Hubbell v. Dodge

Hutchinson, C. J., 'pronounced the opinion of the court.— Judgement having been rendered for the plaintiff to recover the penalty of the bond sued, in fixing upon the sum due in equity, .-there is no dispute about the plaintiff’s being, allowed theinterven-ing damages for interest, and his cost: but, as the body of the original debtor was not returned to the keeper of the prison, whence be was liberated by the audita querela, the plaintiff claims the whole debt. This is opposed by the defendant; not by any proal that the original-defendant was redelivered- according .to the condition of the'bond in question, but, because the plaintiff has not shown, that he prayed out an alias execution and 'delivered it to the keeper of the prison, for him to commit anew : and this is compared to a bond for the redelivery of chattels that had been taken from the officer,who held the same in execution. We think the case .does not compare at all. In such case, the original execution was not satisfied, and an alias might issue. But, when the •debtor is in prison on the execution, that is a satisiaction.of.the execution, appearing on the same ; so that an alias cannot issue without a scire facias, setting forth an -escape, or some cause, why it should not be considered satisfied, that an alias may be obtained. But our statute regdlation of audita querela, when so issued as t® •operate as a supercedeas, takes the body of the debtor from the prison, and provides security for his return, if his writ fail, by •such a bond as the one now in suit. If the prisoner returns into custody, there need be no alias execution ; he submits to his original imprisonment! and the original execution, and the order of court for his return to prison, form a sufficient authority for the jailor to hold him till -the debt is paid. And it is incumbent on the debtor and his sureties to see to it, that the debtor go to the jailor, with a copy of this order, and deliver that and his body to the [58] custody of the jailor. Till that is done, the bond is in full force, as a security for the whole debt. This well compares with the case of a person in prison, brought up by habeas corpus, and remanded by order of court. He is then in on the same process as before. In this case, the plaintiff must recover his whole debt, if it do not exceed the penalty of the bond, together with his costs. Hunt & Beardsley, for plaintiff. Read & Turner, for defendant.