
    Harmon Chamberlain versus Abraham Mallard.
    
      K debtor committed to prison by his bail, under Si. 1817, c. 146, after a return of non est inventus on an execution, is not imprisoned u on mesne process or exe cution,” and the creditor is not liable under St. 1821, c. 22, to pay for his board in prison.
    This was an action of assumpsit brought by the under-keeper of the gaol' in Worcester to recover the expense of boarding one Parker, a poor debtor confined in close prison. In a case stated it appeared, that after an execution against Parker in favor of Mallard had been returned with a non est inventus, and after a scire facias had been sued out against Parker’s bail, but before final judgment thereon, the bail committed him to gaol in Worcester, conformably to the provisions of St. 1817, c. 146 ; that Parker having claimed relief as a pauper, the plaintiif called on the attorney of the defendant and demanded of him money or security for the board of Parker, and that the attorney refused to give security or advanee any money, and said that the defendant would not do either ; that the plaintiff kept Parker imprisoned for the term of time mentioned in the writ, and charged for his board af the rate of one dollar and twenty-five cents a week.
    The plaintiff’s demand was founded on St. 1821, c. 22. which provides, that when any person confined in close prison on mesne process or execution shall claim relief as a pauper, the keeper of the prison shall furnish relief and support to him at the expense of the creditor, and that no town shall hereafter be liable for the support of any poor debtor confined in the manner above mentioned.
    
      J. Davis, for the plaintiff,
    said the object of this statute, and of St. 1819, c. 94, was to relieve towns from the expense of supporting persons imprisoned for debt, and to put the burden upon those who should avail themselves of that remedy for enforcing payment of debts ; and he contended that Parker was imprisoned on mesne process. The statute of 1817, c. 146, does not authorize the bail to commit, unless his principal has been arrested on a writ, nor does it authorize the gaoler to detain the debtor, unless a copy of the writ and of the officer’s return is left with him within fifteen days after such commitment; and the statute requires the gaoler to receive, the debtor in the same manner as if he had been committed by the officer making the arrest, and it gives the debtor the same liberties and privileges of the prison limits, and upon the same conditions, as if he were so committed.
    If it is said, however, that the commitment was by force of the statute alone, and independent of all process, then it is objected that such a commitment is an infraction of the constitutional rights of the citizen ; and further, that it would defeat the intention of the legislature in St. 1821, c. 22 ; for if "the commitment was independent of the process, then it follows, that in all cases where bail is taken the legislature have failed to discharge towns from liability to support debtors committed by their bail. This inference is obvious, for the authority of the bail, in all the stages of judicial process, is derived from but one source ; and whether he commits before or after judgment, it must be either by-force of the process, or by force of the statute alone.
    
      It cannot be said, that, when the judgment is rendered, the mesne process is fully executed, for a person arrested and committed by an officer on mesne process is detained thirty days, in order that he may be taken upon the execution. This shows that the rendition of judgment does not supersede the writ, so that it has not still a prospective operation. The writ is the basis of all proceedings in the suit. The arrest upon the writ gives the officer the custody of the person of the debtor, which custody is shifted to the bail when bail is taken ; and the bail has a right to deliver up his prisoner to the gaoler, while that writ is in force ; and it might as well be contended that the bail-bond itself is vacated by the judgment in the suit, as that the mesne process is merged or superseded by it.
    Smith, for the defendant,
    contended that the words mesne process, as used in common parlance in this commonwealth, and by the legislature and by this Court, mean our writ of attachment; (St. 1783, c. 57, § 4 ; St. 1798, c. 77, § 3; St. 1804, c. 83, § 1 ; Willington v. Stearns, 1 Pick. 497, and other adjudged cases ;) and that Parker was not imprisoned on mesne process, according to the true meaning of the legislature, but was committed by his bail, in virtue of the provisions of St. 1817, c. 146. If the legislature, in St. 1821, c. 22, meant to embrace cases of commitment by bail, they have not done it. The provision in the statute of 1817, that the bail shall furnish the gaoler with a copy of the writ, is merely for the protection of the gaoler, and the other provision, that the debtor shall be received in the same manner as if he were committed on mesne process, is merely direc-. tory to the gaoler as to his duty in regard to the prisoner. And it is to be observed, that the bail is allowed fifteen days to give notice to the creditor that the debtor is in prison. Suppose notice not to be given until the last of the fifteen days, wffio is to support the debtor during that period ? It cannot be imagined that the legislature intended by the statute of 1821, to subject the creditor to that expense, when he was ignorant of the debtor’s being in prison, and when, if he had known it, he might have saved himself the expense by immediately discharging the debtor.
    
      At the time when Parker was committed by his bail, the mesne process was functus officio, and if it be admitted that he was - in prison as a consequence of the defendant’s suit against him, it does not follow that he was in on mesne process, any more than he would have been, if he had been committed in execution ; which also would have been a consequence of the original suit. Suppose that after the service of the scire facias and before final judgment thereon, the bail surrenders his principal in court, and the court, conformably to the provisions of St. 1784, c. 10, § 2, order him into the custody of the sheriff; could it be maintained that he was in prison on mesne process ? I contend not. The debtor in such case is in prison by mere operation of law, to exonerate the bail and enable the creditor to take the debtor in execution. So also is it with goods attached on mesne process ; they are held for thirty days after judgment, not by mesne process, but by force of the statute of 1784, c. 29, § 11, to be taken in execution.
    If Parker however can be considered as imprisoned on mesne process, still the statute of 1821 gives no action in any form to the gaoler, and his only remedy is the one given in the second section, of requiring security or an advancement of money at the time of commitment. If his demand is not complied with, it is his duty to discharge the prisoner. The words may discharge, in the statute, mean shall discharge. The plaintiff was informed that the defendant would not pay the debtor’s board, and he cannot make the defendant his debtor, and upon an implied promise, against the defendant’s express declaration. Whiting v. Sullivan, 7 Mass. R. 107 Kimball v. Tucker, 10 Mass. R. 192.
   Parker C. J.,

in giving the opinion of the Court, said that the debtor having been committed after the judgment, he could not be considered as imprisoned on mesne process.

The intention of the legislature was to charge the creditor with the board of the debtor, when the imprisonment was by his direction ; not where it was without his knowledge or against his will. Here the commitment was by the bail in the exercise of his privilege. This is neither within the words nor the spirit of the statute, and if the legislature intended to embrace this case, they have not expressed their intention.

Plaintiff nonsuit. 
      
       But by St. 1824, c. 124, a debtor committed to gaol by his bail is to be supported at the expense of the creditor, after notice, in the same nanner as if he were committed on mesne process or execution.
     