Marks v. Drovers' National Bank

Mr. Justice Green delivered the opinion of the court, There are three assignments of error in this case and we must sustain them all. The action was debt upon an insolvent bond, the breach alleged being that the debtor upon being refused his discharge failed to surrender himself to jail. The only question therefore was whether the bond had been forfeited by breach of condition. In trying that question it was of no sort of consequence that the debtor was seen in Canada in 1885, or that he was following any business there, or that he had gone to Baltimore and thence to Canada. The offers of testimony to prove these facts were entirely irrelevant and should have been rejected. The defendants’ point fairly presented all the facts which, if found by the jury, established a full compliance with the condition of the bond, and it should have been affirmed as it stood. As a legal proposition upon the hypothetical facts stated it was undoubtedly true, and there was ample testimony in support of the facts. The point was refused “ because the law requires the order for commitment to be made by the judge who issued the warrant, and an application to the court in the absence of the judge who issued the warrant of arrest and a refusal of such court to grant the commitment, followed by the surrender of the person to the jailer is not a sufficient [495] compliance with the law to discharge the bail.” We can not possibly sustain such a proposition as this. There is no such provision in the law, and it would be most astonishing if there were. Forjudges die, are sick, or absent, or go out of office, or may be prevented in many ways from being personally present in court at all times when business is being transacted, but the court never dies. Its business proceeds, its orders are made, its official transactions are conducted without regard to the personality of the individual who exercises its functions. In the present case the law which directs the proceedings says, “ If it shall appear to the court upon the hearing of any petition in insolvency either by the examination of the petitioner or other evidence that there is just ground to believe either &c., &c., &c., in every such case it shall be the duty of the court to commit such person for trial: ” Purd. Dig., 900, pl., 60. It is difficult for us to understand why, when the debtor’s discharge was refused, the court did not make the order of commitment as directed by the law. But though that order was not made the debtor, if the testimony is believed, and it is without contradiction, did all that it was possible for him to do in order to surrender him’self. It was proved, and not denied, that he went to the jail and declared to the jailer that he was there to surrender himself to jail. The proceeding was explained to the jailer, and it was insisted that he should take the debtor and imprison him, but he refused to do this because no order of commitment was presented to him. It can not be that an insolvent debtor who has given bond for his compliance with the insolvent laws, shall be deprived of his right to perform the condition of his bond either by the mistake of a court or the jailer. When he has literally done all that it is in his power to do in compliance with the law, the condition of the bond is performed. It was not in bis power to compel the court to issue an order of commitment, nor was it in his power to put himself in prison when the jailer refused to receive him. All that the bond requires is that he shall surrender himself to jail, and this it is testified, he did literal^. He was under no obligation to remove the proceeding to a court of review when the court which heard his case refused him his discharge. By the very condition of his bond if he failed to obtain his discharge he was privileged to surrender himself to jail in discharge of his bail, and this it is claimed is precisely what he did. Nor was any order of commitment by the court essential to the exercise of his right of surrender. In Heilner v. Bast, 1 Pa. Rep., on p. 270, we said: “ On the refusal of the court to discharge the petitioner it was his duty to surrender himself to prison in discharge of his bail, and this without any order of the court for that purpose. It is the ex [496] press condition of the bond that he will surrender himself in case he shall not comply with all things required by law to procure Ids discharge.” In Saunders v. Quigg, 112 P. S. R., 546, we held that where .an insolvent fails in obtaining his discharge as an insolvent debtor and voluntarily surrenders hiinself to the jail of the county, he complies with the alternative condition of his bond “that he shall surrender himself to the jail of the county,” aud though the warden refuses to receive him his bond is void and his sureties are discharged. The fact that Saunders declared in writing that he surrendered himself, was not at all essential either to the validity or the efficacy of his surrender. It was his actual surrender that constituted performance of the alternative condition of the bond and discharged his bail. The point presented by the defendants assumed the fact of such a surrender, and there was ample evidence, if believed by the jury, to sustain the assumption, but the learned court below refused the point, and gave a binding instruction to the jury that under all the evidence in the case their verdict should be in favor of the plaintiffs. In this there was error. In our judgment the point should have been affirmed, and the jury should have been directed that if they believed the testimony submitted by the defendants in support of the facts stated in the point, their verdict should be rendered in favor of the defendants. The judgment reversed and a venire facias de novo awarded.