Persons imprisoned for want of bail in civil actions, or on execution in any civil action, (with exceptions provided by statute,) may have the liberty of the jail-yard, upon giving bond with sureties, as provided by the 2d sect. of chap. 197 of the Revised Statutes. By sect. 4 of the same chapter it is provided, that no person committed on execution shall have this privilege for more than thirty days, unless he shall, within that time, make an assignment to the jailer of all his property, for the equal benefit of his creditors.
In this case, the defendant Allen was committed on two executions in favor of the plaintiff. In each case he gave bond for the liberty of the jail-yard; and within thirty days executed an assignment to the jailer according to the requirements of the statute. Having given bond on each execution, and having made one assignment within thirty days from commitment on both executions, he keeps the liberty of the jail-yard; and the plaintiff now sues on one of the bonds as for an escape. The plaintiff contends, that this is an escape as defined by the sixth section of the act contained in chap. 107 of the Revised Statutes. The judge, at the trial, ruled otherwise; and for this alleged error of ruling, the plaintiff asks for a new trial.
The provision of the 6th section is, that if the person committed on execution shall neglect to render himself to the keeper of the jail within thirty days, or make an assignment as before provided, he shall be deemed to have committed an escape under his bond for the liberty of the jail-yard.
The defendant has literally complied with the terms of the statute. On whichever of these bonds he may be sued, he may truly reply, that he has made an assignment within thirty days from his commitment; and this is all that the statute, by its terms, requires of him. If he had made two assignments at the same time, which is all that the plaintiff contends that he should have done, he would have done no more. By one assignment he conveys all the property which he has, and by two he could convey no more. He has, therefore, complied, as it seems to us, with the spirit of the law as well as with the letter *Page 452 of it. Under the circumstances of this case, the ruling of the court at the trial was most exactly in accordance with the law, regarding both its substantial requirements and its strict literal construction.
But it was argued at the bar, that the peculiar circumstances of this case could not exempt it from the rule required by the general policy of the law; and that the policy of the law required that an assignment should be made with reference to each execution on which the debtor is committed. A subsequent section of the statute provides, that the jailer may, on request of the creditor in execution, assign or transfer the assignment to such creditor, and thus exempt himself from liability for any property of the debtor other than that which he actually receives. The plaintiff in this case, treating this provision as giving a right to the creditor to have the assignment on request, argues, that the policy of the law requires that there must be an assignment with reference to each execution, because, if there are several creditors in execution, each creditor has a right to a transfer of the assignment from the jailer. A sufficient answer to this argument would be, that the transfer of the assignment is not made the right of the creditor, but is, on request made by him, at the option of the jailer, to whom the assignment in the first instance is made. If the jailer receives the assignment and transfers it to one creditor, of course he cannot also transfer the same assignment to another; and if he had two assignments executed to him by the same debtor, as the plaintiff contends he should have if the debtor is committed on two executions, a conveyance to the same creditor of both assignments would be a mere form as to one assignment; and if made to different creditors in execution, would either be an empty form as to one assignment, or would create rival claims to the same property under the two assignments.
The literal interpretation of the statute is, therefore, the sensible one. Having made an assignment within thirty days from the time of his commitment on both executions, the debtor is not liable on either bond as for an escape.
The petition for new trial must be refused, with costs. *Page 453