23 Ga. 345 | Ga. | 1857
By the Court. —
delivering the opinion.
There are really but two questions in this case: 1st. Is
the creditor bound for the maintenance of his insolvent debt- or, who has taken the benefit of the prison bounds. And. Sdly. If the Jailer omits to take from the creditor a bond to pay these fees weekly, does that exonerate the creditor from his liability ?
In some cases, (to return to the first question,) the prisoner might live with his family or otherwise by his trade or calling, within the bounds, support himself; and then perhaps
It is supposed by the ingenious counsel, who agued this case in behalf of the plaintiff in error, that there is an inconsistency in the Act of 1801. In one part it says, that upon taking the oath prescribed for insolvent debtors, and the payment of fees, the debtor shall be discharged. And in the last section, which we have heretofore quoted, it enacts that the creditor shall pay the ordinary prison fees.
The interpretation is simply this. If the debtor can pay, he must, otherwise the creditor is liable. In another part of the law, provision is made, that where effects are surrendered up, the fees and costs shall be paid out of them. If there be none, of course the creditor pays. And it makes but little difference, in many cases, whether the creditor pay, or the fees are deducted from a fund that was to be distributed to him.
It is urged that the taking the insolvent debtor’s oath, does not necessarily prove that the debtor is unable to pay fees. And this may be true. But in this case, as the record shows, no question of this sort was made. Both in the petition by the Jailer to the Court, and the subsequent order and proceedings, it is assumed, that the debtor was unable to pay fees. Had this fact been denied, an issue would have been made and the fact tried. But, as the case comes before ús,
Under the Constitution of the State, an insolvent debtor cannot be detained a day in custody, after he has made a full and fair surrender of his property. And, by the laws of the State, if the debtor is unable to pay fees, the creditor must Consequently, we hold that the Circuit Court was right in deciding as it did.
Judgment affirmed.