Rowand v. Smiley ( 1880 )

Mr. Justice Gordon delivered the opinion of the court, November 22d 1880.

The principal defendants in this case are A. H. Rowand and W. F. Hope, sureties in the insolvent bond of H. T. Rowand. Their liability depends upon his compliance or non-compliance with the conditions of that bond. It was approved January 31st .1877, and was conditioned for his compliance with the provisions of the 6th section of the Act of June 16th 1836. The preliminary requirements of presenting his petition and filing schedules of assets and debts were complied with, but upon final hearing by the court on the 30th of June 1877, it was adjudged that the evidence was insufficient to show that the defendant had given personal notice to all his creditors in pursuance of the previous order of the 26th of February, and, in consequence, his application for discharge was refused. Thereupon he, the defendant, being then in court, surrendered himself and was remanded to jail. From this, it would seem to us, though the court below took a different view of the matter, that there was such a compliance with the act as would suffice to discharge the sureties. Here, as we have said before, was a faithful performance of the necessary preliminaries; he was present on final hearing, and failing to obtain his discharge, he immediately surrendered himself to jail. With so literal a compliance with the insolvent act, we fail to understand how it comes that the obligation of the bond was not discharged. If, in a case like this, the alternative provision of the statute does not apply, we would like to know when, or under what circumstances, it does apply. If it be said the judgment of the court resulted from the default of the insolvent, we answer, true; but when is it that the refusal of a discharge does not result from such default ? If he makes no default; if he complies with all orders and conditions imposed upon him, he is entitled to a discharge, and there is no necessity for a surrender. It is thus manifest that the doctrine of the court below destroys an important provision of the statute, a result which we cannot sanction.

This case is met in point by Mr. Justice Black, in Mullen v. Wallace, 2 Grant Cas. 389, where he says, where the petition is dismissed for non-compliance with some order, as where he docs not appear at the time appointed, or fails to give his creditors notice, it is the debtor’s right to determine whether his creditors shall have his body or his bond, and that this privilege, which the insolvent has of relieving his sureties by going to jail, cannot be taken from him by any act of the court. As far back as the case of Potter v. Norman, 4 Yeates 388, and under the Insolvent Act of 1798, we have it said by Chief Justice Tilghman, that the creditor had a right to have an account of the debtor’s property and a surrender of it, and if he did not comply with the law by exhibiting his petition with a schedule annexed to it, containing an account, on oath, of all his property, he was obliged to surrender himself to prison. Thus, it would seem, that this eminent jurist was of opinion that the alternative ran through all the proceedings, and that the defendant might save his sureties by a surrender of his person at any time. This statement is probably broader than subsequent decisions will sustain, for, in Kelly v. Stepney, 4 Watts 69, it was held that a surrender before the day of appearance would not discharge a surety, but it is there admitted that it would be otherwise werej the debtor remanded on hearing. A similar ruling was had in Wolfram v. Strickhouser, 1 W. & S. 379, w.here it was determined that the want of an appearance forfeited the bond, though there was a surrender. Detwiler v. Casselberry, 5 Id. 179, carries the ruling as far, and perhaps farther, against the insolvent than any other case. It is, indeed, extremely harsh and technical; rejecting the petition because the affidavit was made before the prothonotary, who was not empowered to administer the oath, and holding the bond not discharged by the surrender to jail of the principal, yet, even this case does not support the ruling of the court below in the action now before us.

To us, the reasonable rule seems to be that held in McDonough’s Case, 1 Wright 275, that, in order to save his bond, the insolvent must, on the day fixed for hearing, ask for his discharge, surrender himself to jail or procure a continuance.

As there was a compliance with this rule by A. T. Rowand, in that he appeared on the day fixed for hearing, asked for a discharge, and failing to obtain his request, surrendered himself to prison, we can but hold that the conditions of the bond were complied with and the sureties released.

Judgment reversed, and judgment on the special verdict for the defendants.