Blanding v. Rogers

Grimke, J., delivered the opinion of the court, in substance agreeing with the opinion 1 had prepared, as follows. The judgment, or demurrer in ■ the District Court was correct, on two grounds. 1. Because the bond stated in the plea was not condition, ed for the appearance of the party only, pursuant to the stat. 23, H. 6, c. 9, of force here, and therefore void ; and 2. Because if it were not void by that statute, it would not be a bar to the present action, inasmuch as the present action is brought for suffering a person to escape, who was arrested on mense process in an action of debt, and a bond was taken with a condition to appear, and answer to an action on the case. In relation to the verdict being for the debt and interest, it is in my judgment right. The damages, re» 395 coverable in an action for an escape on mense process, depends on the extent of the injury sustained in consequence of the sheriff’s misconduct. The debt, I presume, was proven, and the interest due thereon, which the bail bond, if properly taken, would have secured.. SeeP.L. 29. 2 T. R. 126, 37,172. 2 Bl. Rep. 1048. 8 Co. HI. Bull.N. P.64. 2 Esp. Dig. 609. 4 T. R. 611. 2 Lev. 85. 5 T. R.37. 7 T. R. 109. Peake’s Evict 389. 2 Wil. 295. 7 Johns. 189. Russell v. Tamer. Vid. 1 Johns. 223, 2 Johns. 454. Motion rejected.