Palmer v. Sawtell

Mellen C. J. delivered the opinion of the Court. Since the time when the bond in this case was given, the laws in relation to debtors in execution, and to the nature and degree of the indulgences granted to them on giving bond for the liberties of the prison, have undergone several important changes; and all these changes have been made in favor of debtors. As this spirit of liberality towards them has increased, changes have also been made in the condition of the bond required to be given to obtain the liberties of the prison. In the statute of Massachusetts of 1811, ch. 85, the condition of the bond required is that the prisoner, from the time of executing such bond, “will not depart “without the exterior bounds of the goal yard or debtors’liberties “until lawfully discharged.” In the additional act of 1811, ch. 167, the condition required is that the debtor, from the time of executing the bond, “ will not depart without the exterior bounds “ of the debtors’ liherties until lawfully discharged.” By the statute of this State of 1822, ch. 209, the condition of the bond for the liberation of a prisoner in execution for debt is that “ he “ will not depart without the exterior bounds of the gaol yard until [449] i£ lawfully discharged, and that he will surrender himself to the C£ gaol keeper and go into close confinement as is required ££ by law.” By the act of .Massachusetts 1784, ch. 41, the condition required was that the debtor from the time of executing such bond should £i continue a true prisoner in the custody of the C£ gaoler and within the limits of the said prison until he should be ££ lawfully discharged,without committing any manner of escape.” The counsel for the plaintiff has relied upon the averments in the declaration as to the defendant’s having freely and voluntarily discharged the debtor, from his imprisonment, and suffered him to escape and go at large. These averments can have no legal meaning, if the debtor, after having given the bond mentioned in the plea, ceased to be a prisoner, subject to the coercive power of the sheriff; and we are clearly of opinion that such was the fact. In Call v. Hagger & al. 8 Mass. 423, which was an action on a prison bond, the defence was that the sheriff himself deceived the prisoner as to the proper limits of the gaol yard; by means of which he had committed the alleged escape; but the Court decided that such deceptive instructions could not avoid the effect of the bond. The changes which have been made in the condition of prison bonds, have occasioned no change in the law as to the liability of the obligors, where the prisoner has passed the limits by I aw established. In the action Cargill v. Taylor & al. 10 Mass. 206, the bond declared on, was dated Jlvg. 10, 1810; and, of course, "was similar to the one in the case before us. The Chief Justice, in giving the opinion of the Court, says, ££ bonds ££ given to entitle a prisoner to the liberties of the prison yard, ££ are in effect a substitute for the custody of the sheriff,” — af- ££ ter enlargement of the prisoner upon the acceptance or allowance of the bond, his restraint, the custody in which he remains, ££ is altogether of a moral nature. A bond regularly taken and i£ allowed discharges the sheriff from any further responsibility ££ for the prisoner’s remaining within his custody. The restraint i£ to which lie is subject is indeed called the custody of the gaoler; ££ not, however, as expressing his power of control, or a confine- £- ment within the walls of the prison, but the bounds and limits “ prescribed by law, in which he is kept by the penalty of the i£ bond.” In the case of Codman v. Lowell, [ante p. 52.] this [450] Court has proceeded on the same principle, and declared that after a bond is given and approved, the sheriff has no authority over the prisoner, and cannot exercise any control over his .actions. These cases shew that the debtor, when he had given the bond in question, ceased to be a prisoner in the custody of the defendant, in the legal acceptation of the terms; and therefore he could not discharge him from his custody; he had ceased to be an imprisoned debtor, and so the defendant could not permit him to escape from imprisonment. Whatever remedy the plaintiff has, must be obtained by a suit on the bond. We accordingly adjudge the plea in bar sufficient in law.