Mason, Dickinson & Co. v. Carhart, Brother & Co.

By the Court.

Stephens, J.,

delivering the opinion.

These defendants in ca. sa. were discharged by the Justices of the Inferior Court on petition to them, upon the ground that the plaintiffs in ca. sa. residing out of the county, had failed to give security for the weekly payment of jail fees. The Act of 1803, Cobb Dig., 382, authorizes the Justices of the Inferior Court to do just what these Justices did, without notice to plaintiff in ca. sa., and without habeas corpus, but simply upon application. The Act manifestly contemplates no notice. Notice could have no effect, for no excuse for the failure to give security can avail. The discharge is to be ordered on the simple fact of the failure. There is another Act of 1845, Cobb Dig., 391, which does require notice, under different circumstances from those contemplated by the Act of 1803, when notice is very proper, and where action without notice would be very unjust. When the defendant in process, whether mesne or final, has given security, and has been delivered up by his sureties, then he cannot be dicharged for failure to secure jail fees without ten days’ notice to the plaintiff. A creditor is not required to provide for the jail fees of his debtor when the debtor is not in jail, and when he afterwards gets in jail by the act of his sureties, the creditor ought to have notice of the fact before he is required to make provision for it. But there is no reason for notice, and no notice is required when the debtor goes to jail as soon as he is arrested. The plaintiff who orders the arrest knows the fact. We think the judgment of the Inferior Court was right, and that the judgment of the Superior Court, in effect reversing the other, was wrong.

Judgment reversed.