Kellogg v. Manro , 9 Johns. 300 ( 1812 )

Per Curiam.

If the bond stated in the declaration was author riZed by the act of 1801, (Laws, v. 1. p. 350.) then there cannot be a doubt of its having been duly assigned. The act directed the sheriffs to grant the liberties to all prisoners “ who should be in their custody on civil process only,” on taking the bond with requisite security. The term civil process was here used in contradistinction to criminal process. A person in custody, on surrender, in a civil Suit, is committed by a committitur under the hand of the judge, and is detained under the original process by which he was at first arrested. The surrender does away the effect of the recognisance of bail, and leaves the party under the power of the original process, in the same manner as if bail had never been taken. He is in custody, either under the original process, or the Cómmittitur ; and if he is to be deemed in prison under the latter, it is still process, within the meaning of the act; for it is an authority exercised in a civil suit, and of sufficient legal validity to justify the sheriff. The case is also within the meaning and equity of the act. The statute of 1810 is declaratory, and shows the legislative sense to be, that the act of 1801 applied to the case. There is, then, no ground to arrest the judgment, and that motion is, therefore, denied. ,i

The motion upon the case to set aside the' verdict is not well founded. It appears that an exonerelur was consented to by the' plaintiff, after all the previous steps to entitle the party to it had been taken. The entry of it upon record was, then, a matter of course, and to. be done at any time by the defendant. The plaintiff could not, after that consent, have prosecuted the recognisance with success, or even with good faith, and the defendant would, at any time, have been entitled to have entered it, and to have pleaded it. The only question, then, is, whether the plaintiff cannot, upon such a bond, recover beyond nominal damages. This point is too plain to admit of discussion. He is entitled, prima facie, to recover his whole debt, which is presumed to be lost by the escape, and it could only have been reduced down to the sum found by the verdict, upon the evidence given, that if the parly had not escaped, there was no ground to consider that any greater sum could have been recovered of the original defendant by the coercion of confinement.

Motions denied.