#### J. D. ROUNTREE v. THOMAS WADDILL.

Where a prisoner was brought into open Court by his bail, and it was announced, publicly, that he was surrendered, but was unknown to the sheriff, to the plaintiff, and to the plaintiff’s counsel, and a stranger to all present, except to the bail and the presiding Judge, and upon being ordered in custody, fled from the court room and escaped, without having been in the custody of the Sheriff, it was Held that these facts -did not amount to a valid surrender, Although so adjudged by the Court, then present, and a record to that effect ordered by it

This was a motion for judgment upon a scire faeias against the defendant, as bail of Nathan King, heard before Shepheed, J., at Spring Term, 1859, of Wilson Superior Court.

The pleas were “ nul Ucl record,” and a special pica “ that King was discharged at Fall Term, 1-856, of Chatham Superior Court, as an insolvent debtor.” Cause against the motion, for judgment, was further shown, upon the following tacts agreed :

On Monday of Spring Term, 1859, of Wilson Superior Court; the bail of Nathan King brought him into open Court, and their counsel, at the bar, having given previous notice, ■during the day, to the plaintiff’s counsel, who were present, said to the Court: “We surrender Nathan King In our «discharge as his -bail.” The plaintiff’s attorney then moved for time to file an affidavit, that he might make a motion to «commit lung, which time was allowed, and upon the affidavit’s being read, the Court said, “ your motion is allowed, take him into custody.”

*310King was not personally known to the plaintiff’s counsel, and was a stranger to the community and to the officers of the Court, and although in the court room, in the presence of the Court, he was not brought into the bar, nor immediately to the counsel of the bail, nor to the sheriff, nor delivered to the plaintiff, or designated to the plaintiff specially, but was recognised by the presiding Judge, and held by him to be present, being personally known to him. When the Court allowed the motion to commit, and told the plaintiff to take King into custody, ho fled from the room, made his escape, and could not afterwards be arrested.

Upon these facts, the Court held the surrender complete as to Waddill, the bail, and discharged him upon payment of the cost. The Court ordered a record to be made accordingly.

Upon the special plea as to the discharge of King at Chat-ham Superior Court in 1856, the following facts are agreed :

The note, sued on, was given to Rountree, Watson & Co., who were merchants, and had their regular place of business in the city of New York, Rountree, the present plaintiff, being a member of that firm, though then, and always a resident of ttys State ; and when King took the oath of insolvency, he gave general notice in a newspaper of the State, to his nonresident creditors, but no personal service was made on Rountree in the State, or bn his attorneys of record, who were then prosecuting suit here.

Upon this point, the Court was with the plaintiff; upon the other plea, nul tiel record, the Court gave judgment for the defendant.

The plaintiff excepted to the ruling of the Court upon the first and third points, and appealed therefrom to this Court.

Strong and Howard for plaintiff.

Dortch, for defendant.

Manly, J.

The principal question in the case is, whether the facts stated by the Court, as bearing upon that point, *311amonnt, in law, to a surrender, by the bail, of their principal. We think they do not.

When an act of this sort is spoken of in the books as a surrender to the coiort, it means, of course, a delivery, under the directions of the Court, to its ministerial officer, the sheriff. It cannot be supposed, without absurdity, that the presiding officer takes charge of the person in custody, for a moment, for any purpose.

We take it, too, that there is no interval of time between the custody of the bail and the custody of the sheriff. The debtor (or culprit, in a State case,) passes- from one to the other, and it follows that he is not out of the custody of the bail until he is in the custody of the sheriff. We do not mean by this, that he should be in the actual manual custody of the officer, but that he should be in a condition to be taken by him, if needful.

By a recurrence to the facts, it will be sfeen that the bail and the principal came into the court room at Wilson, beiug stangers in that community, and known by no one, except the presiding Judge. The bail said, “ We surrender Nathan King in our discharge as his bail,” and moved for a record to be made of it. The plaintiff’s attorney moved for time to file an affidavit, in order to hold the debtor in custody under the statute, which time was allowed. The affidavit was prepared, the motion to commit, made and allowed, and the Court, thereupon, told the sheriff to take him into custody, upon which, he fled from the courtroom, and could, not be overtaken. In the mean time, while the affidavit was preparing, no action was taken by the Court on the motion to make a record of surrender, and no direction given to the sheriff. The principal, King, was unknown to the plaintiff, to his attorney, to the sheriff, or sheriff’s officers, or to the bystanders, and was not pointed out to any of them.

Upon this state of facts, the Court held the surrender to be complete, and made a record of it in pursuance of the motion above stated. This judgment of the Court, we think, is erroneous.

*312The debtor was not ont of the custody of the bail until he fled, and of course, not in the custody of the sheriff at all. This tradition, one to the other, would have been complete, if, when the presiding officer ordered the sheriff to take the debtor, he had been presented to the sheriff, or if iu any other way, he had been in a condition to be attached and detained by him. That was, according to our view of this transaction, the turning point in the attempted ceremony of surrender. And to hold it good as a surrender, effectual to discharge the bail, and consequently, to charge the sheriff, would impose upon the latter insuperable hardships and difficulties, an instinct to pick out the proper man in a crowd, and fleetness of foot to overtake him in his flight.

We attach no importance to the fact stated, that the debtor was known to the Judge, who presided. He was not known to the sheriff, nor was he in the sheriff’s immediate presence or power. The Judge did not ¡joint him out to the sheriff, or put him effectually in charge of that officer.

There seems to have been some misunderstanding in the Court below, as to the issue raised by the plea of “ no such record.” The matter to which that plea is intended to apply, is the judgment set forth in the scire facias against the bail, viz., the judgment against the debtor, King.

Upon an examination of the copy of the record, submitted with the case, it seems to be identical with that recited in the scire facias, and we think there was error in the judgment of the Court upon that point.

The judgment of the Superior Court upon the remaining plea was correct; a taking of the body in the execution, and its discharge under our insolvent debtor law, exempts it from future arrest, only as to creditors who were notified in writing, (Rev. Code, eh. 59, sec. 11.) The propriety of this requirement is obvious, and the Code is peremptory.

The Court being of opinion with the plaintiff upon all the points, presented in the case agreed, reverses the judgment below, and gives judgment for the plaintiff'.

Per Curiam,

Judgment reversed.