
    H. H. Hall vs. J. Taggart, Sheriff.
    If a debtor appeal from the order of a commissioner of special bail, refusing his discharge under the prison bounds’ act, he must remain in custody, or in the bounds, if still entitled to them, as if there had been no appeal. The Act of 1833 provides for his discharge, on giving bond, only in those cases where the decision is in his favor, and the creditor appeals.
    Where the commissioner unadvisedly took such bond from the debtor, who was the appellant, and ordered the sheriff, who had voluntarily taken Mm into custody, to discharge him, it was held not to be such a judicial order to a ministerial officer, as would protect the latter from the consequences of an escape, if the enlargement of the debtor, under such circumstances could amount to one. The powers of the commissioner w'ere at an end when he decided against the application for a discharge in the first instance.
    But the release of the prisoner from actual confinement, under such circumstances, would not be an escape.
    BEFORE MR. JUSTICE EVANS, AT ABBEVILLE, SPRING TERM, 1838.
    This was a summary process againt the sheriff for an escape. The plaintiff had caused his debtor to be arrested under a ca. sa. He gave security to remain within the bounds, and applied for a discharge under the prison bounds’ Act. The plaintiff objected, and alleged fraud in the schedule. A jury was summoned to try the question, under the Act of 1838, who found specially certain facts; whereupon the commissioner of special bail made an order “ that the prisoner be not discharged.” He was then taken into custody by the sheriff and committed to jail. The next day he gave notice of appeal, and the commissioner of special bail, under a mistaken construction of the Act of 1833, took a bond to prosecute the appeal, as is provided by that Act, in case the creditor appeals, and made an order that the prisoner be enlarged from his confinement. The sheriff discharged him, and this action was brought on the allegation that such discharge was an escape. The presiding Judge decreed for defendant, and in his report of the case assigned the following as his reasons therefor.
    “I had no doubt the prisoner had a right to appeal; but in case he appeals, he must remain in custody, or in the bounds, if he is entitled so to do, as if there had been no appeal. The Act of 1833 provides for bis discharge on giving bond only where the decision below is in favor of the prisoner, and the creditor appeals. The decision of the commissioner of special bail, in my judgment, was clearly wrong. But the decision of a judicial officer may be wrong, and yet his erroneous order will j ustify a ministerial officer in executing it. The question in such cases is, has the Court jurisdiction of the subject matter ? If it had, the order is a justification to the sheriff. It seemed to me the Court had the most ample jurisdiction, both of the prisoner and his case. I apprehend the Act of 1833 does not oust the Court of Common Pleas of jurisdiction in cases of applications under the insolvent laws; and if a Judge, before whom an application was made for the benefit of the Act of 1788, had made the same error in the construction of the fifth sección of the Act of 1833, can it be supposed for a moment that the sheriff was not justified in obeying it? The best opinion I could form on the matter was, that the order of Mr. Commissioner Taggart was as ample a protection to the sheriff" as a like order made by myself would have been.”
    The plaintiff moved to reverse the decree, on the ground,
    That the order of the commissioner of special bail, that the prisoner “ be enlarged from his confinement,” did not justify the sheriff in discharging him from custody, and setting him at large, as the order was made without legal authority, the jurisdiction of the commissioner having ended with the order that “ the prisoner be not discharged.”
    
      Burt, for the motion.
    
      Wardlaw, contra.
   Curia, per Evans, J.

On the trial of this case I was of opinion, and so decided, that the order of the commissioner of special bail, for the discharge of the debtor, was a sufficient protection of the sheriff; but my brethren think the decision cannot be safely put on that ground; and, on mature consideration, I am inclined to agree with them. The principle cannot be questioned, that in a matter within its jurisdiction, the order of any judicial tribunal is binding on a ministerial officer, and a protection to him for any act done in the execution of it. The question in relation to inferior courts is always whether the Court has jurisdiction of the subject matter, not whether the order be right or not. Now, the commissioner had jurisdiction of the question of discharge under the Act of 1788; but when that question was decided, his powers were at an end. An appeal is a matter of right; and I do not find that, on that subject, the Act of 1833 gives the commissioner of special bail any power, or requires of him the performance of any act. What he did was not in the discharge of any official duty. The sheriff was as much bound as the commissioner of special bail. On this ground, the defendant is not protected.

The prisoner was arrested on a ca. sa. He had given bond to keep within the prison bounds, and render a schedule of his estate. When this was done, he was no longer in the sheriff’s custody. The bond was the guaranty substituted for the body. The sheriff was not bound officially to pursue him for any breach of it. There is nothing in the Act which requires the sheriff to take notice of the proceedings before the commissioner of bail. They may, and often are, carried on without the sheriffs knowledge. There was no order of the commissioner or requisition of the plaintiff'which put an end to the prisoner’s right to remain within the bounds. The sheriff’s taking him into custody was merely voluntary, and not the result of any legal obligation. It is true that by the seventh section of the Act of 1788, if the prisoner fail to render in a schedule agreeable to the tenor of his bond, he is no longer entitled to the bounds. The Act points out no way in which this privilege is to be terminated. The practice has been for the commissioner to order it, and it may be that the sheriff would be bound to take the prisoner into custody, after the fraud was established, on the requisition of the plaintiff; but without something of this sort, I think there can be no doubt the prisoner may remain at large within the bounds. When the sheriff discharged him from gaol, the prisoner was placed in the same situation as before he was taken into custody- — that is, within the bounds, where he was to remain until discharged by some competent authority. The plaintiff has been in no way prejudiced. He has now the same security he had before the discharge. The discharge did not authorize the prisoner to go beyond the bounds. If his schedule was false, or he has violated the condition of his bond by going out of the prison limits, his securities are liable.

This Court is of opinion, that the act of the sheriff, in discharging the prisoner, was not an escape, and the motion is therefore dismissed.  