
    Sleeper & Fenner vs. N. A. Cohen.
    
      Insolvent Debtors’ Act.
    
    An applicant for the benefit of the Insolvent Debtors’ Act, who is in tin? prison bounds under ca. sa., may, after suggestions against his discharge have been filed by various creditors, and issues joined and docketed, upon paying the debt for which he is under arrest, and the costs of the suggestions, abandon his application, against the consent of his other creditors — no other ca. sa. having been issued against him.
    BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    “ N. A. Cohen having been arrested under a ca. sa., at the suit of John Hooper, Sen., & Co., filed his petition with a schedule of his estate, to obtain the benefit of the Insolvent Debtors’ Act." On'the day appointed by the notice, which was published, many creditors — some of them judgment-creditors — appeared to resist his application; and, at a former Term, orders were passed for suggestions to be filed, and separate issues made at the instance of several of these,creditors, • amongst whom were the present appellants. These issues having been joined, were docketed and continued one or two terms. Now, it appeared that the ca.sa., under which N. A. Cohen was arrested, had been satisfied; that, at the time of satisfaction, he was within the prison bounds, under a prison bounds bond, which referred to the case in which he had been arrested; that no other ca. sa.had then been lodged against him, although these appellants, and others, have since lodged ca. sas.; and, that, to obviate all dispute about costs, he is ready to pay the costs of all the issues aforementioned.
    
      “ Upon a motion in behalf of N. A. Cohen, I granted an order that he should be at liberty to abandon his petition, and that all the issues should be struck from the docket upon .his payment of the costs. I considered that the whole proceedings ceased to have purpose or efficacy, when the imprisonment was terminated by satisfaction of the process under which the arrest was made, before any detainer was lodged.”
    The plaintiffs appealed, on the ground, that after issue joined upon the suggestions for fraud, it was not competent for the Court to grant the petitioner leave to withdraw his application. - '
    Martin, for appellant.
    The bond given by an insolvent debtor upon his application for discharge, stands as security against all from, whom he seeks to be discharged, viz.: “ all suing creditors.” If it has been forfeited, therefore, it is not competent for any one of them to deprive the others of the benefit accruing from any liability incurred. That the discharge, even if granted, is not a complete bar to all liability, is shown by the case of a trover bond. Green vs. Foslcett, 11 Bich. 332.
    After suggestions for fraud filed, it is not competent for the party accused, by payment to one, to discharge himself from the liability he has incurred to other creditors thereby.
    The case is stronger where the issue is made up between the petitioner and third parties. And in such cases, amendments have been permitted with caution — and discontinuance by the petitioning debtor refused in the only two cases we have where the point was distinctly made. Sherman and DeBruhl vs. Barrett, 1 McM. 159; Walker vs.'Briggs, 1 Hill, 254; 1 McM. 286.
    
      Memminger, contra,
    cited and commented on the Insolvent Debtors’ and Prison Bounds’ Acts.
   The opinion of the Court was delivered by

Whitner, J.

This applicant for the benefit of the Insolvent Debtors’ Act was in no view of the case under arrest when the single ca. sa. which had issued was satisfied. His schedule had been challenged, but it had not been falsified. Issues had been made up but had not been tried, and the question is presented, was the petitioner bound to proceed or might he not abandon his petition ?

It is manifest the arresting creditor could not interpose any objection, for he had accepted satisfaction of his debt and thereby in law discharged the arrest; any further restraint on the liberty of the debtor would have been unlawful.

Put according to the scheme of our Act the appellants had been called, because being suing creditors, the applicant sought to be dischai’ged from their debt. They had elected to proceed against his property and not against his body, and claim under the authority of the cases of Sherman and DeBruhl vs. Barrett, 1 McM. 159, and Walker vs. Briggs, 1 Hill, 291, that the applicant should be denied the right of abandoning his application, although he pays up the costs incurred.

There is a distinction however between those cases and the one before the Court, and unless it can be obviated must be fatal to the present motion.

No penalty had yet attached and no detainer had been lodged. The applicant was no longer a prisoner, and the question arises, can he proceed ? To what end ? He had prayed the benefit of the Act, and this relief he could not have, even although the creditors had all withdrawn their contest. If the issue had been tried and found in his favor he could not have been* discharged under the Act, and this denial is not the result of anything which the debtor had done forbidden by the law. He had paid a debt which it was proper he should pay, and no wrong has resulted to these creditors. Yet in either event above suggested, the oath could not have been'taken and would not have been administered with the fact before the Court, and without it a discharge could not have been ordered.

To retain the petition and press the party to trial would be delusive and cruel. Even-handed justice cannot subject one to such an ordeal when in no event can anything be gained by him. The hazard is altogether one way, and the benefit altogether another, and this, too, in a proceeding in contemplation of relief and not ruin.

The principles laid down in the case of Clark, McTier & Co. vs. Simpson, 1 McM., 286, are full to the point now under consideration, and although that was a case in which the debtor had been arrested on mesne process and discharged from his confinement without his consent, yet because he was no longer an imprisoned debtor he was held not entitled to the benefit of the Act.

The course pursued by the Circuit Judge, in granting the orders in question, is approved by this Court, and the present motion is dismissed.

O’Neall, Wardlaw, Withers, and Gloveb, JJ., concurred.

Motion refused.  