Lamar v. Foley

By the Court.

Lumpkin J.

delivering the opinion.

A majority of the Court being of the opinion that the securities upon the prison-bounds bond were discharged by the proceedings which were had in this case, voted for affirming the judgment of the Superior Court in non-suiting the plaintiff. And while, for the sake of unanimity, I am willing to concur in the construction thus put upon our statutes passed in reference to this subject, yet I must, in justice to myself, say that I entertain strong doubts upon the point

It is clear that a debtor in ca. sa. who has given bond to keep the prison bounds, is entitled to the benefit of the Acts passed for the relief of insolvents. (Pamphlet Acts of 1855-6, p. 153.) But suppose he fail in his application, as Foley did in this case — is he not remitted back to his former status? That is, does he not remain in custody under the process by which he was committed, entitled to the privileges and subject to the conditions of the bond previously given, under the Act of 1820 ? Cobb 383. One of the stipulations is, that he is not to pass the boundaries prescribed by law “ without being legally discharged.” Here the party arrested sought to be released, as he had a right to do, but failed. In other words, he was not “ legally discharged.” Would it seem, therefore, that he remained in confinement under the original commitment? And that having departed subsequent to this time, he was guilty of an escape, and thereby forfeited his bond ?

The other view of the question is, that by this proceeding under the insolvent laws, the prison-bounds bond was superceded, and that his imprisonment until a full and fair disclosure of all his property, money and effects was made, was a new commitment, and that the Sheriff having him in his custody under this order of the Court must deal with him accordingly.

This may be the better interpretation of the law.

Judgment affirmed.