
    Nathan B. Arrants v. Robert W. Dunlap.
    A commissioner of special Bail has no discretion to discharge, under the prison Bounds Act, one who is accused of fraud, &e; He is imperatively required to refer tliat accusation to a jury.
    The distinction formerly existing in regard to the judicial authority of the Commissioner of special Bail in cases of arrest on mesne and on final process, (2 Hill, 433,) is done away By the Act of 1833.
    Before G. Q. McIntosh, Commissioner of Special Bail for Kershaw District.
    The defendant, arrested and imprisoned on bail process, at the suit of one Arrants, moved, before the Commissioner of Special Bail, to be discharged, on making an assignment to the plaintiff of his schedule, which had been duly filed. The plaintiff, accusing him, upon disclosures elicited by a cross-examination of the defendant, of dishonest omissions in his schedule, and of a fraudulent assignment to his brother, opposed the motion. The Commissioner referred the case, at this stage, to a jury organized under the provisions of the Act of 1833, (p. 44; 6 Stat. So. Ca. 491;) and, the schedule being found false and fraudulent, the defendant was returned to jail.
    Of several exceptions taken by the defendant on appeal, and which were overruled, the only one involving matter of general interest was, that the Commissioner ought, himself, to have decided the question of fraud, according to the terms of the Act of 1788. (P. L. 456 ; 5 Stat. So. Ca. 78.)
    
      
       See note post 242. An.
      
    
   Curia, per Butler, J.

We are of opinion that the Commissioner proceeded correctly. According to the construction given, in McClure v. Vernon, (2 Hill, 433,) to the fourth and seventh clauses of the Act of 1788, there existed a distinction between the powers of the Commissioner of Special Bail in mesne and in final process. In cases of arrest under mesne process, he could, under the fourth clause, try the question of fraud in the schedule, so far as to judge whether the prisoner’s oath should be believed or not, and whether, therefore, he should be discharged: while, under the seventh clause, relating- to prisoners in execution, his power to discharge was only in the absence of any accusation of fraud, &c.; and it would seem that the accusation alone was enough to require the intervention of a jury.

But this distinction could no longer obtain after the Act of 1833, which does not recognize it, and, in all probability, was intended to obviate the difficulties arising out of it, and to do it away. The preamble sets out that, as there was no mode prescribed for empannelling a jury under the Act of 1788, some provision ought to be made for that purpose. It is then declared, “ that whenever a prisoner, confined on mesne or final process, applying for the benefit of the Act aforesaid, shall be accused, by the plaintiff, or his agent, of fraud, or of his having given an undue preference to one creditor to the prejudice of the plaintiff, or of having made a false return, or having gone without the prison walls or'prison rules, as the case may be, it shall be lawful for the Judge, or Justice, or Commissioner of Special Bail, who shall hear the prisoner’s application,” to organize a jury, according to the directions of the Act, to try the question. The plain meaning of this clause is, that no prisoner shall be discharged by a Commissioner of Special Bail, after he shall have been accused of fraud; but that it is the imperative duty of that officer, after such accusation, to call to his assistance a jury. If the jury should sustain the plaintiff’s accusation, the prisoner must be remanded; otherwise he must be discharged.

See infra, 24S. 9 Rich.. 49. 10 Rich. 13.

Smart for the motion;

Withers, contra.

Proceedings of the Commissioner confirmed; the whole Court concurring.  