
    
      Thomas J. McCracken v. W. S. Ansley.
    
    If a defendant resist an arrest, then there must be some corporal touching of his body, to make the arrest complete. But if the defendant submit, there is no necessity to touch his body.
    The rule with regard to a written contract is, that the obligatory part of it, what the party undertook to do or perform, shall not be varied by parol evidence.—
    But the date is no part of the contract. A deed is no deed until it is delivered; and if the time of delivery be important, the true time may be shown, although it may be different from that set out in the writing, without a violation of any legal principle.
    
      
      Before Wardlaw, J. at Abbeville. March Term, 1849. J ’
    Issue to try the truth of matters, which had been suggest-¡n |3ar 0f tpe defendant’s discharge, under the Insolvent Debtor’s Acts.
    The suggestion contained 16 specifications. In argument all were abandoned, except the 3 first, which, in various forms, allege that the defendant, after his arrest and before giving bond for the bounds, was at large: and except the 4th, which objects that a sum certain for the wages, which the defendant earned by managing a certain trust property, was not included in the schedule; and the twelfth, which insists that the schedule is false and fraudulent, because it is indefinite and uncertain.
    The schedule set forth that, in October, 1845, the defendant was discharged under the Insolvent Debtor’s Acts, after making an assignment of all the property he then had, including all his interest in certain trust property ; and that since that time he had made no acquisitions besides wearing apparel, and a few articles which were set down.
    That in April, 1844, John Hearst, his father-in-law, executed a deed of trust, whereby certain negroes, horses, tools, furniture, &c. were conveyed to Joseph L. Hearst, trustee, with large powers, in trust for the' sole and separate use of Jane, the defendant’s wife, during her life, and after her death the whole, with increase and substituted articles, to be divided by sale or otherwise, between her children living at her death.
    That in December, 1847, in consideration of $1,300 paid by the trustee, a tract of land was, by John Hearst, conveyed to him in trust for the wife, Jane, and her children : and an adjoining parcel has since been, by the trustee, purchased from one Cochran, and paid for.
    That in December, 1847, John Hearst died, having made a will, whereby his executor was directed to purchase for each of his daughters, (including Jane,) a gold watch— which purchase for Jane, was never made.
    That in July, 1848, Jane died, leaving two children living — one of which was born after 1844 : and during her life, two of her children died — one before and the other after 1844.
    That during his wife’s life, the defendant managed a farm on the land, and with the negroes, horses, &c. above mentioned : and from it drew a support for himself and family, letting the surplus go to increase : and since his wife’s death, he has done the same: that nothing concerning wages was ever said between him and the trustee, and it never has been his intention to charge for his services more than a maintainance.
    Any interests that the defendant may have under any of the deeds aforementioned, or in the trust property, or in the estate of his deceased wife, or of his deceased child, or of his father-in-law, or in wages that may be due to him, with all demands he may have against the trustee aforesaid, or against the executor of John Hearst, are included in the schedule.
    The statements contained in the schedule were substantiated by evidence. Further, it appeared that the services which the defendant rendered to the trust estate, were worth about $> 125 a year, over and above his subsistance.
    The ca. sa. — Jefferson McCracken v. W. S. Ansley — under which the defendant was confined, was lodged in the sheriff’s office, December 8, 1848. Upon it was a return, stating that the sheriff had, by his deputy, D. W. Hawthorn, arrested the defendant on the 14th day of December, 1848.
    The prison bounds bond was dated December 12, 1848— D. W. Haw.lhorn, deputy sheriff, testified that on Monday (December 11) he saw the defendant in the street, near the sheriff’s office — told him of the ca. sa. (then in the sheriff’s office,) and explained to him what he must do. The defendant asked time for a few days to give bond, and said that when he gave it he would acknowledge an arrest. A few days afterwards, witness was out of the office for a day, or less time — -when he returned he saw this bond and wrote the return of the ca. sa. giving to the arrest the date of the day he wrote, which he understood was the day the bond was delivered to the sheriff: this day he believed was Friday.
    To whom the defendant delivered the bond, and when it came to the hands of the sheriff, did not exactly appear— for the deputy could not speak of his own knowledge, and no question on this subject was asked of Mr. Spierin, who attested the bond, and was examined to prove it; or of the sheriff, who was in Court and said something at the bar, but was not examined.
    The circuit Judge held that, to constitute an actual arrest, there must be some corporal touching — some physical detention of the person ; and that the bond took effect from its delivery to the obligee. He left it to the jury to decide whether the defendant was at large after his arrest, and before the delivery of the bond.
    He held that if there was any contract, express or implied, under which the defendant was entitled to wages for his services, his rights were included in the .schedule, and would pass under the assignment; but that if the defendant had wasted his time in idleness, or improvidently neglected to make his capacities produce the property which they might have acquired, it could not, therefore, be said that he had anything which was not included in his schedule; and unless there was some unfair concealment or corrupt agreement which was calculated to deceive, delay, or hinder creditors, there was, in the defendant’s failing to stipulate concerning wages to be paid for his personal services, no fraud of which his creditors could legally complain: — that the defendant was not bound to decide absolutely the legal questions which might be involved in ascertaining what were his rights, and if he had, upon questionable points, furnished full information, with an offer to assign whatever might be his, his schedule could not be rejected for uncertainty and indefiniteness.
    The question of fraud, in every shape that had been given to it in argument, was left to the jury.
    The applicant, W. S. Ansley, was then sworn, examined and cross-examined by Mr. Jones, the counsel for the plaintiff, who opposed his discharge, but nothing was obtained which the counsel deemed worthy of remark. His Honor then asked if there was any further objection to the discharge. and Mr. Jones having answered that there was not, and the final adjournment of the Court being expected that evening, (Friday,) he directed the assignment to be made and the oath to be administered, and signed the order for the discharge of the applicant.
    A verdict was rendered for the defendant.
    The plaintiff appealed from the verdict of the jury, and from the order granting defendant’s discharge, and moved for a new trial, and to reverse the said order.
    1. Because his Honor erred in holding that “ an arrest is a manucaption, or an actual laying on of the hands.”
    2. Because his Honor erred in holding that the bond offered in proof here by the prisoner, was such as the law required — when the proof was, that the bond here was executed several days before the arrest, and did not come into the sheriff’s hands until after the expiration of one day from the arrest.
    3. Because his Honor erred in holding that, although the prisoner was at large at least a day after his arrest, before the bond given by him came into the hands of the sheriff, yet he was entitled to his discharge.
    4. Because his Honor erred in charging the jury that, although the services of the prisoner were proved to have been worth at least $> 125 per year for the three years immediately preceding his arrest, more than was sufficient for his support and maintainance, his creditors had no right to them — and his not including them in his schedule, could not be construed into a fraud upon them.
    5. Because his Honor erred in expressly telling the jury, that there was no fraud proved that would prevent the prisoner’s discharge : whereas, whether there was fraud or not, should have been left entirely to the jury, as a question of fact, to be determined by them from all the circumstances of the case.
    
      6. Because his Hohor erred in permitting parol testimony to be offered to vary the sheriff’s official entries upon the ca. sa. and the bond.
    7. Because the verdict was contrary to the law and evidence of the case.
    
      Jones and T. Thompson, for the motion.
    
      McGoiuan, contra.
   Curia, per EvaNS, J.

— Some of the grounds of appeal are predicated on facts which do not appear in the report, and some were not argued. Only two questions ugére made in this Court, and these only will be considered. The first is, that the Circuit Court erred in charging the jury that'an arrest is a manucaption, or actual laying on of hands. To understand this ground and its relevancy to the .case, some preliminary statement must be made.- The defendant was an applicant for the benefit of the Act of 1759, for the relief of insolvent debtors. His application was resisted on many grounds, and among others, that he had been'without the prison walls after his arrest and before he gave his bond to keep the bounds, as provided for by the 7th section of the Act of 1788. The bond is dated on the 12th of December, but was probably not delivered until the 14th, on which day the arrest is entered on the ca. sa. and the bond marked as filed. The plaintiff contends that an arrest was, in fact, made on the 11th, and if so, then, as he never was in confinement, the defendant was without the prison walls after his arrest, and before his bond to keep the bounds was given. So that the question to be solved by the jury was, whether there was an arrest on Monday the 11th. The Circuit Judge reports that it was submitted to the jury to decide whether the defendant was at large after the arrest and before the delivery of the bond. This question the jury, by their verdict, have answered in the negative. But the plaintiff’s counsel objects to the conclusiveness of the verdict by his first ground of appeal, that there was misdirection by the Circuit Court, as to what constitutes an arrest. The Circuit Judge reports that he told the jury that to constitute an arrest, there must be some corporal touching — some physical detention of the person. This is very nearly in the words of Blackstone, who says there must be some corporal seizing or touching of the body; and to the same effect are the definitions of other elementary writers, and the Lexicographers.

Webster defines arrest to be, — to take, to seize, to apprehend by virtue of a warrant. These words do not necessarily import the use of physical force. If the defendant resist the arrest, then there must be some corporal touching of the body to make the arrest complete. But if the defendant submit, there is no more necessity to touch his body, than to knock him down or to tie him, both of which may be done if his resistance make them necessary. He who submits himself to the will of another, or obeys when he is commanded, puts both his free will and his person under the power and subject to the control of that other ; and without any abuse of words, or any strained construction, ho may be said to be under physical detention or constraint. But admitting that the definition of aurest, as given at the Circuit Court, was a little too narrow, and only embraced those arrests where the defendant does not submit, there is no reason to believe the jury were misled by it. When the defendant told Jones that he had beeft arrested, and the sheriff had allowed him two or three days to gdt a bond, he could have meant nothing more than what was stated by Hawthorn, the deputy, that when he told the defendant that there was a ca. sa. in the office, he requested him to let it stand a few days until he could get the bond, and he would acknowledge an arrest when he brought the bond. The deputy said expressly he did not consider it any arrest until the bond was given.— This was carried out afterwards by indorsing an arrest when the bond was lodged in the office. Hawthorn was certainly the best judge whether he had arrested the defendant; he expressly denies that any was made on Monday, and if so the defendant had a right to be at large until the bond was given, when, by the arrangement between him and the deputy sheriff, he was to be considered as under arrest.

The next and only remaining ground which I propose to notice, is the sixth, which complains of the admission of pa-rol evidence to vary the sheriff's official entries on the ca.sa. and bond. This ground seems to have been taken somewhat at random. I do not perceive that any parol evidence was admitted for these purposes. The real objection, as I understand it, is the admissibility of parol evidence as to the time when the bond was delivered. This was said to be at a day subsequent to the date. The rule is, that a written contract, that is, the obligatory part of it, what the party undertook to do or perform, shall not be varied by parol evidence. But the date is no part of the contract. A deed is no deed until it is delivered, and if the time of delivery be important, the true time may be shown, although it may be different from that set out in the writing, without a violation of any legal principie.

The motion is, therefore, dismissed.

The whole Court concurred.

Motion refused.  