Mason v. Benson , 9 Watts 287 ( 1840 )

The opinion of the court was delivered by

Sergeant, J.

It is impossible to treat the bond as binding after the capias ad satisfaciendum has been set aside. The bond is but a substitute for the imprisonment; the person of the defendant is liberated for the time being, on giving security to effect the same purpose which he might have effected by actual custody, namely, the immunity from arrest on the cession of his property to his creditors. But when the basis of the bond is gone, by annulling the proofs, the bond itself necessarily falls with the proofs. The condition of the bond is, that the debtor shall appear and present his petition, and comply with all requisites, and abide the orders of the court, or in default thereof, and if he fail in obtaining his discharge, shall surrender himself to the jail of the county. After the capias ad satisfaciendum has been set aside, the jailer has no authority to detain the defendant, and the surrender would be but nominal. It is plain the act of assembly means a valid surrender—a surrender under a subsisting process, by which the defendant can be held in imprisonment to answer the judgment. In the case before us, there was no longer any such process; it had been set aside, and the judgment on which it issued was opened. One of the conditions of the bond was thus rendered impossible by the act of the law, produced by a defect in the claim and proceedings of the creditor ■ himself, and therefore the bond was not forfeited.

Judgment affirmed.