
    *Michael Quinling v. The Commonwealth.
    Insolvent Debtor’s Oaths — Effect Where Debtor Is Imprisoned. — If a Defendant, against whom a j udgment has been rendered for a fine, or amercement, in a prosecution for a misdemesnor, being in custody under a Capias Pro Pine, or a Capias ad Satisfaciendum, take the oath of an insolvent debtor, surrendering his property, and be thereupon discharged; such discharge is an exoneration from all further liability on such judgment as to the said fine, or amercement.
    Same — Effect.—No other Ca. Sa. can afterwards be obtained against him, by motion to the Court, or otherwise; nor can a Pi. Pa. be issued against his after acquired goods and chattels.
    Same — Statute.—The proviso in the 33d section of the Act concerning Executions, (1 Rev. Code, ch. 134, p. 538,) does not apply to such case.
    This was an adjourned Case for the Superior Court of Kanawha. The circumstances are as follows: The defendant having been indicted in the County Court of Kanawha for two several assaults, was convicted thereon in August, 1821, and was amerced in one case in the sum of five dollars, and in the other in the sum of fifty dollars. Writs of Capias ad Satisfacien-dum were issued against him, in conformity with the Act of Assembly, (2 Rev. Code of 1819, ch. 190, | 1, p. 58,) and being in custody, he was allowed, shortly afterwards, to take the oath of insolvencj’, under the 44th section of the Act concerning Executions, (1 Rev. Code, ch. 134, p. 541). The prisoner gave in his schedule, W'hich, however, contained nothing, and he was discharged from custody.
    In February, 1825, the Attorney for the Commonwealth in that county, gave a written notice to the Defendant, that he should move the Court to award Executions against his goods and chattels, for the fines, and costs of the said two judgments; and, also, that he should move the Court to direct Writs of Capias ad Satisfaciendum to issue on the said judgments. The motion was made at the next County Court, in March, 1825, and it being proved to the satisfaction of the Court, that since the Defendant took the insolvent oath, “he hath acquired lands and tenements, which he now owns,” judgment was rendered in behalf of the commonwealth, and Writs of Capias ad Satis-faciendum were awarded severally on the said judgments.
    The Defendant then applied to the Superior Court of Kanawha, for a Writ of Error to the said judgment, which was awarded. That Court, regarding the question of Law arising on the record aforesaid, as new and difficult, adjourned *the following questions to the General Court for their decision:
    “1. Is the discharge of a Defendant from custody, under a Writ of Capias ad Satis-faciendum, awarded on a judgment for an amercement on an Indictment for a misde-mesnor, in pursuance of the Act of 28th December, 1803, (re-enacted 25th February, 1819,) an exoneration from all further liability upon such judgment?
    “2. If such Defendant is not entirely discharged, but is subject to further proceedings in relation to after acquired property, in pursuance of the general provisions of the Act of Assembly as to insolvent debtors, can a Writ of Capias ad Satisfacien-dum be awarded in this Case?
    ‘‘3. What judgment ought this Court to give to the whole record?”
    The Counsel for the petitioner, Mr. Joseph E. Fry, addressed the following notes of an argument to the Superior Court:
    He contended, that neither the words, nor the spirit of the Acts, in relation to insolvent debtors, comprehend the Case. Let the sections of the Act, from 31 to 43, inclusive, (1 Rev. Code, p. 536 to 541,) be examined critically. It will be there found, that the Legislature had in mind the ordinary case of debtor and creditor only. They give relief to the unfortunate debtor, whose imprisonment was of no advantage to his creditor. So, too, after the discharge of the debtor, liberty is reserved to the “creditor, or creditors,” to proceed by Scire Facias, or motion against the debtor, (section 33;) the Sheriff is to pay the money made out of his estate to the “creditor or creditors,” (section 34;) and all the subsequent sections to 44, evidently provide for the same class of creditors.
    That this construction of the foregoing provisions of the Act is right, is proved by the Case of the Commonwealth v. Chapman, in the General Court, November Term, 1803, (1 Virg. Cases, 138). It was there decided, that the relief granted by the Insolvent Act, did not extend to persons convicted of misdemesnors, and adjudged to pay fines to the Commonwealth. This produced the passage of the first section of the Act of December, 1803, which is now incorporated into the General Insolvent Law, (section 44). Since the passing of this Act, those in execution for *the payment of fines may be discharged. The only question is, whether they are liable to the same subsequent proceedings, after discharge, at the instance of the Commonwealth, that the Law, as it before stood, had provided in the case of an individual creditor? He contended they were not. The Act' of 1803, is not a declaratory or explanatory Act, but a new one, prescribing a new remedy or rule. So far as it adds to, or changes the preceding Law, the Court may go, but no farther. Where it stops short, the Court must stop. Now, what did the first section of that Law effect, or intend to effect? Merely to enable the party to take the oath in the same manner that an individual debtor would take it, and thereupon to be discharged. It provides nothing more. The second and third-sections of the Act (now incorporated in 2 Rev. Code, ch. 190, f 6, p. 58,) provide for the disposition of the property surrendered by the debtor, and the officer’s accountability. This provision confines the construction. For, if the Legislature had supposed they had adopted, by the first section, all the previous Laws concerning insolvents, then this section was unnecessary.
    Why should the 33d section of the Act be extended to cases of this kind? The motion authorised by it is summary, and should, therefore, be viewed strictly. Why should the Commonwealth be supposed to keep her Penal Judgments suspended over the heads of her unfortunate citizens, (for unfortunate they must be as to property,) and thereby repress their exertions to obtain a livelihood, and retrieve their affairs? The Commonwealth is interested in the prosperity and good condition of her citizens, and it is her policy to foster their hopes and industry. Did she mean to consider herself, by the Act of 1803, as an ordinary creditor, and to reserve to himself, or her Attornies, the right of again imprisoning her citizens? If so, why not express it? There is a pro-pr'ietji, ás well as necessity, in giving- an individual creditor, the right to pursue future effects. It is not just that the creditor. should be barred ’till his demand is satisfied, and under the Constitution of the United States, the States cannot bar him. But the State may bar herself. She is the creditor: she may discharge, and no one can complain. And with regard to her presentments or fines, this absolute discharge may a fortiori be presumed. Por, nemo bis vexari debet. Por these and 497 "^others reasons, he prayed, on behalf of the petitioner, that the judgment of the County Court might be reversed.
   BARBOUR, J.,

delivered the opinion of the .Court:

Ih relation to the first question propounded by the Superior Court, although it is laid in Blumfield’s Case, S Coke’s Reports, 87, that an execution of the body is no val-uábl'e execution, that is to say, that it is not a satisfaction of the" judgment, but only tends to satisfy, yet whilst the body is in custody, a new execution can never issue upon" the same judgment. 1 Wash. Rep. 95.' According to this doctrine, if, instead of a Defendant availing himself of the insolvent oath, he should be continued in execution, no other execution whatever could be issued against him; but, instead of so doing, the Defendant in this case does avail himself of the insolvent oath, the indispensable condition of which is, that he shall' surrender all his property, both real and personal, for the benefit of the Commonwealth.' Upon such surrender, he is directed by Law, to be discharged out of custody. After such discharge, if he were liable again to be arrested and imprisoned, by another Capias ad Satisfaciendum, cui bond is the discharge; for it might be repeated indefinitely, and thus the relief from imprisonment, be utterly illusory. It would seem,' then, that another Ca. Sa. ought not to be issued; nor ought a Pieri Pacias to be issued against a person thus discharged; because, a surrender of all his personal property being a necessary pre-requisite to his'discharge, there is nothing left upon which' a Pi. Pa. could operate.

It would seem as if the Legislature had considered, that as the Defendant’s imprisonment would itself produce no benefit to thé Plaintiff, and as during the continuance of such imprisonment, no other execution' could be resorted to which would produce any, they had not only not injured the' Plaintiff, but benefited hiln, by the discharge under the insolvent oath ; as the Plaintiff,, by the necessity of the Defendant’s surrendering all his real and personal éstate, got the benefit of a Pi. Pa. and more’'than the benefit of an Elegit, in the salé of both descriptions of property. Indeed," It was formerly held, that if a person takéh on a Ca. Sa. died in execution, the Plaintiff had no further remedy. See Bac. Abr; tit. “Execution,” let. D. and the authorities there cited. And the reason was, “ because *he determined his choice, by this kind of execution, which affecting a man’s liberty, is esteemed the highest and most rigid in the Law.” Provision was made for this case, by 21 Jac. 1, ch. 24, the substance of which we have enacted in 1 Rev. Code of 1819, <* 8, p. 528. Now, if in a Case, where the Plaintiff did nothing, and was in no default, but lost the effect of his execution, by act of God, to wit: the death of the party, he could pursue no other execution; a fortiori, it would seem to follow, that such would be the case, where the Defendant is by Law discharged out of custody, surrendering to the Plaintiff all his estate; whereas, in the other case, the Plaintiff got nothing; particularly when, as before stated, an imprisonment again, would make the discharge from custody illusory; and the surrender of the whole personal estate, left nothing on which a Pi. Pa. could operate. This opinion is fortified by the consideration, that in 1 Rev. Code, f 33, p. 538, the Legislature have given to individual creditors against their debtors, who have been discharged from custody, a further execution against after acquired real and personal estate; but has forbid their imprisonment again, except by order of the Court. But these provisions do not apply to a Case of the Commonwealth, (see 1 Virginia Cases, 138;) in which this Court decided, that the insolvent Law did not apply to a man imprisoned under a judgment for a misdemeanor. This decision produced the Act of 1803, (1 Rev. Code, i 44. p. 541,) by which, a person imprisoned under a judgment for an amercement, might avail himself of the insolvent Law, and be discharged; but it contains no provision for awarding any new execution after such discharge. The result is, that the discharge of a Defendant, under the circumstances stated in the first question, is an exoneration from all further liabilitjr.

The answer to the first question, furnishes a sufficient one to the second; and it follows, consequently, in answer to the third, that the judgment which the Court ought to give upon the whole record, should be to reverse the judgment of the County Court awarding the Writs of Capias ad Satis-faciendum against the Plaintiff in Error.

The following was entered as the judgment of the Court:

“The Court is of opinion, and doth decide, that the discharge of a Defendant from custody, under a Writ of Ca. Sa. on a judgment for an amercement, rendered on the *trial of an Indictment for a mis-demesnor, under the Act of 28th December, 1803, is an exoneration .for all further liability on such judgment; that, therefore, no Ca. Sa. after such discharge, could be properly awarded against the Defendant, and that the judgment which the Superior Court ought to give on the whole record, should be to reverse the judgment of the County Court awarding the Writs of Ca. Sa. against the Plaintiff in Error.”  