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SIMMS & WISE V. SLACUM, 7 U. S. 300 (1806)

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Simms & Wise v. Slacum, 7 U.S. 3 Cranch 300 300 (1806)

Simms & Wise v. Slacum

7 U.S. (3 Cranch) 300


A discharge from the prison rules under the insolvent act of Virginia, although obtained by fraud, is a discharge in due course of law, and upon such discharge no action can be sustained upon the prison bounds bond.

Error to the Circuit Court of the District of Columbia in an action of debt brought by Slacum as assignee of Charles Turner, Sergeant of the Court of Hustings of Alexandria, upon a prison bounds bond in which Simms was the principal and Wise the surety.

The condition of the bond was as follows:

"Whereas Jesse Simms, in jail and custody by virtue of a writ of capias ad satisfaciendum sued out of the clerk's office of the Court of Hustings holden in Alexandria, dated 12 August, 1800, at the suit of George Slacum, assignee of Charles Turner, sergeant of the court of hustings aforesaid, for the sum of $1,285.45,

Page 7 U. S. 301

including all legal costs at the time of the caption aforesaid, having prayed the benefit of the prison rules, as laid out and bounded by order of the court of hustings aforesaid, and having tendered the above bound Peter Wise, Jr., as surety for the same, agreeable to an act of the general assembly in that case made and provided."

"Now if the said Jesse Simms do well and truly keep himself within the prison rules, as laid out and bounded by the court of hustings aforesaid and from thence not depart until he shall be discharged by due course of law or pay the aforesaid sum of $1,285.45 to the aforesaid George Slacum, assignee of Charles Turner, sergeant aforesaid, then the above obligation to be void, or else to remain in full force. . . ."

The pleadings were finally brought to this issue whether Simms did depart from the prison rules without being discharged by due course of law.

At the trial, three bills of exceptions were taken by the defendants, but the only question decided by this Court arose upon the third, which stated that after the execution of the bond, Simms was discharged by a warrant from two justices of the peace under the authority of the insolvent act of Virginia, and that being so discharged, and not before, he departed out of the rules. The plaintiff offered evidence to prove sundry acts of fraud committed by Simms in order to procure the discharge, whereupon the counsel for the defendants prayed the opinion of the court and its instruction to the jury that if it should be of opinion from the evidence that frauds were committed individually by Simms in obtaining his discharge, but without the participation of the magistrates who granted it and without the participation of Wise, the other defendant, such frauds so committed by Simms could not so far vitiate or avoid the said proceedings under the insolvent act and the discharge so obtained by Simms as to charge Wise in this action for a breach of the condition of the bond by reason of Simms' having left the prison rules by virtue of such discharge. Which instruction the court refused to give, but was of opinion and directed the jury that if it should be of opinion from the evidence that any fraud was committed by Simms alone in obtaining or for the purpose of

Page 7 U. S. 302

obtaining the said warrant of discharge, though without the concurrence of either of the magistrates or of Wise in such fraud, it did avoid the discharge so obtained by Simms, so as to charge Wise in this action for a breach of the said condition, by reason of Simms' having left the prison rules by virtue of such a void discharge. To which refusal and instruction the defendants excepted.

The Act of Assembly of Virginia, 1792, c. 67, concerning the county courts, § 15, P.P. 86, authorizes the county and corporation courts to lay out and mark the "bounds and rules" of their respective prisons, and declares that

"Every prisoner not committed for treason or felony, giving good security to keep within the said rules, shall have liberty to walk therein out of the prison for the preservation of his or her health, and keeping continually within the said bounds, shall be adjudged in law a true prisoner."

The act of 1792, c. 79, concerning the escape of prisoners, § 2, P.P. 119, provides that if a prisoner, having given security for and obtained the liberty of the prison rules shall escape and go out of the same, the sheriff shall immediately apply to a justice of the peace for an escape warrant to retake the prisoner and give notice thereof to the creditor, and assign over to the creditor the bond taken for the liberty of the rules, who shall be obliged to receive the same, and the creditor may proceed to take his debtor upon the escape warrant, and if he be retaken and committed to jail, the sureties in the prison rules bond, shall be discharged; but if the debtor be not retaken on the warrant and committed, the sureties are liable to the creditor. And the sheriff is not liable unless the sureties were insufficient when taken.

By the 1st section of the act, the escape warrant must be upon the oath of the sheriff or some other credible person.

The act of 1793, c. 151, for the relief of insolvent debtors, P.P. 303, authorizes two justices of the peace to discharge insolvent debtors, and provides that notice

Page 7 U. S. 303

shall be given to the party at whose suit the prisoner is in execution. It declares also that the warrant of discharge shall be sufficient to indemnify the sheriff against any action of escape. And that the prisoner shall not be again imprisoned upon any judgment obtained previous to his taking the oath, unless by virtue of a ca. sa. issued by order of the court in which the judgment shall have been rendered.

The estate of the insolvent is vested in the sheriff. But the creditor may, on scire facias, have a new fi. fa. to seize any property which the debtor may afterwards acquire.

C. Lee, for plaintiffs in error. A prisoner in the bounds is as much in jail as if within the walls of the prison. The oath of the insolvent debtor was provided as the guard against fraud, but the bond is only a substitute for walls to the prison bounds. As to the surety, a discharge by a competent authority is conclusive.

The warrant of discharge is an indemnity to the sheriff, whether obtained by fraud or not. The act of assembly does not expressly provide that it shall indemnify the surety as well as the sheriff, but he is within the same reason.

The body of the debtor cannot be retaken unless by order of the court, on proof of fraud. In the case of fraud in the debtor alone, the remedy of the creditor is not by an escape warrant, but by a new ca. sa. against his person, or a fi. fa. against his goods.

The sheriff is bound to discharge the prisoner upon receipt of the warrant; if he disobeys, it he is liable to an action of false imprisonment, and after obeying it, he cannot go before a justice of the peace, and swear it was an escape, so as to obtain an escape warrant. If he cannot get an escape warrant, he cannot assign the prison rules bond, for he is, by the act, only authorized to assign it when an escape has actually happened. The creditor is not bound to take an assignment; nor can he demand it. When, therefore, the debtor is discharged by a competent authority, the obligation of the bond ceases. It is functus officio; the surety is no longer liable for an escape, and is

Page 7 U. S. 304

as much discharged as if, after an escape, the debtor is retaken on an escape warrant and committed to jail.

The act of assembly did not intend that the bond should give the creditor a new security for his debt, or to place him in a better situation than he would be if his debtor were to remain within the stone walls of the jail. The bond was intended for the case and benefit of the debtor.

If the bond is a security against the fraud of the debtor, there are no bounds to the responsibility of the surety.

The words "in due course of law" mean by authority of law -- that is, by a competent legal authority.

The notice required by the act to be given to the creditor is to enable him to attend and show fraud if he can. But if the surety is answerable for fraud, it would be more for the interest of the creditor not to show the fraud at that time, but to wait until it has had the effect of obtaining a discharge.

If a judgment at law is obtained by fraud, it is still a valid judgment until reversed.

Swann, for defendant in error. In England it is settled that a discharge under an insolvent act must be free from fraud or collusion, and in every respect regular. It is true that the warrant of discharge is prima facie evidence of a due discharge, and throws the burden of proof of fraud upon the other party. Esp.N.P. 167, 245. But fraud, when proved, will "avoid every kind of act." 1 Burr. 395. Bright v. Eynou.

In order to guard a creditor against the risk of his debtor's escape when allowed the liberty of the prison rules, the law requires that the debtor should bind himself in a penalty, and if he escapes, he is as much liable at law for the penalty as his surety is, and the surety is as much bound as the debtor. The one is bound exactly as the other is bound. If the penalty is forfeited as to one, it is forfeited as to the other. Whatever would make Simms liable upon the bond would make Wise equally

Page 7 U. S. 305

liable. If, then, Simms had voluntarily escaped, he would have been liable to the penalty of his bond. But a discharge obtained by fraud and imposition is, as to him at least, void; otherwise you permit a men to take advantage of his own fraud, for if the discharge is valid, it puts an end to his obligation upon his bond. A discharge obtained by fraud is in substance as much an escape as if the prisoner had merely gone off in disguise or imposed upon his jailor by a borrowed dress. But it is a maxim of law, that no man shall gain an advantage by his own fraud. If this fraudulent discharge dissolves the obligation of the bond, Simms gains an advantage by his own fraud; therefore the fraudulent discharge cannot dissolve the obligation of the bond. If the obligation of the bond be not dissolved as to Simms, it is not as to Wise, for both are equally bound.

But the words of the condition of the bond are that Simms shall not depart therefrom "until he shall be discharged by due course of law." A discharge obtained by fraud and imposition is not a discharge in due course of law; on the contrary, it is a perversion of the course of law -- the law is turned aside from its due course. Shall Simms be permitted to say that his discharge, grounded on falsehood, fraud, and imposition is a discharge in due course of law? If Simms cannot say it, Wise cannot say it. Wise can avail himself of no defense at law which would not equally avail Simms.

There is a vast difference between the case of the sheriff and that of the surety. The sheriff is bound to obey the warrant. All he has to inquire is whether the justices had jurisdiction. He is only the officer of the law, and bound to execute all lawful precepts. Not so the surety. He is a volunteer. He undertakes for the good faith of the debtor. He substitutes himself in his place, to the extent of the penalty.

It is not necessary that the sheriff should swear an escape before he can assign the bond. It is true he cannot oblige the creditor to take the bond, unless an escape has been sworn to; but there is nothing in the law which forbids the sheriff to assign the bond, or the creditor to receive it, without such an oath.

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