#### THE STATE TO THE USE OF ALFRED M. TREDWELL *vs.*HENRY A. ELLISON & AL.

Where a defendant has been arrested upon *mesne*process and gives bail, and, after judgment, the bail surrenders him to the sheriff, out of term time, no execution having been issued on the judgment nor any *committur*prayed by the plaintiff, if the sheriff releases him upon a bond to appear at Court aud take the benefit of the insolvent law, the sheriff is liable for an *escape.*

The Act, Rev. Stat. Ch. 58, in this respect, only applies to oases where the debtor, upon surrender of his bail, is ordered into custody by the Court.

After such surrender, if the creditor, upon reasonable notice, will not charge the party in execution, either a *habeas corpus*or a *supersedeas*would be issued by the Court

The case of *Smallotood*v. *Wood, 2*Dev. & Bat. 356, cited and approved.

Appeal from the Superior Court of Law of Beaufort County, at the Fall Term, 1848, his Honor Judge Settle presiding.

This is an action of debt on the bond of the defendant as sheriff of Beaufort, and the breach assigned is the voluntary escape of one Davis, a debtor to the relator. The case is this. After judgment in an action by the relator against Davis, his bail surrendered him to the defendant in vacation ; and he took from Davis a bond in the penalty of $429 53 payable to the relator, reciting that the *262relator had recovered judgment against Davis in the County Court for $281 76, and the latter had been surrendered by the bail, and with the usual condition for the appearance of the debtor at the next County Court to take the oath of insolvency ; and the sheriff then set Davis at liberty. At the next Court, Davis appeared and was admitted by the Court to take the oath, though it was opposed by the relator. Evidence was given that when Davis was surrendered, he had property to the value of $30. The relator moved the Court to instruct the jury that he was entitled to recover such damages, as, in the opinion of the jury, he had sustained from Davis being let at large. But the Court directed the jury to find for the defendant, and they did so ; and the relator appealed from the judgment.

*Shaw,*with whom was *J. H. Bryan,*for the plaintiff, submitted the following argument:

The right of the debtor in this case to tender to the defendant his bond with sureties, and of the defendant to take it and set him at liberty without putting him in prison, is claimed by reason of the words, “or be in custody by surrender of bail after judgment,” which words are found, for the first time, in the 7lh. Sec. of the Rev. St. Ch. 58, and were not in the Act of 1822 ; and the defendant’s right to do so is denied by the plaintiff; because, although these words are in the Rev. Stat., there are other words also therein set or placed both before and after them, and placed not merety in accidental juxta-position ; so that these words are not to be read by themselves, as if they stood alone, but with these others that stand in connexion with them, and thus it will appear what is that state or condition of the debtor meant by the Legislature — or what is the *kind of custody*in which he must be, and from which by their provisions he is to be not only liberated, but so discharged therefrom that he cannot thereafter be arrested *263or imprisoned for that or any other debt existing at the time of his discharge.

The defendant contends, that that custody simply which, ensues upon the bail’s surrender, if it be after judgment, entitles the defendant, the debtor, to give the bond ; and the plaintiff says that the custody must be, one in execution of the creditor’s judgment. By the 39th Section of the State Constitution, it is provided, “that the person of a debtor, where there is not a strong presumption of fraud, shall not be *continued in prison,*after delivering up, *bona fide,*all his estate, real and personal, for the use of his creditors, in such *manner*as shall be thereafter *regulated*by law.”

The words used by the Legislature in mating provision for the discharge of insolvent debtors from prison or custody, that have the most general and extensive sense, are those contained in the 1st and 4th Sections of the Rev. Stat. Ch. 58: they are “any person or .persons taken or charged on *mesne*process or execution for any debt,” &c. The next provision is in the 7th Sec. of the same Statute, which contains the words, “when any debtor shall betaken upon any *capias ad satisfaciendum,*or, be in custody byr surrender of bail after judgment, for any debt,” and these words “or be in custody by *surrender of bail after*judgment,” have been added since the passage of the Act of 1822 ; but, except by the addition of them-, there is no* further or other change ma'd'e in the words used in that act; none that signify or denote the wish or intenkpir of the Legislature to provide for a new case, viz., a case where a debtor was not committed in execution at the suit of a creditor, but exactly the contrary to that does appear, and that they provide for an execution, custody, and not for one under *mesne*process; This Court has-put a construction upon the words in the Act of 1822, in the case of *Smallwood*v. *Wood 2*Dev. & Bat. R-35.6, decided at June Term 2837,which is-claimed to *264be favorable to the right of the defendant to take this bond ; because, it is said by him, that that case is evidence of what the defendant might have done under it; and now, after the addition of these words, he can do more than he could then have done ; that, if he cannot, then added words are *made*to signify nothing. But the plaintiff says that the true interpretation of these words in the Rev. Stat. is found in that case, although it confirms a declaration of the *state of the law*when that case was decided, and when these or similar words were not in the Act of 1822 ; because, this Court in that case, expressly says, that upon the mere words then contained in that Act, the debtor was not entitled to give such a bond and be discharged out of custody ; but that there was the same reason for the discharge of a debtor who had been committed at the suit of a creditor by order of Court in execution, after he had been surrendered by bail, as there is, where he had been *taken*upon a *capias ad satisfaciendum*at the creditor’s suit. The Court held the law to be the same, by implying these or similar words, as if they had been expressed in the Act of IS22, and now, when they are expressed, is not this decisive evidence of what the law is, under this Revised Statute? — ■ Does it afford evidence, when the required words are added, that thereby the sense is changed? Does it, as the defendant must contend,add one to it, so as to make a class of cases, three in number? viz: one case in express terms, when the debtor is taken by a *ca. sa,*another by implication or constructively, when he is committed in execution, and yet another, where the debt- or, then in custody, was never so, by *ca. sa.*nor by a committitur. The defendant says that the very words added do, of themselves, shew an intention on the part of the Legislature to provide for a new case ; or else, why were they added ? The plaintiff answers, that they were added to provide in express words for the case of *265a debtor, for whom before those was no express provision *—i. e.*for one in custody committed by order of Court, on prayer of the plaintiff, and in, under his execution. They certainly were not added to give this remedy of discharge as an insolvent to a debtor who voluntarily surrendered himself in discharge of his bail, or who on being arrested by the original or *mesne*process, for want of bail, was taken and remained in custody until after judgment. These words, *by themselves,*do not describe these cases or situations of the debtor, but they exclude them from this provision (upon the maxim “ *Expressis unius, estexclusio alterius”)*if it did embrace the present case, which it does not.

Moreover, the restrictive provisions contained in the Act of 1S22 are in this Rev. Stat. still retained, unchanged and without any modification, but, upon the defendants supposition, that the Legislature in 1836, intended to provide for a new and different case, why are not alterations made in the Rev. Stat., so as to adapt them to and to include it? Did they omit to do so, through in-advertency ?

The instances of restriction are as follows viz: in this same 7th section, the debtor is to give a bond, payable “to the party at whose instance the arrest was made,’ he is by sec. 13th, to give a notice, and it is to be “to the creditor at whose suit he may have been arrested,” he is to have it served upon a prescribed individual — sec. 13 — namely, upon the party at whose instance any debtor may be arrested, or be in prison.” The mode of service too is directed by the same section, “ upon such creditor as has arrested him.” In the 6th section, the language is, that neither arrest nor imprisonment shall be, of any person for any debt existing at the time of his discharge from prison, “where due notice has been given to the creditor at whose instance he was imprisoned.” In the same section, provision is made for the adjusfment of creditors’ *266claims, and the words are” — the. claims of all creditors “as well those at whose suit he was committed,” as of all others.

Do not these provisions *show*that the custody by them provided for, is one, caused or occasioned by and at the instance of an arresting or *imprisoning*creditor. There seems to be no ground from which to infer either inadver-tency, oversight or inattention ; the instances here stated are too numerous to have been overlooked. But this is not all; when, in this same Rev. Stat., provision is made for the case of a debtor in custody, by giving him the benefit of the prison rules, which is done' in sec. 19th — the •words used are “ Any debtor, who may be in prison, on account of debt, whether under *mesne*process, or otherwise.”

So also in the 6th section, when necessary food is provided for the debtor in custody, they say that “whenever any debtor shall be actually confined by reason of *mesne process*for debt, *capias ad satisfaciendum*or surrender by bail alter judgment.” But when in sec. 7th they provide for his discharge on account of insolvency, they say “when any debt or shall be taken upon *any copies dd satisfaciendum,*or be in custody by surrender of bail after judgment for any debt.” If the question, whether so general and extensive a provision be made in the last section as in the two sections above mentioned for a confined debtor, were to be determined simply by the words in them, without taking into view other important considerations and reasons of weight and influence, some of which will be presented, could it be maintained that the remedy embraces every case of custody in the 7th that is described in the 19th and 6th sections? Is not a debtor arrested and confined under *mesne process*out of the ■words of description used in the 7th section, but expressly within those used in the 19th and 6th sections: but if they intended to include the case of a debtor arrested by *267*mesne*process for debt, why were those words of description, used in the other sections, omitted in the 7th Section.

But if all this were considered to be but a kind of negative evidence, against the Legislature’s intention to provide *this*remedy for one simply “in custody by surrender oí bail after judgment for debt,” there is still in this 7th Section what becomes full proof, that the custody, for which this discharge is given by them, must be one occasioned by a creditor’s *execution*or what is *equivalent*thereto ; because, this 7th Section, just as the Act of 1822 did, requires the bond to be given shall be conditioned for the debtor’s appearance to answer, &e. at the next tffiurt, “to which *the execution*shall be returnable.” So also the 9th Section requires that the surrender is to be to the Court “to which the *ca.*s«.is returnable.”

It is, therefore, quite apparent from the language of the Rev. Stat. taken together, that the debtor must be taken upon a *capias ad satisfaciendum*or be in custody by surrender of bail after judgment, at the instance of some creditor who arrestbd him, by an *execution*or a *capias ad satisfaciendum.*

No matter by what kind of process a debtor is in actual custody, he does, in fact, in all cases, stand in need of a provision for his health, and necessary food — and this law does by the suitable comprehensive terms in it provide for him: but when a provision is to be made whereby one of the remedies theretofore by the law given and yet in use, for the collection of a creditor’s debt, is to be taken away from him ; and when previously made and existing rules of proceeding, applicable both to the rights of creditors and the duties and obligations of the officers of the law, are to be altered : more than three or four words by *themselves,*standing in the midst of others of a known and qualifying signification, are required to ajmake change and give a new remedy to an arrested or confined debtor, without doing an injury to others having equal merits : *268and to say that the Legislature have made such a change by such words, especially when there are others both before and after them which clearly shew that the custody to which they allude is an execution custody, and not a custody under the *mesne process,*is not treating them with due respect. It is a great mistake to suppose that the kind of custody of a debtor which ensues upon a surrender by his bail, either before or after judgment, whether interlocutory or final, has escaped the, attention of the law or our Legislature, any more than has that custody which is the result of the creditor’s execution. The common law or the practice of our Courts under it, and also the Legislature, have both made such provisions for these respective cases as were deemed to be fit and proper. Relief for a debtor surrendered by his bail, at any time before final judgment, is by the Rev. Stat. Ch. 10, Sec. 5, given, by allowing such debtor to give other bail; and if he be surrendered by his bail after final judgment, he cannot prevent his being taken and kept in this custody — he is not in such case allowed to give other bail, and thereby be liberated from prison : but as the right of his creditor is concerned, who has lost, by the bail’s surrender, the security of the bail, and as the creditor has a judgment upon which he may, at his pleasure, have an order to subject the body of the debtor for its satisfaction, the debtor, so in custody, can,by a notice and rule served upon the plaintiff in the judgment, compel them either to charge him in execution, or procure himself to be by order of Court set at liberty. If the creditor do not, as he may, charge him in execution in a reasonable time after notice and rule served, then the debtor is ordered to be liberated therefrom : and this custody, one which can only be temporary, when it ceases, can never thereafter occur again. The bail, by the surrender is discharged, and he can never thereafter be, by the bail’s surrender and the law, put into this kind of custody. The same remedy applies fof *269a debter, never surrendered, but wbo is in this .kind of custody : and such was the proper-remedy for the debtor surrendered in this case.

Moreover, such debtor, so surrendered by his bail, or one, that was never so surrendered, but was in custody from the arrest upon the original process up to the final judgment against him, need not suffer imprisonment, but both are entitled to the benefit of the prison rules, by the 19th Sec. of this Rev. Stat. and by Ch. *VO,*Secs. 11 and 12, of the Rev. Stat.

To discharge or liberate a debtor out of custody before or after judgment, certain rules must be observed : he must put in bail, or obtain a rule of Court for that purpose. *liev. St. Ch.*31, *Sec.*54. To discharge a debtor out of custody, and to discharge him therefrom as an insolvent, are subjects in their own nature distinct, and they have higherto been kept distinct by our Legislative enactments respecting them ; but, if the claim of the defendant, in this case, shall succeed, then the lines of distinction have not merely approached near to, but have run into, each other. The Act of 1822 and this Revised Statute were passed not to liberate an arrested debtor from arrest, nor a confined one merely from custody; it is far more potent and energetic than that in its effects. It is to be remembered that before that Act and this Revised Statute were passed, it pleased the Legislature to require that every debtor when taken or charged upon *mesne*process or execution for debt, who proposed to obtain his discharge as an insolvent, or to deliver up his estate for the benefit of his then creditors, should be placed in prison and be and remain there or within the rules thereof, for twenty days. But, since these enactments, no actual imprisonment either in prison or within the.rules thereof, is required to enable the debtor, if taken or charged in execution, to be discharged as an insolvent or by reason of such surrender of his property. If taken or arrested by *270a *ca. sa..*he is entitled, upon giving the prescribed bond, to be released from custody, a custody different from that under *mesne*process, an execution or final process custody ; so, if committed in execution, by giving such bond, he is to be released from confinement, in each case, until certain ulterior proceedings be had, but not from execution. But he is not yet discharged as an insolvent debtor, being yet in execution; though out of prison, he is yet in danger of it, and if surrendered by the securities to the bond, he must be imprisoned, just as he would have been, had he, upon the arrest or the previous confinement under execution, been unable or failed to give such bond ; but if not so surrendered, or whether he be or not, he has still to make and prove one of two allegations, viz : either that he is *then*insolvent, or that all -the estate which he *then*has, is combined in a schedule by him filed and offered to his creditors; upon which allegations being made, his arresting creditor and any other of his creditors to whom he has given notice, may take issue, and it is only after proof by him made, or no proof to the contrary, that his allegations are true, that he is entitled to have the entry made,, which, when made, operates to discharge him out of execution and gives him the privilege of an insolvent. Before these enactments he had to make the same *allegations*and prove their truth, in case they were controverted, just as since he has still to do; but since he is, when arrested and in execution, kept out of prison or liberated therefrom for a time, so that he may be in a condition of perfect equality with his creditors and be able to make all necessary preparation before and at the trial, in case his allegations, that entitle him, if true, to his discharge from execution, be controverted. The arresting or imprisoning creditor has given t.o him, by these enactments, in the mean time, the bond and security by them prescribed, to compel the debtor, in execution at his suit, to appear and make and *271prove bis allegations: but only in case the debtor do fail to appear, at the time and place, when and where he must make and prove such allegations, do the Statutes enable that creditor and him only, to proceed to take a judgment upon the bond and subject the debtor and his sureties to *his debt and costs.*But, in case he do appear, and it be shewn that he is not then insolvent, but is able to pay, or, that the schedule is untrue, then, he is subjected to imprisonment until, &c. and *this imprisonment is in escecw cution,*at the suit of the arresting creditor. 5 *Ired. R,*657. *Williams*v< *Floyd,*6 Ired, Rep. 119. *Wright v. Roberts.*

This scheme or plan devised by the wisdom of our Legislature says to the creditor, you have a recovery against your debtor and have taken or charged him in execution, in order to obtain satisfaction of it, he is in prison, or in execution, and so liable to be imprisoned to that very end ; you allege he has property to pay it, and he says to the contrary, or, he offers to surrender all that he has as he says, and you deny this to be true ; yo.u may have an issue to try it; to enable him to do so, he shall be set at liberty until, &c. and if it appears that he is now unable to pay, or that he has now surrendered all the estate that he now has, he ought not to be and shall no longer be continued in prison, or in such custody under your execution as renders him liable to confinement, but if the contrary appear, then he shall go into prison and shall there continue until, &c. But it does not say to the debt- or, you have been condemned in debt and damages, but have never been arrested by execution or committed to prison for the same, by any of your creditors ; yet, you have been, by your bails surrendering you after judgment put in custody, and you may give a bond to the plaintiff in the suit, just as if he had arrested you or caused you to be committed in execution, the bond to be in twic? the amount of the debt, that would be contained in the execu*272tion, if one bad issued to the sheriff; conditioned for your appearance at the Court to which an *execution on the judgment,*had it issued, *would, have been returnable*; you. may also give notice to your creditor or your creditors at *whose instance*you *might have been arrested,*but as you have not been by such arrested, you may give notice to the *plaintiff*in the *judgment.*If you had *never given bail*after judgment, even though you had been in this custody after judgment, (because, it applies, in general, only to *discharge*a debtor against the *effect of his creditor’s*execution) you would, in such cases, have had to procure your liberation from custody, just as they have to do: but as by the act of 1822 and this Rev. Stab, in the case of a debtor that has been by his creditor put in execution, it is so provided, that if *he*will give a bond, in the form prescribed, the 20 days imprisonment theretof ire required is now done away, and *he*is not merely placed in a situation to prepare for the trial of his allegations, and *he can*thus procure bis discharge from the execution; so may you do likewise, because the law or its policy has now taken away ail *imprisonment*for debt, in cases of execution sued against a debtor, and yet you are in prison, or its rules, and as you cannot get out, situated as you are,-by giving other bail, and without a rule of Court, so, whenever, after judgment, you or your bail choose to surrender, and y ou wish it, *yonr*case shall be treated, as if you had been put in execution, by some creditor of yours, and that too, whether any of your creditors *now*wish to do so or not.

It is not denied that the Legislature may, if they think fit, make a provision for liberation of one in this kind of custody, that they may direct that one surrendered by bail even after judgment, may be re-admitted to bail, or that after judgment, they may direct that upon notice by the bail to the-Plaintiff of his *intention*to surrender, the bail shall be thereby discharged, or that when so surren*273dered upon his giving bail to appear, so that the creditor may, after notice, charge or forbear to charge him in custody for his *debt,*and, if he forbear, that the debtor be liberated from the *mesne*process custody, but it is respectfully denied that the Legislature have, as yet, made any such provisions. Since this Rev. Stat. and by an Act recently passed 1944-5, ch. 31, a creditor is not permitted to issue a *ch. sa.*upon his judgment, when he thinks fit; he must first make oath that he believe one of three things to be true : but it is respectfully contended that neither the debtor nor his bail, by a surrender of the debtor, after judgment, can prevent the creditor from permitting his judgment to lie and be outstanding and unsatisfied, without any of the executions by the -law provided for him, to enforce its payment, whenever he can and shall make the required affidavit, being taken away from him, until, he or some one creditor of his debtor, do first, by an execution put their common debtor in execution ; that until this first step be taken by a creditor, the debtor cannot begin and move against his creditor for his discharge as an insolvent.

But, says the defendant, did not the plaintiff in this case, after a judgment against his debtor, Davis, issue and have executed upon the bail of Davis a writ of *scire facias*(Stat. ch. 31, of 1844-5,) and did he not thereby not only manifest his intention to put his debtor in execution on his judgment, but was not Davis without prayer and order to that effect, put in execution of his judgment ment? To this the Plaintiff answers, that before this Act was passed, upon a *sci. fa.*against bail, until, after judgment had upon it, neither the defendant nor his bail could be taken in execution. Rev. Stat. ch. 10, s. 3.

And this act of 1844-’5, prevents the plaintiff from having the *ca. sa.*issued, except upon affidavit. Also before this Act, and of course since, the bail could not by himself place the debtor, his principal, in execution at the *274instance of tbe plaintiff in the judgment: but could only surrender the principal in his own exoneration, to be committed, it is true, but only until it should be in the power of the plaintiff (after notice to him of the surrender) to pray and have an order for the debtor’s imprisonment in execution: and without such order made, upon the prayer of the plaintiff the defendant could not be imprisoned at his suit. 1 *Bac. Abr.*345. *Hob. Rep.*367. 3 *Ired. Eq.*285.

*Rodman*and *Stanly,*for the defendants.

Ruffin, C. J.

The Court is of opinion, that the instruction was erroneous. The Act of 1822, according to the letter, provided only for the discharge of debtors taken upon a *capias ad*satisfaciendum; and it was contended in *Smallwood*v. *Wood,*2 Dev. & Bat. 356, that it was confined to that single case of an arrest upon a writ of execution. But the Court held, that its true interpretation extended it to that case : which was, that the debtor was surrendered in Court by his bail after judgment, and the creditor prayed him in custody as in execution. It was so held, because that was substantially a *ca. sa.,*requiring the sheriff to keep the debtor in close custody, and rendering him liable in debt for an escape. It happened, that while that case was *subjudice,*the Legislature was passing in 1830 on the Revised Statutes, and there were added, after *capias ad*satisfaciendum” these other words, “or be in custody by surrender of bail after judgment.” Upon those words, we presume, the sheriff acted, and his Honor founded his opinion, in this case. But we think, that is putting on them an erroneous construction. We have reason to know, that the amendment was made for the purpose of covering the point, which had then arisen in *Smallwood*v. *Wood,*and for that purpose merely. The object was to make the Act express to that point; which the Court, however, held, a few months afterwards, *275to be within it, according to a sound construction, without those words. Although the words of the amendment are general, yet it is to be considered from the subject matter and context, what sort of custody and surrender by bail is meant in the Act. It seems to the Court clearly, that it is a custody at the instance of the creditor; which can only be when it is ordered by the Court upon his motion, as in execution. The provisions of the Act of 1822 in other respects remain unaltered, and they plainly point to such a custody as that mentioned. The bond is to be for the debtor’s appearance at the Court, “to which the execution shall be returnable,” and “in twice the amount of the debt.” If the surrender be in Court and the debtor be committed in execution, the sheriff has the means of knowing his duty in those respects, just as if he had a writ of execution. But when the surrender is to the sheriff in vacation, how can he know at what Court the appearance is to be, or in what sum the bond is to be taken. He has nothing in his hands to inform him on those points ; and it may be, that the Court, in which the judgment was rendered, is in a distant part of the State. That is a material consideration ; for, if the sheriff can discharge the debtor out of custody in any particular case, he is bound to do it. We think it clear, that the law could not mean, that the sheriff should be obliged to let the debtor at large at his risk, without furnishing him in the event of such case with the certain means of knowing for what sum and with what provisions he must take the bond. But the Act provides for no such things in the case of a surrender out of Court. On the contrary, it constantly speaks of the debtor within its purview being one in custody “at the instance” of the creditor. That is so, when it directs to whom the bond shall be payable, and the notice given, and in other parts; Besides, there was no necessity for any further provision as to persons, in custody for want of bail, than that in the Court law1 *276of’77, which authorises their discharge “by rule of Court/ a provision made, no doubt* in reference to the practice in similar cases in England, where upon a rule a super-sedeas is awarded for such a prisoner, if the creditor unreasonably delay to declare, or to proceed to trial, or to charge in execution after judgment. I *Tidd’sPr. Gh.*15. Upon a surrender by the bail in term, the Court would discharge the debtor, if the creditor upon notice declined praying him in custody, as in execution. If the surrender be to the sheriff in vacation, the party would in like manner be discharged on *habeas corpus,*if upon reasonable notice the creditor would not deliver a *ca. sa.*or a *com-miiiitur*under the 22nd section of the Act of 1777, Ch. 115 ; or, doubtless, the Courts may make rules for a su-persedeas upon such a surrender to the sheriff, if the creditor, after reasonable notice, will not charge the debtor in execution. But to charge him in execution must be the act of the creditor. The debtor cannot place himself in execution, nor can his bail, so as to deprive the creditor of his execution against the property of the debtor, which the creditor might prefer, at least for the time. It cannot be supposed, that the law meant that the sheriff should, without any process to guide him, or any authoritative means of ascertaining the creditor’s demand or wishes, be obliged, or be at liberty of his own head, to let the debtor at large. There is another very material consideration to be taken into account on this subject. After a discharge from custody under a rule of Court, the creditor is not concluded from proceeding against the body ; but he may have any execution against the property or person, which he may deem at the time most likely to be effectual. But by this other mode it may be so contrived, that the debtor may presently and conclusively discharge himself, and that, in view of soon having the means, with which he might be compelled to pay the debt, if the creditor could by a *ca. sa.*get at him. *277If the debtor be actually imprisoned for want of bail, even before judgment, he may take the oath of insolvency after twenty days, by the Act of 1773 ; and so he may, if he be thus imprisoned after judgment, whether for the want of bail originally or upon a surrender. Both of the cases stand precisely on the same footing. The Legislature never meant to compel a creditor to take the debtor in execution, and thereby cut himself off from other process, nor enable the debtor, without going to prison, by any concert with his bail' or the sheriff, to conclude the creditor as if he had taken the other party in execution. What the law means, in the first place, is, that the creditor shall not keep his debtor in prison indefinitely without charging him in execution; and, in the next, that, when the debtor is charged in execution, he may keep out of prison by giving a bond with good sureties to pay the debt, or to give up all he has towards its satisfaction and to take an oath that he has nothing, or no more. For aught that we can see in this case, the debtor might have transferred to the relator the little property he had, if the sheriff had not discharged him.

*Per*Curiam. Judgment reversed and *venire de*novo.