
    
      George Robertson, survivor of Robertson & Gilfillin, vs. John Shannon.
    
    Construction given to the 30th section of the Sheriff’s Act of 1839; the schedule of the prisoner need not be filed and assigned, before notice to the plaintiff has been given by the sheriff; the Act was intended for the protection of the sheriff and not for the benefit of the prisoner; to discharge a prisoner under it is not to give him the benefit of the insolvent debtor’s or prison bounds Act.
    The case of Robinson <£• CaldweU vs. Simpson, 3 Strob. 161, explained.
    
      Before Q’Nealx., J., at Charleston, May Term, 1850.
    John Shannon had been confined since the 23d April, 1839, in the jail of Charleston district, first, under a bail writ, and then tinder a ca. sa. issued by Robertson &. Gilfillin. He never applied for a discharge under either the insolvent debtors or the prison bounds Act. In June, or July, 1849, the sheriff gave notice to the plaintiff, that unless the maintenance of the prisoner was paid, or security to pay the same given, he would be discharged. The plaintiff did not pay the same within ten days, or at any time afterwards, or give security. On the 4th of May, 1850, a notice was served on plaintiff’s attorneys, that, on the opening of the Court on the ensuing Monday, or as soon after as a hearing could be had, a motion would be made for the discharge of the prisoner, on the ground that the plaintiff, after proper notice, had refused to pay his expenses, &c.
    On the 13th May, the motion was heard. Affidavits were read ; one of the sheriff, stating that notice had been served on the plaintiff; another of the prisoner, in which he deposed £! that all the money which he had when he went into jail, has been long since expended, not for his maintenance nor for his use, but ■effectually in works of bénevolence and charity; that he has nothing in the world but his clothes, and a few articles of personal use, the whole not worth ten dollars, of which a schedule is annexedand another of the plaintiff, in which he deposed “ that at the time of the issuing of the bail- writ against, and the arrest of the said John Shannon, in this case, as he learned from the said John Shannon himself, the said John Shannon had in his possession, as his own property, in money, the sum of four thous- and dollars, which this deponent verily believes the said John Shannon still has in his possession, or under his control, and this deponent verily believes that the said John Shannon is fraudulently concealing his property and funds, and withholding the same from their application to pay his debts, for which he is imprisoned, and that all allegations of his inability to pay gaol fees are false, pretensive and fraudulent, and' that the discharge of the said John Shannon, without a full account for and surren,der of his property to satisfy this deponent’s demand, would be a gro'ss wrong to this deponent, and an outrage on his just rights.”
    After argument, his Honor ordered that the prisoner be brought into Court, the next day at 10 o’clock, A. M., and then ordered him to be discharged, in open Court, on his executing an assignment as follows:
    
      “ I assign the property mentioned in the above schedule to George Robertson, survivor of Robertson & Gilfillin, his executors, administrators and assigns.
    “ Witness my hand and seal, at Charleston, this 14th May, 1850.”
    
      The plaintiff appealed, and now moved that the judgment of his Honor be reversed, on grounds, inter alia, as follows :
    1st. That the defendant was not entitled to his discharge under the Act of 1839, the provisions of that Act not having been complied with, the defendant not having filed his schedule and assigned his estate previous to notice given to and demand on plaintiff, by the sheriff, to pay the goal fees of defendant, and defendant not having satisfactorily shewn his inability to pay the said fees.
    2d. That his Honor, by discharging the defendant, substantially admitted a fraudulent debtor to the benefit of the insolvent debt- or’s Act, so far as plaintiff is concerned, the defendant having had at least four thousand dollars in his possession at the time of his arrest, and having, as shewn by his own affidavit, wilfully squandered that sum, while in gaol, and that with intent to deprive and defraud the plaintiff of the same.
    3d. That even if defendant had otherwise brought himself within the purview of the Act of 1839, yet under the authority of the case of Robinson & Caldwell vs. Simpson, the sheriff was bound to proceed de novo, under the Act, and give the plaintiff the required notice, and he and the defendant were bound otherwise to comply with the conditions proscribed by the. Act, before the defendant could be legally discharged.
    
      Yeadon, for the motion.
    
      Petigru, contra.
   Curia, per

O’Neall, J.

This Court is satisfied with the decision below; and only deem it necessary, in answer to the grounds of appeal, to give construction to the 30th section of the Act of 1839, (11 Stat. 31) in the particulars to which they make objection ; and in connection therewith, to explain the case of Robinson & Caldwell vs. Simpson, (3 Strob. 161.)

It is first assumed by the appeal, that the schedule of the prisoner must be filed, and an assignment made, before notice can be given by the sheriff to the creditor to pay, or give security to pay, the maintenance of the prisoner. This is a construction Altogether imaginary; for the plain reading of the Act shews, that the sheriff was to give the notice; then, if the creditor refused or neglected to pay, or give the security, the sheriff was authorized to discharge the prisoner; provided, however, that such prisoner shall, before he is discharged, render, on oath, a schedule of all his estate, and assign the same.” Language cannot be plainer; and it is only necessary to read it, to know that after the notice has expired, and the creditor has failed to pay, or give security to pay, the maintenance of the prisoner, he (the prisoner) may file his schedule on oath, and assign the same, and on doing so, the sheriff may discharge him. The 30th section of the Act of 1839 is an Act for the benefit of the sheriff. It was intended very properly to protect him from keeping and maintaining a prisoner who was unable to pay for his maintenance, when the plaintiff after reasonable notice (ten days) failed to pay, or to give security to pay. To discharge a prisoner under such circumstances is not giving him the benefit of the insolvent debtors or prison bounds Act, but is protecting the sheriff against the parsimony of a plaintiff, who, to gratify his cruelty, would hold a man in bonds, but wish another to feed him. The case of Robinson & Caldwell vs. Simpson never was intended to lay down any such rule as that supposed by the 3d ground. Indeed there is not a word in it which justifies any such supposition. It was the first time the Act had been attempted to be applied; the prisoner had been convicted of fraud, and was therefore excluded from the benefit of the prison bounds and insolvent debtors Acts; and the Judge below thought he could not be discharged under the 30th section of the Act of 1839. The Court of Appeals, in reversing his decision, thought, in the particular case, it would be well to give the creditors a fresh notice, and accordingly the case so directed. But that was not intended to be a rule, in future, for all cases. That case settled the construction of the Act, and after it, no creditor could be taken advantage of, by supposing that the sheriff could not discharge the prisoner.

The other grounds of appeal may be answered, by saying that the sheriff never waived his noticé; that the plaintiff had, in the first place, near a year to pay, or give security, and in the second place, he had another notice of ten days from the 4th to the 14th of May; for on the 4th he had notice of the motion to discharge, and on the 14th it was granted.

The motion to reverse the decision below is unanimously dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, 33., concurred.

Motion dismissed.  