
    John Smyth ads. Ex’ors Wigfall, Bauxbaum & Trescott, ads. The same.
    A bond for the prison bounds is equally forfeited, if the prisoner make no schedule within 40 days, as if he had left the bounds.
    The amount 'due upon the execution is the measure of damages in an. action upon the bond, and none.other needbe pi’oved.
    
      A schedule filed in another suit, at a previous time, is not a scLeduift \U compfiance with tlie act.
    TRIED before Judge Noit, Januai*y, 1822. — Verdict for the defendant.
    The following is the statement in the brief. The suit was brought by the plaintiff as assignee of the sheriff, upon a bail bond given for the prison bounds hjJohn Smylh, at the suit of the same plaintiff. The execution, (ca. ca.) was lodged on the 10th November, 1819, and the bail bond, dated 24th of November, of the same year. It was assigned on the 2d January, 1820. The defendant had not left the prison rules, but the breach contended for was, that the defendant had not within forty days alter his being admitted to the prison bounds, filed a schedule of his estate. At the time of his arrest, he was in custody at another suit, and had filed his schedule which then remained of record, and on the very day the writ in this case was lodged with the sheriff, he also actually filed a schedule as required by law, being then apprised that it was required, and no damages had occurred or was pretended by the delay of a few days. Under the charge of the Judge that the bond was forfeited, and the sum mentioned in the ca. sa. by which Smyth was confined, was the measure of damages ; although none were proved, the jury found a verdict for the plaintiff for the sum against both principal and securities.
    A new trial was moved for, because the securities were only bound that the defendant should remain within the rules, and the omission to file a schedule was only a bar to his continuing within them, and the bond was substantially complied with.
    ' 2nd. Because being an action to recover damages for the breach of the condition of the bond, and no damages having been either sustained, pretended or proved, nor even recoverable, except nominal damages.
    3rd. Because being in ctistody at the time, a new schedule was unnecessary.
   Mr. Justice Gantt

delivered the opinion of the court:

By the 3rd section of the act of assembly, passed in 1788, establishing the bounds of the prisons and gaols of the state, it is enacted, ‘‘that all prisoners in execution, on any civil process, shalT be entitled to the benefit of the •said rules, bounds or limits ; provided he shall within forty days after being taken in execution, give satisfactory security to the sheriff of the district where he is confined, that he or she will not only remain within the said rules, bounds or limits, but will also within forty days render to the clerk of the court of the district, a schedule, on oath, of his whole estate, or of so much thereof as will pay and satisfy the sum due on the execution, by force of which he is confined.” And by the 7th section of the said act, it is declared, “ that any prisoner committed in execution aforesaid, who shall not give in such schedule agreeably to the tenor of his or her bond, shall not be any longer entitled to the benefit of the prison rules, but his bond shall be forfeited and assigned to the plaintiff.”

The words of the act are so very explicit as to supersede the necessity of comment to ascertain its meaning. — • The privilege is extended upon the condition that the party confined will do two things ; keep within the bounds, and render a schedule within 40 days ; and expressly declaring that the bond shall be forfeited and assigned if the schedule is not rendered within the 40 days. By the 3d section, the schedule to be rendered is to be of the whole estate of the defendant, or so much as is necessary to pay the sum due on the execution. Does it not follow that on a forfeiture of the bond for a failure in performing the condition, reference must.be had to the amount due on the execution as the standard by which the damages are to be estimated ? I think the conclusion is inevitable. It would be nugatory and idle to require the bond should be assigned, if it was intended only that nominal damages were to be recovered on it. Nay, so strict is the law as to the security which is to be given for the performance of the condition, that the sheriff himself is by the act rendered liable if he take insufficient security. The act is founded on principles of humanity, but a debtor is not permitted to abuse its kindness. He must bona fide fulfil the con„~ ditions required of him, on obtaining the benefit of the rules, or forfeit his bond and return to close confinement. Tor the fulfilment of the terms specified in the condition of the bond, the securities are equally answerable with the debtor himself: they do not alone undertake for the defendants keeping the bounds, but also that the schedule shall be rendered within the 40 days; failing in either, they are saddled with the payment of the debt.

Hunt, for the motion,

Simons, contra.

A schedule rendered at a period long antecedent, and in another case, can have ho possible bearing on the present question. The appellant can 'take no benefit from his appeal, which is dismissed. The case of Trescott ads, Ex’ors of Wigfall, depending on the same facts, must share the same fate.

Justices Johnson, Noll and Huger, concurred.-

Colcock, Justice, dissented.  