
    
      W. J. Harley, successor, v. Joseph Neilson. Same v. B. H. Brown.
    
    An action will not lie against the sureties to a Prison Bounds Bond, "before the plaintiffhas established, by the judgment of a Court, his debt or damages against the principal in the bond.
    
      Before Mr. Justice O’Neall, at Barnwell, Fall Term, 1847.
    The following abstracts from the pleadings, &c. are all which will be necessary to the understanding of these cases:
    
      Condition of Bond.
    
    The condition of the above obligation is such, that if the above bound David S. Law, who is now in custody of the aforesaid G. O’Riley, Sheriff, by virtue of a writ of capias ad respondendum, at the suit of Tobin & Allen, and shall remain within the rules, bounds and limits of the jail of Barn-well District, as established by law, and will also, within forty days from the date hereof, render before the Clerk of the Court of Common Pleas, for the District of Barnwell, a schedule, on oath or- affirmation, (agreeable to the form of his religious persuasion or belief,) of the whole of his estate, both real and personal, or so much thereof as will pay and satisfy the aforesaid writ of capias ad respondendum, by force of which he is confined, and shall also, at the expiration of the notice prescribed under the Insolvent Debtors’ and Prison Bounds Acts, respectively, assign and surrender, as far as in his power, the property mentioned in said schedule, then this obligation to be void, or otherwise to remain in full force and virtue.
    Sealed and delivered in ) (Signed,) DAVID S. LAW. [l. s.]
    the presence of $ “ B. H. BROWN, [l. s.]
    Jos. G. W. Duncan.
    
      Abstract of Pleadings in Brown’s Case.
    
    William J. Harley, successor of G. O. Riley, late Sheriff, vs.
    
    B. H. Brown.
    Debt in Sheriff’s name on Bond for Prison Bounds, (to. .defendant, as surety for D. S. Law,) under bail writ issued for Tobin & Allen.
    1. Writ in Debt, for penalty, $500.
    2. Declaration on penalty of bond.
    3. Defendant pleads — ■
    1st. Non est factum — Plaintiff puts in similiter.
    Defendant, after craving oyer, pleads — -
    2d. General performance of condition — Plaintiff replies, by assigning, as the special breach, that Debtor left the bounds on the 10th July, 1839, &c. at <fcc.
    Defendant rejoins — traversing fact of leaving, &c. and tenders issue to the country. Plaintiff puts in similiter.
    Defendant pleads—
    3d. That Cork and Law, the defendants in original action, owed nothing to Tobin & Allen, the plaintiffs in the original action. Plaintiff replies, setting forth a certain debt of $159 19, and tenders issue to country. Defendant puts in similiter.
    Defendant pleads'—
    4th. That Tobin & Allen (plaintiffs in original action,) never, at any time in any Court, established a demand due them, by either verdict, reference to Clerk, judgment by default or confession, or decree in Chancery — and concludes with a verification. Plaintiff demurs, generally. Defendant joins in demurrer.
    
    So that these questions are made by the pleadings:
    1. Issue of fact — whether the bond was duly executed ?
    2. “ “ “ D. S. Law broke the bounds ?
    3. “ “ “ Cork and Law owed Tobin & Allen $159 19 ?
    4. Issue of law— “ Suing creditor, omitting to establish demand by verdict, reference to Clerk, judgment by default or confession, or decree in Chancery, is sufficient to bar plaintiff in the present action?
    The pleadings in Neilson’s case are the same, substantially, as above, except that defendant’s plea, (to which plaintiff demurred generally,) sets forth that the said Tobin & Allen refused to prosecute to judgment their suit in which the said writ of capias ad respondendum was issued.
    The Circuit Judge overruled the demurrers.
    The plaintiff appealed, and moved to reverse his Honor’s decision.
    Bellinger, for the motion, said: A Prison Bounds Bond is forfeited and the sureties are fixed as soon as the breach is made. In this respect, it differs from a Bail Bond — and cited Miller v. -, 3 McC. 429; McElwee v. White, 2 Rich. 95 and 97; Berry v. Hoke, 1 Rich. 76. He said that Insolvent and Prison Bounds Bonds were more analogous to Bonds of Surety, to Ordinaries, Sheriffs, &c.
    A. P. Aldrich, contra, cited Harley v. Neilson, 1 Rich. 483. He asked upon what could damages be assessed in this case? — upon the writ, or upon the cause of action? Said the bond was given to secure the plaintiff from loss, after the debt was established; not to give him the advantage of recovering before he proved his debt. That there would be in this instance no proof of the debt. That there was now no record in Court to prevent plaintiff from recovering again on the original cause of action. That in a suit on the bond, damages could not be assessed on the original cause of action. That the cases cited were those in which judgment had been recovered, and the damages assessed thereon; and that when the case was properly fried, defendants were prepared to show discounts, or counter claims, cancelling those of plaintiff.
    Owens, same side, cited Public Laws, 369, in reference to the law of Bail, and 1 Mill’s Con. Rep. 314, and the Act of 1788, 5 Stat. 78, as to Prison Bounds Bonds. Said a schedule was not required from a prisoner, unless arrested on final process. — Anderson v. Foster, 2 Bail. 500. Asked how the Court were to know that the amount now sought was the amount for which defendant had been arrested? What wrong had been done to the plaintiff, in this case, by the absence of defendant? Were the prisoner’s rights impaired by the refusal of the Commissioner of Special Bail to grant his discharge? Was there no time at which a party may leave the bounds, when the plaintiff refuses or delays to proceed ? And contended that if the plaintiff does not proceed in regular time the Bail will be discharged, citing Petersdoff on Bail, 10 Law Lib. 232, and note D. same page; 1 Chit. Rep. 281; Anderson v. Foster, 2 Bail. 500, and The Bank v. De La Torre, 2 Spears, 501.
   Evabts, J.

delivered the opinion of the Court.

This case presents the question whether an action will lie against the securities to a prison bounds bond before the plaintiff has established, by the judgment of a Court, his debt or damages against the principal in the bond. By the Act of 1788, 5 Stat. (for the purpose, as recited in the preamble, of rendering imprisonment less rigorous,) it is enacted that “ all prisoners on mesne process in any civil action” who are in the custody of the Sheriff, shall be entitled to be and remain unmolested in any part of the rules, limits and bounds of the jail, upon his giving to the Sheriff satisfactory security not to go or be -without the limits. The same Act provides, in the 11th sec. that in cases of escape beyond the bounds, the plaintiff may proceed to retake the prisoner, or against his security, or in case the security should prove deficient, against the Sheriff, who shall ultimately be answerable in damages for such escape. I suppose there can be no doubt that when Law, the principal in this bond, went beyond the prison rules, the bond was forfeited, and that the security became liable for the debt or damages of Tobin & Allen. But it does not follow necessarily from this, that the Sheriff, for the benefit of Tobin & Allen, can immediately commence an action against the security, without the suit against the original defendant being prosecuted to judgment. If this is allowable, then the question involved in the action against the principal is to be tried in the action against the security. On this question we have no decided case, nor any bearing much analogy to it. All the arguments of convenience are against what is contended for by the plaintiff, and the analogies, so far as they go, are to the contrary. An administrator’s bond is forfeited when the administrator wastes the estate or fails to .render his accounts; and yet by our practice, no recovery can be had on the bond against the security, until there has been an adjustment of the accounts in the Court of Ordinary or in the Court of Equity. In the case of a bail bond the plaintiff is required, by the Act of 1785, to prosecute his suit to judgment before he can proceed against the bail. A prison bounds bond is, in many particulars, unlike a bail bond; yet in the question involved in this case they are the same, and I do not see any reason why, in relation to one, we shall not adopt the wise and convenient practice which has been prescribed by law in the other. Before the Act of. 1785, (P. L. 369,) it seems the practice contended for by the plaintiff did prevail. But it seems, from the recital in the Act, that it was attended by many inconveniences, and therefore the Legislature thought proper to alter the law on that subject. Three years after this, the prison bounds Act was passed, and it hardly can be supposed that by it, it was intended to subject those who might become liable', under its operation, to all those evils from which bail had been so recently relieved. I have before said that many inconveniences would result from the practice for which the plaintiff contends. Arguments ab inconvenienti are not proper to be addressed to a Court, where the law is plain. But where the law is silent, and for the first time we are to prescribe a rule of practice, they are entitled to great weight. An action, I suppose, would lie on the bond, at any time within 20 years. It appears from the pleadings that 8 years have elapsed since there was a breach of the condition of the bond in this case. In the mean time the original defendants may have died or removed to some remote State. How can these defendants now contest Tobin & Allen’s demand against their principal 1 There may have been a discount, which would have defeated the action, but. of which they may be entirely ignorant, or unable now to prove it. The action may as well have been slander or trespass, or other tort, of the circumstances attending which, the securities know nothing, and can make no available defence; when, perhaps, if the plaintiffs had gone on with their action, the defendant might have made a successful defence. The question whether any debt is due or any damages have been sustained, should properly be litigated between the original paities. He who has become collaterally liable, should be held answerable for the debt or damages when ascertained, by a decision in favor of the plaintiff; but not until then. I think, therefore, the demurrer was properly overruled, and the motion is dismissed.

Richardson, J. O’Neall, J. Wardlaw, J. Frost, J. and Withers, J. concurred.

Motion refused.  