
    SAMUEL BURNS VS. JOHN EVANS.
    A debtor, who, since his arrest, has removed his property out of the State, ié' hot, under the prison bounds Act, entitled to his discharge from confinement until the property contained in bis schedule is produced and delivered to his assignee; The Act of 1833 is imperative in this respect, if it be, or has been,' in his powbr to deliver the property áince his arrest; and if he has voluntarily put it out Of his power to produce tile property, or, having it in his power, refuses to do so, he cannot avail himself of either his fraud or his obstinacy, to avoid the requisition of the law;
    Nor would it vary the case, that an action has been commenced od the exemplification of the judgment, in the State to which the debtor removed.
    
      Before Mr. Justice Butler, at York; Spring Term, 1837.
    The defendant was arrested by bail process, for a trespass on the person of the plaintiff, by shooting and maiming him. He was on his way, removing out of the State with his property, when be was arrested. He gave bail, and continued on his journey, and settled in Alabama. At Fall Term, 1836, the action was tried in the absence of defendant, and a verdict rendered against him for $6,000. Hearing of the recovery, tbé defendant returned to this State, and surrendered to the sheriff of York district, in discharge of bis bail. With a view of availing himself of the benefit of the prison bounds Act, be filed a schedule of his whole estate, in which he states that his property, consisting of land and negroes, was' in the State of Alabama; and at this term, moved for his discharge, on making an assignment. Two objections were made by the plaintiff 1. That the defendant being confined for maiming the plaintiff, was not entitled to the benefit of the Act. 2. That the defendant could not be discharged without delivering into the actual possession of the assignee, the personal property contained in his schedule, which he was unwilling- or unable to do. The counsel for the defendant contended, that this was not a case of mayhem excluded from the benefit of the Act; and that it is enough that defendant, under the circumstances of the case, make an' assignment of his property, leaving it to his assignee to acquire possession" by the best means in his power. The defendant offered to prove that the' property had been removed before a recovery against him, and that an action had been commenced in Alabama, on the judgment obtained here. The presiding judge did not think this evidence would vary the case, and therefore rejected it. His Honor sustained the plaintiff’s last objection, holding the' Act of 1833 to be imperative in its térrrik, that the defendant .was not entitled to his discharge until he delivered the property to the assignee. As to the last objection, his Honor overruled it, on the ground that there was nothing in the proceedings in the case, to shew that the defendant was in confinement for a deliberate mayhem; the declaration merely charging the trespass to have been committed by beating, shooting .and maiming the plaintiff, did not give such a character to the act as to amount to a wilful and deliberate mayhem within the meaning of the Act, so as to deprive the defendant of the benefit of the law for the relief of insolvent debtors.
    The case of Wm. M. Kerr vs. the same defendant, depends on the decision of the second question in this case.
    The defendant’s motion to be discharged was refused, and he was remanded to prison.
    The defendant appealed from the decision of the presiding judge refusing his discharge; and the plaintiff also gave notice that he would move the Court of Appeals to reverse the decision of the circuit court, on the first ground taken by him against the defendant’s discharge, provided that court should reverse the decision on the second.
    
      Rogers Sf Dawkins, for the defendant. Witherspoon 8f Hill, contra.
   Curia, per

Butler, J.

The recoveries against the defendant in these (cases, were for trespasses committed before he carried his property out of the-State ; and he is now called on to make atonement and satisfaction to the parties injured, by complying with the legal requisitions of the country whose laws he had violated. This he cannot do upon the terms which he proposes. He must either satisfy the judgments against him, by paying the money, or he must comply with the law which requires him to deliver his property to assignees, within the jurisdiction of this State.

By the defendant’s schedule, it appears that he has more property than is sufficient to satisfy the plaintiff’s demands. There is nothing to pre. vent his bringing it here. At the time he came himself he could have brought his property. It was then under his personal control and direction ; and that was since the actual recovery against him.

But there is nothing now to prevent his ordering his agent, who has the superintendence of it, to bring the property here. The plaintiff did offer to prove that an7 action had been commenced on the exemplifications of these judgments in Alabama. This, certainly, can interpose no greater impediment to his bringing back his property, than these actions originally did to his carrying it away. But a satisfaction of the recoveries here, would be a perfect bar to an action any where else. The Act of 1833 is so specific and imperative on this subject, that the court is deprived of all discretion. The 6th section of that Act is in the following words : “ In all cases where a prisoner applies for the benefit of the prison bounds Act, the judge or commissioner before whom the application is mads, shall not discharge him from his confinement until the property contained in his schedule is produced and delivered to the assignees of such prisoner, if it be, or has been, in his power to deliver the same since his arrest.” 1 think it is very evident that it is now in the power of the prisoner to produce and deliver the property in his schedule, if he thought proper to do so. No prisoner actually in confinement can go personally and take his property, but this does not deprive him of the power of controlling his own agents. When he has been dispossessed of his property, before his confinement, by the seizure of the law, or any thing else that deprives him of any legal control over it, he might claim all the benefits of this Act. The law never requires impossibilities ; and if a defendant’s property were to be taken from him after his arrest, either by the act of the law itself, or by the act of God, the defendant would not be kept in prison by reason of its non-production. But if a defendant were voluntarily to put it out of his own power to produce it, or even to refuse to produce it, when it was in his power, he cannot avail himself of either his .fraud or his obstinacy, to avoid the requisitions of the law. The arrest must always be under mesne or final process ; and 1 think the arrest in this case must be regarded as made under mesne process, and to have reference to the time when defendant was first taken and gave bail. He went into the prison himself, voluntarily, in discharge of his bail; and that cannot therefore be considered as the time of his arrest. He may be, therefore, regarded as in prison by virtue of an arrest on mesne process. But I think this unimportant; for his want of ability to produce his property, does not exist in fact; and if it were so, it has been by his own act, in fraud or evasion of the plaintiff’s rights.

I understand the plaintiffs do not insist on their ground if the defendant’s ground should be decided against him; but that they are willing the defendant should be discharged when he shall satisfy their judgments; or when he shall produce aud deliver up to assignees his property, or as much as will be necessary to satisfy the plaintiffs’s demands. This being understood, the court has not considered plaintiffs’s ground of appeal.

It is therefore ordered, that defendant be discharged from confinement as soon as he shall produce and deliver to plaintiffs or their assignees, the property mentioned in his schedule, or as much thereof as will satisfy the pases under which he is confined. Until this order is complied with, or until he otherwise satisfies the recoveries against him, the defendant Can-hot be discharged.

Motion refused.

Gantt, Richardson, Evans., and Earle,- JJ: concurred’.  