
    P. M. Wallace vs. J. H. Taylor.
    
      Prison Boimds Act — Olerle—Magistrate.
    Where the Court is sitting, and the clerk is engaged in Court, he is absent within the meaning of the Act of 1839, authorizing a magistrate to hear an application for the benefit of the Prison Bounds Act, if the clerk be interested, sick, or absent.
    BEFORE WARDLAW, J., AT CHARLESTON, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows :
    “Debt upon a Prison Bounds’ bond, by which the defendant was bound as surety for Charles E. Levy, who had been arrested under a ca. sa., at the suit of this plaintiff'.
    “ The plea was, that Levy had been lawfully discharged under the Prison Bounds’ (or ten day) Act.
    “ The defendant exhibited á paper, upon which was a schedule sworn to by Levy, an assignment (in blank) signed by him, and an order in these words: ' Discharged under Prison Bounds. William Rhett, Magistrate, 21st June, 1858.’
    “ The plaintiff made some objections to the form in which notice had been given of Levy’s intention to apply for his discharge, and to the irregularities in' the assignment: but a more serious objection was urged to the authority of the magistrate. The Act of 1839, 11 Stat. 30, gives to a magistrate power to hear such applications for discharge only in case the clerk is interested, is sick; or is absent: and it was alleged, that neither of the empowering circumstances existed when this order of discharge was signed.
    “ Mr. Horlbeck, the clerk, testified, that on the 21st of June, 1858, the Court was sitting, and he w'as busily engaged in attendance upon it. He was asked to hear Levy’s application about eleven o’clock, and answered, ‘I cannot attend to it.’
    “ Therefore, as was admitted, the applicant took Magistrate Rhett to the clerk’s office, and the discharge was signed.
    “No peculiar power, given, in this matter, to a judicial magistrate in St. Philip’s and St. Michael’s, was brought to my view : and I held that Magistrate Rhett had no jurisdiction, and that therefore the discharge was void, and the condition of the defendant’s bond broken.”
    The defendant appealed, and now moved this Court for a new trial on the grounds :
    1. That the issue presented by the plea, which alone was considered, was a record in the office of the Court, of a discharge under the Prison Bounds Act, and that the production of such a record entitled the defendant to a verdict.
    2. That the refusal of the clerk to hear the case, and his absence from his office, gave j urisdiction to the magistrate.
    8. That the case was within the jurisdiction of a Commissioner of special bail, who was ’ one of the eight magistrates of St. Philip’s and St. Michael’s, with exclusive powers, and therefore the discharge was legal.
    
      Loclcwood and Hamsay, for appellant.
    A. A. 1839, § iv., page 100. Every clerk shall give constant attendance, either in person or by deputy, in his office (Sundays, Christmas Hays and anniversaries of American Independence excepted), to be kept in a room to be provided for that purpose in the Court House. A. A. 1789 (1 Brev. Dig. Tit. 39, page 117, Clerks of Court). All, and every person or persons, shall and may, at all times of the day, from nine o’clock in the morning until four o’clock in the afternoon, Sundays excepted, have free access to any of the clerks’ offices, in their respective districts.’ A. A. 1839, § xxi., page 30. Any magistrate .... may hear and determine any application for the benefit of the Prison Bounds Acts, agreeably to their provisions, in cases where the acting clerk of the district cannot hear and determine such application, either on account of interest, sickness, or absence; and in no other cases whatever. Modem loco, § xxxii., page 34. Nothing in this Act contained shall be construed to abrogate, alter, or interfere with the provisions of any law now of force, relating exclusively to the magistrates of St. Philip’s and St. Michael’s Parish. A. A. 1788 (2 Brev. -Dig. 159, Title, 137, Prison). Any prisoner confined on mesne process shall have liberty to render, at any time during his or her confinement, on such process, a schedule, (&c., &c.,) — the prisoner will be liberated and the property assigned, unless satisfactory cause is shown before one or more of the Judges of the Court where the process originates, or one or more of the commissioners appointed for taking special bail in the circuit districts, &c. A. A. 1799 (1 Brevard, Tit. 17, Bail, § 8). Appoints justices of the quorum, and clerks, commissioners of special bail. A. A. 1827, 6 Stat. 328. § 1, creates eight justices for St. Philip’s and St. Michael’s. § 2. That the civil jurisdiction of the said magistrates shall extend throughout the Parishes of St. Philip’s and St. Michael’s, to the trial of causes, small and mean; to all matters of debt or other demand, arising from contract, to the amount of twenty dollars; to cases of domestic attachment, and to all the powers, rights and authority •in civil cases, now exercised by justices of the quorum, under the existing laws of the State. Form of Prison Bounds bond in Miller’s Compilation, p. 227, and the condition, p. 228.
    
      Thomas .Y. Simons, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

The first ground of appeal cannot be maintained as an estoppel by record. For a discharge under the Prison Bounds Act does not operate as a record. It is received in evidence as a quasi record, having effect as a judicial determination.

On the second ground, I think the magistrate hhd jurisdiction. For, under the Act of 1799, justices of the quorum were commissioners of special bail, and had jurisdiction of all such applications as were heard by the magistrate, Mr. Rhett. Since 1839, this power has been taken away, except in the cases when the clerk may be interested, sick, or absent from his office.

In this case he was absent from his office (his place of business). He was attending to the Court, then in session, and of coarse was not in his office to attend to the petition and notice of the prisoner for his discharge. This was, I think, in a liberal construction of a remedial statute, absence from his office. That being so, Mr. Rhett, a magistrate, had the authority to discharge the prisoner.

The discharge being legal, the condition of the bond for the bounds was -not broken, and the defendant was entitled to a verdict, and the motion for a new trial is therefore granted.

Johnston and Wardlaw, JJ., concurred.

Motion granted.  