Heilner ex rel. Freytag v. Bast

[270] The opinion of the court was delivered by Rogers, J. Jacob Bast, being in the actual custody of the sheriff .of Berks county, gave bond to the plaintiffs, at whose suit he was arrested, with the sureties required, and regularly approved of by a judge at his chamber, whereupon, in compliance with the act of the 28th March, 1820, he was discharged from arrest. The bond, which is in accordance with the act, 16 Serg. & Rawle, 48. Farmers Bank of Reading v. Boyer, has the following condition under written, that Jacob Bast will appear, &c. before the court of Common Pleas of Berks county, at the next term, &c. and then and there surrender himself to prison, in case, on his appearance, he shall not comply with all things required by law, to procure his discharge. Bast filed his petition in due form, and in the other preparatory steps complied with the directions of the act, and the court appointed a time for hearing him and his creditors, but for a reason, which is not stated, and if it were, would be immaterial, they refused to discharge him, and made the following entry, “ Proceedings quashed by order of the court.” From this entry, which is the only one on the record, it appears that Bast failed to comply with all things required by law to procure his discharge. Being the decree of a court of competent jurisdiction, it is immaterial what may have induced the decision, for if, as was ruled, in Sheets v. Hawk, et. al. 14 Serg. & Rawle, 173, the record of the discharge of an insolvent debtor is conclusive, as to the fact of having complied with all things required by law to entitle him to his discharge, then the refusal to discharge him must be equally conclusive, and not the subject of enquiry in a collateral suit. The record - conclusively shows that Bast was not discharged, and is evidence which cannot be controverted, that a substantial condition of the bond has not been complied with. The entry, “ Proceedings quashed by order of the court,” was tantamount to a decree that he had failed to comply with some of the essential requisitions of the statute, and whether the opinion of the court was right or wrong, is not open to enquiry. 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 express condition of the bond, that he will surrender himself, in case he shall not comply with all things required by law to procure his discharge. Indeed, it may admit of doubt, whether the court would have power to recommit the prisoner, except he had been guilty of fraud. After the rejection of his application for the benefit of the act, he had one of two courses to pursue, either to surrender himself to prison, or forfeit his bond. This was a matter for himself to determine, but a case may be readily supposed where the petitioner would rather submit to [271] the latter alternative. It has been contended that by the entry, “ Proceedings quashed, by order of the court,” the bond was vacated. We cannot suppose this to have been the intention of the court, as they would clearly have no such power ; and if they had expressly vacated the bond, such an order would have been a mere nullity, and treated as such in a suit to recover on it. The bond is directed by the act to be given to the plaintiff, at whose suit he is arrested, and for his benefit, so that I cannot believe that the court would have greater power than in the case of an ordinary bond, or any other instrument of writing whatever. The common law-does not recognize such summary proceedings, which would deprive the plaintiff of his remedy of trial by jury, and the opportunity of review in the supreme court. But it has been contended, that the alias ca. sa. and the subsequent discharge waives any right of action which he might otherwise have on the bond. This argument is rather specious than solid, for the alias is not in prejudice, but for the benefit of the bail. 'It is obviously to their advantage to pursue the principal, and compel him to assign his property for the benefit of his creditors. Judgment reversed, and a venire de novo awarded.