#### Jacob A. Graham *ads.*Jacob L. Beckner.

In this case, there had been an appeal to this court from the verdict of a jury, upon a question of *fraud,*tried before a commissioner of special hail, under the act of 1833. *The*appeal court ordered, that on the prisoner’s assigning his schedule according to law, he be discharged. The prisoner was subsequently brought before the commissioner, offered to assign over' his property, and claimed to be discharged. His application was opposed by the plaintiff, on the allegation principally, that the defendant had not delivered the property in his schedule to the plaintiff, which it was said he had in his possession after his arrest. The defendant offered to deliver to the plaintiff’s *attorney*(the plaintiff himself being in another state,) the property and cho'ses in action assigned, except a *black horse,*which had been seized and taken by -the sheriff in execution, and left in the defendant’s possession, under a bond executed by him and his sureties for the delivery of the horse to the sheriff, for the purpose of sale under the levy. This offer was declined, and the commissioner discharged the defendant, and the plaintiff appealed from the order of the commissioner to this court. Held, .that after an appeal from the verdict of the jury under the act of 1833, has been heard and decided, and the prisoner has been directed to be discharged, upon assigning his schedule, and delivering to the assignee the property mentioned therein, which has been in his power since his *arrest,*the act of 1833 does not give or contemplate *another appeal*to this court, ’ for any supposed error in the commissioner’s discharge of this duty.

*45Before the act of 1833, no appeal lay, under any circumstances, from the decision of the commissioner of special hail. The legislature, by that act, have thought proper to give the right of *appeal*in a single instance, that of the finding of the jury upon questions of fraud and undue preference, or upon the allegation that the prisoner has gone beyond the prison rules. So far, the jurisdiction of the commissioner • of special bail has been divested of its exclusive character; in all other respects, it remains unaltered.

If the commissioner of special bail commits an error in matter of *law,*in the final order of discharge, his error in that respect may be corrected by writ of *certiorari.*

The decision of the commissioner in this case, upon the circumstances stated, said by OTÍealIí, J., to be correct.

This was an appeal from the order of J. Rosborough, Esq., a commissioner of special *bail*in Chester District, discharging the defendant from.imprisonment. The commissioner’s report, which follows, presents all the material circumstances.

“ In this case the appeal court had previously ordered that on the prisoner’s assigning his schedule, according to law, that he be discharged. The prisoner was brought up before the commissioner, and Mr. Eaves for the prisoner, moved that he be at liberty to assign over his property and be discharged. Mr. M’AlIilly, attorney for the plaintiff, objected to his discharge. This case had been fully certified to the appeal court, a copy of the schedule, the suggestion of plaintiff, and the testimony taken on trial, and the verdict of the jury, were all sent on to Columbia, so that the appeal court were put in possession of the merits of the case, together with the report of the commissioner, in which it was stated that payments were made to other creditors, after the arrest of the defendant, and as the jury did not find that the payment of the creditors was fraudulent, the prisoner was entitled to his discharge.

The amount of the prisoner’s schedule is - $ 4743 42

Claims of other creditors fully discharged, - - 1803 10

*Payments proved on trial:*

One horse, sold in Kentucky, and received by Beckner, 82 00

Amount carried forward, $> 3022 32

*46Amount brought forward, $ 3022 32

One horse carried back to Kentucky and sold by Beckner, 75 00 Draft on Commercial Bank of Columbia, paid by Graham, 1200 00 Three horses and a bale of cotton sold by sheriff, - - 160 00

*Plaintiff’s Claims:*

Amount sworn to by plaintiff’s att’y. in 1st case, Amount sworn to by plaintiff in 2d case,

$4457 32

$ [ XXX XX XXXX ] 50

- 4385 50

$ 71 82

From which it appears that the prisoner’s schedule amounts to $71 82, over the plaintiff’s claim, after paying the other creditors, named in the schedule. — The prisoner produced a number of notes and accounts, together with his books and horses, named in his schedule, and as far as appeared to the commissioner, was all in his possession, except the notes and accounts before stated, which were given to his creditors, except one black horse, for which he gave his bond and good security for his delivery to the sheriff, on the next sale day, which was deemed sufficient by the commissioner, and the notes, &c., in possession of Brawley and M’Lure, as security, and the plaintiff did not attend to receive the property, and his attorney refused to receive the same, the commissioner was of opinion that he had virtually complied with the law, and in order to carry into effect the opinion of the appeal court, permitted him to assign his property, and Brawley and M’Lure stated that they were ready and willing to deliver over at any time the notes and obligations lodged with them as collateral security as soon as they were indemnified for their debts, and the prisoner said he was ready to deliver over his property which he assigned.” The commissioner ordered that the prisoner be discharged.

The plaintiff’s attorney gave notice of appeal on the following grounds, to wit: 1. Because, the commissioner erred in discharging the defendant, he, the defendant, not having delivered the property in his schedule to the plaintiff, which property he had in his possession after his arrest. 2. Because, the said order was illegal, and contrary to law.

*47Curia, per O’Nball, J.

In this case, we do not think an appeal lies from the final order of the commissioner of special bail. The act of 1833, in none of its provisions, gives a clear right of appeal. It is only from terms used in the 4th section, and a liberal construction of them, that an implication arises of an intention on the part of the legislature to allow an appeal to either party, from the finding of the jury directed by that act to be impanelled to try questions of fraud and undue preference, or the allegation that the prisoner had gone beyond the prison rules. After an appeal from the verdict has been heard and decided, and the prisoner has been directed to be discharged upon assigning his schedule, and delivering to the assignee the property mentioned therein, which has been in his powervsince his arrest, the act does not, in any way, speak of another appeal for any supposed error in the discharge of this duty. If an appeal be not given directly, nor by implication, by the act, none can be allowed; for, before the act of 1833, no appeal lay, under any circumstances, from the decision of the commissioner of special bail. The legislature have only thought proper to give the right of appeal in a single instance. So far, the jurisdiction of the commissioner of special bail has been divested of its exclusive character: but in all other respects, it remains unaltered. If the commissioner of special bail commits an error in matter of law, in the final order of discharge, his error in that respect may be corrected by writ of certiorari. The State v. Senft & Prioleau, 2 Hill. 367.

On looking into the brief, and a statement made by Mr. Rosborough, the commissioner of special bail, furnished since the argument, I think he did that which was right. By the last document, it seems that the plaintiff had been paid $2657, 00, out of $4385 50, leaving due to him $1728 50: the schedule, with the proceeds of three horses and a bale of. cotton sold by the sheriff, amounts to $1903 42, exceeding the debt to the plaintiff. *Prima facie,*this shows an abundance to satisfy him.

The defendant, it seems, offered to deliver to the plaintiff’s attorney (Mr. M’Allilly) the property and choses in action assigned, except a black horse. The offer to deliver to the attorney, when the plaintiff lived in another state, was all which the de*48fendant could do. So far, therefore, as that went, he was entitled to his discharge. The black horse had been seized and taken by the sheriff in execution, and left in the possession of the defendant, under a bond executed by him and his sureties, for the delivery of the said horse to the sheriff, for the purpose of sale under the levy. The defendant had no power to deliver that which was in the possession of the law. The plaintiff could receive no injury in this respect; for, if entitled to the horse, his remedy under the assignment was plain against the sheriff for the horse, or if sold, for the proceeds.

*Gregg*and M’Allilly, for the motion.

The motion is dismissed.v

Gantt, Evans, Richaedson, Eaele, and Butlee, Justices, concurred.