
    * Timothy Bigelow versus Thomas Johnson and Others
    Where bail in a civil action, pursuant to the provisions of the statute of 1817, c. 146, commit their principal to prison, giving the required notice, &c., and he is afterwards convicted of a crime and sentenced to confinement in the state prison, before judgment is rendered in the civil action, the bail are discharged.
    Scire Facias against the defendants, as bail for one Joseph Dalton. ' The defendants plead in bar, that on, &c., and before the commencement of the present suit, they committed Dalton to the prison in Cambridge, and left a copy of the original writ, &c. with the prison keeper; and afterwards, and within fifteen days from the said commitment, notified the plaintiff thereof, &c. The plaintiff replies that, before judgment was rendered for him in his original suit, and before notice was given him of the said commitment, Dalton had been apprehended and committed to prison for trial on an indictment for felony; and that, before the plaintiff recovered his said judgment, Dalton was convicted of the felony, sentenced to eighteen months’ confinement at hard labor, and was removed ✓ to the state prison, in execution of the sentence; so that when the plaintiff obtained his judgment, the body of Dalton could not be taken in satisfaction of the execution, which issued upon the said judgment. The defendants demurred to this replication, and the plaintiff joined in demurrer.
    
      Fuller, for the defendants,
    cited the cases of Fowler vs. Dunn, 4 Burr, 2034. —Strange, 1217 —and Bond vs. Isaac, 1 Burr, 339.
    
      Ward, for the plaintiff.
    The English law on this subject is not applicable here The obligation and duties of bail are very different here and in England. The conduct of the defendants was a mere fraud. They did not, in fact, surrender or commit the principal : he was already in prison on a charge of felony, and before the plaintiff could obtain his judgment, and charge the debtor in execution, he was removed from the custody of the gaoler, and confined in the state prison, where the plaintiff could not charge him .
    
      
       8 Mass. Rep. 264, Parker vs. Chandler.
      
    
   * Parker, C. J.

The only question presented by the [ * 219 ] pleadings in this case is, whether the defendants have complied with the statute of 1817, c. 146, by arresting the principal debtor, committing him to prison, and giving the requisite notice to the plaintiff, his creditor. All these facts are averred in the plea in bar; and they are attempted to be avoided in the replication, by averring that Dalton was at that time in prison, on a copias issued in behalf of the commonwealth, for an alleged felony.

Now, this is no answer to the bar; for a man in prison, although for crime, may be served with civil process, and be technically arrested. It is true, that the proceedings at the suit of the commonwealth may eventually supersede the imprisonment on civil process ; and so they might, if the culprit had been previously confined on civil process. The arrest is legal, notwithstanding, and the subsequent disposition of the person arrested is by public authority, for a public purpose ; to which private interests must always yield. All the purposes of the statute, which was made for the relief and secu rity of the bail, are answered by the information to the gaoler, that the person is to be detained upon civil process, in case of a discharge or acquittal on the criminal prosecution. Should he be convicted, and in execution of his sentence be taken out of the hands of the gaoler, there is surely no reason why the bail should suffer, rather than the creditor. The arrest and notice are made, by the statute, equivalent to a surrender in court, as to the liability of the bail.

By the tenor of the authorities cited for the defendants, it appears that after conviction of a crime, the debtor may be brought in upon habeas corpus, and surrendered; and there seems to be no reason why, after sentence, one might not be brought from the state prison, and surrendered in discharge of his bail. It is true, the creditor cannot, by his execution, take the debtor from his proper place of confinement, and cause him to be committed to the county gaol; but he may, by renewing his execution, *do [ * 220 ] this at the expiration of the term of punishment: and if that should be for life, or a long term of years, the evil would be no other than if a debtor, surrendered by his bail, should have com-milled a capital offence, and should be taken out of the hands of his creditor to be executed.

T'ne case of Parker vs. Chandler has been cited for the plaintiff, as proving his right to recover on the facts stated in the pleadings. It is there briefly stated that, on scire facias against bail, it is no excuse to say that the principal is confined in the state prison for crime ; and that nothing but the act of God can excuse in the case of bail. This may be, although it is perhaps broadly laid down. It is one thing to excuse bail, and another to discharge them upon surrender of the principal. Notwithstanding that decision, we apprehend that bail might have a habeas corpus for the principal in the state prison, and surrender him .

Replication adjudged bad. 
      
      
        [Wood vs. Mitchell, 6 D. & E. 247. —Robertson vs. Patterson, 7 East, 407, 408. —Sharp vs. Sheriff, 7 D. & E. 226. —Daniel vs. Thomson, 15 East, 78. —Bennett vs. Kinnear, 3 B. Moore, 59. The King vs. Johnson, 6 East, 583. —2 Smith, 591. —Cathcart vs. Cannon, 1 Johns. Cas. 28. —Loflin & Al. vs. Fowler, 18 Johns. 335. —Bignell vs. Forrest, 2 Johns. 482. —Phoenix Company vs. Moffatt, 6 Cowen, 599. —Bowerbank vs Payne,2 Wash. C. C. R. 464. —Saybard & Al. vs. Conant Al. 11 Mass. 146, note.—Ed.]
     