#### WILLIAM A. WILLIAMS vs. JOHN R. FLOYD & AL.

Where a Court, in the exercise of its discretion, directs that an order, previously made by them, should be stricken out, it is.the same as it such order had never existed.

Where a person is arrested on a ca. sa. and an issue of fraud is made up between him and his creditor in the County Court, the issue is found against 'the debtor and he appeals to the Superior Court, the sureties to the appeal are bound absolutely for whatever judgment may be rendered against their principal in the Superior Court.

Such sureties have no right to surrender their principal to the Sheriff in discharge of themselves.

Under the Insolvent Debtor’s law of 1822, Rev. Stat. ch. 58, sec. 10, the discharge of a debtor, arrested on a ca. sa. at the instance of a creditor, operated only against those creditors, who had been duly notified under the provisions of that act.

Where a debtor is arrested under different ca. sa’s at the instance of several creditors, he has a right under the act of 1836, -Rev. Stat. ch. 58, sec. 20, if he applies for his discharge as an insolvent debtor, and fraud is suggested in answer to his application, to require that all the creditors he may notify shall join in the trial of one issue and the Court will so direct.

But this is for the case of the debtor, and he may waive the privilege by joining issue with each creditor, and then a verdict in his favor in one case will ■ not discharge him from responsibility in the case of another-creditor.

The cases of Mooring v. James, 2 Dev. 254, Wilkings v. Baugkan, 3 lred. 86, Burtonv. Dickins, 3 Mur. 103, Jordan v. James, 3 Hawks 110, and Crain v. Long, 3 Dev. 371, cited and approved.

Appeal from the Superior Court of Law of New Hanover County, at the'Spring Term, 1845,, his Honor Judge Peak-son, presiding.

The following case was presented by the Judge’s statement.

The plaintiff obtained a judgment before a Justice of the peace, against the defendant, Floyd,"and sued out a capias ad satisfaciendum, on which Floyd was arrested. He gave the usual bond, with sureties for his appearance at the next County Court, to take the benefit of the act for ,s the relief of insolvent debtors. A person by the name of Miller, likewise had *650a judgment against Floyd, on which he was also taken, and &ave bond, as in the other case, to appear at the same term of the County Court. Floyd filed a schedule and gave a notice both to Williams and to Miller of his arrest in each of the cases, and of his intention to take the oath of insolvency and move for his discharge in each case. At the County Court, Williams suggested, in his case, a fraudulent concealment of certain property by the debtor, and Floyd took issue thereon. In like manner, Miller also suggesfed, in his case, a fraudulent concealment of property, and Floyd again took issue thereon. Upon separate trials of the issues, the juries found the fraudu* lent concealments, as alleged by the creditors respectively.— This was at the same term, and from the judgments Floyd appealed, and gave appeal bonds, with sureties in each case. In the Superior Court, the sureties in the' bonds, taken by the sheriff for the debtor’s appearance in the County Court, surrendered him, in each case, in discharge of themselves, and he was thereupon committed to the custody of the Sheriff, and was confined in prison. Subsequently the issue joined between Miller and Floyd, in the case between them, was tried, and a verdict was found for the defendant, that he had not concealed his property as suggested; and therenpon Floyd was admitted to take the oath of insolvency, and discharged, in that case, by order of the court. The same order for Floyd’s discharge was made in the suit brought by Williams, without trying the issue therein, upon the ground, that he had been discharged in the suit brought by Miller, and that Williams had notice, that he intended to move to be discharged in that suit. But, during the same term, the court set aside and expunged the last order, namely, that made for Floyd’s discharge in Williams’ suit: and the case was then continued by con-' sent. At the next term, the plaintiff, Williams, desiring to proceed to the trial of the issue, the defendant Floyd was called, and he failed to appear; and thereupon the plaintiff’s counsel moved for judgment on the appearance bond against the debtor and his sureties therein, to be discharged by the payment of the debt and costs; but the court refused the same, be*651cause those sureties had discharged themselves by surrendering their principal. The plaintiff then moved for judgment against Floyd for the debt and the costs of that proceeding. That motion was opposed upon the grounds, first, that Floyd had been duly discharged, as an insolvent debtor, and that was conclusive upon all persons; secondly, that, by the notice given to Williams in the case of Miller, and filed therein, the discharge of Floyd in that case exempted his body from further imprisonment by Williams ; thirdly, that there could be no judgment against Floyd for the debt and costs, as the appearance bond had been discharged by his surrender, and the only judgment, that could be entered against him, was, that he should stand imprisoned; and, lastly, that the discharge, which was entered in the case of Williams at the preceding term, was executed and could not be recalled, nor the debtor be further rendered liable in this proceeding.

But the court granted the plaintiff’s motion and gave judgment against Floyd, upon his default in notappearing, for the plaintiff’s debt and the costs incurred in the premises in the County and.Superior Courts.

The plaintiff’s counsel then further moved for a judgment on the appeal bond against Floyd and his sureties, to be discharged by the payment of the said debt and costs. That motion, the sureties for the appeal opposéd, upon th'e same grounds urged before for Floyd, and also because they had, (as was established) since the preceding term offered to surrender Floyd to the sheriff, and the sheriff refused to receive him as a prisoner.

But the court granted this motion also; and from the judgments, Floyd and his sureties appealed.

Warren Winslow for the plaintiff.

If the plaintiff was entitled to judgment against Floyd, the judgment against the sureties on the appeal bond followed as a matter of course. It was competent for the Judge to direct the order of discharge to be stricken out. It was a matter in fieri and in the breast of the Court during the term. This *652Court cannot decide what was stricken out, but will be governed by what was put in. As the record is, there was an issue of fraud joined between the parties. Pending this issue, tpe defen(jan(; was called and failed, and the plaintiff was entitled to judgment on the appeal bond.

It is insisted, however, that the defendant was discharged by the oath taken in Miller’s case. But these were separate issues. Athotfgh, by the 20th section of the Insolvent laws, the defendant cannot be compelled to join in but one issue, it would be a forced construction of the proviso to say, that he has no election to join in more. He elected to treat them as distinct cases, and it is too late now for him to object.

The surrender 'of the principal by his sureties on the ap' pearance bond, was no discharge of the bond. Nothing but payment and release will discharge a bond. The discharge of one obligor, by operation of law, is not a discharge of his co-obligors, the bond stood good against the principal, and upon his default, judgment was rightfully had upon it.

Having joined issues with the plaintiff, by the 21st section the defendant could only be discharged by a verdict on that issue, or consent of the party. There was neither the one nor the other.

But if he was entitled to his discharge, he was not there to plead it. This is a proceeding in personam, and the defendant could not shew his discharge by Attorney.

The counsel cited Watts v. Bogle, 4 lred. 331, affirming Bolts v. Franklin, 4 Dev. & Bat. 465, and Wilkings Sp BoP den v. Baughan, 3 lred, 86.

Strange for the defendant :

1. The case of Gidmy V. Halsey and others, 2 Hawks 550, was a case of motion upon a prison bounds bond after a certiora-' ri,the defendant having left the bounds and not being before the Court when the motion was made, and of course not pleading any thing in person ,and the motion was refused because, of the certiorari, which was of course shewn by the defend ants; which is an answer to the objection on the part of the Judge, that nothing could be shewn by the sureties, and indeed if this *653wére the law what Would the sureties do in case of the death óf the principal, for he could not be there in person to renew it for them. It was conceded by the Judge that the plaintiffs were not entitled to judgment on the ca.-sa. bond, but notwithstanding the discharge of his sureties the defendant was bound to appear, and that the bond-continued in force against him notwithstanding his commitment to prison, and discharged by order of the Court. And upon his failure to appear, judgment could be rendered upon the ca. sa. bond against- him, and his sureties being sureties to the appeal, were liable to have the same judgment entered against them on the appeal bond. This whole argument proceeds'upon the begging the-’ question that the ca. sa. bond-was still in force against the de- ’ ifendant; But can that be So ? The plaintiff having a judg-' ment against Floyd had a-right to levy execution of his goods ' and chattels, lands and tenements, or to take his body until he satisfied*the judgment. The act of 1822, Rev. Stat. ch. 58, - sec. 7, authorized the defendant to ranS'om his body by giving-bond, and-provides that the surety may surrender his principal in discharge of himself, and the stress is laid upon the ' expression himself. If we were to stick to the letter, if there were two sureties and one of them surrendered the principal, ’ it would-only be in discharge of himself, and although the defendant was put in jail, the other surety would still be liable' upon the ca. sa.- bond, and if the defendant escaped might be ' made to pay the debt.

2. But supposing the bond to be in force, what'did it oblige-' him to do ?- Why, to take the benefit of the act for the relief of insolvent debtors. And does not the*record shew that he-has done that ? H’ow'then is' the bond broken 1 The question' is not now whether the plaintiff can arrest him again upon' his debt, but has he broken this bond? But if the' question-' was upon the plaintiff’s right to' arrest thé defendant again, • the case of Benton v. Dickens decides, that where a debtor-' takes the oath being in close confinement, as the defendant ' was in this case,-having-filed a schedule, it discharges him as’’ to all creditors theretofore- existing,- -whether notified or not, 3-’ *654Mur. 103, and iii Jordan v. James et al., 3 Hawks 110, it is l^a(; ^ae ^acf: a schedule makes no difference, and that under whichever clause of the act he is discharged, -j. -g avaxlable against all antecedent creditors, and that by force o£ the 39th section of the Constitution. Having taken the benefit of the act so as to be discharged from all antecedent creditors’ arrest, how can he have forfeited the condition of the bond, which was, that he should do so.

3. But it is said, this could only be shewn by the defendant himself in person, and not by his sureties ; this has been in part answered already. I would however refer to the case of Howard v.-Pasteur, 3 Mur. 270 ; theret he defendant had given bond for the prison bounds but was never surrendered by the sureties to that bond, but being arrested upon another debt and committed to prison, he gave notice to the plaintiff at whose suit he had taken the prison bounds, of his intention to take the benefit of the act, took the benefit, was discharged, and left both the prison and the limits, and a motion being made, not against the defendant, nor the defendant and sureties, but against the sureties only, they were allowed to shew the facts in their discharge. It was not held that the Court could not become apprized of the fact of notice and other proceedings, because the defendant was not ihere in person to shew it. But it is amazing to me that while in this very proceeding the object of the plaintiff is to resist, and the record shews he has been all along resisting the effort of the defendant to take the benefit of the insolvent act that he can now be heard to dispute his having notice. A man is not allowed so to trifle with the Court in a contest about a road. Settle and others v. May, 3 Hawks 599, and shall he be allowed to do so in a question of the freedom of a citizen, in restraint of liberty so justly favored by the law.

4.- The 20th sec. of the 58th ch. Rev. Stat. provides, “ that any creditor notified may suggest fraud, and the Court may permit as many other creditors as may be notified who shall choose to make themselves parties to the issues, but the debtor shall not be compelled to answer the suggestions of fraud in *655more than one case.” It has been already shewn by his own conduct that the plaintiff was notified; he had then his election to make himself a party to the issue of fraud or not, but had no right to make up another issue. If he was not a party he certainly can have no right to complain that the defendant took the benefit of the act without any objection on his part ; if he was a party why then the issue has been found against him, and the substance of his demand is to compel the defendant to try another issue, which the law says shall not be done. It is possible the case of Dobbin v. Gaster, 4 Ired. 71, may have had some effect upon the Court, but that case proceeds upon the ground that a judgment had been given against the party, and that although upon an appeal that judgment would have been reversed, yet no appeal was taken, and it was not competent for the Court at a subsequent term to set aside the judgment, on motion, which, however erroneous, was not irregular. The case of Watts v. Boyle, lb. 331, may have also had some influence, but that case turns entirely upon the extent of the powers of the Court upon an application for a cer-tiorari. The same may be said of the case of Betts v. Franklin, 4 Dev. & Bat. 464, referred to by the Court in Dobbin v. Gaster. The case of Wilkings &* Belden v. Baug-han, 3 Ired. 86; was pressed into the service of the plaintiff in this cause, because in that case a judgment was rendered against the sureties to the appeal bond, the principal having made default. But is that the case here 1 Has the principal made default? Has he not been regularly discharged ? So the defendants were allowed to plead, and so it was held by the Court so far as they were concerned on the ca. sa. bond. But it is objected that they cannot plead it to the appeal bond. In Wilkings &* Belden v. Baughan, the Court founds the judgment upon the appeal bond, upon the argument that it had been already rendered upon the ca. sa. bond, and thereby proving it ought to be rendered on the appeal bond, but here the Judge refused, so far as the sureties were concerned, to enter it on the ca. sa. bond. The converse of the argument it would seem ought to follow.

*6565. It ought specially to be remarked, that after the surrender ;°f the principal'in this.case the proceedings became entirely " changed in their character, they were no longer under the act 0f 1822, but under the act of 1773, and as to the proceedings under this latter act, this Court has, in the case of the State v. Manuel, 4 Dev. & Bat. 27, affirmed the older decisions of Burton v. Dickens, and Jordan -v. James.

6. And this Court has further declared in the case of Hawkins v. Hall, 3 Ired. Eq. 280, that where a debtor has been arrested on a ca. sa. and obtains his liberty by the consent of the creditor, no proceeding can be had against him or any ,other person. In this case, the debtor was discharged by the .actual consent of the plaintiff or by his consent judicially obtained.

7. If discharged by the Sheriff without sufficient warrant, the Sheriff is responsible to the plaintiff and not these sureties.

Ruffin, C. J.

It seems to this court, that the judgment of the Superior Court is right,

In the first place, as between Williams and Floyd, the court can take no notice of the entry of the discharge of the latter, which was stricken out; for by that act, it is the same as if the entry had never been made. It was exclusively for the court which made the ¿entry, to allow it to remain, or to set it aside. The debtor is no worse off now, that it is set aside, than he would have been if it had never been made; and ¡therefore he has .not been injured .thereby. This court, therefore, is to regard the question presented to us, not in the light, that Floyd was discharged by ¡the entering the order to that effect in the suit by Williams, but in this: whether what had ,been..done in Miller’s suit was in law and fact a discharge from imprisonment at the suit of Williams, so that no judg. ment could be had therein, on which Floyd’s body could be further detained, or again imprisoned. If the answer be in the affirmative, then the judgments moved for by the plaintiff .ought not to have been given, whether the discharge had been previously entered or not, or w.as properly expunged or not.

*657It appears to us, that it is not difficult to understand our legislation upon this subject; and that it is plainly the intention of the legislature, that, in every case, in which the debtor does not entitle himself to his discharge by taking the oath of insolvency, there is to be a judgment against him for the debt and all the costs incurred in the original suit and under the ca. sa., upon which judgment the debtor may be imprisoned : if rendered upon his default in not appearing, he may be imprisoned by process of execution, on which he shall not be entitled to the benefit of the act of 1822; and, if rendered when the debtor is in court, for fraud found against him, or for failing to give notice, or for refusing to be examined, by the judgment of the court, that he be imprisoned — which is, necessarily, in execution for the debt and costs — until he make a full disclosure, give the necessary notice to the creditor, and take the oath of insolvency. It is clear that it must be so. The act, Rev. St. c. 58, s. 7, says expressly, that in case the debtor shall fail to appear, judgment shall be rendered instanter, upon the bond given to the sheriff, against the principal and his sureties, to be discharged wpon the payment of the debt and costs. But it is said, that such a judgment cannot be rendered in this case, because that bond was never forfeited, but saved by the surrender and imprisoning of the principal. Whether the sureties could surrender the principal after the court, “ to which the capias ad satisfaciendum is returnable.” may, possibly, be a question upon the 9th section of the act, but we assume, that they may; still, if the debtor and creditor make up an issue and incur costs, and the principal is surrendered and imprisoned a day or a week and then escapes, is the creditor to be put to a new ca. sa, upon his original judgment as at common law, and lose all those costs ? Surely not. For if he were put to to a new ca. sa. he would not only lose his costs in the first proceeding, but the debtor might again avoid going into close prison, by repeating the process of giving bond to take the benefit of the act; whereas the act is precise, that where the debtor fails to appear, and a judgment is rendered in court therefor, he shall not be en*658titled to the benefit of that act. When the act uses the lan-£ua§e» then, that there shall be judgment on the bond against the principal and his sureties, to be discharged by the payment of the debt and costs, it merely has a view to the responsibility of the sureties, as, probably, the best security for the creditor, and they can be reached only upon their bond, because, by that only, have they made themselves liable. But there is no necessity for the bond to get at the principal debt- or ; for he was chargeable upon the original judgment for the debt and costs, and upon the proceedings in that court for the costs thereof; and, upon them, there must be judgment there for the debt and both sets of costs against the principal, as the oqly means of making the debtor liable for the costs and of subjecting him to the actual imprisonment, which, in such case, is imposed on him. This meets the case before us, which is one in which the debtor failed to appear personally, when lawfully demanded; which he is bound to do in the County and Superior Court. Mooring v. James, 2 Dev. 254. Wilkins v. Baughan, 3 Ired. 86. It is true, there the judgment was on the appearance bond, and the court, not wishing to go beyond the case, reserved an opinion upon the case when the debtor was present, as to the judgment then to be rendered against him and his sureties for an appeal. In this case he was not present, and therefore there could be no judgment that he be in custody immediately; but the judgment should be merely for the debt and all the costs, on which the creditor might take out any execution he chose. For that judgment, the sureties for the appeal are of course liable ; as in every case of a judgment against an appellant for money, the sureties are conclusively fixed therewith.

It would also be the same thing, if the debtor had appeared, and had refused to be examined, or fraud had been found against him, or he had refused to take the oath of insolvency; in all those cases, there must be a judgment for the costs, and, consequently, for the debt also, and then a further judgment or order, that the debtor be imprisoned, as in execution, until he should duly discharge himself, as an insolvent debtor, by a *659full surrender of his property, due notice to the creditor, and taking the oath. That is the direct effect of the 10th and 11th sections of the act; and the correctness of the position is rendered still more plain by the provision in the 19th section, that any debtor, against whom an issue is found, or who for any cause is adjudged to be imprisoned until, &c., shall not be entitled to the benefit of the prison bounds, but shall remain in close prison, until discharged by being permitted to take the oath of insolvency. For what is he to be adjudged to be imprisoned ? Not ior a contempt of the court, for then there would be no security for the creditor for his debt, in case of an escape, since the creditor could not charge him in custody by another ca. sa. for the same debt. He is therefore committed in execution, and, necessarily, he is in execution upon the judgment then rendered by the court, for both the debt and the costs. When that judgment is rendered by the court, to which the process was returnable, the plaintiff can have nothing more ; for the debtor's appearance discharged his sureties to the sheriff, and no one else but the debtor is bound for the debt or costs. But when from that judgment the debtor appeals, which he may do, “ as in other cases,” his sureties for the appeal bind themselves, that he will prosecute his appeal with effect, or that he will perform the judgment of the court, and the act of 1785 directs, that where judgment is rendered against the appellant, judgment may also be rendered instanter against the sureties for the appeal, for the sums adjudged against the appellant himself. Of course, then, if in the Superior Court the issue be found against the debtor, or for any cause judgment be then rendered against him for the debt and costs, (though he be adjudged to be imprisoned thereon, until, &c.) his sureties for the appeal are liable for the payment of the money, for which such judgment is given, and judgment may be rendered against them summarily, as in other cases.

In treating the subject hitherto, the case has been considered as if the proceeding by Williams were the only one against Floyd; for we have been endeavoring to ascertain, what is *660the proper judgment against the debtor himself, supposing ^im not t0 duly discharged, and then what judgment is to be grounded thereon against the sureties for the appeal. It remains, however, to be seen, whether this debtor had been duly discharged.

The first ground on which his discharge is rested is, that, in point of fact, he had been admitted to take the oath of insolvency by a court oí competent jurisdiction in Miller’s suit, and that is conclusive upon all creditors. This position is founded on the cases of Burton v. Dickins, 3 Murph. 103, and Jordan v. James, 3 Hawks, 110. But those cases were decided on the act of 1773, which neither required nor provi-* dedfor notice to any creditor but the arresting one, but divested all the debtor’s estate ; wherefore the constitution discharged him altogether. But it has since been held in Crain v. Long, 3 Dev. 371, that, now the discharge operates only against those creditors to whom notice is given, because the act of 1822 authorizes the debtor to give notice to any or all of his creditors, and exempts him from imprisonment by those creditors only to whom notice was given.

But another ground is taken on which it is insisted, that Floyd was discharged from arrest at the suit of Williams; which is, that Williams had received notice of his application in Miller’s case, and therefore was bound by the decision in it. This is founded on the provision, already quoted from the 10th section, for notice to all the creditors, and that those who receive notice shall not imprison the debtor again ;■ and on that contained in the 20th section, which allows any creditors, who may have been notified, to suggest fraud and join in the issues, but prescribes, that the debtor shall not be compelled to answer the suggestions of fraud but in one case. The cases, to which those provisions apply, may be either those in which there is but one arresting creditor, and where, consequently, there can be issues but in one case ; or those in which several creditors arrest the debtor, upon distinct judgments in the same or in different courts. Now, in cases of the latter kind, “ the debtor shall not be compelled to answer *661the suggestions of fraud but in one case,” that he may not be harrassed by attending at different places to establish the same facts, or unnecessarily incur the costs of many issues, when one may .serve the purpose of all. But this is manifestly for the ease of the debtor, and, if he will voluntarily answer the suggestions of fraud made in several suits, it is his own folly, and he must abide by the result in each suit, as between him and the creditor in that suit. The contrary construction would lead to the grossest frauds on the creditors. For if the' debtor can join issue in half a dozen different cases, pending in as many courts in distant places, and then insist that all the creditors are concluded by the verdict in any one of those cases, he would have his creditors going all over the State to attend on trials With him, or by concert with a friend in one suit might obtain his discharge as to all the creditors without-any real trial.

The debtor might, therefore, in this case, have required the creditors to put all their suggestions into one,-or to come to-trial upon all at once, and as in one case and on suggestion of his wish, the court, in which any one of the cases was' pending, would have taken order to have the act observed. But he would not insist on that right, but, it may be, for purposes of his own, took separate issues in the several suits and, therefore, he has no right to treat a particular creditor, as a party to any issue, but that joined in his own suit. For^ suppose Miller to have suggested the concealment of one article of property, and Williams another ; upon which it might be the interest of Floyd not to combine the trial,- as he might think he could establish his schedule in one' particular, so as-to get a discharge from one creditor, when he might doubt as-to the other; and in case of failure he might be able to pay the one debt, when he could not pay both. In fine, the act gives a privilege to the debtor in this respect, and it is in his-power to renounce it, and he did so here.-

It is unnecessary, that we should speculate as to what would' have been the effect of the debtor’s, appearing in court when demanded, although he had escaped and been at large after *662the preceding term. It is sufficient that he was not in court, w^en ought to have been, to found a judgment on his default for the debt and costs: for which the sureties for the ap-peaj are liable. Their offer to surrender the principal to the sheriff cannot relieve them; for they are bound for his performance' of the judgment, and cannot discharge themselves by a surrender. If the debtor’s re-appearance could have availed him or them, they should have prevailed on him to come to court, instead of going to the sheriff. However, that is a matter not before us, and on which we do not pretend to have formed an opinion.

Per Curiam,-Judgment affirmed.