delivered the opinion of the Court at the next term in Cumberland.
Several objections have been made by the counsel for the defendants, to the bond and to the condition, set forth on oyer.
First, that it is a bond given for ease and favor., To this it has been well replied that bonds for ease and favor are given to purchase an indulgence not authorized by law; and that the indulgence granted in this case is thus authorized.
Secondly, that the bond is taken to the officer, when it should have been taken to the creditor. The statute is silent upon this point; but it is contended that, as it is for the use and benefit of the creditor, it should have been given directly to him; more especially as there is no provision in the law giving him the control of the bond, if it be taken in the name of the officer. If unable to find property sufficient to satisfy the execution, the officer is commanded to take the body of the debtor, and commit him to prison. Thus the creditor is enabled to coerce payment, by taking the body.in pledge. But if it appear that this would be a fruitless remedy; and that the party arrested would he entitled to be discharged from prison, in virtue of the statute made for the relief of poor debtors ; by the humane policy of die law, the officer is not permitted to commit him there. Stat. 1824, ch. 281. The precept in the execution is by that statute qualified, and its operation postponed, until it can be ascertained, in the mode prescribed, whether the party is entitled to be relieved, upon taking the poor debtors’ oath. But the officer’s duties in relation to the execution, are not thus closed. If it be ascertained that the debt- or is not entitled to the oath, he is to surrender himself to the gaoler, or to the officer by whom the arrest was made, to be committed in 'die same manner as if these proceedings had not been interposed. If he do surrender himself, the condition of the bond is complied with j and neither the officer nor the creditor has any further remedy thereon. But if he do not surrender himself, the officer, in virtue of the bond, has in his hands the means of causing the execution to be satisfied, which it is his official duty to enforce without delay. The final process of the law is put into his hands, that he may render it offectu *244al to the creditor; and the taking of the bond is one of the modes, by which he is enabled to discharge this duty. It is to be taken to his satisfaction. It is ultimately for the benefit of the creditor; but through the intervention and agency of the officer. There seems therefore a propriety in his taking the bond in his own name; and there is certainly nothing in the statute which forbids it. It is true the creditor has not the direct control of the bond, as he has of a bail bond, nor is it distinctly provided that it shall be prosecuted for his benefit, as probate bonds, and bonds given by sheriffs, coroners, and constables, for the faithful performance of their respective duties, may be, in behalf of those who have suffered by their default. But the creditor, having the official responsibility of the officer, is sufficiently secure. If he should unreasonably delay to enforce the bond, or to pay the money over on demand when collected, he would be answerable to the creditor for neglect of duty.
It is lastly urged that the bond is void, because taken for more than the amount of the debt and costs, and all legal costs arising on the execution. If this had been made to appear by averments to that effect, .it would still remain a question whether the bond might not be good at common law. But it is not made to appear. We must presume that the officer has done his duty, until the contrary be ' shown. It is insisted that the officer is entitled only to poundage and travel. Admitting that this position is correct, and that he can claim nothing for the bond, if drawn or procured to be drawn by him, we can calculate the poundage ; but there is nothing in the declaration, or in the bond or condition on oyer, by-which the amount of the fee for travel may be ascertained. If the defendants would have presented this question, they should have pointed out the legal fees and the excess, if there be any, by proper averments.
Declaration adjudged good.