moot point; but in reply to the popular harangue of the plaintiff's counsel, it may be inquired if it is not equally hard upon the sheriff? Compelled by the statute, and even the constitution, to take bail of a certain description modified by the statute, for the liberties of the gaol yard, exposed to an action or liable to impeachment if he refuses, is it not hard, that when he has strictly observed his duty, accepted the bail required by the statute, and the bail should chance to be unable to respond the judgment rendered on the bond, to be made absolutely liable for all damages? Suppose a sheriff should accept the bail required by the statute, and the week afterwards the bailor should become bankrupt. Has the sheriff in such case any power to secure himself? Could he have any process against the bankrupt? Could he again close his prison doors upon the debtor, and demand new bail? Would not the statute, if it contemplated the sheriff as liable in the mode and to the extent contended for, have provided some process whereby the sheriff might secure himself? In most governments there is some peculiar indulgence shewn to their public officers, and in all governments, when they can shew they have done their duty precisely as prescribed by the Legislature, the courts of law will protect them. Marsh. The whole matters in contest rest here. Are the facts stated in the notice under the general issue, such as could have been well pleaded in bar? It may be determined by this concise view of the subject: Udall v. Rice. Udall V. Rice. The sheriff accepted Lysander Richardson as a sufficient surety in a bail-bond for admitting Seth Emmons to the liberties of the gaol-yard. The bond has been assigned to the creditor, Samuel Udall. He has commenced a suit, and recovered judgment on the bond. The execution has been delivered to the 'same officer, who accepted Richardson as bail, and he himself has returned a non est as to person and property. Is it legal or even expedient, that the same officer should now be permitted to say in justification, that Lysander Richardson is now a man of sufficient property to respond the judgment? for he is certainly precluded by his return, his own official act, from saying to the contrary. Could the sheriff have well pleaded such justification in bar? The Chief Judge delivered the opinion of the Court. It is the opinion of the Court, that the facts proferted in the notice under the general issue cannot be admitted in evidence to the Jury. The sheriff is compelled by the statute to admit prisoners committed upon execution founded on a proper action of debt, covenant, contract or promise, to the liberties of the gaol yard, taking a bond with sufficient surety or sureties, being freeholders resident within the State, with certain conditions prescribed in the form inserted in the statute, the principal of which is, that the prisoner shall not depart the liberties of the gaol yard, unless lawfully discharged. If an escape is made, the statute restricts the creditor from bringing any suit against the sheriff until he hath applied to him for the assignment of such bond. If the sheriff assign the bond to the creditor, he must institute a suit upon it against the bail. If bail proves sufficient to respond the judgment, no action will lie against the sheriff. None is necessary. But if insufficient, the action then lies against the sheriff. And what more ample proof of the utter insufficiency of such bail can be expected than what is found in the return of non est by the same sheriff made on the execution against the bail? To say, that at the time of taking the bail, the bailor was sufficient, and to make his being a freeholder resident within the State at the time of the execution of the bond, a criterion of his sufficiency, would be to evade the statute. The sheriff must take such bail as is not merely sufficient at the time of executing the bond, but such as will be sufficient to respond the judgment. Even if the bail possessed ample freehold, subject to the creditor's execution, landed estate might not satisfy the creditor. When he imprisoned the original debtor, nothing but money would satisfy the creditor if he insisted upon it. He might perhaps have satisfied his original execution by levying it upon lands. He preferred imprisoning the debtor Emmons in order to obtain the money, and he has an equal right to insist upon money from the bail. The meaning of the statute is plain. The sheriff shall at his own risk take such bail for prisoners admitted to the liberties of the gaol yard, as in case of escape shall be sufficient to satisfy a judgment in favour of the creditor in money. Udall V. Rice. Udall Rice. The cause went to the Jury merely for the assessment of damages, which the Court directed the Jury to assess upon the damages and costs recovered by the plaintiff in his former suit against the bail, together with the officer's fees for the commitment of the bailor upon the alias execution, with simple interest. Charles Marsh, for plaintiff. Nathaniel Chipman and Titus Hutchinson, for defendant. PRESENT, ENOCH WOODBRIDGE, Chief Judge. The collector of a proprie for sale, to an of each delin MARTHA WENTWORTH, Appellant, against JOHN ALLEN, Appellee. EJECTMENT. This was an action of eject tor's tax is not ment wherein the plaintiff demanded seisin and posobliged, in his advertisement session of a certain tract or parcel of land, lying in nex to the name the north-east corner of Stockbridge, Windsor Counquent propriety, containing five hundred acres, which tract was tor such sum as originally granted to Benning Wentworth, late Gohis right or vernor of New-Hampshire, as by reference to the mention the a- charter and chart of Stockbridge, may more fully tax on each right generally, and then insert a list of the delinquents. is assessed on share, but may mount of the V. appear; the same land being devised to the plaintiff Wentworth by the said Benning Wentworth; but the defendant entered and amoved, &c. ad damnum. Plea, not guilty. Issue joined, and put to the Allen. Jury. Plaintiff's evidence. First. Copy of the charter of Stockbridge, dated July 21, 1761. Secondly. Copy of Benning Wentworth's will, dated November 6, 1769, probated 1770, by which he devised all his lands to the plaintiff. Defence. The defendant offered in evidence a deed from the collector of a proprietor's tax, conveying to him the land demanded, and stated that there had been a legal sale of said land for the non-payment of a tax assessed by the proprietors of Stockbridge at a legal meeting, and moved to accompany the deed with exhibits of the proceedings of the proprietors. Daniel Farrand, for the plaintiff, objected to the proceedings of the proprietors being read to the Jury; for that it appeared by the charter, that the land in question was located, or rather granted in severalty to Benning Wentworth, the devisor, and therefore the land not being held in common with the other proprietors, they had no right to levy a tax upon it. SMITH, Judge. I am for excluding the proceedings of the proprietors. I conceive they had no |