Lamborn v. Bowen

1 Tapp. Rep. 342

• Court: Columbiana County Court of Common Pleas
• Decided: August 15, 1819
• Status: Published

Opinion

President.

A prisoner is not entitled to be discharged from close custody, until he has given a bond, with two or more sureties, such as two judges or two justices shall approve of. If the Sheriff liberates a prisoner, without the sureties being so approved of, he would be liable for an escape; whether such approval should be endorsed on the bond, or be evidenced by some other and separate writing, or by parol, it is clearly no part of the bond, and therefore it is unnecessary, in declaring on the bond, to aver it. In debt on a specialty, this distinction is laid down by Chitty; where the deed is the foundation of the action and matter of fact only inducement, nil debit is an improper plea; but where the deed is only inducement and matter of fact, the foundation of it, nil debit, is a proper plea. This case is of the latter description. The escape is the foundation of the action. In the cases of Minton vs. Woodworth and Ferris, 11 Johns. 474, the same question arose and received the same decision. Judgment for the defendants on the demurrer.