The bail bond in this case, was executed previous to the passage of the act of 1st February, 1839, to abolish imprisonment for debt. This statute received a construction by this Court, in the case of Kennedy v. Rice, 1 Ala. 11, where it was held, that it did not preclude the bail from surrendering their principal in discharge of the condition of their bond, because the act was not intended as a discharge to persons then in actual confinement, and that the defendant was in custody of the bail.
This decision, it is insisted, is conclusive of this case, as it is argued, that the right of the bail to deliver up his principal to close confinement, is derived from right of the creditor, and when it is shown that the bail may do this wdthout an affidavit, it follows that the creditor may do so in like manner. The right of the bail to deliver up his principal, flows from his undertaking to pay the debt, or deliver the person of the debtor in its discharge. This obligation makes him the custodian of the person of the debtor, and by consequence confers on him the right of substituting the common jail, for his own personal custody. The right of the creditor to imprison his debtor, is derived from the law, and as the right to imprison is merely a remedy for the collection of the debt, doubtless it may be modified, filtered, or abridged, at the pleasure of the Legislature ; and if the remedy is sought by the creditor, he must seek it in the mode pointed out by law.
*668The act, as we have seen, did not apply to, or discharge those persons who were in actual confinement at the time of its passage, but that principle does not apply to those who were constructively in confinement, but in fact were at large upon bail. The whole scope and design of the act forbids such an interpretation. The design was to prevent actual, and not constructive imprisonments, and to accomplish this it was declared “ not to be lawful, to take the body of any person in custody to answer for a civil demand.” We think therefore, that the plaintiff could not, after the passage of the act, arrest the debtor, but in the mode pointed out by the act.
We proceed to the enquiry, whether the bail can take advantage of the want of the necessary affidavit to authorize the ca. sa. to issue.
In Toulmin v. Bennett & Laidlaw, 3 S. & P. 225, and in Wood v. Yonge, 9 Porter, 208, this Court held, that it was competent for the bail to shew by plea, in answer to the scire facias, that the plaintiff had not given the security for costs, which the law required as a condition, upon which bail was to be demanded, and we think the principle of those decisions apply to this case. The defendant could riot have been rightfully arrested on the ca. sa. which issued in this case, and therefore the bail, as in the cases cited, may take advantage of it by plea. Indeed, this case appears to be much stronger than the cases above cited, because here, there has been no implied admission, or waiver of the debtor, who never has been, and could not be rightfully taken uner the ca. sa : and as it could not have been effectual against the debtor, advantage may be taken of it by the bail. (See the authorities cited on the brief of the counsel for the plaintiff in error.)
Let the judgment be reversed, and the cause remanded.