
    
      R. & J. Caldwell, for the use of Townsends, Mendenhall, & Co. vs. H. W. Metz. Farrar & Hays vs. H. W. Metz.
    
    1. A defendant, upon being surrendered by his bail, filed a petition for the benefit of the Prison Bounds Acts, accompanied by a schedule of his estate. Plaintiffs objecting to his discharge, on several grounds, an issue of fraud was made and submitted to a jury, under the provisions of the Act of 1833 ; but the jury not being able to agree upon a verdict, were discharged by the Commissioner of Special Bail.
    2. There having been no verdict, the proceedings being interlocutory and to be discussed at the final decision below, it was held that no appeal would lie to this Court, under the Act of 1833 ; nor in such case, will an appeal lie, because after the discharge of the jury, the Commissioner refused a motion on the part of defendant, to withdraw his petition and schedule.
    3. It would seem as if the plaintiff should proceed, as if there had been, no attempt to try the case, as in other similar cases of mistrial.
    This was an application before a Commissioner of Special Bail of Newberry district, for a discharge under the Prison Bounds Acts.
    The defendant being surrendered, in discharge of his bail, in these cases, filed his petition to be discharged under the Prison Bounds Acts, accompanied by a schedule of his estate. The plaintiffs objected to his discharge upon these grounds:
    1st. That his schedule did not contain his whole estate, nor enough to satisfy the plaintiffs’ demands.
    2nd. That he had paid or assigned his estate, or some part thereof, to other creditors, giving an undue preference to such other creditors. And
    3rd. That he had fraudulently sold, conveyed or assigned his estate, to defraud his creditors.
    The application was made before Mr. Heller, as one of the Commissioners of Special Bail for Newberry District.
    He caused a jury to be summoned and empannelled under the Act of 1833, to try the questions raised by the plaintiffs’ objections. Evidence was given by both parties. The case was argued by counsel, and submitted to the jury. After the jury had been several hours in consultation, the Commissioner was sent for by them, and informed that they could not agree upon a verdict. He waited as long as he thought any useful purpose could be obtained by keeping them together; but, at 10 o’clock at night, being satisfied that they would not agree, discharged them.
    The plaintiffs immediately gave notice to the Commissioner, that they appealed from the order discharging the jury, and would move the Court of Appeals for a new trial.
    Upon the jury’s being discharged, the defendant moved for leave to withdraw his petition. This was refused, and he also gave notice that he appealed, and would renew the motion in the Court of Appeals.
    The petition was filed on the 6th October last.
    The plaintiffs had obtained judgments in the cases at last spring term.
    The plaintiffs appealed, from the decision and order of the Commissioner of Special Bail, discharging the jury, and moved the Court of Appeals to set the same aside, and for a new trial, on the ground :
    That the Commissioner of Special Bail had no legal right to discharge the jury.
    The defendant appealed from the decision of the Commissioner, refusing the petitioner leave to withdraw his petition, after it was ascertained that the jury could not agree.
    
      Pope, for the plaintiffs,
    cited 3 Hill, 5 ; 1 McMullan, 147.
    
      Fail' & Summer, contra.
   Curia,per

Richardson, J.

These cases are decided upon the same principles with that of C. P. Stribling ads. Martin and Walker. (Ante p. 65.)

What jurisdiction has this court in such cases? No verdict has been rendered, and the case is still pending. The commissioner may have acted illegally, in discharging the jury. But this court has no authority to re-assemble them. Possibly the plaintiffs’ complaint might be reached by a mandamus, or in some other way; but no such question is before us, and we cannot give a new trial, under the Act of 1833, where there has been no trial; and all the proceedings have been, as yet, interlocutory, and to be discussed at the final decision below. Roberts vs. Stagg, N. & McC. 429; 3 McC. 90 ; Savage vs. Brooks, M. S. S. Dec. 1825, 1 Rice Dig. 43-4. It would seem as if the plaintiffs should proceed as if there had been no attempt to try the case, as in other similar cases of a mistrial. This is, however, matter for the consideration of his counsel, not for the court.

But on the other hand, the defendant appeals, because he has not been allowed to withdraw his petition and schedule, after the supposed precipitate discharge of the jury, by the Commissioner of Special Bail, although an issue of fraud had been made. Here, again, it would be enough to say, that the appeal lies not to this court.

The most inferior tribunal from which no appeal is given, is as sovereign within its proper jurisdiction, as any other court. And, assuredly, the defendant can be at no loss, how to proceed to get a trial, either under the Prison Bounds Act, or else, under the Act of 1833. Or, if his body be unlawfully detained, what is his remedy.

Such suggestions are beside the proper question for this court. Both parties have mistaken their legal remedy, in appealing to this court; and both motions are dismissed.

O’Neall, Evans, Botler and Wardlaw, JJ. concurred.  