
    ELKINS vs. ZACHARIE.
    APPEAL PROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    Clerical errors when they appear merely as such in entering orders, &c. ought not to be allowed to affect the rights of the parties, and should be disregarded.
    Where a debtor is imprisoned on a judgment and execution exclusively in the name of the plaintiff, although others may have an interest therein ; and after having given bond for the prison limits, the plaintiff in execution gives him a written “ consent as far as he is interested,” to “absent himself for ten days, of which the debtor avails himself and leaves the prison limits without consulting the other persons interested, the surety in the prison bond is thereby discharged.
    The plaintiff in execution for whose benefit the prison bond is taken, is the only person who can control its conditions, and his consent that the debtor be absent only for ten days, forever discharges the surety.
    
      This suit was instituted on a prison bond, against the defendant J. W. Zacharie as surety of H. W. Palfrey, for the prison limits of the parish of Orleans, on an allegation and preliminary proof that the latter had departed from said prison limits contrary to the tenor of his bond and without the order of the court or the consent of the plaintiff. Judgment was prayed against the surety for the amount of the original debt, interest and costs, on the ground that the bond was forfeited and the surety liable.
    The surety pleaded the general issue; and that Palfrey was permitted to leave the prison bounds by tbe order and consent of the plaintiff, and by reason, whereof he as his surety .jyas discharged.
    It was agreed at the trial that the defendant be considered as having pleaded Palfrey’s discharge from his debts, (after cessio bonorum) by the necessary vote of his creditors in number and amount in March 1833; and before the present suit was instituted.
    On the trial two bills of exception were taken to the opinion of the court. 1st. By the defendant’s counsel lo the admission of the prison bond sued on, in evidence, because the exparte order directing the sheriff to assign the bond to the plaintiff, bore date the 3d of June 1833, and referred to a bond dated the 8th of June 1833, instead of the 8th .Amé 1831, the true date. The objection was overruled on the ground that the descrepancy in dates was a mere clerical error. 2. To the rejection of Palfrey, offerred as a witness for defendant on the score of interest. The defendant’s counsel resisted the objection on the ground that Palfrey was indifferent, as he was neither liable to plaintiff or defendant in consequence of his discharge from this debt under the insolvent laws.
    The plaintiff produced the bond sued on in evidence, and proved the departure of Palfrey from the prison limits.
    The defendant offered in evidence as a justification of Palfrey’s leaving the prison limits, and as operating the discharge of his surety, the following written note from the plaintiff.
    
      “To George Eustis, esq.”
    “Mr. Palfrey wishes to leave the city for hi'^l, be absent ten days. As far as I am interested ids' against him I consent to suspend proceedings for that^ and that he be absent that time.”
    (directed on the back) S. Elkins.”
    “To George Eustis, esq.” “20th October 1831,” “Present.”
    This note was open, written and given to Mr. Palfrey to be, by him, handed to Mr. Eustis. The evidence shows that Palfrey never delivered this note; that he looked for Mr. Eustis and not finding him, immediately showed it to Mr. Hoi-' land the deputy sheriff, and asked his opinion if cient authority to allow him to depart, who replied he! it was. Palfrey then left the prison limits.
    It was in evidence that the original judgmenfHfflgr execution upon which Palfrey was imprisoned stood' 'Wmrye in the name of the plaintiff, but that Mr. Eustis and others were interested in said judgment; that Mr. Eustis was also the counsel who obtained the judgment and managed the suit; and that the plaintiff in the present suit alleges, and has proved, that George. Eustis and the heirs of Henry De Ende, deceased, were interested in said judgment against Palfrey, “and for whose use and benefit, as well as in his own right he now sues.”
    The following extract from the hilan and the proceedings of Palfrey’s creditors before the notary in February 1833, were also in evidence.
    “H. De Ende and Samuel Elkins two notes, due in 1829— ’30, for seven thousand two hundred dollars, less six thousand dollars paid.”
    “Samuel Elkins being duly sworn by me, notary, declared that the said H. W. Palfrey owes to him, to George Eustis, and the estate of H. De Ende, a sum of one thousand two hundred dollars and upwards, with interest, by virtue of a judgment. This appearer reserves all his rights and remedies as well against H. W. Palfrey, as against his securities on the tprison bond for breaking the limits. He grants no discharge, &c.” S. Elkins.
    Judgment was given against the surety for the amount of the plaintiff’s demand.
    The surety appealed.
    Eustis, for the plaintiff.
    1. The letter addressed to G. Eustis was never delivered, and the plaintiff was never bound thereby.
    2. The terms of the letter did not authorise the departure of Palfrey, but implied that the assent of the other parties iuld bq. given to it.
    The exception of the cessio honorum is personal to the "pal debtor and not available to the surety.
    
      Slide'efcfontra:
    
    1. Contended that the inferior court erred in refusing to admit Palfrey as witness; the discharge by his creditors operated as a complete extinguishment of the debt.
    2. The prison bond is a mere accessory of the original debt and its obligation is also extinguished. Palferey has no interest directly or indirectly in the event of this suit; and there is no other cause of exclusion on the ground of incompetency, all other objections go to his credibility, &c. La. Code, 2260. 4 La. Rep. 200.
    3.The bond should not have been admitted in evidence, because by the 14th section of the act of 1808, requiring the court, on due proof of breaking the bounds, to direct the sheriff to assign the bond to the plaintiff, evidently contemplates that it shall be done contradictorily with the surety; and because the order directing the assignment refers to a bond of date the 8th June 1833, when the one in evidence bears date June 8th 1831.
    4.Proceedings in a suit of this character are stricli juris and all the formalities of law should be rigorously observed. 7 Mar. JV. S. 523.
    5.Palfrey having left the prison hounds with the express written consent of the plaintiff in execution, the bond was discharged and the surety released from the obligation. 5 John. Rep. 365.
    clerical errors when they appear merely as such in entering' orders, ¡«allowed toVftlif pírticsf and gárded.'30 disre'
    6. The note from the plaintiff to his attorney was an unconditional permission for the defendant in execution to leave the prison limits, because he alone was interested in the judgment. This bond was given to Elkins alone for his sole benefit.
    7. There was no bad faith on the part of Palfrey in giving this note to Zacharie, and even if there was, he had a right to avail himself of it. 5 La. Rep. 375.
    8. The release of the principal obligation by the discharge of Palfrey under the insolvent laws, extinguished the accessary obligation of the defendant.
   Mathews, J.,

delivered the opinion of the court.

This suit is brought on a bond given by the defendants in which Palfrey is principal, and Zacharie surety. The bond was executed in pursuance of an act of the legislature fixing limits or bounds for the public jail of the city of N. Orleans, and authorising persons in the custody of the sheriff, whether on mesne process or under execution, on giving bond with good and sufficient security to obtain the privilege of the prison bounds, &c.

In the present case the action is prosecuted against the surety alone, the principal having obtained the benefit of our insolvent laws and consequently being released from civil pursuits. Judgment was rendered against the defendant. Zacharie in the court below, from which he appealed.

An exception was taken on the part of the defendant relative to the manner in which the order requiring the sheriff to assign the bond was made. This exception had the appear- . . , . s , , , , , „ . anee oí some weight when first presented: but on reflection, * 7 we are °pini°n with the judge a quo, that the error or mistake in relation to this matter was merely clerical, and ought n°t to be allowed to affect the rights and interest of the plaintiff in the action.

As to the merits of the cause, its decission depends on the effect which ought to be given to one single fact, that is, the-alleged permission granted by the plaintiff allowing the defendant in execution to absent himself, &c. The evidence fully ■ establishes that the defendant Palfrey, who had been arrested on a ca. sa. and given bond as required by law to remain within the prison limits, did go beyond those limits. Unless he was authorised so to do, either by leave of the court, or by the order or permission of the plaintiff in execution, the bond was forfeited by this act of the defendant and his surety rendered liable to pay all consequential damages to the person at whose suit he had been arrested and imprisoned. But it is contended in favor of the surety, that the principal by departing from the prison hounds under the circumstances in which it was done did not break his covenant, and consequently no obligation was imposed on the surety to pay the penalty, or make satisfaction to the plaintiff on account of injury done or damages suffered by him. Because the violation of the conditions of the bond was the consequence of an act done in pursuance of the consent and permission of the person at whose instance the debtor was confined within the limits of the jail. The existence of this consent and permission rests on the interpretation which must be given to a note addressed by the plaintiff to Mr. Eustis his counsel in this case, and who had acted for him in obtaining the judgment and issuing the capias ad satisfaciendum on which Palfrey had been arrested and imprisoned. This note in the shape of an open letter was delivered to the defendant in execution and addressed as above stated. It is in the following words, “ Mr. Palfrey wishes to leave the city for his family, to be absent ten days. As far as I am interested in the suit against him, I consent to suspend proceedings against him, and that he may be absent that time.'1'1

The only condition or limitation contained in this instrument, is such limitation as the interest of the writer was legally subjected to, in the property which he had in the judgment and execution; and in relation to his right of control and use of them. If he had full property and control over this judgment and execution, then his consent that the defendant might absent himself from the prison bounds for the space of ten days was co-extensive with the interest and control which he held over the instrument which authorised the imprisonment, and the permission granted was unconditional and without limit or reserve, judgment and ecu sa. under which Palfrey’s confine-J J ment took place, are exclusively in the name of Elkins, in * J this manner the first was obtained and the last issued. They were therefore in a legal point of view entirely his property, and the measures pursued under them were severe legal steps. By his own power through the aid of the court he bound the defendant and by his individual authority he had a right to release him, which he did. The evidence of the case does not clearly show that any other v Persons were at the time interested in this judgment and execution either legally or equitably. Consequently to make the consent and permission granted by the plaintiffs available, did not require the concurrence of any one else; and therefore the circumstance of the note having been addressed to Mr. Eustis ought not to be permitted to destroy the right and privilege which the defendant acquired under it.

or^impriaoneá añaa execution exclusively mne plaintiff, although others may have an mterest therein; and after having; tiio prisor” limits j executionnt‘givcs “'consent, I”/™ to aLenMtimseif wiiichnthoadebtof avails himself and [leaves the prison limits inghoutLc° other ed^the surltyln r Ceby h°ais. charged.

The plaintiff in execution for whose benefit the prison bond is taken is the only person who can ditioni andchis Slfbe’^bslnt forever1' XdS ges the smety.

The plaintiff in execution for whose benefit the prison limits bond was taken is the only person who had power over - its conditions; he consented to release them, (at least temv porairly,) he agreed to let the defendant go at large for x J ' ° 0 ° period of ten days; he was willing that his adversary should enjoy his liberty, should be released from the restraint imposed by the bond. Volenti non Jit injuria. this consent the surety was discharged from all obligations created by that bond; and being once discharged it could never have effect against him afterwards.

It is therefore ordered, &c., that the judgment of the District Court be avoided, reversed and annulled; and it is further ordered, &c., that judgment be here entered for the defendant, Zacharie, with costs in both courts.  