Croom v. Travis' Adm'r , 10 Ala. 237 ( 1846 )

COLLIER, C. J.

The bond on which a recovery is sought in the present case, was executed previous to the passage of the act of February, 1839, and consequently is not discharged, or in any manner affected by it. [1 Ala. Rep. N. S. 22.]

It is enacted by the act of 1824, that any person imprisoned in a civil action may enter into bond with sufficient surety to the plaintiff, in double the sum of the debt or damages for which he may be imprisoned, which bond may be taken by the sheriff, or jailor, with a condition as follows, viz :— “ The condition of the above obligation is such, that if the above bound A B, a prisoner in the jail of.county, at the suit of C D, do, and shall from the date hereof, continue a true prisoner, in the custody, guard and safekeeping of the keeper of said prisoner, or of his steward, deputy, or other officer, or of some of them, within the limits of the prison bounds' of said prison, as by law established, until he shall be thence discharged by due course of law, without committing any escape in the meantime, then this obligation to be void, else to remain in full force and virtue.” Should the condition be broken, it is provided that the bond maybe putin suit, and the debt or damages -for which the prisoner was arrested, to--gether with ten per cent, interest thereon, from the time of commitment, recovered with costs of suit. [Clay’s Dig. 499, § 2.] By the act of 1821, it is declared, that no person in custody shall have the liberty of the prison bounds who shall neglect or refuse for sixty days, to take the benefit of this act. [Id. 277, § 12.] Under this last statute, it has been held, that the condition of the bond is forfeited, if the prisoner, after the expiration of sixty days from the execution of the bond, remains without the walls of the prison, he not having taken the benefit of the act for the relief of insolvent debtors. [4 Ala. Rep. 383.] And in Morrow and another v. Weaver and another, 8 Ala. Rep. 288, that the debtor who has executed a bond to keep within the prison limits, may surrender himself in jail, to the custody of the sheriff, and thus discharge his bond and sureties, even before the sixty days expire. The bond then became absolute by the failure of the principal to surrender himself to close custody within the time appointed, or to discharge himself by making a surrender of his effects, and taking the oath of insolvency, and the extent of the recovery could not be affected by proof of his inability to have satisfied the judgment, either in whole or in part.

In Anderson v. Rhea, 7 Ala. Rep. it was held, in respect to a forthcoming bond, that the requisition of the statute, that it should be taken in double the amount of the execution, is directory merely; consequently it was no objection to the bond that the penalty was less than the statute requires. But in Clapp v. Haywood, 15 Mass. Rep. 276, it was held, that a bond for less than double the amount of the sum for which the debtor was imprisoned, did not conform to the statute ; that the creditor was not bound to accept it, but might charge the sheriff for an escape. It was however added, “It is not decided that a bond for more than double the amount would be, for that reason insufficient to protect the sheriff. As to that point, no opinion is given.” It may be observed that the statute of Massachusetts requires that a party arrested on execution in a civil action, or for a debt, to entitle himself to the liberty of the prison limits, shall execute a bond with surety, “in a penalty not less than double the sum for which he is committed, including the charges of commitment.” [Rev. Sta. of Mass. ed. 1836, 574.] It may be, that in the construction of this statute, the court accorded some potency to the word “less,” and we infer from what was said in the conclusion of the opinion, that this is so. But be this as it may, we can find no warrant for interpreting with greater stringency the statute in question, than the act in respect to forthcoming bonds. They each employ equivalent terms in prescribing the penalty of the bond; and if the requirement of the statute is sufficiently complied with, when the penalty' is less than it directs, we think it should be treated as directory, even when the penalty is for a greater' amqjint than it prescribes'. Whether the penalty be greater or less than the statute prescribes, is altogether immaterial; for the extent of the obligor’s liability is to be admeasured by the amount of the execution, with its accretion by interest and costs. In the present case we are not sure that the penalty is for a larger sum than double the amount of damages and costs ; and although the statute mentions “ debt or damages,” it may well be questioned whether these terms are not sufficiently comprehensive to embrace the costs upon a judgment.

In every view in which the case has been presented, we think it free from error, and the judgment of the circuit court is consequently affirmed.