
    *Green v. Garrett.
    Friday, Nov. 6th, 1812.
    Prison Bounds — Failure to Charge Debtor in Execution in Writing — Effect.—A debtor, being' surrendered to the sheriff by his special bail, (after judgment against him in a county Court.) cannot legally be detained in jail, or within the prison bounds, on a bond given for that purpose, more than twenty days from the time of such surrender, if the creditor, his attorney, or agent, do not, within that time, charge him in execution in writing.
    In an action of debt on a prison bounds bond, in behalf of Alexander Garrett, as-signee of Joseph Blackwell, Sheriff of Fauquier county, against Moses Green, surety for William Blackwell, the following facts were disclosed by a special verdict; viz. that the plaintiff, on the 29th of April, 1800, brought suit, in the county Court of Fauquier, against William Blackwell, on a bond for one thousand dollars; that on the 29th of November, 1800, Thomas Chil-ton, Elias Edmonds, jun., and Turner Morehead, became special bail for the defendant in the said suit; that judgment was rendered for the plaintiff the 27th of March, 1801; that a fieri facias issued September 1st, 1801, which was returned October 26th, nulla bona; that no other execution was ever issued upon the said judgment; that, on the said 26th day of October, 1801, the special bail in the said suit did deliver up the body of the said William Blackwell to the Sheriff of the said county of Fauquier, in discharge of their recognisance; that the said William Blackwell was thereupon committed to the jail of Fauquier county, where he remained in close confinement until the 30th day of October, 1801, when he was admitted to the rules of the prison of said county, upon the execution of the bond whereon this action was founded; that, at a Court held for Fauquier, on the 26th day of April, 1802, the said Court made an order in the words, following, to wit: ‘ ‘In the case of Garrett against Blackwell, who was delivered up by his special bail, and the plaintiff failing to charge him in execution, and more than twenty days having elapsed since his confinement, and the plaintiff refusing to pay prison fees, it is the opinion of the Court that the jailer would be justifiable in discharging the defendant •from prison, which he is accordingly directed to do;” that, in pursuance of this order of Court, the said Sheriff *of Fauquier, on the 27th day of April, 1802, in writing, reciting the surrender and commitment, as above stated, and that the plaintiff had failed to pay the prison fees of the said Blackwell, or to charge him in custody, and also reciting the order of Court above set forth, did release and discharge from his jail and custody, the body of the said William Blackwell, who, in consequence of the said discharge, did, on the 28th day of April, 1802, go without the said prison rules, in which, until then, he had constantly remained ; that the jail fees were regularly paid by the plaintiff, after the said Blackwell was surrendered in custody, until he’removed his family 'within the bounds, and kept house, when the payment was discontinued; that on the 27th day of October, 1801, after the return day of the said fieri facias, notice was verbally given by the plaintiff to the sheriff, who had not made return of the said execution, to consider the writ of fieri facias in his hands, as charging him in execution, to which the sheriff assented; that the attorney for the plaintiff in the said action in Fauquier county Court, had verbal notice, on the 27th day of October, 1801, that the said Blackwell was in custody of the Sheriff of Fauquier county, under the aforesaid surrender by his bail; and that the said plaintiff did not, during the imprisonment of the said Blackwell, to wit, from the 26th day of October, 1801, to the 28th day of April, 1802, in any way charge the said Blackwell in execution, except by the verbal instruction of the plaintiff to the sheriff as above set forth.
    Upon this special verdict, the district Court rendered judgment for the plaintiff, from which the defendant appealed.
    Williams, for the appellant.
    In Meredith’s administratrix v. Duval, all the judges were of opinion, that a man in the prison bounds is a true prisoner, as completely as if confined in the jail. He cannot be compelled to *remain in the bounds, any more than in the jail, after the sheriff has told him he is discharged.
    But in this case the appellant never was a legal prisoner; for a verbal charge in execution is not good; it must be in writing. The sheriff’s assenting to the illegal act of the creditor, in charging him verbally, could not give it effect so as to bind the debtor. If we look to the common law, there is not a dietum but shows the charge must be in writing, or entered of record,  Such is the rule upon reason, as well as authority; since, if a verbal direction to the sheriff was sufficient, it would put the defendant at the mercy of the sheriff and creditor, and deprive him of the benefit of the insolvent law. Our act of 1764, ch. 6, sect. 6,  speaks, indeed, of a “charge in execution,” in general terms, without saying whether it shall be in writing, or not; but it must be construed as intending that mode of charge which is known to the law; where not explicit, every statute must be so construed as will render i,t most conformable to the rules of the common law. The act of 1792, concerning district Courts,  expressly provides, that the charge shall be “in writing;” and the county Court law requires the practice of the county Courts to conform to that of the district Courts.
    It follows, therefore, that Blackwell, in contemplation of law, never was in execution ; and therefore his surety for keeping the bounds was never responsible.
    But even if in this I am mistaken, the order of the county Court was a sufficient discharge; being by a Court of competent jurisdiction.
    Wirt, for the appellee.
    The first question is, whether the charge in execution must be in writing? For whose benefit is the writing required? For whose benefit was. it, according to the common law, that the committitur was to be in writing? In the cases cited by Mr. Williams, the question uniformly was, whether the marshal was liable or not; and the decisions were founded on a *rule of the common law, that the charge must be made a matter of record, to give the marshal notice. There is not a word in our Acts of Assembly requiring the charge to be by matter of record; and where a written charge is required, it is intended for the sheriff’s direction only; to give him information of the fact that the defendant is in execution. The common law rule has no application to a case like this; of a bond for keeping the prison bounds; there being no such institution at common law. The act of 1764 cannot then be understood as referring to the common law mode of proceeding. The district Court law of 1792, requiring the charge to be in writing, must have been intended to make a new provision on the subject, in relation to the district Courts; but there is no such clause in the county Court law. The section requiring the county Court practice to conform to that of the district Courts, cannot apply to proceedings in pais, such as this, ot a surrender out of Court.
    The act which contains the words ‘ ‘in writing,” does not require the sheriff to give a copy of the writing to the surety in the prison bounds bond. Being intended for the sheriff’s benefit only, the sheriff has a right to waive it, and accept a charge, though not in writing. Where the reason of the law does not apply, the law itself ceases.
    Whether the charge was in writing or not, the condition of the debtor, or his surety, is not affected. The only question in which they are interested is, whether the discharge was lawful or not. In Meredith’s administratrix v. Duval, Philip Duval was not guilty of any immoral act in trusting to the sheriff’s discharge, as authorizing his departure from the bounds; the only inquiry made by this Court was, whether the discharge was lawful. So. here, Blackwell’s supposing that he was lawfully discharged, or the innocence of his intention, makes no difference.
    *The county Court had no right to discharge the prisoner. He was not in custody of the Court. Their power over the case had ceased. The sheriff alone was responsible; and over him the Court had no control. Suppose the sheriff had taken the defendant by ca. sa., could the Court have discharged him? The sheriff is bound to look to the regularity of the proceedings. If he execute a man condemned, irregularly, to death, he may be indicted for murder.
    Wickham, in reply.
    In all cases whatever, there must be a writing, to authorize the enforcing a judgment against lands, goods, or body. In the case of special bail, there must be a bail-piece to authorize the bai) to take the principal. The writing- is intended for the protection of the debtor. If ne be in actual custodj*, and there be no writing, he may sue the sheriff in trespass. The debtor cannot have the benefit of the insolvent act, unless there be a writing. The sheriff may be ruled to produce it. The defendant is entitled to a writ of habeas corpus, if there be no written warrant justifying his detention. The act of 1764 does not say the charge may be without writing. It uses the technical terms, “charge in custody,” which must be understood as a charge, according to the course of the common law.
    Putting the common law out of view, the old general Court, and district Court laws, require a writing. The county Court law says, “the proceedings of the said Courts, in common law cases, shall, as nearly as may be, conform to the practice in the district Courts.” That word, “proceedings,” is a large expression, and covers not only proceedings in Court, but of the officers of the Court under its authority. The district Court quashes a forthcoming bond, if improperly taken, though it be a proceeding in pais; and -will not the county -Courts follow the same practice?
    K'The question is, whether the charge was lawful? not whether the discharge was so? The debtor’s considering himself in custody, does not make him so, according to law. The condition of the bond must be understood as referring to a case existing, and corresponding with the recital. It must truly recite the state of things at tne date of the bond. If no such case existed, the bond is void. In the case of a surrender by bail, the sheriff’s authority to hold the debtor in custody, is for twenty days only, if the creditor do not charge him in execution.
    The county Court had jurisdiction over the subject. It was one of their own judgments, and an act of their own officer. The Court is not functus officio, upon giving judgment; execution is the life of the law. How often has this Court acted upon cases of orders quashing forthcoming bonds?
    Whether the Court acted right or not, the sheriff was bound to obey. The judgment of a Court of competent jurisdiction, though irregular and illegal, can be corrected only by appeal, writ of error, or supersedeas. Its officers are bound by such judgment, though erroneous. The sheriff might have been attached for contempt, if he had disobeyed the order of the Court, which, I contend, had full power to direct and control the acts of its officers.
    
      
      See Turner v. Harris, 1 Rob. 475, 478.
    
    
      
       1 Munf. 76.
    
    
      
       Watson v. Sutton. 12 Mod. 583, S. C., 1 Salk. 272, aud 10 Viner. 570; Wightman v. Mullens, 2 Str. 1226, Tidd’s Pr. 150.
    
    
      
       Edit, of 1769, p. 448.
    
    
      
       Revised Code, vol. 1, p. 79, sect. 31.
    
    
      
       Ibid. p. 92, sect. 69.
    
   Monday, March 1st, 1813, the president pronounced the opinion of the Court; “that the judgment was erroneous in this, that William Blackwell, in the proceedings mentioned, after having been delivered to the sheriff, by his special bail, was not by the ' creditor, his attorney, or agent, charged in execution, in writing, as the law requires.”

Judgment reversed, and entered, that the appellee take nothing, &c.  