
    *Thomas Parker v. Elisha T. Sterling and William Sargeant.
    The act of 1838, to abolish imprisonment for debt, operates to discharge a debtor confined on the prison limits before the act look effect.
    The act effects the remedy, not the contract.
    This is an action of debt, from the county of Cuyahoga.
    The declaration avers, “ that the defendants and one Charles L. Ogden, whom the sheriff has returned not served, on December 27, 1837, at Cleveland, in said county, made their certain writing obligatory, the said Ogden as principal, and the said Elisha T. and William as sureties, signed with their hands and sealed with their seals, etc,, whereby the said Ogden and the said defendants acknowledged themselves to be bound unto the said plaintiff in the sum of $440.40, to be paid to the said plaintiff on demand; to which said writing obligatory there was attached a condition, reciting, 1 That whereas the said Charles Ogden had that day been committed to the jail of Cuyahoga county, and was then actually imprisoned therein, by virtue of an execution issued by the court of common pleas of said county, demanding $220.20, including debt and costs, at the suit of the said Parker; and whereas the said Sterling and Sargeant had that day become bail for the said Ogden, for the prison limits of said county, and provides, that if the said Ogden should continue safely on the said prison limits, in the custody of the sheriff of said county, and in no instance depart or go off the same, until he should be legally discharged, then the said writing obligatory should be void, otherwise to remain in full force and virtue.’ ” .
    The breach assigned is, “ that the said Charles L. Ogden did not safely continue on the prison limits aforesaid, in the custody of the sheriff aforesaid, until legally discharged, but that the said Charles L. Ogden, aiterward, to wit, on *February 2, 1889, [358 without being legally discharged, departed and went off from the prison limits aforesaid, and from the custody of the sheriff, into the State of Michigan, wherefore,” etc.
    To this declaration the defendants plead : First, non est factum; second, a special plea in bar, in substance, that after the making of the said writing obligatory, and before the said Ogden left the prison limits and the custody of the sheriff, as alleged, the general assembly, to wit, on March 19, 1838, passed an act to abolish imprisonment for debt, which, among other things-, provides, that no person shall be arrested or imprisoned for debt, etc.; and by the true intent and meaning of said act, the said Charles L. Ogden became and was legally discharged from the custody of said sheriff and the prison limits aforesaid, as in said declaration mentioned, etc.
    To this special plea there is a general demurrer and joinder.
    No argument for the plaintiff came to the hands of the reporter.
    
      H. Foote, for the defendants,
    cited Young v. Whitton, 9 Ohio, 100; Phelps v. Barker, 13 Wend. 68; Somers v. Johnson, 4 Vt. 278; 2 Kent’s Com. 397, 462 ; 3 Story’s Com. on Const, 251, 367 ; Sturges v. Crowninshield, 4 Wheat. 200; Mason v. Haile, 12 Wheat. 370; Wood v. Funk, 7 Ohio, 196, pt. 1; Lodge v. Phelps, 1 Johns. Cas. 139; Smith v. Spinolla, 2 Johns. 198 ; White v. Canfield, 7 Johns. 117; Sicard v. Whale, 11 Johns. 194; Whittomore v. Adams, 2 Cowen, 626 ; Hinckley v. Marian, 3 Mason, 88 ; Titus v. Hobart, 5 Cowen, 378; Woodbridge v. Wright, 3 Conn. 523; Atwater v. Townsend, 4 Conn. 47; Wood v. Malin, 5 Halst. 208; Morris v. Edes, 11 Louis. 730; Webster v. Massey, 2 Wash. C. C. 157; Dash v. Vankleek, 7 Johns. 477; Perkins v. Perkins, 7 Conn. 558; Calder v. Bull, 3 Dall. 386; Webster arguendo, 16 Mass. 245; Call v. Hagger, 8 Mass. 423; Goshen v. Stonington, 4 Conn. 209; Man. Co. v. Lathrop, 7 Conn. 550.
   *Wood, J.

It is admitted in this ease that the arrest and commitment of Ogden, and the execution of the bond by him and his sureties, were all acts done in pursuance of the provisions of the law as they existed at the time. It is supposed, however, by the defendants, that the act of March 19, 1838, though passed subsequently to his commitment, operates ipso facto to discharge him, and this is the question raised by the demurrer. It is not claimed that the execution, issued for the arrest of Ogden was founded on any affidavit, or that Ogden came within any of the exceptions enumerated as cases in which it should be lawful to arrest, for all was done, and whatever the rights of the plaintiff were, they accrued at the date of the bond, in December, 1837, and the act in question was not passed until the following March. But it is said the right of the plaintiff to the custody of Ogden in the sheriff, within the limits of the prison, was already vested before tlie passage of the act, and that right could not be impaired or affected by subsequent legislation.

The answer to this is, that the execution and commitment, and the bond for the liberties of the prison, are not the contract, which it is unconstitutional to impair, but they are the remedy, which the law has provided as a moans to enforce the contract, and which are at all times subject to legislative control. The remedy may be enlarged, or restrained, or taken away altogether, without affecting the obligation such remedy was given to enforce. The undertaking of bail is a part of the means given to obtain payment. If a plaintiff have no right to imprison a defendant, he has not the right to compel his surrender by the bail. When the principal debtor is discharged, such discharge exonerates the bail. These principles are all discussed and recognized in 1 McLean, 231; 9 Pet. 329 ; 21 Wend. 670. It follows, then, that the bond and imprisonment being given as a part of the remedy, the general assembly, by the act of March 18, 1838, affected the remedy only, and not the contract; that the act aforesaid discharged the said Ogden from imprisonment, and the discharge of the principal is a discharge of the defendants. *The demurrer will be over- [360 ruled and judgment given for the defendants on the special plea.

Judgment for the defendants.  