
    Thorn vs. Delany & Pennywit.
    D. was arrested under a ca. sa., and to procure his release, executed a bond, under the 5th sec. chap. 79, of the Rev. Stat. for the benefit of insolvent debtors, conditioned, that he would appear before the circuit court of Pulaski county, on the first day of the March term thereof, 1842, and surrender himself to prison, in case, on his said appearance, he did not comply with every thing required by the act to ob. tain his discharge. Toa suit upon the bond he, and security, pleaded that he did surrender himself to prison, according to the tenor and effect of the condition thereof. It was proven that, at the March term of said court, 1842, D. surrendered himself to the deputy sheriff of Pulaski county, and continued in his custody, but had not at any time,.since his surrender, been confined in jail, but had gone wherever-he would. — Held that this was not such a surrender of himself to prison, on the part of D., as required by the condition of the bond.
    In such case the surrender should have been in court, as required by law, and the con. dition of th'e bond, so that a legal and valid commitment might have issued by order of the court, requiring the sheriff to deliver the defendant in prison,
    Where the court gave the plaintiff until the 5th of July, to tender a bill of exceptions, and it was presented, signed, sealed and ordered to be made part of the record, on the 5th of, July, it was within the time allowed.
    The transcript shows an entry of the trial and judgment on the 28th, and asimilar entry dated the 30th of duly, and the judge certifies in a bill of exceptions, taken in the case, that the trial was had on the 30th — Held, that the first entry was a clerical .error, but that if there had been in truth a trial and judgment on the 28th, and the court had proceeded to try and determine the cause again on the 30th, neither party .objecting, it would have been equivalent to setting aside the judgment first pronounced, and granting a new trial.
    
      Writ of error to the circuit court of Pulaski county.
    
    This was .an action of debt, by Thomas Thorn against Jacob Delany and Phillip Pennywit, on a bail bond, taken under the act for the benefit of insolvent debtors, (Rev. Stat. chap. 79, sec. 5,) determined in the Pulaski circuit court, at the May term, 1843, before the Hon. J. J. Clendenin, judge.
    The declaration set out the following as the bond sued on, averring it to be of record, and making profert of a copy:
    “We acknowledge ourselves held and firmly bound unto Thomas Thorn in the sum of one thousand dollars, signed, sealed: subject to the following condition: that if the undersigned, Jacob Delany, shall be and appear before the circuit court of Pulaski county, on the first day of the next March term thereof, A. D. 1842, and surrender himself to prison, in case, on his said appearance, he does not comply with every thing by this act to procure his discharge.
    J. DELANY, [Seal.]
    P. PENNYWIT, [Seal.]”
    After describing the bond, the declaration proceeded thus:— ■“meaning, and intending, that if the said Jacob Delany should surrender himself to prison, in case, on his said appearance, he. should not comply with every thing required by the act of the Revised Statutes concerning insolvents, to procure his discharge, under, and by virtue of the provisions of, said insolvent act, the said writing obligatory should be void, otherwise remain in full force and virtue,” &c. — Breach: that Delany “did not appear before the circuit court of Pulaski county, on the first day of the March term thereof, A.- D. 1842, or on any other day during the continuance of said term, and did not surrender himself to prison, nor did he comply -with every thing required by the act concerning insolvents, to procure- his discharge under that law, according to the tenor and effect,true intent and meaning of the c'onditon of the said writing obligatory.” The plaintiff also assigned a specific breach,- in substance,' as follows:
    “That on the 29th September, 1841,the plaintiff obtained a judgment, in the Pulaski circuit court, against-Delany for $400 36, ánd costs, which was in force and unpaid. That on the' 24th Nov., 1841, he sued out, upon the judgment, a capias execution, which was placed in the hands of the- sheriff of Pulaski county on- the following day. Thai- the sheriff executed if,- by arresting the-body of Delany, and that he, to procure his diséharge from- arrest and imprisonment, and to obtain the- benefit of the law concerning insolvents, petitioned the judge of the probate court, in due form1 of law, and the judge directed the- sheriff to discharge him- from custody, upon his entering into bond, with-Penny wit as security, to the plaintiff, in the penalty of $1000, conditioned according to-law, which bond whs executed and is the. same above mentioned,That the petition was filed in the office of the clerk of the circuit court of Pulaski county, 25th Jan’y, 1842, to be proceeded in ait-the following March term.. Then followed averments thá-t Delany did not appear, &c., similar to those contained in the first breach, as above, and quoted in the opinion of this court.
    The defendants pleaded, 1st, nul tiel record: 2d, that Delany did surrender himself to prison, according to the tenqr a'n-d effect of the Condition of the bond sued on:- 3d, that he did, on the first day of the March term of the Pulaski circuit court, 1842, surrender himself to the custody of the sheriff of Pulaski county, according to the tenor and effect of the condition of the bóii-d,- &c. Then-follows a statement in- the transcript, dated June 28th, 1843, that-issues were made up upon the above pleas, the case submitted to' the court, sitting as el-jury, and t-hdt the court found fór, and gave judgment in favor of the defendants. Then immediately follows a-similar statement, dated 30th June, 1843.
    On the first day of July, the plaintiff moved for a new trial, on the grounds that the verdict was contrary to evidence — verdict and judgment contrary to law — and that improper evidence was intro*' duced by the defendants. The court overruled the motion, the plaintiff excepted-, and it was ordered that he have leave until the fifth of July to tender his bill of exceptions. On the fifth of July the plaintiff tendered his bill of exceptions, and they were signed, sealed, and ordered to be made part of the record. The bill of exceptions commences thus: “Be it remembered, that on the 30ith day of June, 1843, neither party requiring a jury, the cause was submitted to the court, sitting as a jury, and the plaintiff introduced the following evidence,” &c. Theevidenee-necessary to a full understanding of the. points decided, is given in the opinion of the court.
    The plaintiff brought the case to this court by writ of error, and assigns as error, the refusal of the court below to grant him a new trial.
    Hempstead & Johnson, for the plaintiff.
    1st, The plea of nul tielrecoi'd is bad, because the action is-not founded upon a record. 3 Mod. Rep. 41.- Com. Dig. Pleader,- (2 W. 13.) 1 Chitty’sPl. 521. If it is good and responsive to the action, the court ought specially to have found that there was, or was not, such a record, and the proof shows that the issue should have been found for the plaintiff. 4 John. Rep. 213.. Smith vs. Raymond, 1 Day 189. 4 Teates 295.
    2d, The proof does not support the second plea, and only shows a surrender to the sheriff, when the law expressly provides, and the plea avers, that he shall surrender himself to prison, in case he does not comply with the requisites of the insolvent law, to procure his discharge; one of which is, that where the petition has been presented twenty-five days before the next succeeding term of the circuit court, his case shall be prosecuted, and determined unless for good cause shown. Rev. Slat. p. 464. A surrender into the custody of ¡the sheriff, is not a surrender to prison in contemplation of law. The Legislature have provided for actual, not constructive’ imprisonment. The principal went at large on a promise to be forthcoming, and the sheriff considered him in his custody. This is not a sufficient imprisonment, and if he had been put in jail, and afterwards seen walking the streets, it would have been an escape. Steward vs. Kip, 7 J. R. 165. Palmer vs. Match, 9 J. R. 329; and as it would have been voluntary in this case, he could not retake him. Lansing vs. Fleet, 2 J. C. 3. Thompson vs. Luckwood, 15 J. R. 256. These analogous cases show that there was no imprisonment that would discharge the bond. Watson on sheriffs, 135. 14 East, 468. 6 Taunton, 490. Benton vs. Sutton, I Bos. & Pul. 24. 2 Bl. Rep. 1048. The surrender could only be made'under the authority of the court entered of record. The application for the benefit of the insolvent law being a case in court, the judge thereof could only determine whether the law had been complied with, and if not order the applicant to prison. The sheriff could not determine a question so purely judicial in its character, and therefore a surrender to prison, .or to the sheriff, would be entirely unavailing without the authority and action of the court. It is analogous to the discharge of bail. Rev. Stat. p. 623, sec’s 28, 29, 30.
    For reasons already stated, the third plea is bad, and the issue on it immaterial, and if so a repleader ought to be awarded. Stafford vs. The Corporation of Albany, 6 J. R. I.
    Where there is general verdict, and there are several counts or pleas, and some are materially defective, judgment may be arrested, or reversed on error. 2 Mass. Rep. 50, 406. 7 Mass. Rep. 358. II id. 59. Com. Big. Pleader, (s. 31.)
    Trajpnam. & Cocke, contra.
    The first question that presents itself is, was the bill of exceptions filed within the leave of the court, and made part of the record? The principle is well settled that the bill of exceptions must be filed on the trial at the time, unless the time is extended by leave of the court, and then, of course, it must come within the leave. What was its extent in this case? “Until,” that is, according to the best lexicographers; “to” or “up to” the 5th of July; which certainly confined it to the 4th of July, and did not embrace the 5th. Webster, by a.n example, settles the meaning of the preposition in this case, beyond all cavil, to wit, “until this hour.” According to the well settled meaning of this word, and the well established practice in this court, there is no bill of exceptions in this case, as the rule for filing it expired on the 4th of July.
    2d, The evidence in the case sustained the plea substantially, and justified the yerdict given: no question as to the competency ,of the evidence was raised, and cannot be, on the record in this .court. AH exceptions, it will be presumed, were waived. Huling vs. Fort’s adm’r, 2 IAttell 194. 2 Marsh. 66; and therefore the judgment of the court, overruling th.e mofion for a new trial, ought to be sustained.
    But the judgment ,of the court pf the 28th of June was unvacat-pd, $,nd in full force when the judgment of the 30th was rendered; consequently the latter is a nullity, and the motion for a new trial having exclusive reference -to that, should also bp disregarded. This mpy be en’or in the clerk, but it is well settled practice in this .cpppt. In the case of Field vs. Pope, 4 j&r/c. Rep., after a joinder in errpr yms filed, it was discovered that ,an error haj slipped into the record, by a misprision of the clerk, and the court refused to entertain a motion for a certiorari, or suggestion of error, after the plaintiff and defendant had consented to go into the trial; and this yras the only error in the r,ec.ord, and for this the case was reversed. Viol,et vs. Waters, 1 J. J. Marsh. 304.
   Oldham, J.,

delivered the opinion of fhe court.

The 79th chapter, Rev. Stat., sec 5, prescribes the condition of the bpnd, to be executed by ,a defendant in execution, to entitle him to a discharge, until his petition to obtain the benefits of the act, in relation to insolvent debtors, can be heard, and determined : it is, “that he will appeap before the circuit court of the proper county on the first day of t]je next term of said court, held for said cunty, and surrender himself tp prison, in case pn his said appearance, he does not cpmply with every thing required by that act to obtain his discharge.” The bond upon which this suit is brought, is conditioned strictly in accordance with this provision of the statute. — , The declaration assigns as a breach of the condition of the bonj “that the said Jacob Delany did not appear before the circuit court pf Pulaski .cpunty, at tire March term, 1842, on the first Jay of sai(] term, and. prosecute his said petition, &c., nor did he appear at any other day of said term, nor did he comply with the requisites and provisions of the act concerning insolvents, &c., nor did he surrender hifnself in prison in the matter of said judgment and execution, according to the tenor and effect of the said condition of said writing obligatory-”

The defendants do not pretend that Delany complied with every thing required by the act, to procure his discharge as an insolvent .debtor, but that he surrendered himself to prison, according to the tenor and effect of the condition of said writing obligatory. Upon the trial it was proven, on the part of the defendant, by Borden, the deputy sheriff, that at the March' term, 1842, Delany surrendered himself to the witness as deputy sheriff, and that he has ever since been in the custody of the sheriff of Pulaski county, but had not, at any time since such surrender, been confined in jail, but had gone wherever he wrnuld, and had taken one or two trips on steam boats. ¿Dther statements are made by the witness unimportant as to the merits of the case.

The question here presents itself, by what authority did the deputy sheriff receive Delany into his custody ? The ca. sa., under which he was arrested, was made returnable on the second day of the term, and the sheriff's return does not show that the surrender to the deputy was made, or received, under or by virtue of that process. The surrender to the deputy sheriff was in the absence of all authority, and had he confined Delany in jail, he could have been discharged upon habeas corpus, the sheriff being unable to show any valid warrant of commitment, under the authority of which he kept him in his custody. And the deputy having permitted an escape, by suffering Delany to go at large, the sheriff is not responsible to the plaintiff for the escape, because he was not in custody .under any legal ¡and valid process, authorizing the sheriff to take frim into his custody, and place him in prison. The evidence does not show upon what day of the term, the surrender was made to the deputy sheriff. The condition of the bond was that Delany should appear before the circuit court on the first day of the term, ;and surrender himself in prison, in case, on his said appearance, he did not comply with every thing required by the act, to procure his discharge as an insolvent debtor; and, therefore, if he did not appear bn that' day, and surrender himself in prison, or comply with every thing required by the act, to procure his discharge as an insolvent debtor, he violated the condition of his bond, and a right of action accrued to the plaintiff against Delany and his security. The surrender should have been in court as required by law, and the condition of the bond, so that a legal and valid commitment might have issued by order of the court, requiring the sheriff to detain the defendant in prison.

The defendants object that the bill of exceptions was not presented within the time limited by the court. The party had leave to present his bill of exceptions by the 5th, and it was presented, signed and sealed on that day. We are of opinion it was presented in due time. It is also contended that the transcript shows two judgments, one rendered on the 28th and the other on the 30th, and that the bill of exceptions refers only to the judgment of the 30th; that the last judgment is a nullity, and that the first is in full force. The court entertains a different opinion. If there was in- truth a trial and judgment on the 28th, and the court proceeded to try and determine the cause again on the 30th, neither party objecting, it was equivalent to setting aside the judgment first pronounced, and granting a new trial. We, however, regard the first judgment on the transcript as a clerical error, either in copying upon the transcript, or in stating the day upon which it was rendered, inasmuch as the transcript shows a trial and judgment on the 30th, and the judge certifies, in the bill of exceptions, that the trial was had on that day. Let the judgment be reversed.  