#### DANIEL FREEMAN *vs.*DOCTOR M. LISK & AL.

After a debtor, arrested upon a *ca. sa.*has given bond with sureties to take the benefit of the insolvent debtors’ act, and has joined in an issue tendered by the plaintiff upon a suggestion of fraud, it is too late for him or hig sureties to bring forward an exception to the writ of *ca. sa.*under which h® was arrested.

Where a debtor, alleging that he is insolvent, appears in Court, under an arrest and bond given, he can only be discharged by taking the oath prescribed by law, or by the act or consent of the creditor.

If an issue of fraud has been made up, there can, upon- that, be no non-suit.' The cases of *Dobbin*v. *Cfaster,*4 Ired'. 71, and *Hawkins*v. *Hall, 3*Ired.' Etj. 280, cited and approved.

Appeal from the Superior Court of Law of Montgomery County, at February Term, 1848, his Honor Judge Bailey presiding.

*212The plaintiff obtained a judgment against the defendant Lisk, for the sum of thirty-four dollars forty cents, ($34 40,) with interest from the 6th day September, 1838, on a warrant from a Justice of the Peace, whereupon a *capias ad satisfaciendum*issued, dated the 10th day of January, 1845, upon which the defendant was arrested and gave bond for his appearance at the Court of Pleas and Quarter Sessions, to be held for said county, on the 1st Monday of April, 1845, with Thomas Williams, Green Smith, and Alexander Zachary as his sureties j and, at said term, the defendant proposed to take the oath prescribed for the relief of insolvent debtors, which was objected to by the plaintiff, and thereupon an issue of fraud was made up ; and there being no trial by jury in the County Court, the case was transferred to the Superior Court for trial, and, at February term, 1846 of that Court, the defendant, Lisk, appeared, and by his counsel moved to non-suit the plaintiff. The plaintiff was then called and a non-suit entered of recoi’d. At the subsequent term of the Superior Coui’t, viz : at August term, 1846, the plaintiff offered an affidavit, that he had employed an attorney to. attend to his cause against the said Doctor M. Lisk, and that his said attorney had omitted to enter an appearance for him. Whereupon,, the Court ordered, that the cause be reinstated. The cause was not reached, and was continued at that term, and continued until Spring term, 1848. The cause then being called, the plaintiff’s counsel had the defendant Lisk called, and he failing to appeal', moved the Court for judgment against him and his sureties. This was opposed by the defendant’s counsel, who objected, first, because of the invalidity of the *ca. sa.*2dly, because the Court had no power to set aside the non-suit upon the affidavit made, and reinstate the case upon the docket. These objections were over-ruled by the Court, and judgment given against the defendant, Lisk, and his sureties,, for the sum of fifty-two dollars and thirty-one cents. *213to be discharged upon the payment of thirty-one dollars and eleven cents, and costs.

Prom which judgment the defendants prayed an appeal to the Supreme Court, which was granted.

No counsel appeared in this Court for the plaintiff.

*Iredell,*for the defendants.

BattijB, J.

The first objection urged in the Court below to the rendition of a judgment against the defendants, cannot be sustained. After giving bond with sureties for his appearance in Court to take the benefit of the Act passed for the relief of insolvent debtors, and joining in an issue tendered by the plaintiff upon a suggestion of fraud, it is too late for the debtor or his sureties to bring forward an exception to the writ of *ca. sa,*under which the arrest was made. It was so decided in the case of *Dobbin*v. *Gaster,*4 Ired. Rep. 71, where the time and manner of taking such an exception are pointed out, and where the reasons, why it cannot be urged with success, unless taken in apt time, and by a proper mode, are fully and clearly stated.

The other objection was founded upon a mistaken apprehension of the effect of the judgment of non-suit, rendered against the plaintiff at Spring term, 1846. That judgment was irregularly and improvidently given, and was properly set aside, upon the application of the plaintiff at the ensuing term of the Court: for, this being a proceeding upon final process, a judgment of non-suit could not in a technical sense have been given. After a debtor, who has been arrested under a writ of *ca. sa.*has given bond for his appearance in Court to obtain the benefit of the Act for the relief of insolvents, he must pursue the course prescribed in the Act, in order to entitle him to take the oath and be discharged. The creditor, who is to be affected by his discharge, has a right, if he chooses to avail himself of it, to be present to see whe*214ther all the requisitions of the law have been complied with, and to object to the discharge, if they have not. If fraud be suggested by the creditor and an issue made up to try the specifications, the plaintiff may insist upon the trial, or he may withdraw, or perhaps by his neglect abandon the issue, but neither a withdrawal, nor an abandonment of the issue, will render it unnecessary for the defendant, the debtor, to take the oath, or entitle him to be discharged without taking it. The failure of the plaintiff to appear, when the cause is called for trial, is not a ground for a judgment of non-suit against him ; and the utmost effect it can have will be to give to the defendant the right to have a jury empannelled, to try the issue and to have a verdict found in his favor, for the want of testimony on the part of the plaintiff; or perhaps to treat it as a withdrawal or waiver of the issue by the plaintiff, so as to enable him to take the oath and be discharged. Unless he obtain his liberty by the act or consent of the plaintiff, which will be a satisfaction of the debt, *(Hawkins*v. *Hall,*3 Ired. Eq. Rep. 280,) he can be discharged from liability on his bond only by taking the oath, and he must be prepared to do so, whenever in the regular course of the business of the Court, he is called upon for that purpose, and if *he*fail *to*appear, when so called, his bond is forfeited, and judgment may be entered against him and his sureties.

His Honor therefore did right in over-ruling the defendants’ objections, and the judgment must be affirmed.

Per Curiam. Judgment affirmed.