
    Joseph Smith versus David Stockbridge and Others.
    The statute of 1785, c. 22, has not repealed the provision of the statute of 1784, c. 41, § 9, which directs that judgment, in actions upon bonds given for the liberty of the prison-yard, shall be rendered for the whole penalty of such bonds.
    Debt on a prison bond, dated October 7, 1805, for 467 dollars 58 cents, with condition that the said David, a prisoner in the jail at Northampton at the suit of the plaintiff, should continue a true prisoner, &c.
    • The defendants, after oyer of the bond and condition, plead,—
    1. Non est factum, on which issue is joined.
    2. That said David continued a true prisoner until Ma-ch 8, 1805, when he was discharged under the provisions of the act for the relief of poor prisoners.—Replication, that before said 8th of March, and before the said David was lawfully discharged, viz., on the 8th of October, 1805, he committed an escape in the nighttime. — Rejoinder, that he did not escape, and issue.
    3. That said Smith recovered judgment against said David and one Samuel Church for 219 dollars 68 cents, damages, and costs taxed at 8 dollars 81 cents ; on which execution issued to collect tnose sums and 25 cents for the writ of execution, on which said
    
      David was committed ; and to obtain the liberty of the yard the bond declared on *was executed, and for no other cause, for said sum of 467 dollars 58 cents, which is more than double the sum for which said David was imprisoned ; and concludes that the bond is void in law. — Replication, that said David was holden in prison for the lawful fees of S'. Ballard, the deputy sheriff, on the execution, amounting to 5 dollars 5 cents; that said fees, damages, costs, and price of execution, amounted to 238 dollars 79 cents, and that for double that sum, viz., for 467 dollars 58 cents, the bond was taken. — Rejoinder, that said sum of 467 dollars 58 cents is more than double the sum for which the said David was imprisoned ; and traverses his being holden for the lawful fees of the said Ballard, the deputy sheriff, amounting to 5 dollars 5 cents. — Surrejoinder, that said David was holden for said fees, amounting to 5 dollars 5 cents, and issue
    4. The fourth plea is the same as the third, excepting that it states that the lawful fees of the sheriff for the commitment amounted to 73 cents, and no more.—Replication. The same as that to the third plea, except that it concludes by traversing that the sum of 467 dollars 58 cents, mentioned in the bond, is more than double the sum in said execution and all fees.—Rejoinder, as before, asserts that the said sum of 467 dollars 58 cents is more, &c., and issue.
    The several issues aforesaid were tried before Sedgwick, J., at the April term, 1811, in this county; when the jury returned their verdict, as to the first issue, that the said writing obligatory is the deed of the defendants. As to the second issue, that the said David did commit an escape in the manner, &c., but that he escaped through misapprehension of the limits of the daytime. As to the third issue, that the said David was so holden in custody for the lawful fees of the said Ballard on said execution, in manner and form as the plaintiff in his replication has alleged. As to the fourth issue, that the said sum of 467 dollars 58 cents is not more than double the sum mentioned in the rejoinder of the defenuants, for which the said * David was so imprisoned a* in that rejoinder is alleged.
    
      After the verdict, the defendants prayed to be heard in chancery, and the action was continued for that purpose ; it being agreed that the return of the deputy sheriff on the execution, by virtue of which the said David was committed, should be taken as a fact for the consideration of the Court.
    [The return, after stating the commitment of the said Davia, details the officer’s fees, as follows, viz., travel 48 cents, service 30 cents, levying execution 6 dollars 58 cents, copy 25 cents, making a total of 7 dollars 61 cents.]
    
      Ashman,
    
    for the defendants, argued that, whether the bond was in double the sum for which the debtor was committed or not, was immaterial; since the statute of 1785, c. 22. (which enacts that, in all causes brought before this Court or the Courts of Common Pleas to recover the forfeiture of any bond, &c., when the forfeiture shall be found by a jury, default, &c., the Court shall make up judgment therein for the plaintiff, to recover so much as is due in equity and good conscience,) had repealed the provision of the prior statute of 1784, c. 41, § 9, which directs that upon putting a bond of this kind in suit, when the condition shall be broken, judgment shall be entered up for the whole of the penalty, and no chancery shall be allowed therein. If this position is tenable, it puts an end to the question, and entitles the defendants to a hearing in equity in all suits on prison bonds.
    If, however, the Court should be averse to allowing the force of the foregoing position, it is still contended that this bond is not within the statute of 1784, c. 41, which prescribes a bond for double the sum for which the prisoner is committed. This must intend double the amount of the judgment, and has not been understood to include the poundage.
    The defendants in this case are further entitled to prevail in their present motion, by virtue of the statute of 1810, c. 116, by which it is provided that, in any action then * pending upon a prison bond, when it shall appear to the Court by the finding of a jury, as it does in this case, that the debtoi escaped not wilfully, but through misapprehension of the limits of the daytime, judgment may be entered for the money due on the execution, on which such debtor was committed.
    
      Bliss,
    
    for the plaintiff, thought it singular that an application should now, for the first time since its passage, be attempted to be given of the statute of 1785, giving remedies in equity generally, to the act respecting bonds for the prison-yard. Besides that this construction had never been suggested in the judicial courts, several posterior acts of the legislature had recognized the provision of that of 1784 as still in force.
    
      As to the amount for which this bond was taken, it will be found upon examination to be double the debt, costs, cost of execution, and the legal fees of the officer. This is conformed to the true intent of the statute, and therefore, on this ground, the defendants cannot claim a reduction of the penalty.
    The statute of 1810, as applying to rights of action vested at the time, having been under the consideration of the Court in some other causes, on the objection that it exceeded the legitimate and constitutional authority of the legislature, Bliss said he would not take up time on the subject in this action.
   The Court

held that the statute of 1785 was not intended to repeal the provision in that of 1784. But to be within the purview of that provision, a bond must be in double the sum for which the debtor is imprisoned. In all other cases, it is subject to the chancery powers of the Court. In the exercise of those powers, it has been repeatedly holden that judgment shall be entered for the sum due on the execution. For that sum the debtor’s body was a pledge ; and the pledge having been withdrawn, the creditor is entitled to the same sum.

* Judgment was entered for the debt and costs, and interest thereon from the time of the escape found, with the costs of this action. 
      
      
         [Freeman vs. Davis & Al., 7 Mass. Rep. 200. — Burrows vs. Lowder, 8 Mass Rep. 373. — Call vs. Stagar, 8 Mass. Rep. 423. — Clap vs. Coffran, 7 Mass. Rep. 98. — Ed.]
     