The opinion of the court was delivered by
Royce, J.As we regard the plea in this case as of no importance, the only question is, whether the plaintiff states in his complaint a proper case for relief by audita querela. A person, who has obtained the liberties of the prison by giving a jail bond, is not actually imprisoned, otherwise than by his bond, or contract. No force being used to restrain him, he has his option whether to remain within the jail limits, or to depart, risking the pecuniary consequences. We therefore consider the case as being essentially different from those cited, which were all cases of actual confinement in custody. This case is more like that of a person on the jail limits, who takes the poor debtor’s oath. He claims, as the *67plaintiff now does, that by operation of law he has become discharged from his imprisonment. But it was never known that an audita querela would lie in such a case, because the creditor declined to do any act to ratify the discharge. In all such cases the party and his sureties judge for themselves; and if they deem the discharge effectual, they will act accordingly. And so far as the matter of imprisonment is concerned, those cases would seem to be strictly analogous to the present. There is no occasion to decide whether this remedy would be appropriate, were the plaintiff actually confined in prison.
Judgment of county court affirmed.