
    Henry Robinson, and others, ads. John S. Carwile.
    
      Under the Prison Bounds Act, the commissioner of special bail, has only power to discharge, if no sufficient cause be shownfor disbelieving the prisoner’s oath or affirmation: if such cause be shown, he has no power to decide that the oath is false; nor can his finding to that effect, be given in evidence in a suit on the bond for the bounds.
    
    The plaintifi’brought an action of debt, as Sheriff of New* berry District, against the defendants, on a bond given in conformity to the requisitions of the Act of Assembly of ’88, commonly called the Prison Pounds Act.
    
    Henry Robinson, one of the defendants in this case, had been arrested on the 23d February, 1821, by virtue of a Ca. Sa. at the suit of M'Creléss and Ducket, and taken into the custody of the sheriff. On the 26th of February, the defendants, gave the bond in question, in order that the defendant Robinson might have the benefit of the rules and bounds of the gaol; agreeably to the provisions of the act above mentioned. Robinson, at the same time, filed with the clerk of the court, a schedule, on oath, of his effects, with a petition for his discharge. On hearing his petition, the commissioner of special hail refused to discharge him, and he was again taken into custody by die sheriff, but was discharged by M'Creless and Ducket, on the 20th April 1821. The plaintiff then brought this action on the bond, declaring generally for the penalty without setting forth a breach of the condition. The defend-ants craved oyer of- the condition of the bond and pleaded performance generally,, to which the plaintiff replied specially, By setting forth particular articles of property, mentioned in the replication, as a part of Robinson’s effects, and which were, not surrendered up or contained in his schedule, and insisted upon, this as a breach of the condition of the bond. Issue t<y the jury, was taken upon this replication.
    On the trial of the cause, after proving the execution of the bond, the plaintiff offered as evidence the decision of the commissioner of special bail, rejecting Robinson’s application for the benefit of the prison hounds act. Rut before this was-offered, the court permitted the commissioner to amend his* decision, by assigning his reasons.
    The defendants objected to the reading of this decision as-evidence, on the ground, that it was inadmissible and irrelevant to the issue. The objection was overruled and the evidence went to thejury. The plaintiff closed here, and the defendants, moved for a, non-suit, on the following grounds:
    1. Because the evidence offered by the plaintiff was insufficient to maintain the action. -
    2. Because the proof given by the plaintiff did not support his replication. — The motion for a non-suit was over-ruled.
    The judge charged the jury, that the decision of the commissioner of special bail was conclusive, and that upon the evidence which had been given, the plaintiffwas entitled to recover.,
    Thejury accordingly found for the plaintiff the full amount of debt, interest and costs of■ the suit on which Robinson had been arrested.
    The defendants appealed, and renewed their motion for a non-suit on the grounds above stated, and in the event of failing of success in this, moved for a new trial t
    
    Because his honor mistook the law, in charging that the decision of the commissioner of special bail was conclusive evidence of a breach^ of the condition of the bond.
   The opinion of the Court was delivered by

Mr. Justice Richardson.

The finding of the commissioner of special bail was, that the defendant, J. C. Robinson, had not rendered a' schedule- of all his effects; which finding was held to be conclusive at the trial. -And the true question is, was it competent for the commissioner so to decide.

In a word, could the commissioner do more thaii leave tjie prisoner where he was found, upon a serious opposition being made to his taking the benefit of the prison bounds act. :

The act, P. L. 456, after directing the manner, time, arid notice required, before taking the.benefit of the act, before the judge, justice, or commissioner, proceeds at the end of the 4th clause, “ But if the plaintiff shall shew cause for disbelieving the prisoner’s oath or affirmation,' or shall desire further timé for information, the judge, justice, or commissioner of special bail have power to remand the prisoner and appoint another day,” &sc. And if on the second day, “ the plaintiff shall not appeal’, or shall be unable to prove that the prisoner’s .path or affirmation ought to be disbelieved, the judge, justice, or commissioner of special bail, after assignment made as aforesaid, Sec. shall discharge the prisoner.”

Here we find that the prisoner is to be discharged, only when the plaintiff does not appear, or is unable to discredit .the oath of the prisoner.

But if the plaintiff should appear, and can discredit the oath, as was the case in the instance before us, then no further power is given to the commissioner, and the prisoner of course remains in statue quo, i. e. within the bounds. The clause makes several modifications .and .alterations in the Insolvent Debtor’s Law, of 1759; and we come to the 9th clause, upon which this case depends, and is in these words, nor shall any prisoner be discharged, &ec. “ if,” &c. But wherever a prisoner shall be accused, Sec. of fraud,” &c. “ it shall be lawful for the judie or justice, before whom the prisoner Is brought, to direct a jury to be impannelled and sworn to determine the fact.”

Here the enquiry again occurs, what power is given to the commissioner of special bail? None: he is not named in the clause; but dropping all notice of him, the clause directs that it shall be lawful for the judge or justice before whom the prisoner is brought, to direct a jury to be impannelled and sworn to try the charge of a false return, &c.

At all events then, the commissioner had no power to decide that the schedule was false. By the 4th clause, he has power to discharge, if the plaintiff cannot shew that the prisoner’s oath ought to be disbelieved. But if this be shewn, the commissioner is functus officio, and the case remains over to-be tried bj' a judge, or judge and jury. It would indeed be a Vast power conferred on a single commissioner of special bail,, were he to decide finally upon the fate of the prisoner in a complex case of fraud, or-upon important rights of creditors. No. appeal being given, his decision would be conclusive, and his power greater in this respect than is allowed to the judge.

But it is enough to say that no such power being expressly given to him, he cannot take, it by implication. The whole power given to the commissioner, appears then to be under the 4th- clause, by which he may discharge the prisoner, provided he is not satisfied that the prisoner’s oath ought to he disbelieved. If satisfied of this, his power ends, and the prisoner is given over to a higher tribunal. His ofiice is to enquire, in the first instance, which, in nine cases out often, will eventuate in the-discharge of the prisoner. But if he shotdd meet with a serious charge of fraud, he is stopped-

This view renders the act of ’88, an intelligable system, and although the 6th clause relates exclusively to insolvent debtors, yet it is evident that the 7th clause may relate to both the prison bounds acts, as well as to- the insolvent debtors’, and its. provisions will apply to both acts.

The motion for a new trial is therefore granted.

Gantt. Huger, Cohock, Justices, concurred.  