
    * Salmon Clapp versus Nathan Hayward.
    A prisoner in execution maíces a bond for the liberty of the yard, in a penal sum less than double the amount of the sums for which he is imprisoned; which is approved by two justices, according to the statute; the sheriff is chargeable for an escape, if he give such prisoner the liberty of the yard on such bond.
    This was an action against the defendant, as sheriff of the county of Plymouth, for the escape of one Jotham Dunfey, a prisoner on execution, at the suit of the plaintiff; and it was referred to the decision of the Court, on the following facts: —
    The said Jotham, being committed, on execution in favor of the plaintiff, for 15 dollars debt, 3 dollars 53 cents costs, 25 cents for the execution, and 3 dollars for the fees of commitment, gave a bond, with a surety approved by two justices quorum unus, to the plaintiff, in the sum of 39 dollars 70 cents, with the usual condition, for the liberty of the prison-yard; and he was at liberty within the limits of the said yard, from the execution of the bond until he was discharged from his imprisonment, by taking the poor debtor’s oath.
    
      Judgment was to be entered, by nonsuit or default, as the opinion of the Court should be on the foregoing facts.
    
      Whiting for the plaintiff.
    
      Metcalf for the defendant.
   By the Court.

Judgment must be entered for the plaintiff; on the ground that the bond, being for a penal sum less than double the amount of the sums for which the debtor was imprisoned, was void under the statute, or rather was not in conformity to it; and that the creditor was not obliged to accept such bond, but might, notwithstanding, charge the sheriff in an action for the escape.

It is not decided that a bond for more than double the amount would be, for that reason, sufficient to protect the sheriff. As to this point, no opinion is given,

Defendant defaulted. 
      
      
         Clap vs. Copan, 7 Mass. Rep. 101. — Bartlett vs. Willis & Al. 3 Mass. Rep. 105
     