#### Edwards et al. vs. The State.

Parties committed for non-payment of fines and costs, in criminal prosecutions, are entitled to tlie benefit of the Insolvent Debtor’s Act.

The amount of the penalty in a bond is the criterion of jurisdiction.

*304Where an order of committal is made, on a conviction in a criminal case, it is to be presumed that the party to be charged in custody is present, and in such case no process to arrest is necessary.

Parties to a penal bond are estopped by the recitals in the condition.

It is no ground for a now trial that averments in a declaration not put in issue by tho pleadings were unsupported by evidence.

*Appeal from Crawford Circuit Court.*

Hon. Felix I. Batson, Circuit Judge.

Walker & Green, for the appellants.

To maintain an action upon the bond as a statutory bond, a forfeiture of the bond must have been previously declared by the court. *Gould’s Dig. Gh.*99, *sec.*5; *Gh.*52, *sec.*02.-

The record does not exhibit valid legal proceedings — without which the bond was void — no warrant of imprisonment appears to have been issued, the mere order of the court is not sufficient for this purpose.

Hempstead, for the State.

The parties to the bond are estopped by the recitals of the conviction to deny that Edwards was legally imprisoned.

The order of the court was sufficient to warrant imprison- . ment without issue of special process.

Mr. Chief Justice English

delivered the opinion of the court.

The bond sued on in this case, was-executed by Silas Edwards, as principal, and Henry Edwards and Benjamin F. Edwards, as sureties, on the 14th August, 1857, in thepenalsum of $200, under the 5th section of the act for the benefit of insolvent debtors, *{Gould’s Dig. Ch.*90.) The condition of the bond as set out in the declaration, is as follows:

*“*Conditioned that whereas the said Silas Edwards is now imprisoned in the common jail of Crawford county, for the payment of certain fines assessed against him, and has filed his petition to be permitted to take the benefit of .the insolvent law; *now*therefore if the said Silas Edwards shall be and appear *305]-: *''*.3 tI'3 Em'E; -'met of Ore.»'. ford county, on the ÍIrct do.y of ih : rml to ■■ i of '.--Li mart hE.i for mid. county, end c-rriviidcr ] E' ad; t ■. ,vE *,*' : cr.'.; e on hie appearance, lio doce not comply wi'h avt; y h.foy romEed bp the act, etc., in relation to i:¡. drenl fo bh; v. to ; 'nocmv hie dLseharyc, ikon tide obligation to ho r; hi, oho to romrhi in hhi force and cifoct.”

1 he -1. iLmfon alloy.,', in. rabrt.rnes, that íd/tlae Eel vea rue, ih 3 primEE in the Lend, at verm of the Or circuit court Lcyne nod bold on tho dmi .Eondry in Aiujüoí, IC.37, 'mac cca-vfo'E r.ud heed on ai:: irbi-foEmfo, four foe íoraiiUe and batted. ene for an nrsaiE, md one for CEbLnih hreEdny, and in c\a h en. e v, a/- o.dared by the court inte ¿he custody of the nh -dE r :dil *Am-iir.o*and c-cwone acid, Eked Tinder the.;;; cc.’..'”! Ed irnnE t.t.o i v.p ,1.:.; u-d by the henh’, and to piocore Id ¡ dbehcryc, petitioned the Oh cult,Indye for the bemol’t of the in-v’ve it not, and rúen m:ec;¿tiEiyy the bond rued on, va; ;v; a "cd from yd >on. Em breach of the bond aniyed ia, íV 11:3 wholly fork?d ic e: wr w, the next tero» of tiro Cuurt, w I a ccrc¡;l3r will emery ihfoj reprdred by the act Lo prowra Ms hhr Inyo, or to rnri'cnder hi naald fo prison; ilunf bis petition for the ¡.•on: fit of th.o act wen i'ErEmed, ia coa.ronneDec of tie fail-can : rc'poar, etc., and ¿ho bond íbríblied, etc.

El.a court eve ruled a he: merer to the doolwaiion interposed by 'End aha I?. EcEverE;, and he rcried.

Ehe meeh'J yToencfo of dewan'ov aoidynnd aro :

1. That, on apocara by the dcolr.v.'iticn, Cüm.Edv/mcfo v/ae ?r. t, impmomd, cr liable io be imprisoned in any manee.',*, 'or my debt or da: myo for mldc-h he could bo rolo -rod cm wvmy bwE, etc.

■E T.-r.o.t tb,o court bad no jurisdiction of the carnes for the rearm that f.kc cam in coatr owerry in each broach tvo/j less than : ECO.

Ei.3 declaration shows Í tied; Eihv; Ed ward i vero i r.priro.-md. mider orders oí the court for EE Ahforo to pay the íbice a-;J. coate iarpoce-il upon ;um in the piosecutionu for mvbGiiieaiie'Ej recited in the decku-atioa. *Gee.*215, *of Gh.*32,19tj. *p. -Ui**306expressly gives to persons detained for such fines or costs the benefit of the insolvent debtors’ act.

The amount of the penalty of the bond sued on, and not the fines and costs in each case, was the criterion of jurisdiction. The penalty being iff the sum of $200, the circuit court had jurisdiction of the cause of action.

The defendants Silas Edwards, and Henry Edwards filed four pleas, as follows:

1. “ That there was no writ or process whatever in favor of the Stats, whereon the said defendant Silas Edwards might be arrested and imprisoned in the jail of said county, etc., in manner and form as in said bond and condition thereof mentioned.

2. “ That the said Silas Edwards was not imprisoned or liable to be imprisoned in any manner for any debt or damages for which he could present his petition to the circuit court of Crawford county, offering to deliver up to the use of his creditors all his property, and be permitted to take the benefit of the insolvent law of the State, etc.

3. “ That there is not any record of the supposed conviction of the said defendant Silas Edwards of assault and battery remaining in the said Crawford circuit court in manner and form, etc.

4. “ That said defendant Silas Edwards was not imprisoned or liable to be imprisoned in any manner for which he could be released in manner and form as alleged in the said plaintiff’s declaration.’

The State interposed a demurrer to the 1st, 2d and 4th pleas, which was sustained by the court, and the defendant rested.

The coui-t properly sustained the demurrer to the first plea. The declaration does not allege that Silas Edwards was arrested or imprisoned by virtue of any writ or process, nor was any 'necessary. He was present in court, it must be supposed, when the judgments in the criminal prosecutions were rendered against him, and when the court ordered him into the custody *307of the sheriff, until the fines and costs were paid. It is not the practice to issue any process in such cases.

The 2d and 4th pleas were bad for several reasons : First, they tendered no issue of fact, but assert a legal proposition — ■ *Second,*we have decided above, in disposing of the demurrer to the declaration, that a party imprisoned for fine and costs in a criminal case, may be released from prison under the insolvent act; and consequently a bond executed by him under the act, to procure his discharge from prison, is legal and valid— and *third,*the condition of the bond recited that Silas Edwards, the principal in the bond, was imprisoned for the payment of fines assessed against him, and the parties to the bond were estopped to deny it.

The State took issue to the third plea, the case was submitted to the court, by consent of parties, and the court found in favor of the State, and assessed the damages at $200, the amount of the penalty of the bond.

The defendants moved for anew trial which was refused, and they excepted, and appealed.

On the trial, the State read in evidence, against the general ©bjection of the appellants, the record of the judgment entries in the criminal cases referred to in the declaration. No specific objection to their admissibility has been pointed out here. It may be remarked that no evidence was introduced upon the trial that Silas Edwards failed to appear at the circuit court, etc., etc., as required by the condition of his bond, or that the bond was forfeited, etc., as assigned in the declaration. But there was no plea putting in issue these allegations, and hence it was not necessary for the State to prove them.

Finding no error in the record of which the appellants have any right to complain, the judgment of the court below must be affirmed.