The opinion of the court was delivered March 12, 1855, by
Black, J.— ’This is a suit on an insolvent bond. The petitioner, on the day that his discharge as an insolvent debtor was refused, offered in open court to surrender himself, and after-wards on the same day did go to prison, where he remained two. months, and was then released on giving another bond. The questions now to be decided are,
1. Did the surrender operate to discharge the surety, not being actually made in court, nor under any order of the court ?
*3912. Supposing it to be a legal surrender, and a compliance with the condition of the bond, did the subsequent release of the defendant from prison revive the liability of the surety in the first bond ?
These questions came so near being answers to themselves, that'it is almost impossible to reason upon them. The condition of the bond is, that the petitioner shall surrender himself, and he complies with it in letter and spirit, if he goes to jail and gives himself up. The court may order him into custody only in one event, and that is, when they find reason to believe him guilty of fraud. When the petition is dismissed for non-compliance with some order, as for instance, when he does not appear at the time appointed, or fails to give his creditors notice, the court have no power to commit him. To do so would be an unwarrantable interference between the parties, for the debtor has a right to choose whether he will let the creditor have his body or his bond. Any order the court could make on the subject, would be mere hmtum fulmen. The privilege which the insolvent has, of relieving his surety by going to jail, cannot be taken away from him ; and to commit him, by way of compelling him to surrender himself, involves the absurdity of forcing him to be a volunteer. The practice which prevails at some places, of noting on the record, that the debtor has appeared and expressed his willingness to surrender himself in discharge of his surety, may be a convenient one, and therefore ought to be encouraged, but the law does not make it necessary; such a record, not followed by an actual and voluntary surrender, would leave the bond in full force, and a surrender, though not recorded, would be a perfect performance of the condition.
When the party surrenders himself, he is in custody under the writ on which he was first arrested. He has no right to be discharged again on giving a new bond, though it has been held that the surety is estopped from denying its legality. But it matters not to the surety in the first bond, after he is once relieved from his liability by a surrender, whether the debtor remains in prison, escapes from custody by climbing over the wall, or is discharged by the blunder of an officer. The surrender puts him back again where he was when the bond was given, and the creditor has all appliances and means of keeping him there, which he had at first.
If he escapes, those who ought to have detained him are responsible.
The surrender of the debtor discharged the surety from all liability, and that liability was not revived by the subsequent illegal release under another bond.
Judgment affirmed.