
    Robert Dyer versus Richard Hunnewell.
    One committed to prison, on a judgment against him for a penalty incurred under the act for regulating the militia, is entitled to the benefit of the act for the relief of poor prisoners, &c.
    This was an action of debt against the defendant, as sheriff of the county of Cumberland, for the escape of Jonah Dyer, and was submitted to the decision of the Court upon an agreed statement of' facts to the following effect.
    [*272] * On the complaint of the plaintiff, clerk of a company of militia in Cape Elizabeth, the said Jonah,
       a minor, was summoned before a justice of the peace for said county, and was sentenced to pay two several fines or forfeitures amounting to $ 16 and costs; the said fines or forfeitures having been incurred by the said Jonah, for neglecting to warn certain privates in said company to appear at a regimental muster, and for neglecting to appear himself at the same muster, pursuant to orders from the commanding officer of said company in which he was enrolled. The said Jonah was committed by execution, issued on said judgment in the form prescribed in the act for regulating, governing, and training the militia of this Commonwealth,”  to the common gaol m Portland, on the 19th of December, 1814. On the same day he was released from close confinement by giving bond for the liberty of the yard ; and he continued within the liberties until the 25tl-of January following, when he was discharged by two justices of the quorum for said county, before whom he took the poor debtor’s oath.
    If, upon these facts, the Court should be of opinion that the plaintiff was entitled to recover, judgment was to be rendered for the plaintiff for a sum agreed ; otherwise, he was to become nonsuit, and the defendant recover his costs.
    
      Sewall, for the plaintiff,
    argued, that the process on which Dyer was committed, being of a criminal nature, the provisions of the statute for the relief of poor prisoners  did not extend to the case. 
    
    
      Whitman, for the defendant.
    The cause being continued nisi for advisement, judgment was rendered for the defendant at the following September Term in Berkshire.
    
    
      
      
        Winslow vs. Anderson, 4 Mass. Rep. 376.
    
    
      
      
        Stat. 1809, c. 108, § 35.
    
    
      
      
        Stat. 1787, c. 29.
    
    
      
       4 Mass. Rep. 377.
    
   Parker, C. J.

The act for the relief of poor prisoners, who are committed in execution, is very general in its terms ; providing, that, when any person, standing committed, by force of any execution issuing from any court, &c., on a judgment recovered by any person, shall complain, *&c., he shall be [*273] liberated in the manner prescribed by the act.

This action is founded upon the idea, that, although Dyer, the judgment debtor, stood committed on execution, yet, as the process against him was for a fine or penalty, he was not within the meaning of the statute, and not entitled to the relief therein provided.

Whatever may be the character of the process against him, whether civil or criminal, when judgment was rendered against him, it was a judgment for a debt ; and the precept, by which that judgment was to be executed, was an execution, so called in the act giving the jurisdiction of this subject to justices of the peace. The process is also in the name of an individual, and the debt is partly for his use ; and, indeed, the process is like, in its effects, to a popular action for the re coverv of a penalty for the breach of some statute. The judgment is not, to pay a fine for the use of the Commonwealth for the breach of law ; but it ascertains a debt due to the clerk, and execution is awarded thereon, with which the person or property of the debtor may be taken, as in other cases. In all respects this comes within the description of cases in which the party is entitled to be released from prison, if unable to maintain himself there. If this had not been the intent of the legislature, it would have been expressly provided that the delinquent should be sentenced to pay a fine ; and then he would be imprisoned until the fine was paid, as in common cases.

Although, in some views, this process may be considered as a criminal one, yet it has many features of a civil- action. The pleadings are in the same form, the judgment is entered up in the same manner, and execution is awarded against the goods, estate, and body ; in all which circumstances it differs from a criminal prosecution. The party charged is summoned, and not arrested ; be may appear by attorney, and is not bolden to appear personally. In short, we consider him as being in execution for debt, and so entitled to the privileges of the statute, under the provisions of which he was liberated from his imprisonment.

Plaintiff nonsuit  