
    Gibson, Falconer & Co. vs. Wm. Steele.
    t'Viiero a petitioner for thebénefit of the prisonbounds act, was feonvictedbefore ájuryof/raud,but anew trial was granted to him by thecons.entof his suing creditor,the court-held, he was not deprived, by such conviction, ófthe benefit of the act, under a ca. sa. by another creditor; as the new trial annulled the verdict of fraud, though it was obtained by consent, and not upon argument; and the parties stand as béfor'e the trial,
    fifths appeal court is deceived when they award a new trial, it is not for the court belowto reverse their order; but forthat tribunal, if'they think proper.
    Tried before the Recorder, Judge Drayton. This was a rule to shew cause why a debtor should not be remanded to gaol; and the case was as follows:
    -- In July, 1823, William Steele applied for the benefit of the prison bounds act. His motion was opposed by certain judgment creditors upon the ground of fraud. They filed their suggestion, upon which, in-the same month, the question of fraud was submitted to a jury; by whom the debtor was found guilty of the fraudulent act contained in the 5th specification of the suggestion.
    From this verdict the debtor appealed.
    . • On the 4th October, 1823, a motion was made before the recorder for his discharge; when it appearing that he /liad satisfied the creditors who had filed the suggestion, and that they consented to his being liberated, he ordered him t<S be discharged. In January, 1824, a new trial was granted by the constitutional court; the entry upon the docket being “new trial by consent.”
    In June, 1824, the debtor-was arrested under, a ca. sa, , at the suit of Gibson, Falconer ■&; Co. when he again petitioned for the benefit of the prison bounds act.
    On the 11th June, 1824, he was brought before the recorder, when his counsel moved for his discharge. The motion was opposéd upon the ground of his having been con?, victed of fraud in the case above referred to. The petitioner’s counsel produced a certificate, from the clerk of the constitutional court, getting forth that a rjpw trial had been granted 
      by that court. It was objected by the actors, that although a new trial, had been granted, .yet the petitioner had never availed himself of it;: and that the -mere granting of a new trial-, without specifying any reasons, was- not sufficient to entitle him' tó' the benefit of the act' which he prayed for. The petitioner’s counsel then stated that the new trial had been- granted,, because there bad been a deficiency of testimony to convict the petitioner of fraud, in the issue- which had been tried before the city, court. This statement was. admitted by the counsel for the actoi’3 to be correct.
    Under these circumstances, his honor, the Recorder, ordered the petitioner to be discharged,, upon his making the usual assignment.
    On the 16th July, 1824, a rule was taken out by the actors against the petitioner, to shew cause, on the 19th of the same month,, why the execution, under which he had been arrested, by the actors, and from which he had obtained his discharge, under the prison bounds act; should not be enforced against him, and why he should not be again taken into custody under the same.
    This rule was taken out “on the ground, that the discharge, granted by his honor, the recorder, was founded on the representation,, that the decision of the constitutional court had reversed the verdict, when in fact, it was apparent from the entry on the docket of that court, that the case was never argued there; and from the circumstance of all the judgments, included- in the suggestion, having been paid three months anterior to. the meeting of the constitutional court, and no report of His. honor, the. Recorder., being found among.the records of that court,, it was equally obvious that no appeal could'have. been contemplated.”
    'Upon .the argument,: under this rule, before th'e Recorder, the counsel for the actors contended: 1st'. That the Recorder ought to. review, the decision he had given; as the representation of the counsel, for- the petitioner,, although unintentionally, had been incorrect; the new trial not having been granted by the constitutional court, -for the reason ■stated by him.
    2nd. That it was manifest the new trial had been granted, by the constitutional court, through the fráud of the petitioner, who prevailed upon his creditors, after satisfying--their demands, to consent to a new trial.
    3rd. That admitting the new trial to have been-regularly and fairly granted, yet the actors not being parties in that -case, they were not bound by the decision; .and, therefore, •might .now avail themselves of the objection, that the petitioner, having been convicted of fraud by the -verdict of a jury, -could not take the benefit of the prison bounds act.
    The counsel for -the petitioner insisted -that the actors bad no right to bring this question before the recorder, as be had already decided it on the 1-lth - June, When -he discharged the petitioner; and that unless it could be shewn that there had been, fraud, misrepresentation or surprise,-that decision was conclusive so far as related to this court.
    The Recorder determined that if the representation made to him, by the counsel for the petitioner, had been incorrect, so as to effect the merits of the case, he should consider himself at liberty to review what he had decided under such erroneous impressions; but no evidence had been produced to invalidate that statement in any respect; that-, it having been admitted to be correct, when the petitioner was first brought up and never having been shewn to be incorrect, he could noibutgive lull credit to it. But had the reasons, for which the new trial had been granted, never been stated to him, he should, nevertheless, have diácharged the-petitioner. If, therefore, he thought bis former decision to have been wrong, which was hot his opinion, he could not now interfere with it. After- h&ving said-this, he said it was not necessary for him to examine the-other grounds, as they might all have been urged before him in June last, when the petitioner applied for his -discharge.- He would nevertheless remark, that they seemed to him. to be, untenable. If the constitutional court was deceived when they awarded a new trial, it was not for him to reverse their order, but for that tribunal if they thought proper, The circumstance, of the petitioners not again applying for a new trial under the suggestion, was sufficiently accounted for. ' When the constitutional court awarded a new trial they annulled the former verdict: The parties were then placed in the situation in which they were before the verdict had been given. There was, therefore, no conviction of fraud against the petitioner. He had no longer any object iri seeking for a new trial. Thc-creditors had been satisfied. They had consented to the petitioner’s discharge, by which they precluded themselves from pursuing their suggestion. As they were no longer creditors, consequently there could have been no plaintiff to the issue, should an attempt have been made again to try the question of fraud before a jury. If the new trial was regularly aud fairly granted, the fact, of the actors not having been parties and therefore not being bound by it, was imma- • terial and the argument founded upon it irrelevant; as they could not deprive the petitioner of the benefit he sought for, unless they either suggested and proved fraud, or shewed that he had been already convicted of fraud. .Now, they relied upon no other objection, excepting his former conviction, and that having been set aside when a new trial was granted, there was no conviction in existence when he applied for the benefit of the prison bounds act, in June last.
    For these reas'ons his honor dismissed the rule.
    A motion was now made, before the appeal court to re ■ verse this decision on the grounds:
    1st. That the discharge, granted by the recorder, was founded on the representation, that a new trial had been granted by the constitutional court, reversing a verdict of fraud against the defendant, when it appeared that the appeal from said conviction was not docketed on the docket of that court, until three months after the debts embraced by the conviction were discharged, and therefore, it could not be .considered as a reversal of that verdict.
    
      2ud. Because the new trial, ordered by the constitutional court, would not be sufficient to enable the debtor to avail himself of the' benefit of it, unless he had made an effort tc? obtain such trial.
    3d. Because on the application, the representation of ,the defendants counsel operated as a surprisé on plaintifFs; and,
    4th. Because on the facts set forth and proved his honor should have granted the rule.
    
      Gibbes and Grimfce, for motion. '
    
      FJliott and Dunlcin, contra.
   Per Curiam.

This court is satisfied with the decision of the recorder, for the reasons he has assigned.  