HAYDEN US. CABOT. atical at least in its issue. He has never paid any money on account of the bond which he signed, or as the necessary consequence of his signing it. The nonsuit must stand. Costs for the defendant. [* 175] * DAVID WHITING AND ANOTHER versus SAMUEL PUTNAM AND OTHERS. Where bond is given for the liberty of the prison-yard, by one imprisoned on mesne process, the penal sum must be double the sum to the amount of which the officer is directed to attach; and in case of an escape, it is not subject to the equitable powers of this Court, as a bond is, when given by one committed upon execution. THIS was an action of debt upon a bond, the condition of which was, that the principal defendant, who had been imprisoned upon mesne process, in a suit brought against him by the present plaintiffs, should continue a true prisoner in the custody of the jailer, and within the limits of the prison, until he should be lawfully discharged, without committing any manner of escape. Upon issue to the country, whether any escape had been committed, a verdict was returned for the plaintiffs. The defendants then moved to be heard in chancery, on the ground that the bond was not in conformity to the statutes on the subject, and therefore that the case was within the general equitable jurisdiction of this Court. The officer was directed, in the former action, to attach the defendant's estate to the value of 1200 dollars, and for want thereof to take his body. The debt demanded was about 750 dollars. The bond upon which the present action was brought, was in the penalty of 2400 dollars. Webster and D. A. Simmons, for the plaintiffs. Stearns and Peabody, for the defendants. PARKER, C. J., delivered the opinion of the Court. It is argued that the bond in this case is not conformable to the statute, because the penalty is in double the sum in which the principal was ordered to be attached. The statute requires the bond to be taken in double the sum for which the debtor is imprisoned (1); and it is contended that he is imprisoned only for the amount of the debt, or, at most, of the ad damnum as laid in the writ (1) Stat. 1784, c. 41, § 9. WHITING & AL. vs. PUTNAM & AL. This is the first action, which has been before us, on a bond given by a debtor imprisoned only on mesne process; and [* 176] upon examining the questions arising on it, * we cannot but think that more inconveniences appear to result from the provision than were foreseen by the legislature. When a debtor is imprisoned on mesne process, he may be liberated on giving bail; and if excessive bail should be required, a remedy is open upon habeas corpus; so that there would seem not to be the same reason for providing for this indulgence to the debtor, as there is for one who is in prison upon execution, and cannot be bailed. There is great difficulty also in executing the provision of the statute, in a case of this sort, which does not exist in the case of a debtor on execution. In the latter case, the sum for which the party is imprisoned, is fixed by the execution itself, and the penalty may be regulated by that. But in the case of mesne process, there is nothing certain. The plaintiff directs the sum for which the debtor shall be arrested, and lays his damages ad libitum. A bond in double the amount of either of those sums may be ten times greater than the sum finally recovered, and yet the whole penalty may be exacted, if an escape take place. If, to avoid this difficulty, the debt demanded is looked to as the measure of the penalty, that also may be out of all proportion to the sum actually due; indeed, nothing may be finally recovered; and yet, in case an escape has happened, the plaintiff would be entitled to the whole penalty of the bond. But this is not the worst aspect of the case; for, by our law, a man may arrest another and commit him to prison, in an action for slander, assault and battery, or other tort, claiming what damages he pleases, and himself appointing the sum in which the defendant shall be held to bail. It is true the sum, in which bail is required, may be reasonably reduced on habeas corpus ; but the party arrested cannot be discharged, but must give bail or go to prison. If he should not be able to procure bail, but should be able to [* 177 ] prevail upon any, from compassion, to be his sureties for the liberty of the yard, the sum cannot be reduced, and his sureties may be exposed to great mischief. We cannot but believe that, if these evils were properly presented to the legislature, our laws authorizing personal arrests would be revised. In England, arrests are allowed in civil actions only for debt, and the debt must be sworn to by the creditor. It is the same in New York, and in other of our sister states. Probably we stand alone in authorizing, by law, the incarceration of citizens or strangers, upon the mere allegation of damages by an individual, who is under every temptation, from avarice or malice, to abuse so dangerous a power WHITING & AL. vs. PUTNAM & AL. As the law is, however, it must be administered; although it is not an unimportant duty of a court to point out inconveniences in existing provisions, that the community or the legislature may judge of them, and amend or annul them, as their wisdom shall advise. The statute which provides for the relief of persons in prison for debt, expressly embraces the case of imprisonment upon mesne process; and the statute of 1811, c. 167, which is an addition to the former one, recognizes debtors imprisoned on mesne process as well as those upon execution. The statute of 1810, c. 116, in providing for an involuntary escape, seems to have overlooked the case of imprisonment on mesne process, leaving the double penalty to be recovered in that case, and only the debt and costs in the case of imprisonment upon execution. By what rule, then, shall the penalty of the bond be ascertained and fixed? We have seen that the debt or demand is uncertain, and also the ad damnum. So also is the sum in which the officer is directed to attach. The statute says that the bond shall be in double the amount for which the party is imprisoned. For what sum is a debtor imprisoned, unless for the same, for the want of security to the value of which the officer commits him according to his precept? He is commanded to attach * property to a [* 178] certain amount, and for want thereof to take the body of the debtor. If bail is offered, it must be for that sum; and if bail is not given, the debtor is committed. It is for this sum, then, that he is imprisoned; and for this sum he must find sureties, if he would have the liberty of the yard. The bond, then, upon which the present suit is brought, is a statute bond; and the consequences of an escape, as settled by the statute, must attach; for it is not a case over which we have any control in chancery. Judgment, therefore, must be at law for the penalty and costs; unless the plaintiffs consent, as it is suggested they have heretofore offered, to take their actual debt and costs. It is hoped that, seeing the necessary application of the statute, gentlemen will use their influence to have it revised and modified. FISHER ADAMS AND OTHERS versus JACOB MANNING AND OTHERS. In an action of assumpsit, it was holden that the defendants could not file, as a set-off, a demand against the plaintiffs for certain merchandise consigned by the defendants to them for sale, which they had indiscreetly sold to an inso vent person. ADAMS & AL. vs. MANNING & AL. ASSUMPSIT upon two bills of exchange drawn upon and accepted by the plaintiffs. The defendants had filed in set-off a demand against the plaintiffs, for the amount of certain merchandise, sent to the plaintiffs, as commission merchants in New York, to sell and dispose of on account of the defendants; which was received by the plaintiffs, sold, and an account rendered, showing the balance due, as claimed by the defendants, when collected. The merchandise was sold on credit to one Upham, who had failed, and had been discharged under the insolvent laws of New York. The question of fact, which was tried before the chief justice, was, whether the plaintiffs had acted discreetly, and with due caution, in giving the credit to Upham, without any collateral security. The jury returned a verdict for the defendants, grounding it [* 179] * upon the negligence of the plaintiffs in selling the goods to Upham without any security. The plaintiffs objected to the account filed in set-off; and if it ought not to have been received, the verdict was to be set aside, and the defendants defaulted. Morse, for the plaintiffs. By "goods delivered, in the statute (1), must be understood goods sold and delivered, of which the price is fixed at the time of the sale, and for which assumpsit would lie. The plaintiffs were not the purchasers of these goods, but the consignees, and if they are liable to any action upon the facts found, it is case for negligence, and not assumpsit (2). Aylwin, for the defendants. This set-off is within the words of the statute, which has not the word sold. The defendants had a right of action against the plaintiffs, as bailiffs, and receivers; and waiving the tort implied in the negligence, might maintain assumpsit. Courts of law will always favor set-offs, to prevent multiplicity of suits and circuity of action; and the case of Witter vs. Witter (3) is stronger than this. But if the case is not within the letter of the statute, the merits are wholly with the defendants. The merchandise was consigned to the plaintiffs, to meet these very acceptances; and it is entirely the fault of the plaintiffs, in selling it to an insolvent person, that they were not in funds for the defendants to a greater amount than their acceptances (4). Curia. The demand filed in set-off is not such as is provided for in the statute, which allows of set-offs in actions upon simple (1) Stat. 1793, c. 75, § 4. (2) Bull. N. P. 181.-Cowp. 479.-5 Burr. 2825.-2 Cranch, 343.—Montague on Set off, 21. (3) 10 Mass. Rep. 225. (4) Corp. 375.-14 Mass. Rep. 282.-7 East, 450.-13 Johns. 302.-3 Camp. 293 ADAMS & AL. vs. MANNING & AL. contract. The set-off must be of goods sold and delivered, moneys paid, or services done. The demand, which the defendants claim to set off, appeared by the evidence to be for damages for negligence or unfaithful management of merchandise consigned to the plaintiffs for sale. The legislature never intended that a plaintiff should be surprised by a demand like this, in answer to his action upon a promissory note or bill of exchange, *or [* 180] for goods sold and delivered, but would leave the party complaining to his independent remedy. There is always power in the Court to withhold judgment until the defendant, if he will use due diligence, shall obtain his judgment for damages; after which one judgment may be set off against the other, or one execution may balance the other. Defendants defaulted THOMAS WILSON versus JOHN APPLETON. A creditor in a foreign country, having an agent here, is not therefore within the statute of limitations. ASSUMPSIT on several promises. The plaintiff names himself of London, in the kingdom of Great Britain, merchant, an alien, never resident within the United States, or either of them. The defendant pleads that the cause of action did not accrue within six years, &c. The plaintiff replies, that at the time when the cause of action accrued to him, he was beyond sea, without any of the United States, viz., at London, &c., and hath ever since so continued. The defendant rejoins, that within six years after making the supposed promises, and ever since, until the cominencement of this action, the plaintiff has had an agent, who in each year during that time has been within this commonwealth, and duly authorized to demand and receive his said supposed debt of the defendant, which debt was, by an agent of the plaintiff, during that time demanded of the defendant, who denied that any such debt was due from him to the plaintiff. Wherefore he says that the plaintiff was not, during said time, under any disability to present his supposed claim, and commence his suit against the defendant therefor. To this rejoinder the plaintiff demurs, and the defendant joins in demurrer VOL. XVII. 13 145 |