Byrne v. Carpenter, Special bail of King

Byrne v. Carpenter, Special bail of King. The discharge of the principal under the insolvent act, before the return of the ca. sa., may be pleaded in bar to a scire facias against the bail. Scire facias. Plea, that King was discharged under the insolvent law, before the return of the capias ad satisfaciendum. General demurrer. ♦ Mr. Youngs, for the plaintiff. The insolvent act provides that the discharge of the debtor shall not discharge any other person, from any undertaking, &c. The plaintiff has a right to have the defendant brought in, so that he may be served with notice of a petition to vacate his discharge. Mr. Caldwell, contra. Whatever discharges the principal from the obligation of surrendering his body, is a discharge to the bail. .The bail cannot hold the principal in custody after his discharge under the insolvent act. Upon application to a judge, he is bound to discharge him. If the bail surrenders him, the Court must discharge him, whether the discharge is fraudulent or not. The surrender of the principal would.be nugatory, and the law will not oblige a man to do a void act. The principal, upon his discharge, may and generally does go off; and if the bail cannot hold him, it would be a hard case. Cur. adv. vult. December term, 1808. [MAJORITY] Judgment for the defendant, on the demurrer, (nem. con.)