Boynton v. Blodgett

9 N.H. 224

Opinion

Parker, C. J.

Footnotes

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It appears from the case, that Rider, who was committed to gaol upon the plaintiff’s writ, was after-wards liberated, in due course of law, upon giving a bail bond, without in fact committing an escape ; and this action, therefore, cannot be sustained unless the defendant is to be precluded from showing these facts. Rut we are not aware of any principle upon which the evidence can be excluded.

The argument is, in effect, that the defendant is estopped, because it appears of record from the returns of his deputies, that Rider was arrested, and committed to the gaol, for want of bail—that the deputy, afterwards, having an execution within thirty days from the rendition of judgment, enquired for him at the gaol, and that he was not there, and was not to be found.

This appears from the returns; but all this is not inconsistent with the fact that Rider had been released from gaol, in due course of law, upon giving a bail bond ; and is not, therefore, contradicted by such evidence, and by showing that he did not in fact escape.

Had no bond been given, it would have been the duty of the gaoler to have detained him until the expiration of thirty days from the rendition of the judgment; but upon the execution of the bond he was no longer justified in keeping him in prison.

But it has been urged that if Rider was out on a bail bond it was the duty of the defendant to give notice of that fact to his deputy, in order that he might give notice to the bail. There are several answers to this. The statute regulating bail provides that the creditor, intending to charge the bail, shall deliver his execution to the officer, with the name and place of residence of the bail. If, then, the defendant had notified the officer that Rider had been admitted to bail, as the creditor had not delivered to him the name and place of residence of the bail, it would at least be questionable whether any duty would have been imposed upon the officer to give notice, or make any attempt to charge the bail.

Another answer is, that it does not appear from the case that such information was not given to the deputy who had the execution, nor does there seem to be any ground on which to infer it. The return of the officer is, that he called at the gaol, and he was not there, and that he could not find him ; but he does not return, nor is there any evidence that he did not receive information, that he was bailed : nor is there any allegation in the declaration that such information was not communicated.

Another answer is, that if in fact information was not given upon due enquiry, and if for this neglect on the part of the gaoler an action might be sustained for the recovery of damages, this would not constitute an escape, nor sustain the present suit, in which no grievance of that description is alleged.

Judgment for the defendant.

Wilcox, J., having- been of counsel, did not sit.