From Craven.
The Defendant being arrested on a ca. sa. and in custody of the Sheriff, executed to the Sheriff a bond, with two sureties thereto, conditioned for his keeping within the rules of the prison, until he should be legally discharged therefrom. Whilst he was thus within the rules of the prison, a capias ad respondendum was issued against him, and he was thereon arrested and put into close jail. He thereupon notified the Plaintiff's in each case, of his intention to take the oath of insolvency and the benefit of the act for the relief of insolvent debtors. On the day appointed, he took the oath, was discharged by the Judge, and went at large out of the limits of the rules of the prison. Motion for judgment against the sureties in the bond for his keeping within the rules of the prison, disallowed; for
His going out of the limits of the rules, after he was discharged as an insolvent debtor, was lawful, although he was in close jail at the instance of another creditor. The order of liberation extends to discharge him from all imprisonment for debt.
The act of 1773, recognizes two kinds of imprisonment, the one, close jail, the other, the rules of the prison, as directed by the act of 1741. The word close used in this act refers to the personal situation of the applicant, as a pre-requisite for taking the oath; but is omitted in that part which directs his discharge; and presupposes there may be others, who hold him in confinement, by directing them to be notified.
After these proceedings, and before the notice of the present motion, Huntington voluntarily went beyond the limits of the rules of the prison; and the plaintiff thereupon moved for execution against his said sureties, the present Defendants. Their bond had been duly assigned to the Plaintiff by the Sheriff. On this case, the Court below adjudged, that an execution should issue, as prayed for by the Plaintiff; from which judgment the defendants appealed.
HENDERSON, Judge:
This case depends on the operation of the words "shall be immediately set at liberty," in the first section of the act of 1773; that is, whether where a debtor is confined in close jail under one process, and has taken the bounds under another, such order of liberation, as has been made in this case, extends to discharge him from the bounds of the prison. And it is argued that it does not, because a prisoner of the latter description is not entitled to the benefits of that section of the act, for that section extends to those only who are in close jail. It does not follow that because none but a close prisoner can be permitted to take the oath of insolvency, that the liberation should extend to such only. It extends to all imprisonment for debt. None but close prisoners can take the oath; for the close confinement is required as a teste of the truth of the oath, and perhaps as a judgment for the imprudence of going in debt, beyond the liability to pay. Yet, when it is undergone, at the instance of any one, all those who have evidenced a like disposition to coerce payment by imprisonment, are like affected. The words of the act, as well as its spirit, seem to require this construction. The Sheriff, when he produces the body of the debtor, is required to produce a list of the process, c. by which he holds (272) him in confinement. He is to be set at liberty, not only from close imprisonment, but generally; that is, as we consider it, from all imprisonment for debt. And the third section, by using the words "in prison," omitting the word "close," shows that the Legislature recognized two, kinds of imprisonment, the one close jail, that is, the walls of the jail, and the other, the rules of the prison, as directed by the act of 1741: which word "close," refers personally to the situation of the applicant, as a prerequisite for taking the oath; but is omitted in that part which directs his discharge; and pre-supposes that there may be others who hold him in confinement, by directing them to be notified. Besides, what can this creditor complain of? If close jail be required as a teste and punishment, it has already been undergone in the same manner, and for the same time, that it would have been undergone, if the bounds, as to him, had not been taken. He has the same opportunity of offering opposing evidence, and of cross-examination; for he is to be notified. And we can not perceive that his situation is in any way different as to the coercive powers of imprisonment, than if the debtor had remained in close jail. For the same thing is effected by another creditor in the same jail, and during the same period of time. If the Defendant be discharged in law from the imprisonment in this case, the bond which was taken to secure the creditor against an escape, is also discharged. For the law directs its officer, at the instance of the creditor, to confine the debtor; and the law directs its officer to discharge him. Of course, all means taken to that end, to-wit, the confinement, must cease, when that end ceases to exist. But we cannot distinguish this case from that of Burton and Dickens, decided at this term: For that which will prevent an arrest, will justify a discharge; and the debtor who takes the 40 s oath, stands in the same situation as to the bill of rights, with the debtor who surrenders up his property under the third section of the act of 1773. Let judgment be entered for the Defendants.
Cited: Phillips v. Allen,
35 N.C. 11.
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