The opinion of the Court was delivered at the succeeding June term, in the county of Kennebec, by
Mellen C.The defence in this action, on which reliance is placed, is, that the debtor, David M. Coffin, for whose alleged escape it is prosecuted, was lawfully discharged from prison, soon after his commitment, in consequence of his having given bond for his enlargement, pursuant to the provisions in the fourth section of the act of 1822, ch. 209. The above section requires that such bonds should be approved by the creditor, dr two justices of the peace, quorum unus, for double the amount for which the debtor is imprisoned. It appears that the bond given by the debtor, and James Hopkinson, his surety, was approved by only one justice of the peace and the quorum. Whether such an approval was wholly insufficient to justify the release of the prisoner from custody, we do not now decide r for it is contended that the bond was approved and accepted by the plaintiff, the creditor. If such was the fact, certainly the defence is maintained. An approval by the creditor may be express or implied; it may be before, or after, the discharge of the debtor; for, if after, it is a ratification of the act done by the prison keeper, in releasing the debtor from his custody. In proof of the alleged approval and acceptance of the bond by the plaintiff, the defendant relies on the letter of July 30, 1832, addressed by the plaintiff to Hopkinson, the surety, about eleven months and a half, after the date of the bond. It would seem from the language of the letter, that a *126copy of the bond was before the writer. In this letter, the plaintiff, after briefly describing the bond and remarking on its non-conformity to the requirement of the law, in the manner of its approval by one justice, instead of two justices of the quorum, he adds, “ By the statute, one year only is given to “ commence an action ; and as that time has nearly expired, I “ write at this time to give you an opportunity to settle the “ same, if you think advisable.” When he wrote this letter, he certainly had a right to approve and accept the bond, notwithstanding one justice only had approved it; and if he exercised that right, and did approve and accept it, then he was bound by that act; and if he was disposed to accept, and did accept the bond, it is perfectly clear that the obligors were bound by it; it was their deed. Bartlett v. Willis al. 3 Mass. 86. That was the case of a bond for the liberty of the yard, and it was not approved by two justices. Defendants objected to it on this ground ; but Story, their counsel, gave up the point. The Court said, if the plaintiff was satisfied with the sureties, it was sufficient; and that the objection could not, in any form, avail them. Cofin, having made his election, he must seek his remedy upon the bond, and can have none against the defendant. He cannot in such case change his mind and revive that right of action against him which he once had, but which he had waived by his acceptance of the bond. Does the letter amount to such approval and acceptance ? This is a question of law which the Court must decide. The eleventh section of the act before mentioned declares, “ that “ no action shall be hereafter maintained for the breach of an'y “ bond given or to be given for liberty of the jail yard, unless “ such action be brought within one year from and after such “ breach.” Now, why was the letter written to Hopkinson, and a claim on the bond asserted against him, notwithstanding the manner in which it had been imperfectly approved, unless he had elected to approve the same himself, and accept it, knowing as he did the perfect responsibility of Hopkinson as a surety. Why did he mention the limited time within which an action must be commenced, unless he relied on the bond as his security ? The plaintiff is a lawyer, and he must have *127well known that an action against the defendant for any official act of his deputy would not have been barred under four years. Unless we give this construction to the plaintiff’s language, we must presume that he was practising deception with Hoplcinson, and artfully endeavouring to obtain the amount of his claim from him, knowing at the same time that he had no pretence for such a dishonest experiment. We prefer to consider him as acting, in relation to the subject under consideration, with the views and upon the principles which we have particularly stated in this opinion. Proceeding on this ground, the conclusion is, that the letter of the plaintiff must be pronounced proof of an approval and acceptance of the bond ; of course the action is not maintained ; and, according to the agreement of the parties, a nonsuit must be entered.