Hutton v. Helme

Per Curiam. The bond of an insolvent debtor is not a voluntary one. ,He gives it not of choice, but by compulsion of circumstances, and he is, therefore, entitled to the liberation, wrhieh is the consequence of it, on terms as favourable as the law allows him. If the magistrate who is to judge of-the matter exacts more, the bond is illegal, and its terms will not be enforced. It is settled that an obligor is entitled to the benefit of every part of the condition, as in Kemmel v. Kent, 2 Watts, 431; and it is immaterial to the question whether he be deprived of it by subsequently rendering an inserted branch impossible, or by omitting to insert it when the law prescribes it. Now the law prescribes here, a condition, with alternate branches, or, to speak more accurately, with a double aspect — the procurement of a discharge, or a surrender to gaol in lieu of it — and the bond will be good if it exact less than these terms, as in The Farmers’ Bank v. Boyer, 16 Serg. & Rawle 48; but not where it exacts more, as in M‘Kee v. Stannard, 14 Serg. & Rawle 380. This last case is directly in point in all particulars and rules the present. Judgment in each case affirmed.