
    Coman, Assignee of the Sheriff, &c. against Merrill and Anderson.
    A prisoner ¡a execution on a judgment ob-tamed m a Justice’s courtuadel* ^ tiiP 9ct to extend the jujústices^of the Eone”i0" a" bovc 25 dollars* is entitled to be discharged on at£ Ed by the'T^th section of the recovery of value bt 25doi-not a freehold? fam,>?andhas in for than days : prison f¡^y ¿Ent !f the affidavit states that he han a family at the time, without saving , that he had1 a family, when the judgment was rendered against him.
    THIS was an action for the escape of Merrill.
    
    
      Coman, on the 16th of June 1819, recovered judgment ' . jo against Merrill, m a Justice’s Court, under the act extending ® ™ the jurisdiction of justices of the peace, for fifty two dollars and fifty-eight cents, on the confession of the defendant, who filed an affidavit pursuant to the statute. (Sess. 41. ch. 94. s. 6,7.) An execution was, afterwards, issued the judgment, by virtue of which M. was taken and committed to the custody of the sheriff of Madison county,' on the 31st of March, 1820, no property of the defendant being found on which to levy the amount. The sheriff granted to M. the liberties of the gaol, on hi? giving a bond with sureties, in the usual form. On the 13th of Movember, 1820, M. made an affidavit before a commissioner, and in the presence of the under sheriff, that he had a within this state, and that he was not family a freeholder at the time the judgment was obtained against him, in favour of C., nor at any time afterwards, and that he had remained a • * 7 prisoner within the liberties of the gaol for .more than, thirty days, and that he came within the provisions of the act for the recovery of debts, to the value of twenty-five dollars; and thereupon left the limits of the gaol. The plaintiff then took an assignment of the bond given to tl^e sheriff for the limits, and brought his action thereon for the escape of M. '
    
    The case was submitted to the Court without argument*
   Spencer. Ch. J.

delivered, the opinion of the Court. The 1 Ith section of the act extending the jurisdiction of justices of the peace, adopts all the provisions of the act, for the recovery of debts to the value of twenty-five dollars, “ except as is therein otherwise directed.” There is no provision as to such a case as the present; consequently, all the enactments, in relation to the discharge of the person, of the debtor, are adopted by the latter act. The act for the recovery of debts to the value of twenty-five dollars, (1 N. R. L. 394. s. 12.) enacts, that in case any such person having a family in the state, and not being a freeholder at the time of judgment rendered against him, or at any time thereafter, may he discharged, on making an affidavit, in the manner therein directed, that he comes within the pro*. visions of the act.

The objection to the affidavit is, that it does not state that Merrill had a family, when judgment was rendered against him, but merely, that he had a family when he made the affidavit. We are of opinion, that the affidavit is conformable as well to the letter as the spirit and intention of the act. The legislature never meant to throw impediments in the way of marriage, or to consider a man who had a family when imprisoned, as less entitled to enlargement, than one who had a family when judgment was. rendered against him. They, undoubtedly, meant that no man who had a family when the affidavit was made, should be separated from his family for more than thirty days; and that his family should not be exposed to suffering and want, by being deprived of the benefit of his labour, for a longer space than thirty days.

Judgment for the defendants.  