Power v. Graydon

The opinion of the court was delivered, by

Strong, J.

A primary question in this case is whether the bond upon which the suit was brought is obligatory upon the obligors. It was given in pursuance of the provisions of the 11th section of the Non-Imprisonment Act of July 12th 1842. Barron, the principal, having been arrested by virtue of a warrant issued under the. 4th section, and being about to be committed, gave a bond, with the defendants below as his sureties, conditioned that he would apply for the benefit of the insolvent laws of the Commonwealth.

This bond, it is now contended, has no validity, because it imposed harder conditions than he was required to perform by the Act of Assembly under which it was taken in order to secure his release from imprisonment. It must be admitted that, being a statutory bond having for its object the release of Barron from arrest and confinement, and being therefore compulsory, if it exacts more than the statute requires, it cannot be enforced. Such is the doctrine asserted in Beacom v. Holmes, 13 S. & R. 190 ; in McKee v. Stannard, 14 Id. 380 ; and in Hutton v. Helme, 5 Watts 346. But does this bond impose a severer obligation than the law required the debtor to assume in order to obtain his release from commitment ? We think it does not. The 11th section of the Act of 1842 enacts what the condition of the bond must be in substance. It does not prescribe the form. It requires the condition to be that the debtor will, within thirty days, apply by petition to the Court of Common Pleas .of the county, or to a judge thereof, if the court shall not within that time be in session, for the benefit of the insolvent laws. In the condition of this bond as given, the obligors were bound that the debtor should, within thirty days, apply by petition to the Court of Common Pleas of Crawford county for the benefit of the insolvent laws. The alternative, “ or to a judge thereof, if the court shall not within that time be in session,” was not inserted. But the fact is that the Court of Common Pleas was by law required to be held in Crawford county within less than thirty days from the time when the bond was given. To that court he was bound to present his petition, and the obligation would have been the same had the alternative words been inserted in the condition.

His obligation was not then increased by the omission. It is a mistake to construe the requirement of the statute that application shall be made to a judge in the contingency that a court be not held within thirty days, as intended in relief, or for the benefit of the debtor. Its purpose was not exclusively, or even mainly, to confer enlarged rights upon him. In my opinion, the exact contrary is the fact. It was, I think, to compel an application for the .benefit of the insolvent laws, at all events within thirty days, whether a court might be in session or not. If in session, the application must be made to the court; if not in session, it must be made to a judge of the court. The law does not contemplate that a court fixed by legislative enactment will not be held. Had there been no stated or adjourned court to be held in Crawford county in the interval between the giving of the bond and the end of thirty days thereafter, and had the bond been given conditioned that Barron should within thirty days apply to a judge of the court, it could hardly be claimed that he had been deprived of any right given him by the statute. Equally untenable is the position that, when conditioned that he should within thirty days apply to the court, and when the court was held within that time, it required more than the Act of Assembly demanded. The court below, then, was not in error in ruling that the bond given by Barron and his sureties was obligatory upon the defendants.

Nor was there error in disaffirming the defendant’s 1st point. If there was no adjudication by the judge who issued the warrant of arrest that the allegations of the complainant had been substantiated, and that Barron had done or was about to do any of the acts specified in the 8d section of the Act of 1842, it may be that the bond was not compulsory. In that case it would be good as a voluntary bond. But there was such an adjudication. The judge heard the complaint and ordered a warrant of commitment. It was then that Barron and his sureties gave this bond, whereupon he was discharged from arrest. All this is shown by the record. What was granting the warrant of commitment but an adjudication that the allegations of the complainant had been substantiated within the meaning of the Act of Assembly ? Like every other judgment, it established that what was necessary to its rendition had been made to appear.

The 3d and 4th assignments of error may be considered together, for they present, in effect, the same question. It is whether this suit was instituted prematurely before Barron, the debtor, had failed to perform the conditions of the bond. The facts are these: The application to the Court of Common Pleas was made within the thirty days ; a time was appointed for the hearing; the required notice was given to the creditors, and the hearing came on. But the court being of opinion there was just ground to believe that the applicant had been guilty of fraudulent insolvency, ordered him to enter into recognisance for his appearance to answer in the Court of Quarter Sessions. In obedience to this order, he was recognised to appear at the next session, which was in August 1860. At that term a true bill for fraudulent insolvency was found against him, and at the November sessions following he was tried and convicted. A motion was then made in arrest of judgment and for a new trial, which was argued on the 24th of November; and on the 21st of January 1861, the motion for a new trial was overruled. But before that time, namely, at the November sessions of 1860, Barron’s recognisance was forfeited, and respited until November 24th. He never renewed it, nor did he surrender himself; and, so far as it appears, he never afterwards submitted himself to the jurisdiction of the Quarter Sessions. On the 23d of January 1861, after his motion for a new trial in the sessions had been overruled, and more than two months after his recognisance had been forfeited, the Court of Common Pleas dismissed his petition for the benefit of the insolvent laws, and ordered that he be remanded to the custody of the sheriff. It was not until after all this had occurred, aud Barron had failed to surrender himself, that this suit was brought.

Now it is plain that unless the judgment of the court dismissing the petition for the benefit of the insolvent laws was a nullity, Barron and his sureties are precluded by it from alleging that the condition of the bond was not broken, there being no pretence that he had performed the alternative condition, to wit, surrendering himself. It is. contended, however, that the court had no authority, on the 23d of January 1861, to enter a judgment of dismissal because the criminal proceeding in the Quarter Sessions had not then come to a final termination. It is doubtless true that final action upon an insolvent’s petition is suspended when an applicant has been committed to await a trial in the Court of Quarter Sessions. But how long ?

If, as in this case, the petitioner, instead of remaining in custody of the sheriff, is recognised to appear at the sessions, and he then absconds, has the Court of Common Pleas no power to dismiss his petition? Would the court have been powerless if he had been committed, and had then broken jail and escaped at any time before sentence ? This cannot be. Though the action of the court may be delayed, it is not accurate to say that its jurisdiction is divested by a commitment of the debtor. The jurisdiction over the petition remains. Sending the petitioner to trial in a criminal court is the mode provided by law in which the Common Pleas is to ascertain whether he is entitled to a discharge. If, after trial in that court, he be acquitted, he is entitled to an insolvent’s discharge, and only in such an event. Submission to a trial and to final judgment become his duty when he is sent for trial to the Quarter Sessions. By his bond Barron bound himself, not only to present his petition for a discharge, but to obey all orders the court should make in that behalf, and comply with all requisitions of the law. It was a part of the order of the court in sending him to trial that he should attend upon the sessions, and not depart the court without leave, and that he should enter into a recognisance binding him to these duties. When he forfeited his recognisance, he ceased to abide the orders of the court, and came into default. Nor was this all. He was convicted in the sessions. It is true that on the motion in arrest of judgment, no judgment that it should be overruled appears to have been entered, in words, before, his petition was dismissed. This was probably a clerical omission. It was substantially done. The motion for a new trial had been denied, and that was virtually a disposition of the motion in arrest. We hold, then, that the Court of Common Pleas, in view of the proceedings in the Quarter Sessions, might well have proceeded as they did to dismiss the insolvent’s petition. Certainly their order to that effect was not void. It follows that this suit was not prematurely brought.

The case requires nothing more, unless it be the remark that the rejection of the evidence offered to show under what circumstances Barron’s recognisance was adjudged forfeited in the Court of Quarter Sessions _was so obviously right as to need no vindication.

Judgment affirmed.

Woodward, C. J., and Thompson, J., dissent, on the ground that the bond did not substantially conform to the condition prescribed by statute.