Vermont Life Insurance v. Dodge , 48 Vt. 156 ( 1875 )

The opinion of the court was delivered by

Wheeler, J.

The first count in the declaration appears to be, and is claimed to be, for an escape from close jail, as distinguished from an ordinary escape ; and it is insisted that what would be such an escape as would create a legal liability in the former case, might not in the latter. The only distinction known in the law of this State between commitments to jail and those to close jail, is to be found in s. 23, c. 121, G-en. Sts., where it is provided that in case of a commitment on an execution in an action founded on tort, in or upon which there is a certificate that at the time of rendering the judgment it was adjudged, not only that the cause of action arose from the willful and malicious act of the defendant, but that in consideration of the facts he ought to be confined, in close jail,- such defendant shall not be admitted to the liberties' of the jail-yard, and that in other cases defendants in execution may be so admitted. So that the only difference there can be between prisoners in jail and those in close jail, is, that the former may be admitted to the liberties of the jail-yard on giving-bonds, and the latter not. Until admitted to the liberties of the jail-yard in cases where the debtors in execution may be so admitted, there is no difference whatever, in law, between the mode of their confinement and that of those not entitled to be so admitted, and none as to what would constitute an escape in either class of cases. The plea is pleaded to the whole declaration. It sets forth that all the escapes alleged are one and the same escape, and what that escape was, and an excuse for it; and if the excuse is sufficient for that one, the plea is good to all the counts ; if not, it is bad to all. Whether the excuse is sufficient or not, depends upon whether the judge of the Supreme Court had jurisdiction, under sections 57 and 58 of that same chapter, to vacate the certificate and determine when a debtor committed on an execution founded on a judgment for money or property received in a fiduciary capacity, with a close-jail certificate in or upon it, might be admitted to the poor debtor’s oath, or to the liberties of the jail-yard. Before the statute authorizing such an adjudication and statement of it in or upon the execution in actions for money or property so received was passed, the force and effect of an execution in an action founded on tort, when there was such an adjudication and certificate of it, on the execution, were well settled and fully understood. The force and effect of such executions were to hold the debtors to confinement in jail, without the right, to be admitted to the liberties of the jail-yard, or to the privileges of the poor debtor’s oath, until they should satisfy the judgments, or until the County Court, or a judge of the Supreme Court, should, upon petition, determine when they might be admitted to these liberties or privileges. In view of these things, the legislature, by the act of 1858, now embodied in s. 24 of that same chapter, enacted that a similar adjudication in actions for money or property ieceived in a fiduciary capacity, with a like certificate of it stated in or endorsed upon the execution, should “ have the same force and effect as in case of executions issued upon judgments founded upon tort with a like statement therein or indorsement thereon.” The same force and effect could not be given to the class of executions provided for in section 24, without according to the debtors the privilege of applying to the court or judge as they might in other cases. To deny that privilege, would be to make the force and effect m'ore severe, instead of the same, as the statute provided. The plea therefore set forth a sufficient excuse for the escape, and the judgment that it was sufficient is affirmed.

On motion of the plaintiff, the judgment is reversed, proforma, and the cause remanded, with leave to replead on the usual terms.