Kendall v. Dodge

Prentiss, Ch. J.,

pronounced the opinion of the Court. — The questions to be decided arise upon several issues of law joined in the case, and upon exceptions taken to the instructions given to the jury on the trial of the issue of fact.

The question presented by the fifth plea, which involves the va - lidity of the special act of the legislature, discharging the judgement debtor from imprisonment on the plaintiff’s execution, is settled by the case of Ward vs. Barnard, 1 Aik. Rep. 121, and the case of Lyman vs. Mower, 2 Vt. Rep. 517, decided at the last term in Windsor county ; and the question cannot be considered as open to discussion.

That the fourth plea is bad, is decided by the case of Keith vs. Ware, 2 Vt. Rep. 174, determined in this county in 1829. When the sheriff takes a bond as security for the liberties of the prison, and the prisoner escapes, the creditor’s right of action against the s^,er^ f°r escape is suspended, until he has demanded the bond, and there has been a refusal to assign it, or he has failed ’ , ,. ... • » r to recover and obtain satisfaction upon it. As no right of action, consequently, has accrued to the plaintiff against the sheriff, the statute of limitations has not as yet begun to run in favor of the latter. But the plea, in effect, is a plea that the sheriff has not been damnified ; and it was decided in the case of Lyman vs. Mower, already mentioned, that such a plea is no answer to an action upon a bond of this description.

The third and sixth pleas present the question, whether the assignment of the bond by the sheriff to whom it was executed, but who was not in office at the time of the escape of the prisoner, is good and effectual in law to transfer the right of action upon the bond to the plaintiff. It is very clear from the statute, that the bond must be assigned by the sheriff who takes it, whether he remains in office until the breach of the condition or not.—(Comp. Stat.p. 220, s. 11.) He alone is ultimately liable to the creditor for the escape, and his successor in office can have no interest in the bond. Prisoners when admitted to the liberties of the prison are no longer in the keeping of the sheriff; and a new sheriff, consequently, has no custody or controul of them, and is under no liability for their escape, unless they are recommitted to prison pursuant to the act of 1812 ; in which case the former bond, unless previously broken, becomes of no effect.

The remaining question arises on the exceptions. It appears that the sheriff put his name and seal on the bond, and delivered it to the plaintiff’s attorney, who afterwards wrote over the name and seal a formal assignment; and the jury were directed, that if the sheriff put his name and seal on the bond, after the escape of the prisoner, with a view to assign the bond to the creditor, and that the blank should be afterwards filled up- by his attorney with proper words of assignment, and the same was afterwards, and before the commencement of the action, filled up accordingly, it constituted a valid assignment of the bond. In the case of Jackson vs. Titus, 2 Johns. Rep. 430, cited and relied upon by the defendants, a lessee put his name and seal on the back of a lease, and delivered it to a third person, giving him verbal authority to write an assignmentof the lease on a certain event, and the assign - ment was afterwards written accordingly. The court considered, that the affixing the hand and seal to a piece of blank paper was not an assignment by deed or note in writing, within the requisition of the statute of frauds; and that to allow it to be good, would open a door to fraud and perjury, and defeat the wise and salutary provisions of the statute. But the statute of frauds having no application to the question arising in the present case, the case does not come within the principle of the decision cited; and we see no good reason why the assignment in this case should not be good and operative in law. The bond was taken for the benefit of the creditor, and could be assigned to no other person ; and the sheriff having put his name and seal on the bond, and delivered it to the creditor’s attorney, with authority to write an assignment, which was afterwards done, we think there was a sufficient assignment of the bond.

Judgement affirmed.