DUNCAN V. DARST, 42 U. S. 301 (1843)

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U.S. Supreme Court

Duncan v. Darst, 42 U.S. 1 How. 301 301 (1843)

Duncan v. Darst

42 U.S. (1 How.) 301


A person in custody under a capias ad satisfaciendum issued under the authority of the circuit court of the United States cannot legally be discharged from imprisonment by a state officer acting under a state insolvent law.

The facts in the case were not disputed, and were as follows:

Isaac Darst, Henry Darst, and Jacob Darst, citizens of the State of Ohio, recovered a judgment in the Circuit Court of Pennsylvania against one Jacob Roth, who was arrested on a capias ad satisfaciendum and handed over for safekeeping to Andrew Duncan, Sheriff of the County of York. This was on 6 December, 1832. On the next day, Roth applied to George Barnitz, an Associate Judge of the Court of Common Pleas for the County of York, for the benefit of an act of the Legislature of Pennsylvania passed on 28 March, 1820, entitled,

"A supplement to the act entitled "A supplement to the act entitled An act for the relief of insolvent debtors,'" passed the twenty-ninth of January, one thousand eight hundred and twenty."

The first section of the act referred to is as follows:

"That if any debtor shall hereafter be arrested or held in execution on a bail piece in a civil suit, and who shall have resided six months in this commonwealth previously thereto, he may apply, when arrested on execution, to the president or any associate judge of the court of common pleas of the county in which he is so arrested, or when held on a bail piece, may apply to the president or associate judge of the said court in the county in which the suit was instituted, and give bond to the plaintiff or plaintiffs, at whose suit he is so arrested and held, with such security as shall be required and approved of by the said judge, the condition of which bond shall be that the said debtor shall be and appear at the next court of Common Pleas for said county and there take the benefit of the insolvent laws of this commonwealth, and to surrender himself to the jail of the said county, if he fail to comply with all things required by law to

Page 42 U. S. 302

entitle him to be discharged, and generally to abide all orders of the said court, whereupon the said judge shall give an order to the sheriff, constable, or other person having such debtor in custody to forthwith discharge him upon his paying the jail fees, if any be due."

It was admitted that this act was in force on 7 December, 1832, and for a long time afterwards; that Roth had resided in the Commonwealth of Pennsylvania for six months previously to his application, and that he complied in all respects with the provisions of the above section. The judge gave an order to the sheriff having Roth in custody to forthwith discharge him upon his paying the jail fees, and he was thereupon discharged.

Darst brought an action against Duncan for an escape, who pleaded specially the above matters in his defense. The plaintiff demurred to the plea, and the demurrer was sustained in the circuit court, and upon the validity of this demurrer the case was brought up to this Court.

The statute of Pennsylvania above recited required the party who desired to be discharged from imprisonment to give bond that he would appear at the next court of common pleas and there take the benefit of the insolvent laws of the commonwealth. Upon a reference to the acts then existing, it will be found that the privileges conferred upon the debtor and the duties required of him by the insolvent laws are the following:

He was to be declared free from imprisonment not only upon that suit, but from subsequent arrests, on his giving a warrant to appear in court, and although the property which he might subsequently acquire was subject to execution, yet the court was at liberty to exempt it provided two-thirds of his creditors assented. The duties required of the debtor were that he should hand in a list of his property, creditors, debts, and losses; that he should not be guilty of collusion or false swearing; that he should not conceal or convey away his property, under penalty of imprisonment; and that he should be liable to punishment at hard labor if found to be a fraudulent debtor. The property of and debts due to the debtor were vested in trustees, who were to convert them into cash and divide it among the creditors, the surplus, if any, belonging to the debtor. chanrobles.com-red

Page 42 U. S. 303

This is the process through which it was necessary to pass according to the bond of anyone who might be discharged from imprisonment, as Roth was. chanrobles.com-red

Page 42 U. S. 304


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