
    
      Archibald Craig vs. Howard Pinson.
    
    1. A party arrested under a ca, sa. after rendering in a schedule of his effects for the purpose of obtaining his discharge under the Prison Bounds Act, applied for and had leave from the commissioner of special bail, on the filing of a suggestion alleging the schedule to be false in certain particulars, to amend; and in the amendment stated what he affirmed to be the true condition of the property which it was alleged he had not rendered in, adding further, that whatever interest he had in it, he was ready to include it in his schedule and assign it. Issue being taken on this state of facts, and a jury duly organized, a motion was made and granted in behalf of the prisoner that he be discharged on assigning his schedule as amended to the plaintiff. Held, upon appeal, that under these circumstances it was unnecessary to put the case to a jury to try whether the prisoner’s statements were true or false, and that the order of discharge necessarily followed.
    2. The amendment of a prisoner’s schedule is very much a matter of discretion with the commissioner of special bail, and if it does not operate to surprise or delay the creditor, it is properly allowed. (See Sherman and DebruM vs. Barret, 1 M’Mullan, 160.
    
      Before the Clerk of the Court of Common Pleas for Laurens District, Commissioner of Special Bail.
    
    This was an application made by the defendant, for his discharge from imprisonment, under the Prison Bounds Act. He had been arrested by virtue of a ca sa., at the suit of the plaintiff, and in order to obtain his discharge under the said Act, rendered in his schedule, embracing sundry small articles of personal property, his interest in a small tract of land, besides notes, judgments and accounts.
    On rendering in the schedule, Young & Wright, attornies for the plaintiff, filed a suggestion, stating that the schedule was false in the following particulars:
    1. Because the defendant has not rendered in one sorrel mare, bought by him of John Hunter, and one gray horse.
    2. Because he has not rendered in the corn and fodder, oats and cotton, on the premises on which he resides: and which in law belongs to him, and is liable for his debts.
    3. Because he has not rendered in about eighty dollars belonging to him, in the hands of William Madden, Sr.
    
      4. Because he has not rendered in the balance of the purchase money of a tract of land, sold as defendant’s property by the sheriff of Laurens district.
    5. Because he has not rendered in his stock of cattle, hogs, <fec.
    On filing the suggestion, the defendant made application for leave to amend his schedule, which was accordingly granted.
    “Amendment to the foregoing schedule, made by leave of the commissioner.
    The defendant, so far as regards the sorrel mare and gray horse, makes the following statement:
    He says that his son, Marmaduke Pinson, contracted with John Hunter for the said mare; and being a minor at the time, Hunter agreed to let him have the mare, on the defendant’s giving his note for the purchase money, which he afterterwards paid with his son’s money; and when his said son came of age, five or six years ago, he demanded the mare, and the defendant delivered her up to his son before a witness. That his said son purchased the gray horse of Solomon Cole, and paid for him himself. That as to the purchase money for the land sold by the sheriff, the balance, after paying the judgments in the office at that time, went to M. D. Pinson, in payment of debts which this defendant owed him, and gave him a receipt in full for said balance.
    That as to the cattle, the defendant says that he bid them off at Crocker’s sale many years ago for his said son, who paid for them. That when the defendant’s property was sold, many years since, there was a cow and a calf reserved to him; that the' cow had a heifer calf, which he gave to his daughter, Nancy S. Pinson; that heifer remained on his premises until she had a male calf, which was killed for beef; the cow then had another male calf, which she traded for a heifer: and that heifer is now in her possession, with a heifer calf; that from his said son’s heifer, and his daughter’s heifer, the whole stock of cattle, making six in number, sprung. That as to the corn, fodder, oats and cotton, he says that he and his said son cropped together last year; that they divided the cotton, and sold it, long before he was arrested; and that his part went to the payment of his debts: that they divided the fodder, and two stacks fell to his share, which were consumed before he was arrested; that the oats and his part of the corn, were also both consumed before his arrest. That as to the eighty dollars spoken of, in the hands of William Madden, he says that the said Madden holds his receipt in full; and that M. D. Pinson, Esq. gave this defendant’s son Marmaduke, about twelve years ago, a sow and four pigs, from which all the present stock of hogs, except what his said son has purchased, came.
    Now, if the defendant has any right, title, or interest, in any of the aforesaid property, or monies, or any, or either of them, he includes it in his schedule,
    Howard Pinson.
    Sworn to before me, this 3rd May, 1843.
    John Garlington, Cl’k. L. Dis., & Com’r Bail.
    Issue was taken on this state of facts, and on the 17th August, 1843, a jury was duly organized for the trial of the case, when, on motion of Irby & Sullivan, defendant’s attornies, the following motion and order was offered and granted, viz :
    It appearing to the Commissioner of Special Bail, that the amendment of the defendant’s schedule, in the above case, is sufficient, in law, to include whatever interest he has in the property, and choses in action, which it is alleged in the suggestion he has not embraced in his schedule: It is therefore ordered, on motion of Irby & Sullivan, defendant’s attornies, that the said Howard Pinson be discharged from his imprisonment, on his assigning his schedule, as amended, to the plaintiff- — subject to prior incumbrances.
    The plaintiff appealed, and moved this Court to set aside the order made by the commissioner, on the following grounds, viz:
    1. Because the commissioner should not have allowed the amendment to the schedule in the form it was filed.
    2. Because the plaintiff was entitled to go into proof to falsify the schedule, by showing that the property mentioned in the grounds taken, did belong to the defendant, and should be made liable to plaintiff’s debts.
    3. Because the order of the commissioner was not authorized by law, and he had no power to make such order.
    In granting the order which decided the case, the commissioner was of opinion that the amended schedule covered the whole of his estate ; that there was no fraud or concealment intended. So far from it, that whatever right or title the defendant may have had in the property rendered in, he was willing to assign; and if he had a right at law, of which he was ignorant, and willing to assign that right, it should entitle him to a discharge — and leave the party to pursue the property under the assignment. Had the defendant assigned the property without qualification, it would have conferred no right, if in truth it belonged to others.
    The defendant had only purged his conscience, in giving his views of the right of property : it neither operates for or against the legal claim. And surely no citizen should be confined in jail until those rights should be legally investigated — when he shows an honest intention to surrender all his property. On such views, he thought the defendant was entitled to his discharge. All of which is respectfully submitted.
    
      Young Wright, for the motion,
    
      Irby Sullivan, contra.
   Curia, per

O’Neall, J.

The amendment of a prisoner’s schedule, is very much a matter of discretion with the Commissioner of special bail. If it does not operate to suprise or delay the creditor it is properly allowed. Sherman & Debruhl vs. Barrett, 1st M’Mul. 160. It seems the amendment was made 3rd of May, the discharge was the 17th of August. The time was therefore ample, and no surprise-or delay could have been the consequence.

The objection, however, seems to be to the form of the amendment. This unquestionably may present some difficulty, But I apprehend it may be easily removed. The defendant states what he affirms to be the true condition of the property, and then says whatever interest he has in it, he is ready to include it in his schedule and assign it. This is perhaps unusual, but I do not perceive the objection to it. If it be the debtor’s property, his declarations in the assignment cannot prejudice his assignee’s ultimate right of recovery; they will have no more weight nor effect than they would have had if made before assignment, and which could be given in evidence against the assignee’s title. But notwithstanding such statements, the assignee may still recover, for he not only represents the debtor, but he also stands as creditor, and may therefore shew every thing which would make the property be regarded in law as that of his assignor, either in his own right or in favour of creditors. There can be no necessity, then, why the prisoner’s schedule should be assailed, and the jury now put to try whether his statements are true or false. Any verdict given upon that question would not falsify his schedule. For if the statement be false, then the property is in the schedule, and it never. could be averred that he had not rendered in a schedule of all his estate and effects. Under such circumstances it was idle to summon a jury, they had nothing to try. This being the case, the order of discharge necessarily followed. The motion is dismissed.

Richardson and Evans, JJ. concurred.  