Clapp v. Hayward

Decided October 15, 1818

Massachusetts Supreme Judicial Court · decided 1818-10-15

This was an action against the defendant, as sheriff of the county of Plymouth, for the escape of one Jotham Dunfey, a prisoner on execution, at the suit of the plaintiff; and it was referred to the decision of the Court, on the following facts: — The said Jotham, being committed, on execution in favor of the plaintiff, for 15 dollars debt, 3 dollars 53 cents costs, 25 cents for the execution, and 3 dollars for the fees of commitment, gave a bond, with a surety approved by…

Cited by 1 later decisions — most recently May 1889

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Decided 1818-10-15

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By the Court.

¶1Judgment must be entered for the plaintiff; on the ground that the bond, being for a penal sum less than double the amount of the sums for which the debtor was imprisoned, was void under the statute, or rather was not in conformity to it; and that the creditor was not obliged to accept such bond, but might, notwithstanding, charge the sheriff in an action for the escape.

¶2It is not decided that a bond for more than double the amount would be, for that reason, sufficient to protect the sheriff. As to this point, no opinion is given, (a)

¶3Defendant defaulted.

¶4 Clap vs. Copan, 7 Mass. Rep. 101. — Bartlett vs. Willis & Al. 3 Mass. Rep. 105