4 Del. 554 (Del.Oyer.Ter. 1844), In re Smith

Citation4 Del. 554
AttorneyThe argument of Bates, jr., for the petitioner Mr. Frame, replied
CourtCourt of Oyer and Terminer of Delaware

Page 554

4 Del. 554 (Del.Oyer.Ter. 1844)


Court of Oyer and Terminer of Delaware.

April Term, 1844

An insolvent discharged on a judge's order for want of indemnity to the county, cannot be again imprisoned in the same case.

Kent, April term, 1844. Habeas corpus. The sheriff returned that the defendant was in custody on a writ of ca. sa. at the suit of Thatcher & Coleman.

The defendant was rendered by his special bail in this suit after judgment and fi. fa. returned nulla bona; ca. sa. returned non est, and sci. fa. issued. He was afterwards discharged under a judge's order for indemnity to the county, under section six of the act concerning insolvent prisoners, ( Dig. 312,) and forthwith arrested again under an alias ca. sa. in the same case. The application was now for his discharge under said section, which provides that a person discharged from imprisonment pursuant thereto, shall not be again arrested " upon the same process."

The argument of Bates, jr., for the petitioner was, that this imprisonment, being in the same suit, was a second imprisonment on the same process, taking the term in a general sense.

Mr. Frame, replied that the imprisonment on the ca. sa. was not on the same process from which the defendant was discharged; that he was not before imprisoned on any process, but on the surrender of his bail and commitment of the judge.

The Court said that the narrow construction which regards the meaning of the term " process," as...

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