
    John Randall versus Edmund Bridge.
    If the sheriff permit a debtor, who has been surrendered by his bail in a civil action, and by the court committed to the custody of the sheriff) to go at large before the expiration of thirty days, he shall be chargeable for an escape, although he was not furnished with a copy of the order of court committing such debtor.
    This was an action of the case brought against the defendant, as sheriff of the county, for permitting one Ezekiel Bray to go at large, against whom the plaintiff had recovered a judgment of the Court of Common Pleas, in this county, and who had been surrendered in court by his bail upon the return of a scire facias against the bail, and by order of court committed to the custody of the sheriff.
    * Upon not guilty pleaded, the cause was tried before [ * 550 ] Thatcher, J., at the last September term. At the trial, the issuing and service of the original writ, the taking of bail, the recovering of judgment, the issuing and return of execution thereon, and of the scire facias against the bail, were all either proved or admitted. It was also proved that the bail surrendered the principal in court, and was thereupon discharged from his suretiship ; and the principal was by the court ordered into the custody of the sheriff, and was thereupon committed to prison: but no copy of said order was ever delivered to the sheriff or the prison-keeper, or requested by either of them. It was further in evidence that, after the principal had been some days in prison, he demanded of the prison • keeper a copy of the warrant or precept by virtue of which he was detained; but the said prison-keeper, not having such copy, could not deliver it; and thereupon, and within thirty days from the com mitmentf the said .principal debtor was suffered to escape, as the plaintiff has alleged.
    The judge was of opinion, and directed the jury, that, on account of the neglect of the plaintiff to furnish the defendant with a copy of said surrender and order of commitment, the plaintiff’s action could not be maintained, and that for that reason the jury ought to find a verdict for the said Bridge, — and they found accordingly. To this direction of the judge the plaintiff’s counsel filed an exception pursuant to the statute, and now moves for a new trial on that ground.
    
      The counsel for the defendant
    
    (being called on by the Court to show why he was not bound to keep the prisoner in custody thirty days from the surrender) observed that, by the Habeas Corpus Act,  section 6, every officer in whose' custody a prisoner shall be is obliged,' under a forfeiture of fifty pounds, to deliver to such prisoner, within six hours after demand made, a true copy of the warrant or process by which he stands committed. If the defendant was liable to this penalty for detaining his prisoner, [ * 551 ] the imprisonment must have been unlawful, * and therefore the liberation was justifiable. The commitment in this case being for the security and benefit of the plaintiff, it was his duty to furnish the jailer with a copy of the order by force of which his debtor was imprisoned, and save the jailer from the severe penalty to which he was by this statute liable, by reason of his not possessing such copy. And this is the invariable practice. Whenever one is committed to prison, whether on a criminal or civil process, the jailer is furnished with a copy of the process which justifies his commitment and detention. It will not escape the observation of the Court that the Habeas Corpus Act is of a posterior date to the statute  under which the debtor in this case was ordered into the custody of the defendant.
    
      
       Passed March 15, 1785.
    
    
      
       June 30, 1784
    
   Thatcher, J.

When this cause was on trial, F inclined to think that, the Habeas Corpus Act having subjected the jailer to a severe penalty for neglecting to furnish a prisoner with a copy of the process by which he was held, it was incumbent on the creditor to deliver such copy to the jailer; and that when he failed so to do, as in this instance, the jailer could not be chargeable for liberating a prisoner whose detention, under such circumstances, would induce a heavy penalty on .the jailer. Upon further considering the subject, I am satisfied that it was the duty of the sheriff to procure a copy of the order of court for taking this debtor into his custody ; and that, under the circumstances of this case, he is liable for an escape.' It is, therefore, my opinion that there ought to be a new trial.

Sewall, J., concurred.

Parsons, C. J.

This case comes before the Court upon exceptions filed to the direction given the jury by the judge before whom the cause was tried. Randall, the plaintiff", having recovered judgment against Ezekiel Bray, in an action commenced by writ, on which Bray was holden to bail, and his execution upon that judgment having been returned non est inventus, he sued out a scire facias against the bail. Pending the scire facias the bail brought Bray into court, and surrendered *him in [ * 552 ] their own discharge. The court allowed the surrender, and thereupon committed Bray to the ■ custody of Bridge, the sheriff, that his body might be taken in execution. The sheriff received Bray into his custody, and, before the expiration of thirty days after the surrender, voluntarily suffered him to go at large. The sheriff’s defence is, that the plaintiff never delivered him a copy of the order of the court committing Bray to his custody The judge directed the jury that this defence was sufficient in law and they found accordingly. If this defence was sufficient, the direction was right; otherwise, a new trial ought to be granted.

By the second section of the statute regulating bail in civil causes, it is provided that, if the bail shall bring the principal into court before judgment shall be given on the scire facias, and there deliver him to the order of the court, and shall pay the costs in the scire facias, then the bail shall be discharged; and the principal shall be committed to jail, there to remain for the space of thirty days in order to his being taken in execution. And if the creditor shall not take him in execution within that time, the sheriff shall discharge him, paying the prison fees. Pursuant to this provision the principal was surrendered, arid by order of the'court committed to jail, where it was the duty of the sheriff to detain him for thirty days. The commitment was legal, and the sheriff well knew it when the debtor was committed to his custody. Under these circumstances, his permitting him to go at large was an escape, for which he is answerable to the plaintiff unless there be some other legal principle which can protect him.

His counsel rely on the sixth section of the Habeas Corpus Act, which provides that if any officer, in whose custody any prisoner shall be, shall not, within six hours after demand made, deliver such prisoner a true copy of the warrant or process by which he stands committed, such officer shall forfeit fifty pounds to the party grieved. Hence it is argued that there can be no escape but from a lawful imprisonment; that the imprisonment is not lawful unless a copy of the warrant or process of commitment be delivered to the sheriff, that he deliver it to the prisoner, if demanded, [ * 553 ] and avoid the forfeiture; and as * it is stated in the exceptions that no copy of the order of commitment was delivered to the sheriff by the plaintiff, or any other person, they infer that the imprisonment was unlawful, and the sheriff justifiable in permitting the prisoner to go at large.

Orr for the plaintiff.

Lee and Mellen for the defendant.

We are not satisfied with this reasoning, as it is founded on an erroneous construction of the Habeas Corpus Act. It is the intention of that act to relieve against unlawful imprisonment, and not to alter the law authorizing commitments ; and the section referred to applies only to cases in which the commitment is by warrant or process, a copy of which must be left with the sheriff, to oblige him to receive the prisoner, and not to cases where no warrant or process need be shown to the sheriff.

A commitment, for legal cause, of any man present in court, by an order of a competent court, entered of record, is still a legal commitment, and the sheriff is bound to obey the order. The prisoner knows for what cause, and by whom, he is committed ; and he may at any time have a copy of the record; and the sheriff, if called upon to justify the imprisonment, pr to certify the cause of it, may have access to the same record, a copy of which the clerk will give him ex officio.

The case of commitment of a debtor, on being surrendered by his bail, does not differ in principle from cases where a prisoner charged with an offence comes into court on recognizance, and after conviction is sentenced to imprisonment. The sheriff is obliged immediately to obey the order of court, and to commit the prisoner in execution; and, on application to the clerk, he may have a copy of the sentence. And was it ever, supposed, if the sheriff neglected to apply for a copy, and to keep it in his possession, that therefore the imprisonment under it was illegal ? To suppose this would be confounding the legality of the imprisonment with the legality of the evidence by which it may be proved. In the case at bar, the plaintiff is in no fault. He was a party to the surrender: it was not made at his motion, nor could he have prevented it; and the de fence set up by the sheriff appears to us all, upon full consideration, to be only a subterfuge to excuse a voluntary escape. The verdict must be set aside, and a new trial be granted. 
      
      
         Commonwealth vs. Brickett, 8 Pick. 138.
     