Kelly v. Henderson

• Decision Date: 01 January 1845
• Citation: 1 Pa. 495
• Parties: KELLY v. HENDERSON, Administrator of CLARKE.
• Court: Pennsylvania Supreme Court

1 Pa. 495

KELLY v. HENDERSON, Administrator of CLARKE.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Washington county.

Williams, for plaintiff in error, cited 4 Wheaton, 122; 12 Wheaton, 370; 5 Watts, 346; 2 Watts, 431; 9 Watts, 288; 7 Watts & Serg. 365; 1 Hall's Law Jour. 260; 10 Serg. & Rawle, 285.

Gow and Alden, contrà 2 R. 374; 4 Serg. & Rawle, 401; 10 Serg. & Rawle, 101; 4 Burr. 2460; 2 Cranch, 272; 7 Johns. 477; 5 Bin. 338; 2 Mass. 487.

The opinion of the court was delivered by GIBSON, C. J.

It is supposed that the bail ought to have surrendered their principal in discharge of their recognisance, notwithstanding the statute to abolish imprisonment for debt. But was that practicable without the principal's consent? They could have surrendered him only by taking his person into custody; and, that they could not have done it without committing a trespass is plain, from the change which the statute effected in his condition. A principal is said to be delivered on bail; not, however, from imprisonment, but to indulgent jailers of his choice, who have the same power over his person that the sheriff had, insomuch that they may deprive him, at pleasure, of the actual liberty he enjoys at their sufferance, and remit him to confinement by the ordinary jailer. That he is, to every legal intent, in the keeping of his bail, may be shown by a few of the cases to the point. In Sheers v. Brooks, 2 H. B. 120, in which bail had broken into the house of a stranger to seize their principal, Lord Loughborough said, that he was in their actual or potential custody as his jailers, and that they could seize him, and surrender him at any time. So, in Horn v. Swinford, 1 D. & R. Nisi Prius C. 20, an absconding principal was seized in the Court of Exchequer, while attending on subpœna as a witness; and Chief Baron Richards said, in answer to a motion to discharge him on the ground of privilege, that the seizure was not an arrest, but a recaption. And, in Rex v. Butcher, Peake, N. C. 226, it was said, that if the principal be refractory, the bail may use force. Now, the purpose of the statute was emancipation — not partial and gradual, but instantaneous and entire. It was not merely to free the inmates of the jails, but to cut up imprisonment for debt, in all its phases, trunk and branch. The day of its enactment was to be the first of an era; and the power of the creditor, or of the officers of the law and their substitutes, to detain the person of...