The opinion of the Court was delivered by
Paddock, J.The case shows, that the proceedings- before the commissioners of jail delivery were all in conformity to the requirements of the statute ; so that the only point to be considered by the Court, and upon which the cause must turn, is the eflect of the disposition of the certificates, after they were made out.. The statute under which the commissioners acted, passed the 9th March, 1797, relating to jails and jailors, fee., after giving the form of the oath to be administered to the poor debtor, further provides : “ Which oath or affirmation by said justices being administered to, and taken by, such prisoner ; they shall then make two certificates, in the form following, to wit; [giving the form] The former of which certificates shall be delivered to the keeper of
*80Ñ*l> anc* ^atter to the prisoner. And such prisoner, then satisfying the creditor or creditors for all charges, incurred in pro» viding for his or her support in prison, and also the keeper of the f°r Past charges, shall thereupon be discharged,; and his or her body be thereafter exempt from execution for the same debt.” The inquiry now is, has this requirement of the statute been complied with ? Several cases have been cited by the defendants’ counsel, in which they say, the question now under consideration must be considered as settled by the Supreme Court. Upon an examination of those cases, it will be seen that the defence in each rested upon'difFerent facts, and that they were determined upon principles entirely different from those which must govern the present. In the case of Childs vs. Moore, and Osgood, 2 Tyler, 221, the irregularity which the plaintiff relied upon was in the citation which was issued by the justice. It appears that the sheriff was by said citation directed to summons the attorney of Childs, when it did not appear that Childs lived out of the state. And if not, the citation ought to have directed the service to have been made upon Childs, and not the attorney. The Court however, without deciding upon the defect in the process, were of opinion that the certificates, being regular upon the face of them, one having been delivered to the keeper of the jail,and the other to the prisoner before bis departure from the liberties of the prison yard, were a sufficient bar to an action of debt on the prison bond against the bail. In the case of Brush vs. Robinson, (p. 358, of the same veil.) there was some defect in the proceedings before the court of jail delivery, (so called,) which is not set forth in the report; but the certificate, which was delivered theprisoner, was adjudged a sufficient bar to an action brought by the sheriff or his assignee upon the bail bond ; the certificate for the keeper of the jail, not being called in question. The cases, Adams vs. Mattocks, Thornton vs. Robinson, and Smith et al. vs. Quinton, reported in Brayton, 199 and 200, all correspond with the cases cited from Tyler in support of the same principle. So that it may at this time be considered as settled, that where an imprisoned debt- or applies to a court of jail commissioners, to be liberated, whatever. exceptions there may be to the proceedings must be taken advantage of before the same court; and the certificates, when made and delivered as the law directs,will operate, when pleaded, a sufficient bar to a recovery, either against the sheriff if sued for an escape, or the judgement debtor or his bail, in a suit on the jail bond, There is much weight and force in the argument advan*81ced by the Court in the case of Childs vs. Morse & Osgood, and J . - 1 Ml •• 7c 1 • . must satisfy any one who will examine it, ot the ruinous situation into which the sheriff and the bail of the debtor are liable to be thrown, were the courts to decide otherwise. But the question raised in this case, not having arisen tn either ot the previous named decisions, has not been decided. From what we can gather from the brief report of the case Stanford vs. Barry, {Bray. 201) it would seem that,although the prisoner had been admitted to the poor debtor’s oath, yet the plea said nothing of the certificates, and, on demurrer, was adjudged insufficient.
In this case, it appears that the certificate, intended for the keeper of the jail, was never delivered to him in person, or lodged at his office or jail house, but was delivered to a person who had previously served in the capacity of jailer, and was moreover the attorney of Haight, the plaintiff in that suit: but the certificate might as well have been delivered to any by-stander, as to one who had once been the keeper of the jail, but then displaced. And it does not avail the defendant any thing his having been the attorney who procured the judgement and execution for the creditor ; for he was not the-attorney of the sheriff for the purpose of doing the duties of jail keeper. The sheriff had seen fit to discharge him from that office, and place another in his stead,and the delivering the certificate to him can be in no wise considered a compliance with the statute. It has been contended further that, as there were two certificates made out after the prisoner was admitted to take the poor debtor’s oath, and one of them delivered to him before his departure from the liberties of the prison yard, such certificate would be a sufficient bar to an action on the bond, although the other were not lodged with the keeper of the jail, until after his departure. This position must certainly fail, or that part of the statute directing one of the certificates to be delivered to the keeper of the jail, must be treated as a nullity; for by the letter of the statute, it is made a prerequsite to the discharge of a prisoner, that one of the certificates be delivered to him, and the other to the keeper of the jail. It is an act to be performed, and as positively required, as that the oath should be administered, or the jailer’s fees paid ; and as well, and better, might the oath be dispensed with after the commissioners had examined the prisoner and found and adjudged him a fit subject for it; because, according to the decisions of the courts, no mischief could arise, either to the sheriff or the prisoner, if the certificates were legally made and delivered, as the previous doings of the commissioners are not to be looked into.
Bates & Chipman, for plaintiff. Doolittle & Phelps, for defendants.There can be no doubt,that the condition of the bond~is equaI~ ly broken where the one or the othex of the certificates failed of being delivered, as it is where neither are, The Court being sat-' isfied that there' was a breach of the condition of the bond in this case, the judgement of the county court must be a~lirmed
Judgement affirmed.