
    
      Wm. J. Harley, sheriff, successor of Riley, vs. Jos. Neilson. The Same vs. J. E. Robinson. The Same vs. Thomas Addison. The Same vs. The Same.
    A debtor who applies for the benefit of the prison hounds Act, after giving bond for the prison rules, forfeits his bond if he leaves the rules without having made an assignment; and it makes no difference in this respect, that he was entitled to his discharge, and that the commissioner of special bail refused to grant it.
    A verdict in favor of an applicant for the benefit of the prison bounds Act, is not ipso facto a discharge in law. And with a verdict, whether for or against the prisoner, the jurisdiction of the commissioner of special bail does not cease.
    A jury impannelled under the Act 6f 1833, to try a suggestion under the prison bounds Act, have a right, before they are discharged, to alter or remodel their verdict.
    
      Before Wa:rdi.aw, J. at Barnwell, Fall Term, 1844.
    These were actions against the sureties on prison bounds bonds given by L. P. Cook and D. L. Law, dated the 23d. of April, 1839.
    Law <fe Cook had been co-partners in trade. In the two cases first stated the bonds were given after arrests on 
      bail writs, and in the two last cases, after arrests on writs of ca sa. On the 24th of April, Cook <fc Law filed joint and separate schedules, and made application for the benefit of the prison bounds Act. On the 4th of May, on behalf of the plaintiffs on the bail writs, a suggestion was filed containing charges (1,) of undue preferences; (2,) of previous fraudulent assignments; and (3,) that the schedule was false. The clerk of the court, as commissioner of special bail, ordered a jury to be summoned for the 17th of May, to meet at the Court House, and also gave the sheriff a written order to have the debtors before him at the Court House, on the day appointed.
    The Court House was 35 or 40 yards beyond the prison bounds, as they then existed, but it was the place where such trials before the Clerk had always taken place. On the 17th May, as the sheriff, with Cook and Law in his company, (who had been living since the bonds were given in a house within the bounds,) reached certain stakes which had been put down to mark the bounds, the defendant Addison, speaking, as he said, for himself and the other sureties, said to the sheriff Riley, that if the debtors were taken out of the bounds, he and the other sureties would stand no longer, but consider themselves discharged. The sheriff said he had authority and was obliged to do it, and Addison answered that he was done with the matter. The sheriff then went with the debtors to the Court House —they not appearing to have said any thing or to have been spoken to.
    At the Court House, nothing was said about place. The issue upon the suggestion was tried — witnesses were examined, and counsel on each side addressed the jury. The commissioner, at the direction of the debtors’s counsel, said nothing to the jury. The jury retired, and the debtors’s counsel went to his house, half a mile off. The jury brought in a verdict, finding, in substance, that the estates of the debtors were not more than sufficient to pay their judgment creditors ; that the debtors had made payments to some creditors, in’ preference to others, but not to the injury of the plaintiffs, and were entitled to their discharge.
    The verdict having been read, at the suggestion of the 
      plaintiffs’s counsel, who maintained that the verdict should meet the specifications of the' suggestion, in the absence of the debtors’s counsel, without objection and without special instruction from the commissioner, the jury voluntarily retired, and returned with a second verdict, finding that 'they, the said debtors, had made payments prefering some creditors to others 5 that they had sold their assets and applied part to some creditors, and a part to their own use; and that the schedule was true. The debtors’s counsel was still absent. No motion for discharge was then made. The commissioner decided that both verdicts were nullities, and that the debtors must return to the bounds, saying that they might appeal, or that he would grant to them a new hearing and trial, at any time they would request. The debtors’s counsel on his return insisted upon the debtors being discharged, and directed them to go at large. The commissioner directed the sheriff to take the debtors back into the bounds; and they got back soon afterwards, either through the interference of the sheriff or of their own accord, where they stayed, Law some weeks, and Cook some months afterwards. They never made an assignment within the knowledge of the commissioner, and never received an order of discharge from him. After the trial, on the same day, the commissioner entered upon his notes of evidence, which accompanied the petition and suggestion, his decision, in which he stated, in substance, that the second retirement of the jury was without his directions ; that the attorney for the debtors had directed them to go at large, and he had directed the sheriff to take them back into the bounds —that he considered both verdicts as nothing, and had told the debtors they could appeal, or that a new trial might be had when they pleased.
    No proceedings of any kind were afterwards had- until the departure of the debtors and the commencement of these actions.
    The presiding Judge held that no verdict upon the suggestion could, of itself, have operated as a lawful discharge of the debtors, without an assignment or any order of the commissioner; that if the commissioner erred, the remedy was by appeal or mandamus, or other proper proceeding, and not by disregarding the decision of the officer appointed by the law to judge in the matter, or substituting his refusal to act, for the action which the law required of him ; and that the erroneous opinion of the commissioner, as to the effect of the verdicts, (if error there was,) and his neglect to order the debtors into close confinement, when no application was made for such order, did not release the sureties or discharge the debtors.
    He said that, although it was of no consequence, in the present case, to decide which verdict was the true verdict of the jury, he saw no objection to the jury’s retiring again voluntarily, of their own motion, or at the suggestion of another, before they had separated, and where no suspicion of unfairness could attach, for the purpose of making such alterations as they thought proper i a their finding.
    He held that the removal of the debtors to the Court House for trial, could not, in any possible view, have amounted to a discharge of the sureties. If the removal was the act of the sheriff, and compulsory, whether with or without lawful authority, being involuntary on the part of the debtors, it would not be a breach of their bond, and after the return of the debtors to the bounds, it gave no grounds of complaint to the sureties. If the removal was the act of the debtors themselves, against the remonstrance of their sureties, it might, itself, have been urged as a breach of the bond, but could be no discharge of the sureties, or excuse for a subsequent departure.
    The verdicts were for the plaintiffs ; debt, interest and costs of the cases in which the prison bounds bonds had been given.
    The ' defendants appealed, and now moved for a new trial, on the following grounds.
    1. Because his Honor- erred in charging the jury, that after the jury who tried the suggestion of fraud had rendered their verdict, the authority of the commissioner of special bail over the petitioners, Cook & Law, returned.
    2. Because his Honor should have charged the jury, that the finding of the jury, upon the suggestion of fraud, entitled the petitioners, Cook <fe Law, to their discharge, and was a discharge in law.
    3. Because his Honor erred in charging the jury, that the sheriff had a right to remove the petitioners, Cook and Law, from the bounds, against the express orders of the sureties.
    4. Because there was no proof whatever made, that the petitioners, Cook <fe Law, did not assign the property mentioned in the schedule.
    
      5. Because his Honor erred in charging the jury, that the jury who tried the suggestion of fraud, had a right, after the publication of the first verdict, to retire a second time, and in the absence of the attorney of the petitioners, Cook <fe Law, bring in another verdict.
    
      Patterson & Aldrich, for the motion.
    
      Bellinger & Hutson, contra.
   Curia, per

Richardson, J.

The 6th sec. of the Act of 1833, 6 Stat. 493, to amend the prison bounds Act of 1788, contains the enactment that must decide the leading question presented by the appeal, namely, were the insolvent debtors, Cook and Law, justified in leaving the prison bounds, without executing an assignment of the property set forth in their schedule, or did they thereby forfeit their bonds ?

The 6th sec. of the Act is as follows. “In all cases where a prisoner applies for the benefit of the prison bounds Act, the Judge, or commissioner of special bail, (fee. shall not discharge him, (fee. until the property contained in his schedule is produced and delivered to the assignee of such prisoner, if it be or has been within the power of the prisoner to deliver the same, since the time of his arrest.”

If we turn to the insolvent debtor’s Act of 1759, 4 Stat. 86, there is express provision requiring such assignment to be made before the discharge; see 1st. section. Under the prison bounds Act of 1788, 5 Stat. 78, the practice was uniformly the same. An assignment there must be. To let him be discharged without such assignment, would be to render the proceedings against an insolvent,' an empty show to mock his credtors.

How, then, can there be a doubt upon the explicit section of the Act of 1833, which goes even further, by requiring the property to be delivered, if within the insolvent’s power ? But which only re-enacts the like provision in in the Act of 1759.

Cook and Law were bound, clearly, to execute such an assignment, to tender it, and at least to leave it at the discretion and for the use of their creditors, before they left the prison bounds.

This they did not, yet departed, leaving their creditors no substitute but to proceed upon the prison bounds bonds against their sureties, the present defendants.

Let it be admitted that the verdicts authorized the discharge of Cook and Law by the commissioner. Yet still such discharge must follow after the assignment, and not go before it, leaving .the creditors without this essential, and only, substitute, in place of the persons of the insolvents.

It is in vain to urge this court, upon the alleged conduct or declarations of the commissioner of special bail who presided at the trial. As the counsel observed, there was probably heat on both sides. But this could not prevent Cook and Law from executing, at least after, if not before, their discharge, the assignment, which is the only practical and available object to the creditors, while it is equally the justifying cause, and therefore the indispensable condition, of insolvent laws, before the body of the debtor can be discharged.

If the verdicts were sufficient, as they probably were, the course of Cook and Law was plain. 1st. They should have presented an assignment. 2d. if the verdicts were insufficient, or a nullity, which I do not conceive, move for a new trial. 3d. If the conduct or refusal of the commissioner was erroneous, the writ of mandamus would have constrained him to the proper legal course of his duty.

But Cook and Law followed neither course, practically. They departed from the prison bounds, leaving their creditors to the bonds of the defendants exclusively.

There may have been much paliation for heat and pre-cipitancy, but none for such a breach of contract to creditors or sureties. These are innocent third parties. They stand apart from the quarrel, and cannot be affected by it.

This state of things brings ns to the trials of the defendants upon their bonds, in the name of the sheriff, for their creditors, and the decision may be readily foreseen.

The Judge’s charge to the jury has been laid before this court. It assumes the very principles I have discussed, and of itself answers the exceptions taken to it.

But referring briefly to these exceptions, how can it be supposed that the authority of the commissioner ceased with the verdicts, when there was no assignment?

The jury could not discharge the insolvents. The commissioner had the same discretion as all courts, to have the insolvents brought up to be tried, and his report is that he remanded them to the bounds.

To this exception, I need not repeat, that the assignment must be made before the discharge.

To the 4th exception, that the assignment, at least, if not the discharge, must be made to appear by the defendants.

To the 5th, before being discharged, the jury had power to remodel their verdict. But under any possible construction or view, the question continually occurs, to be answered by the bondsmen, by-what authority did Cook and Law depart permanently from the bounds, without an assignment at any time?

Finally, the jury followed the law laid down, and gave the full debts, interest and costs, as they would have given against the principal debtors, Cook and Law.

These are heavy verdicts for sureties to pay, but such verdicts are within their bonds, and this court cannot say they should be diminished, to the loss of the creditors of Cook and Law.

Courts are to support contracts, and legal verdicts, and we cannot interfere with the lawful rights of creditors. On the contrary, sureties who bind themselves for the lawful conduct of their • principals, must take the hazard of their misconduct, and abide the consequences, or they would not be sureties at law.

But for satisfaction sake, let us reduce the case to its essential facts. All stood well up to -the controvercy, at the trial before the commissioner. But finally the jury brought in their verdict, and then modified it, which is no unusual occurrence when done defore they have separated.

Here again, all stood well. But the commissioner pro-' nounced the verdicts nullities; .and offered to summon another jury, if desired, or hear the counsel, “at any time they would request,” and ordered the sheriff to take charge of the prisoners, &e.

By such conduct, the commissioner indicated, plainly, that he did not intend to discharge the insolvents. ' But he retained the right to change his opinion, and offered to hear the counsel.

But they advised the prisoners to go at large, and not to return to the bounds. But still they did return.

All now again stood in statu quo ante helium.

In the mean time, and at no time, was any assignment of the insolvents executed and tendered. Nor, as far as appears, any offer to execute it.

But until this had been done, the commissioner was never placed in a position to decide judicially, whether the insolvents should be discharged.

They certainly were not yet discharged. Nor do they appear to have so thought. For they returned to the bounds for some time.

In the mean time the sureties would seem to have supposed they were discharged of their obligation, or else they confided in Cook and Law remaining in the bounds.

No appeal was offered, and no practical intelligible motion is reported, or any thing further done. Cook and Law would seem to have acquiesced in the opinion of the commissioner.

But in a short time they departed permanently, leaving no power to their creditors to collect their effects or use their schedule in any way — and to all appearance regardless of their sureties.

In what, then, when divested of its controversial incidents and peculiar circumstances, does this case differ from the not very unfrequent -case of a debtor leaving the bounds, to the cost of his sureties'? And whether he does so coolly or passionately, there is no difference in this consequence.

The motion must therefore be dismissed, upon strict right and law.

Evans, Wardlaw and Frost, JJ. concurred.

O’Neall and Butler, JJ. dissented.  