#### *Hugh Muldrow, assignee, vs. N. A. Bacot et al.*

1. Every prisoner in execution is entitled to the prison bounds, on liis giving to die sheriff security to remain within' them, and to render a schedule on oath within forty 'days; provided, if he intends to take the benefit of tire insolvent debtor’s Act, passed in 1759, he or she has not been in actual confinement forty days.

2. Whether the prisoner intends to taire the benefit of either of the said Acts, if he has the privilege of the bounds, he must, according to his bond, render a schedule on •oath.

3. Where the prisoner renders in a schedule on oath, of his whole estate, he has the right to apply for a discharge, under either of the said Acts. If he applies for a discharge under the Act of 1788, he need file no petition, but the *C^rle*is required, within ten days after receipt of the schedule, to give notice that the prisoner will be discharged, and the schedule assigned, unless satisfactory cause to the contrary be shown before one or more of the Judges of the court from whence the process originates, or one of the Commissioners of special bail.

4. It is the duty of the Clerk to give the notice, and it must be done within ten days after the filing of the schedule; but the notice must be given on the application of the prisoner. He must elect, and not the Clerk. The insolvent debtors Act requires the application to be made by petition; the other Acts require no petition.

*Before*Wardlaw, J. *Darlington, Spring Term,*1842, *who reports the facts asfollows*

“ Debt upon prison bounds bond, which, besides the usual conditions, contained also the following words: “ and shall assign his schedule, according to law,” which were intended to make it conformable to the requisition of the Act of 1841, which extends the bounds of prisons. Breach alleged, that the defendant had not made an assignment of his property at the expiration of the time allowed by the prison bounds Act.

The debtor was arrested under *ca. sa.,*and soon after-wards, (viz: 29th January, 1842,) filed in the clerk’s office a schedule of his whole estate, accompanied by his oath of its truth. The schedule contained no other direct intimation of its purpose. The clerk, without remembering any particular directions given to him, said.that he posted a ten day rule; but the rule not having been produced,' nor accounted for, objection to proof of its contents was made and sustained. No petition was filed, no application for discharge was made, and no assignment was ever heard of.

The defendants contended that the condition of the bond was not such as the Act of 1841 requires ; and if it were, *360that the debtor might still file his petition under the insolvent debtor’s Act, as the schedule was as suitable to that Act as to the prison bounds Act; and that, until the expiration of the notice which he would be required, to give, under the insolvent debtor’s Act, the condition of the bond would not be broken for want of an assignment. I held that the. words before recited, although not apt, might be considered as a substantial compliance. with the Act of 1841, so far as regards the assignment required, and that the schedule shewed the debtor’s purpose to resort to the prison bounds Act, and not to the insolvent debtor’s Act, because it was sworn to, because it was unaccompanied by a petition, and because the clerk was left to give the usual notice. And I held, that after the forty days mentioned in the bond, the debtor could not commence his resort to the insolvent debtor’s Act.

Under my directions, the jury found for the plaintiffs the balance due on the *ca. sa.,*$35 42, and the defendants have given notice of an appeal, on the annexed grounds.

After the trial, the debtor presented his petition, shewing that he was under arrest by virtue of the *ca. sa.*before mentioned, and various other writs of *ca. sa.)*that he had filed a schedule, and was desirous of the benefit of the insolvent debtor’s Act, praying a ninety day rule to be published, (fee. Conceiving that the validity of the proceeding would be hereafter enquired into, and would not be effected by an *ex parte*motion, and that the debtor should not be hindered in his- resort *to*a remedial statute, by any mistake which I may have made, 1 directed the clerk to file the petition, and to give a copy of the rulé for publication.”

*Grounds of Appeal.*

1 st. That his Honor erred in charging the jury that a debt- or who intends to take the benefit of the insolvent debtor’s Act, is obliged to file his petition for that purpose with the clerk of the court, together with his schedule, within forty days from the date of the bond which he has given for the prison bounds.

2d. Because that part of the condition of the bond containing these words, *",*and shall assign his said schedule according to law,” was void, inasmuch as it was not in *361conformity to the requisition of the Act of 1841, and his Honor should have so charged the jury.

3d. Because there was no breach of the conditions of the bond.

Law, for the motion,

cited the Act of 1841, p. 153, extending the prison bounds ; also Powell on Contracts, 395, 396, 397.

Sims, contra,

on the 1st ground, cited A. A. 1759, 2 Brev. Dig. 148-9; A. A. 1788, sec. 3, 4, 86; 2 Brev. Dig. 158. As to the form of the bond, the court will look to a substantial rather than a literal compliance with the requirements of the statute. *Jurisuntin litera; sunt in cortice.*Cited, also, A. A. 1841, 153-4; *Treasurers vs. Bates, 2*Bail. Rep. 362; *Anderson vs.*Foster, 2 Bail. Rep. 501.

Dargan, same side,

said the absence of a petition at the time of filing the schedule, is proof that the defendant intended to take the benefit of the Act of 1788. Another fact of the defendant’s intention to take the benefit of the Act of 1788, and not that of 1759, is the fact that no oath or affirmation is required under the Act of ’59. Cited 2 McC. 108 ; *Treas. vs.*Stephens, 1 Bail. 111.

Moses, in reply,

contended that there was nothing in this case that prevented the defendant from taking the benefit of the ninety day Act, at the expiration of ninety days from the filing of the petition. Cited Act 1788, Brev. Dig. 158, 79 sec. There is no difference whether the defendant applies for discharge under the ten day or ninety day Act; if he intends taking the prison rules, he must swear and file his schedule within forty days from the date of his bond. He is not obliged to file his petition within forty days. Cited Act 1841 ; 3 Washington Rep. 10; 2 McC. 292.

Curia, *per*

Evans, J.

It must be borne in mind that the defendant Bacot, was a prisoner in execution on civil process, and all the observations which I propose to make on the construction of the Acts of the Legislature applicable, to this case, will be restricted to such persons. By the 3d section of the Act of 1788, P. L. 456, commonly called the prison bounds Act, it is provided that *all prisoners in exe*
      *362
      *cution on any civil process*shall be entitled to the benefit of the rules, bounds andlimits, provided he or she shall, within forty days after being taken in execution, give satisfactory security to the sheriff that he or she will not only remain within the said rules, bounds or limits, but will also, within forty days, render to the cleric a schedule on oath or affirmation, of his or her whole estate, or so much thereof as will pay or satisfy the sum due on the execution, by force of which he or she shall be confined.

By the 4th section, the clerk is required to give notice, within ten days after the receipt of the schedule, that the prisoner will be liberated and the property assigned, unless satisfactory cause to the contrary is shown. By the 6th section of the same Act, if any person confined on execution (unless such person has been in *actual*confinement above forty days) be determined to deliver up all his or her estate and effects, and to take the benefit of the Act for the relief of insolvent debtors, passed the 7th day of April, 1759, he or she may do so, although he or she may have given bail to the action, or not surrendered him or herself within ten days after arrest, or not presented a petition within forty days after confinement, or not been *actually*confined three months, provided he or she shall comply with the other requisites of the said Act. By the 1st section of the Act of 1759, P. L., 247, if any person be sued, arrested, or impleaded, for any debt,- duty, or demand, and shall be minded to surrender all his estate towards the satisfaction of the debts wherewith he stands charged, it shall be lawful for such person, within one month after he or she shall be taken in custody, to exhibit a petition to any court of law whence the process issued against him, certifying the causes of his imprisonment, together with an account of his or her whole estate, upon which the court shall cause the petitioner to be brought before them, and also the creditor, *&c.,*to be summoned by public notice to be given three months, &c.

By the Act of 1840, any prisoner in execution on final process, who shall refuse for ten days to make an assignment of the estate and effects embraced in his schedule, according to the order of the Judge, *&c.,*he shall no longer be entitled to the bounds. By the Act of 1841, every pri*363soner in execution, who shall take the benefit of the rules, shall be obliged not only to render the schedule now required, but shall also, at the expiration of the notice prescribed under the insolvent debtor’s and prison bounds Acts, respectively, assign and surrender, as far as in his power, the property mentioned in the said schedule, and in default of such assignment and surrender, the bond for the rules shall be forfeited, «fee.

I have thus embodied, in this opinion, all the various Acts of the Legislature which apply to this case, in order that the provisions of them may be collected together, and the meaning more easily ascertained. From a review of them, I think the following conclusions may be drawn.

1. That *every prisoner*in execution is entitled to the bounds, on his giving to the Sheriff security to remain within them, and to render a schedule on oath within forty days; provided, if he intends to take the benefit of the Act for the benefit of insolvent debtors, passed in 1759, he or she has not been in *actual*confinement forty days.

2. Whether the prisoner intends to take the benefit of either of the said Acts, if he has the privilege of the bounds, he must according to his bond, render a schedule on *o.ath.*The circumstance, therefore, that Bacot, in this case, had rendered a schedule on oath, affords no criterion whereby we can determine under what Act he intended to apply for his discharge, as seems to have been supposed by the circuit Judge.

3. Where the prisoner renders in a schedule on oath of his *whole estate,*he lias the right to apply for a discharge under either of the said Acts. If he applies for a discharge under the Act of 1788, he need file no petition, but the clerk is required, within ten days after the receipt of the schedule, to give notice that the prisoner will be discharged, and the schedule assigned, unless satisfactory cause to the contrary be shown before one or more of the Judges of the court from whence the process originates, or one of the Commissioners of special bail. In this case no petition was filed, and therefore, if the prisoner made any application for discharge, it was not under the insolvent debtors’ Act, which requires the application to be made by petition. The Act requires the clerk, within ten days after the filing *364the schedule, to give notice, hut then that must mean he shall give notice on the application of the prisoner, for if the clerk is bound in all cases to give the notice, whether applied for or not, then the clerk has the election, and not the prisoner, whether he shall be discharged under the one Act or the other. In this case it is contended Bacot’s bond is forfeited, because he did not assign his schedule at the expiration of the ten day rule posted by the clerk. If this rule had been posted in pursuance ,of the application of the prisoner, then I think he had made' his election to apply for a discharge under the act of 1788, audit may be, was bound to assign at the expiration of the notice, in order to save his bond. But the evidence on this point is by no meáns satisfactory, and was not submitted to the jury.— The opinion of the circuit Judge seems, from the report, to have turned on the fact, that the schedule was sworn to, as a sufficient evidence of the election of the prisoner.— In this I think he was clearly in error, and that the case may be submitted to the jury on the other point, a new trial must be ordered.

The court is of opinion, with the circuit Judge, that the bond was sufficient to bind the parties, so far as it was attempted to charge them in this case.

Motion granted.

Richardson, Q’Neall, Earle and Butler, JJ., concurred.