
    A. W. Yongue, Sheriff, v. Alexander H. Chambers.
    There is nothing in the pendency of an issue under an application for the benefit of the Insolvent Debtor’s Act, which will necessarily preclude the applicant from obtaining a discharge under the Prison Pounds Act; and when it is alleged that there is such an issue, the party making the allegation must show that the pleadings were made up and the case docketed.
    Tried before Mr. Justice Wardlaw, at Fairfield, Fall Term, 1846.
    Debt on a Prison Bounds Bond. Breach alleged, that the prisoner, A. B. Williams, had contrary to the condition, gone beyond the Prison Bounds. Defence, that the prisoner had been regularly discharged by a Commissioner of Special Bail, and then had gone. Reply, that the discharge was void.
    It appeared that one Price had sued out a bail writ against Williams, under which Williams was arrested, and in October, 1841, gave the Prison Bounds Bond proper in cases of arrest under mesne process, with one Murphy, ana the defendant, as his sureties.
    No paper was to be found in the Clerk’s Office, or was produced, concerning an application made by Williams for the benefit of the Insolvent Debtors Act; but by the admissions which were made in this case, and the testimony of Mr. Hammond, who was Attorney for Price, and of Mr. McDowell, who was Attorney for Williams, the following case was made:
    The proceedings under the Insolvent Debtor’s Act are lost. More than three months before Spring Term, 1842, Williams filed a schedule under oath, professing to be of his whole estate, and with it a petition for the benefit of the Insolvent Debtor’s Act. Proper notice was published in a newspaper, of his intention to make application during the Spring Term following. During that Term, (the latter part of it, Mr. McDowell thinks,) Mr. Hammond handed to Mr. McDowell a paper, (which Mr. IT. thinks was a suggestion of fraud in the schedule, made as regularly as he could make it—which Mr. McD. remembers only as some objections to the schedule.) No affidavits were submitted—no rule of Court for a suggestion was had. Mr. McD. wrote something on the paper, (he does not remember what—Mr. H. says it was an issue—I suppose he means a traverse of the suggestion.) The paper was handed back to Mr. H., but was never filed. Mr. H. feels confident that an issue was made up, but never was docketed. Williams did not make his application that Term.
    Shortly after the expiration of the Term, Williams filed a copy of his former schedule, with a petition for the benefit of the Prison Bounds Act. Public notice was given as usual. On the day appointed for appearance, Mr. McD. gave to Mr. H. special notice of the application that day to be made, and told him to make his objections, if he had any. The same personal notice Mr. McD. thinks he also gave to Price. After 12 o’clock, A. M., neither Price nor his Attorney appearing, and no reason for absence having been stated to Mr. McD., the assignment to Price was made by Williams, and the order of discharge granted by the Commissioner of (Special Bail; after which, Williams left the Bounds. It did not appear that the Commissioner of Special Bail knew any thing of the supposed suggestion on issue.
    Judgment for Price against 'Williams was subsequently rendered for 8647, besides interests and costs.
    His Honor thought that there was nothing in the pendency of an issue under an application for the Insolvent Debtor’s Act, which would necessarily preclude the applicant from obtaining a discharge under the Prison Bounds Act; but saying, that it was immaterial to decide that point, he held that no issue was here shown to have been pending, and that, for ought that appeared, the discharge was regular. So he instructed the jury to find for the defendant. The argument was addressed to the Court as upon a question of law, and nobody proposed that any thing should be left to the jury.
    The plaintiff appealed and moved for a new trial, on the following grounds.
    1st. Because it having been proved that A. B. Williams had applied for the benefit of the Insolvent Debtor’s Act, and that suggestions of fraud were filed against his discharge, and an issue made thereon, which issue was pending and undecided at the time the said A. B. Williams made his application, under the Prison Bounds Act, the discharge by the Commissioner of Special Bail was irregular and void.
    2nd. Because, under the evidence, the Bond sued on was forfeited by the said A. B. Williams going without the Bounds without having been lawfully discharged.
    3d. Because the presiding Judge erred in not submitting it as a fact for the jury to determine, whether an issue was pending and undecided under the application for the Insolvent Debtor’s Act, when the application and discharge were made under the Prison Bounds Act.
    4th. Because the presiding Judge erred in instructing the jury that no issue was pending under the application for the Insolvent Debtor’s Act, and that even if such issue was so pending, the petitioner, A. B. Williams, had a right to apply for, and receive, a discharge, under the Prison Bounds Act.
    5th. Because the presiding Judge erred in instructing the jury to find for the defendant, when, under the evidence, they should have been instructed to find for the plaintiff.
    6th. Because the finding of the jury was contrary to law and evidence.
    Boyce, for the motion.
    M’Dowell, contra.
    
   Wakdlaw J.

delivered the opinion of the Court.

It appears to this Court, that the question, whether there was an issue pending, was correctly decided below, and that the case was thereby determined.  