
    
      JAYNE & AL. vs. COX.
    
    Appeal from the court of the first district.
    The surely on a bond, with the condition that the principal shall not depart without leave of the court may surrender him.
   Martin, J.

delivered the opinion of the court. The defendant, bail of a debtor of the plaintiff, surrendered his principal, before any judgment against him, the bail. The plaintiff, insisted that, as his debtor had gone out of the state, pending the suit, the bail was fixed and could not discharge himself by the surrender.

The district court gave judgment for the defendant, and the plaintiffs appealed.

The condition of the bond subscribed by the present defendant, was that the plaintiffs’ debtor should not depart the state without the leave of the court, and that in case he did, the present defendant should pay, &c. Code of practice, 219.

The 222d article provides, that a debtor, whose debt is not yet payable, on being arrested, shall give bond to appear, when the debt becomes due, &c.

The 224th article provides that an insolvent debtor, who has ceded his goods, may, in certain cases, be arrested, and obtain his liberty, by giving bond not to leave the limits of the jurisdiction of the court.

The article 230th provides, that one, who becomes surety that another shall not depart he state, or leave the jurisdiction of the court, by which the order of surety was granted, and that he will appear to answer the judgment, may be discharged from all responsibility, by surrendering to the sheriff the person of the debtor, whom he had arrested.

Slidell for the plaintiff—Strawbridge for the defendant.

It is clear, that the legislature, by the 230th article, meant to provide for the discharge of sureties of ordinary defendants, sued on a debt already payable, who give bond not to depart the state; the sureties of debtors who are arrested on debts not yet payable, who give surety to appear; and the sureties of insolvent debtors, who give surety not to leave the limits of the jurisdiction of the court. By a classical or typographical error, the copulative and, in the third line of the 230th article, has been substituted for the disjunctive or, in the text. In the French version, the particle ou is used.

The present defendant and appellee was, therefore, discharged from all liability, by surrendering the plaintiff’s debtor.

It is therefore ordered, adjuged and decreed, that the judgment of the district court be affirmed with costs.  