Garland v. Williams , 49 Me. 16 ( 1860 )

The opinion of the Court was drawn up by

Aepleton, J.

This is an action of personal replevin against the defendant as keeper of the jail in Bangor.

The plaintiff having, on 26th Juno, 1858, been arrested on execution, gave a bond with the conditions prescribed by law. After duly notifying the creditor in the execution on which he had been arrested to hear his disclosure, on 25th December, 1858, he commenced the same. Before it was finished or the oath taken, he, on the same day, voluntarily surrendered himself to jail, and, after his commitment, and on 27th December, took the poor debtor’s oath.

By voluntarily surrendering himself, the plaintiff performed one of the conditions of his bond and the sureties thereon were discharged.

The writ de homine rephgiando lies in favor of a person unlawfully imprisoned. The plaintiff was not unlawfully imprisoned, for he was in jail by a voluntary self surrender. He was then "in jail on an execution in a civil suit.”

The form of a certificate in case of the imprisonment of the poor debtor is given in R. S., 1857, c. 113, § 31, which, by § 32, is to be filed in the office of the jailer, whereupon he is to be set at liberty.

The plaintiff could not file such a certificate for no such had been signed by the magistrates. The one given was applicable to the case of a poor debtor arrested on execution and "enlarged on giving bond to the creditor.” It was for one at liberty and not for one then in prison. It gave no authority to the prison keeper to set at liberty the debtor then in his custody, for it was not applicable to one imprisoned.

The plaintiff, then, was a poor debtor, who voluxitaxily surrexidered himself to discharge his sureties. lie caxmot, when ixxxprisoxxed, take advaxxtage of an incomplete disclosure, comineixced before his surrender. He mxxst, it would seem, commexice his proceedings de novo for a discharge.

As the plaixxtiff surrexidered himself before completing his disclosux’c, what'took place at that time becomes immaterial.

The certificate of the justices describes a different execUtion from that on which the bond was given, and no motion to amend has been made.

According to the agreement of parties, a nonsuit must be entered, and the defendant have judgment for a redelivery of the body of the plaintiff, to be disposed of agreeably to law. Hutchins v. Van Bokelen, 34 Maine, 126.

Plaintiff nonmil.

Nice and Davis, <3J., concurred. Tenney, C. J., and Gutting, J., concurred in the result.