the amount of intervening damages, and cost in the ■audita querela ; for tha't by virtue of the writ of audita querela the body of the said Mark was liberated, and it was notin the power of the plaintiff in any way, or by any process of law, to retake the body or property of the said Mark, or in any way to enforce the collection of the Execution on which he was committed ; that he could not take out an alias execution-, or sue out a scire facias to revive said judgement; but that, on the other hand, it Was perfectly in the power of the defendant, if he wished to avoid the payment cf the execution on which the said Mark was committed, to have taken a .copy of the record of the judgement, rendered by the Supreme Court in the audita querela, awarding the redelivery of ■the body of the said Mark, and have committed him to the keeper of the jail; and this would have exonerated him front that condition in his recognizance ; that if the plaintiff would have a remedy predicated upon that judgement, it would be wholly unreasonable that he should be put to the expense, either of prosecuting a scire facias to revive the judgement, or of recommitting the said Dodge : it-was enough for ’him that he bad once committed him on a legal execution.
   Hutchinson, C. J.,

'pronounced the opinion of the court.— Judgement having been rendered for the plaintiff to recover the penalty of the bond sued, in fixing upon the sum due in equity, .-there is no dispute about the plaintiff’s being, allowed theinterven-ing damages for interest, and his cost: but, as the body of the original debtor was not returned to the keeper of the prison, whence be was liberated by the audita querela, the plaintiff claims the whole debt. This is opposed by the defendant; not by any proal that the original-defendant was redelivered- according .to the condition of the'bond in question, but, because the plaintiff has not shown, that he prayed out an alias execution and 'delivered it to the keeper of the prison, for him to commit anew : and this is compared to a bond for the redelivery of chattels that had been taken from the officer,who held the same in execution. We think the case .does not compare at all. In such case, the original execution was not satisfied, and an alias might issue. But, when the •debtor is in prison on the execution, that is a satisiaction.of.the execution, appearing on the same ; so that an alias cannot issue without a scire facias, setting forth an -escape, or some cause, why it should not be considered satisfied, that an alias may be obtained. But our statute regdlation of audita querela, when so issued as t® •operate as a supercedeas, takes the body of the debtor from the prison, and provides security for his return, if his writ fail, by •such a bond as the one now in suit. If the prisoner returns into custody, there need be no alias execution ; he submits to his original imprisonment! and the original execution, and the order of court for his return to prison, form a sufficient authority for the jailor to hold him till -the debt is paid. And it is incumbent on the debtor and his sureties to see to it, that the debtor go to the jailor, with a copy of this order, and deliver that and his body to the custody of the jailor. Till that is done, the bond is in full force, as a security for the whole debt. This well compares with the case of a person in prison, brought up by habeas corpus, and remanded by order of court. He is then in on the same process as before. In this case, the plaintiff must recover his whole debt, if it do not exceed the penalty of the bond, together with his costs.

Hunt & Beardsley, for plaintiff.

Read & Turner, for defendant.  