
    
      E. Brevard, Assignee, vs. R. E. Wylie.
    
    If a plaintiff makes objections to a prisoner’s discharge under the Insolvent Debtor’s Act, and they are decided against him, he cannot af-terwards bring the same matters in question in a suit against the sureties on the bond for the prison rules.
    Matters which were not in issue at thé time of the discharge, and which have been brought to light by subsequent disclosures, may, perhaps, be alleged as breaches of the bond.
    If a debtor, applying for the benefit of the Insolvent Debtor’s Act, after giving bond for the prison rules, omits to swear to his schedule when it is filed, he may, on good cause shewn, be permitted to swear to it, at the time of his discharge, nunc pro tunc.
    
    
      Before Butler, J. at Lancaster, Bpring Term, 1844.
    This was an action of debt against the defendant as the security of one James Allen, on a bond to keep the prison rules, under the insolvent debtor’s Act. Allen was arrested on a ca sa, at the suit of the plaintiff, on the 3d of Jan. 1841. The circumstances of his arrest arid application for the benefit of. the insolvent debtors Act, were explained by Mr. Beckham, clerk of the Court, as follows.
    On the day of, or the day after, his arrest, Allen applied to the Clerk, as commissioner of special bail, to be discharged under the prison bounds Act. With this view, in the first instance, Allen filed a sworn schedule — about an hour after he had done so he returned to the clerk, and said he had changed his mind, and that he intended to avail himself of the insolvent debtor’s Act; and asked the clerk to prepare the necessary papers. The clerk copied.the same schedule, only changing its caption, and said to Allen that it was not necessary to swear to the schedule thus altered, until court, when he' applied to be discharged. The clerk said that such was his view of the law, as well as some of the lawyers.
    When Allen applied for his discharge at the spring term following, objections were filed against it. One of which was that he had not, within forty days, rendered a schedule sworn to, according to law.
    On the explanation being made by the clerk, as stated above, an 'order was made that the schedule should be sworn to, so as to make the oath operate, by way of amendment, nunc pro tunc. A verdict was then rendered in favor of Allen, and he made his assignment and was discharged.
    The plaintiff then commenced this action on the bond against the security. The breach of the bond relied on was that Allen had*not sworn to the schedule within forty days after his arrest, and that his securities were thereby liable to pay the debt of the plaintiff on the ca sa, notwithstanding the discharge of the principal, under the insolvent debtor’s Act
    His Honor held that the plaintiff was concluded by the discharge, and a verdict was returned for the defendant.
    The plaintiff appealed, on the following grounds.
    1. 'Because the prison bounds bond of James Allen was forfeited, he not having rendered in his schedule, upon oath, according to the condition of the bond, within forty days from the filing of the same.
    
      2. Because the bond of James Allen having been forfeit-
    
      ed before his discharge, the defect could'not be cured by an order, subsequently obtained, granting leave to him to swear to his schedule, nunc pro tunc. And there was error in the order granting the same, and discharging him from confinement.
    3. Because, the condition of the bond having been broken before Allen’s discharge, the liability upon his securities to said bond was fixed, and his subsequent discharge could not exhonorate them.
    
      J. Williams, for the motion,
    cited 1 McM. 34. 3 McC. 429. 2 McM. 363.
    Clinton, contra,
    cited 3 McC. 14. 2 McC. 64.
   Curia, per

Butler, J.

It was held in the case of McCarley vs. Davis and others, 1 McM. 34, that sureties on a prison bounds bond were liable for the default of.their principal, that had been established by the verdict of a jury, in reference to a matter that had been put in issue on the application of the principal for his discharge. Upon the same principle, would it not be reasonable that sureties should be exhonorated from liability, in reference to any matters involved in the issues growing out of objections to the discharge of their principal, and which had been found in his favor'? Where a prisoner has been refused his discharge for the violation of some of the conditions of his bond, the liability of his sureties becomes thereby conclusively fixed; and, vice versa, should not the sureties be relieved from liability, where the principal has been exhonerated from the violation of all the conditions of his bond? Justice would seem to require the application of the same rule. Where prison rales have been violated, in particulars that were never put in issue, but which may have been brought to light by subsequent disclosures, a different rule may very well obtain, upon the ground that they were not embraced in the verdict, and are, therefore, open to new consideration. In the case before the court, the jury decided that Allen, for whom defendant was security, had, before the trial of the issues made on the motion for his discharge, duly rendered, on oath, a schedule, within forty days after his arrest, in conformity with the provisions of the insolvent debtor’s Act; ■ and there was no appeal from that decision, but an appar-ant acquiescence in it. Under these circumstances, has not the defendant a right to take protection under the verdict, from liability to the action 1 But. if we look behind the verdict, we can perceive nothing to induce us to say that- it was not well found. Allen had sworn to the contents of his schedule, before he had leave to amend it. The oath had been taken on a schedule,' the' caption of which was indicatory of a design to take advantage of the prison bounds Act, but whose contents were the same as of that subsequently filed. We might well regard the second schedule as a duplicate of the first, and as connected with it in the same general design ; the one had what the other wanted, and, both being taken together, they embraced enough to be a compliance with the requisitions of the insolvent debtor’s Act. One thing is apparent, the debtor was guilty of no wilful design to violate any of the conditions of his bond. He was prevented from taking the oath on the second schedule, by the officer authorised to administer it; and when he took the oath by the leave of- the Judge who was presiding at his discharge, he was but fulfilling his original design, and not making an oath on a new state of things ; and was supplying an omission originating in mistake, and one over which he had no actual control. The oath, On the second schedule, should be regarded but as a substitute for the first, which had been lost before the trial.

The case comes very well within the reason of the principle laid down in the case of Crovat vs. Coburn, 3 McC. 14; in which it was held that a defendant who has given his bond for the prison bounds, may be allowed to file his schedule, nunc fro tunc, after the forty days, where it had not been done during the forty days, on account of the sickness of his attorney, and no neglect on the defendant’s part; the schedule having been left with the attorney before the expiration'of the forty days. Motion refused.

Richardson, O’Neall, Evans and Wardlaw, JJ. concurred.  