Thayer v. Minchin , 5 Me. 325 ( 1828 )

Weston J.

delivered the opinion of the Court.

By the first section of the act, regulating bail in civil actions, Stat, 1821. eh. 67. it is provided that “it shall be lawful for the person, who may have become, or may hereafter become bail, to commit in the common gaol in the county where such arrest was made, or in that to which the writ is returnable, the principal for whom he has become bound, leaving with the gaoler or prison keeper of such, county, within fifteen days after such commitment, an attested copy of the writ or process whereby the arrest was made, and of the return indorsed; and such gaoler or prison keeper is hereby authorized and required to receive the person so committed into custody, in the same maimer as if he had been committed by the officer making the arrest; and the person so committed shall be entitled to the liberties and privileges of the prison limits, upon the same1 terms and conditions, and under the same restrictions, as are provided where the principal is committed by order of court. And the bail so committing their principal shall ever afier be discharged from the bail bond by them given : Provided however, that no parson shall have the benefit of the foregoing provision of this act, unless he shall have committed his principal as aforesaid, before final judgment upon scire, facias ; and if the commitment shall have been made after the writ of scire facias shall have issued, he shall pay the costs of that suit before he shall be discharged : And provided also, that any bail, who shall claim a discharge under this section, shall have notified in writing the plaintiff in the original suit, or his attorney,-of the time when and the place where the principal has been committed, within fifteen days from the time of such commitment.”

By the seventh section of the act for the relief of poor debtors, it is provided that any principal, surrendered by his bail, either on tnesne process or action of scire facias against the bail, shall, on giving bond similar to that in the same act provided, be released, from close confinement, in the same manner as if he had given such bond, after commitment on the original writ or execution. In pursuance of the section first cited, the principal, in the case before us, was committed by his bail; and in virtue of the section last cited, he was relieved from close confinement, on giving bond for the liberty of the yard. The decision of the cause will depend upon the question, whether he was to be regarded as a prisoner, when he departed out of the exterior bounds of the prison limits, or whether the power and authority, under which he was committed, had then ceased to operate upon him.

By the third section of the statute first before cited, it is provided, that if the bail shall bring his principal into court, before judgment is given upon the scire facias, and there deliver him to the order of the court, and shall pay the costs which may have then arisen upon the scire facias ; then the bail shall be discharged ; and the principal shall be committed to gaol, there to remain for the space of fifteen days, in order to his being taken in execution. And if the creditor shall not, within fifteen days next after the surrender of the principal, take’ him in execution, the sheriff shall discharge him, upon his paying the legal prison fees. By the fifth section of the same statute, it is further provided, that if the plaintiff shall not, within fifteen days after the surrender of their principal by the bail upon scire facias to the justice before whom the original process was returnable, or if the same shall have been made upon such process, within fifteen days next after final judgment thereon, take the said principal in execution, he shall be discharged, upon paying the legal prison fees.

By the first section, bail may commit their principal at any time, and in any stage of the proceedings, after they become bail, until final judgment is rendered against them upon scire facias. And the gaoler or prison keeper is authorized and required to receive, the principal thus committed, in the same manner, as if he had been committed .by the officer making the arrest. By the fifth section of the act for regulating prisons, Stat. 1821 ch. 110, it is provided that no person, imprisoned upon mesne prpcess, shall be held in prison upon such process, above the space of thirty days next after the entering up of final judgment, upon the writ whereby he is committed ; unless he shall be continued there, by having his body taken in execution.

In the case before us, al the time of the commitment of the principal, more than thirty days had elapsed, after the rendition of final judgment; and if he was thereupon to be treated by the gaoler, as the law provides, as if committed by the officer making the arrest, he would be entitled forthwith to be discharged. In two cases, specifically provided for as before stated, of a surrender in court upon scire facias, or a surrender before a justice upon the same process, the principal was to be committed to prison, there to be held, but upon giving bond entitled to the liberty of the goal yard, for the space of fifteen days, that the creditor might, if he saw fit, charge him in execution. This limitation is not in express terms extended to commitments, like the one in question ; but it could never have been intended that the principal should, in such a case, be surrendered, and immediately discharged; and we are satisfied, upon a full consideration of the whole statute, that in commitments by , the bail, before scire facias, but more than thirty days after final judgment against their principal, he is to be holden for the term of fifteen days from such commitment. He is entitled to the liberty of the yard, upon the same terms, limitations, and restrictions, as if committed after a surrender in court. And if so committed, he has a right to be discharged, if not taken in execution in fifteen days. It is made the duty of bail, in the section under which they acted in this instance, to notify the creditor of the commitment within the fifteen days. Unless this limitation is applied, the imprisonment of the principal may be interminable, if the creditor do not choose to take him in execution. Rather than adopt such a construction, it would he better that the literal interpretation, which entitles him to an immediate discharge, should prevail. But by applying the limitation of fifteen days to this case, we carry into effect the apparent intention of the legislature, and subject the principal to no greater inconvenience, than the law imposes upon him, if surrendered upon scire facias. Tt results that the principal, not having been, during the fifteen days following his commitment,- charged in execution, and the creditors, by reason of the first arrest or subsequent commitment, having no further claim upon his body, might go at large, without being answerable upon his bond to the ereditors, as their prisoner.

If the notice, required to be given by the bail, may not prove beneficial to the creditor, as it may be done at any time on the last of the fifteen days, it is for the legislature to make further provision, if necessary, by extending the time during which the debtor may be-detained, or shortening the period, within which notice is to be given to the creditor by the bail. Judgment for the defendants.