Opinion of the Court.
The question submitted by the pleadings is simply whether, the bond be forfeited or not. The defendants contend that it is not forfeited, because the defendant Evens was within the sheriff’s bailiwick, and amenable to the writ of execution, which the plaintiff declined charging him with. This subject matter of the plea in bar does not meet the allegations of the declaration, nor does it exhibit a justification for the escape. If the Court should give the same construction to the 10th and 11th sections of the act relating to gaols and gaolers, and for the relief of persons imprisoned therein, as is given by the explanatory act of November, 1801, the bond would still be considered as forfeited by the escape; for under that act no advantage can be taken by the obligors in avoidance of the bond, in any other mode than that therein prescribed, to wit, by the surety’s surrendering the principal in Court.
The plea in bar is therefore considered to be insufficient ; but on the chancery of the bond a question may perhaps be made, whether the surety may *127not then surrender his principal, upon payment of costs.*
Vermont Stat, vol. 1. p. 68. Nathaniel Chipman, for plaintiff. David Fay, for defendant.Note. At Manchester February term, 1803, in this County, the defendant Gardner, as surety, had, on motion, leave to surrender his principal Evens into Court upon payment of costs, and the Court chancered the penalty of the bond to one cent, and ordered Daniel Evens into the custody of the sheriff, to be kept fifteen days, that the plaintiff might charge him with the execution on his original judgment.