Kimball v. Preble

Mellen C. J.

delivered the opinion of the Court.

We are well satisfied that the bond was properly placed in the hands of the gaol keeper, and that a delivery of it by the defendants to him was a delivery of it to the plaintiff, who has received it, and is in this action claiming the benefit of it. This circumstance is also proof of the plaintiff’s approbation of the sureties; and his approval is by the 4th section of the act of 1822, cli. 209, equivalent to the approbation of two justices of the peace quorum unus. Nor do we think that the bond is objectionable, because it was given for a sum less than double the sum for which the debtor was committed; for the 9th section of the act provides, that no sheriff, gaoler or prison keeper shall be liable for an escape, in consequence of allowIng the liberty of the gaol yard to a prisoner, on his giving bond there-ior, notwithstanding such bond, from accident, intake or misapprehension, may not have been given for double the sum for which the debtor was imprisoned. In the case before us the^ond was for two dollars and ninety six cents less than the true sum, which must have arisen from some error or misapprehension. The band must therefore be considered good under the statute, or else the freditor could have no remedy, either against the sheriff or gaol keener, or the sureties, according to the argument of the defendants’ colnseL But if the bond could not be good as a statute bond, it would be good at common,law; as has been repeatedly, decided in the cases cited by the counsel for the plaintiff. According to the agreement of the parties, the defen= dants must be defaulted-