and forcibly carried him off half dressed; that the defendant acted at Morgan's request and as his assistant. The plaintiff brought this action of trespass, assault and battery and false imprisonment. The court held, First. That the bail may depute another to take the principal; Second. That the bail or his deputy may take the principal in another state and at any time and place. In speaking to the latter point, the court say: “The power of taking and surrendering is not exercised *under any judicial process; but results from the [64 nature of the undertaking by the bail. The bail-piece is not process, nor anything in the nature of it; but is merely a record or memorial of the delivery of the principal to his bail on security given. It cannot be questioned, but that bail in the Common Pleas would have the right to go into any other county in the state to take his principal; this shows that the jurisdiction of the court in no way controls the authority of the bail; and as little can the jurisdiction of the state affect this right, as between the bail and his principal. How far the government would have a right to consider its peace disturbed, or its jurisdiction violated, or whether relief would not be granted on habeas corpus, where a citizen of this state was about to be carried to a foreign country, are questions not now before the court." After quoting 3 Black. 290; 6 Mod. 231; 1 Atk. 237; and Show. 214, the judge concludes: "The cases I have referred to show that the law considers the principal as a prisoner, whose gaol liberties are enlarged or circumscribed at the will of his bail; and according to this view of the subject it would seem necessarily to follow, that as between the bail and his principal, the controlling power of the former over the latter may be exercised at all times and in all places; and this appears to me indispensable for the safety and security of bail.”

In a subsequent case, Harp v. Osgood,' both of the

above points were substantially reaffirmed. In that case it appeared that the bail in New York sent a deputy 65] to Virginia, to bring back the principal *to be surrendered. Being arrested, he obtained, on account of sickness in his family and urgent business engagements, his release from the arrest by paying the deputy $100, being the expenses of the journey and procuring the defendant to execute his note for $200 conditioned for the principal's appearance at court in discharge of the bail. The principal failing to appear, suit was brought on the note, and the action sustained to the extent of $65, being the necessary expenses of the bail in attending court, employing attorneys.

In Connecticut the same doctrine is recognized.' In Massachusetts the point was determined in the case of Commonwealth v. Bricket." This was a case in habeas corpus sued out at the instance of Samuel Thompson for whom the defendant was bail in a civil proceeding before a justice of the peace in Vermont. Thompson fled and Bricket pursued and arrested him in Massachusetts to remove him to Vermont in his discharge as bail.

The court held that the liability of the principal to arrest by his bail arose from the contract and that the bail was entitled to remedy according to their laws. "There is no statute provision here," says the court, "for the granting of a warrant for the bail. He is to act here, if at all, under the provisions of the common law, and we are satisfied that they are sufficient. The obligation which the principal entered into to the bail was not discharged by stepping across the line of his state. 66] The relation between bail and *principal exists here as it did in Vermont, in full force." The prisoner was remanded to the custody of the defendant.

In Pennsylvania, the question for the third time came

Howard v. Lyon, 1 Root, 107; Pease v. Burt, 3 Day, 485; Parker v. Bidwell, 3 Conn. 84; Ruggles v. Corey, Id. 421.

28 Pick. 138.

under review of the Supreme Court in 1837, and was fully discussed in the case of Halsey v. Trevillo.' In that case the relator Smith Halsey showed a bail-piece, duly certified, from the inferior court of Common Pleas of Essex county, New Jersey, in a suit of R. W. v. A. R. Woolley, in which suit the relator and J. Allen were bound as special bail for said Woolley, who was a citizen of Kentucky. The relator had met the said Woolley on his road to New Jersey, and by virtue of his bailpiece had him in custody at Pittsburgh: He was taken from the custody of his bail by E. Trevillo. On the return to the writ of habeas corpus, the sheriff returned that he had arrested Mr. Woolley on a capias ad respondendum, issued by the administrators of O. Ormsby, deceased, in which special bail was required in $300. This writ was issued after the bail arrived in the city with his principal, and on it he was taken from the custody of the bail, who sued out this writ of habeas corpus. The relator had also a regular deputation from J. Allen, the other special bail.

The court said: "It seems that special bail may depute another to act for him in executing a bail-piece; but I take it, where there are two persons special bail, one may take out a bail-piece and bring and surrender his principal in discharge of his bail, at all events in discharge of himself. The writ of habeas corpus may issue at *the instance of the party restrained of his liberty [67 or at the instance of any other person who has the right to the custody of such person; and the English books abound with cases of habeas corpus at the instance of special bail; and this in civil cases is matter of course. When confined on a criminal charge it must be on motion; but in either case it is not matter of favor, but ex debito justitiæ.'

The power of the special bail over the principal is very great. They may arrest in the night; on Sunday;

1

6 Watts, 402.

23 Conn. 84; 7 Johns. 145.

87 Durn. & E. 222.

force doors; and in case of resistance, use any force necessary to overcome the resistance.

In England the government is one. In the United States, the citizens of every state are constantly passing to other states; and many have contracts and liabilities in several states. Hence a man may be sued and give special bail in one state and before that suit is ended become indebted in another state, and arrested and confined or give special bail there, and this presents a case different perhaps from what is found in the English books. Taking into view our general and state governments, the jurisdiction of the several courts is such that we need not expect to find, out of our Union, decisions in point in all cases. If we look to the constitution of the United States we find that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.

Without pretending to state the effect of this provision in all cases, it may have some bearing on a case like the present; and the harmony of the Union might 68] be endangered if any one state should become *a city of refuge to the debtors of all other states, and if crossing the line of any state should secure any principal debtor from his special bail. It has been said that "the bail has the principal on a string and may pull it when he pleases." I do not believe that legal rights are made clear by metaphors, or comparison with material things. It seems settled that either by the nature of the agreement or by the operation of law on the agreement, the bail has rights over the personal liberty of the principal of the most positive kind, and that a sheriff is bound to assist in enforcing them; and we have authority for saying this right of the bail extends beyond the state in which bail was entered.'

This matter is not new in this state. As early as 1798,' a habeas corpus issued to the keeper of the prison in

17 Johns. 145; 8 Pick. 138.

22 Yeates' R. 263.

Philadelphia, who returned that he held the prisoner on two several writs of capias as mesne process, one of which had been executed before the bail came from Virginia with his bail-piece. The case is not very accurately reported; but the court say: "In the relation in which the several states composing the Union stand to each other, the bail in a suit entered in another state have the right to seize and take the principal in a sister state, provided it does not interfere with the interests of other persons who have arrested such person. But where actions have been brought against the party, previous to such seizure, the same right does not exist." I then understand the case that the debtor had been arrested and was in custody of the sheriff before the seizure on the bail-piece, and for that reason *was not deliv- [69 ered to his bail. See also 3 Yeates, 37, where the right of bail in another state to take the principal here is again recognized, but the right to remove him was suspended until the sentence of a court-martial, passed against him, was executed."

Woolley was restored to the custody of his bail that he might proceed with him.

In the case from 2 Yeates, 263, the court intimate that the bail could not be deprived of his rights by collusion between his principal and other parties, saying, in addition to what is above quoted from the decision: "Nevertheless if the actions originated by collusion with the defendant and merely to protect him from being surrendered to his bail, the court, on good grounds, would interfere and prevent such improper practice."

In Louisiana the same general doctrine has been twice sustained. In Lafonta's case,' it was also further held that the bail was entitled to the aid of the sheriff and might apply to the court for an order to arrest the principal. In that case, which was one of habeas corpus, the judge in stating the case and delivering the opinion

1 1 Str. 416.

2 2 Rob. 495.