
    *Stevenson, Mackie and Co. against John Carothers, esq.
    Sheriff not liable for an escape, where an insolvent debtor, taken under a ca. sa. out of the Supreme Court, has been discharged by two justices of the Common Pleas of the county where he lives, on giving bond, pursuant to the 14th section of the act of 4th April 1798.
    Case stated for the opinion of the court, in escape.
    A judgment was duly obtained against John Wray, at the suit of the plaintiffs, in the Supreme Court, founded on the report of refereés, for the sum of 144I. 17s. 8Jd., with interest from 9th August 1799 ; and a capias ad satisfaciendum regularly issued out of that court against John Wray aforesaid, directed to the defendant, then and now sheriff of Cumberland county. In pursuance of the said writ, the said defendant arrested the said John Wray in vacation, and he was thereon confined in the gaol of the said county. He remained in confinement until upon an application, under the act of assembly, passed 4th April 1798, a warrant of discharge issued from two of the judges of the Common Pleas of the said county, directed to the gaoler, requiring him to liberate the said John Wray from confinement, under that execution; and the sheriff returned upon the said execution, that he had taken the said John Wray into custody and committed him to the gaol of the said county, and that he was discharged by virtue of a warrant issued from the judges of the Court of Common Pleas of Cumberland county.'
    The petition of the said John Wray, under the act aforesaid, is founded upon an arrest and confinement upon the said execution ; and at the time of the aforesaid arrest and discharge, the said sheriff had no other execution whatsoever in his hands against the said John Wray.
    The question submitted to the court is, whether the defendant is liable for an escape ?
    Mr. C. Smith, pro quer.
    
    The doubt arises on the 14th section of the act of 4th April 1798. (4 St. Laws 274.) The words are, “ if any debtor in vacation shall be arrested in execution, “and shall apply by petition, to any judge of the Supreme “ Court, or to the president, or any two judges of the Common “ Pleas for the county where the debtor resides, and give bond “to the plaintiff, conditioned that he shall appear before the “court, of which the said judge or judges is or are a member “ or members, at the next term, &c. in such case and on such “bond being given, the said judge or judges may give an order “to the sheriff, gaoler or keeper of the prison, to discharge the “ said debtor, who is hereby required to discharge and set him “at liberty forthwith.” The true construction of this clause I *take to he, that the judges who take the bond must be p „ members of the court from which the exécution issued. *- They can only take bond for the appearance of debtors in their own court; and it is incongruous to suppose that the members of one court, perhaps of an inferior degree, should supercede the process of another court. This also comports with the provisions of former laws on this subject. The present case appears similar to that of Brown v. Compton. 8 Term Rep. 424. The sheriff was there held liable for an escape, for the act of the gaoler, in discharging an insolvent debtor out of gaol, in pursuance of an order of justices of the peace under the statute of 37 Geo. 3, c. 112, their proceedings not being warranted by the words of the statute. That was considered a hard case by all the court, and application was made to parliament, but the bill did not pass. This may be deemed also hard ; but if the judges of the Common Pleas had no legal power to take the bond, their act was a mere nullity, and no justification to the defendant. The discharge of an insolvent debtor by a court not having jurisdiction is illegal and void. I Salk. 273.
    Mr. Duncan for the defendant,
    contended, that the bond had been taken by the proper judges duly authorized. It is true, the old law of 14th February 1729-30, directed, that the insolvent debtor should apply by petition to the court from whence the process issued. 1 Dali. St. Laws 257.' But this provision may be attended with unfortunate consequences to poor prisoners, as in the instance of a debtor confined at Pittsburgh under a ca. sa. issued by the Supreme Court. The very title shews the humane intentions of the legislature when they passed the law of 1798. It is “an act providing that the person of a “ debtor shall not be liable to imprisonment for debt, after de- “ livering up his estate for the benefit of his creditors, unless he “hath been guilty of fraud or embezzlement.” By the 1st section, persons not confined on process may apply for the benefit of the act. By the 18th section, all persons in actual confinement under adversary process, may at the next term after confinement, petition to be discharged. This act directs, that any'debtor who shall be arrested in execution in vacation, may apply to two judges of the Common Pleas for the county where the debtor resides, and give bond, &c. These words shew, that the judges here had the authority and jurisdiction in the case, and the gaoler did right in discharging Wray.
   The court said, that the words of the section might well bear the construction put on them by the defendant’s counsel, and the *practice was conformable thereto in the city of Philadelphia, *182] where much of this kind of business was done for some time after the act had passed; but that a different construction had been adopted, and afterwards generally pursued there.

The case of Brown v. Compton was not analogous. Great weight was laid there on this point, that the justices at the sessions had no general jurisdiction over the question: they had none under their general commission, and the statute might have given the same powers to persons of any other description. But in this state, the Courts of Common Pleas have always had jurisdiction in the cases of insolvent debtors; and to say the most of what has been done here, it can only be observed, that the judges in a matter where “they had jurisdiction, may have erred in the exercise of it. In a late insolvent case in the Supreme Court, where the debtor was taken in execution by process out of that court, as well as from the Common Pleas of Philadelphia county, and discharged by the latter court, it was ruled that the discharge was legal. The 15th section of the act declares, that the sheriff’s return of having performed the duties of his office, and the order of the court, judge or judges, as the case may be, shall be good and effectual to all intents and purposes whatsoever. By the 14th section, the sheriff is required to discharge the debtor, and set him at liberty forthwith, on receiving an order from the judges. It would be strange doctrine, to assert that the sheriff is highly punishable for keeping the party in confinement, and yet if he discharges him, that he is answerable for the escape.

Judgment for the defendant.  