The opinion of the court was delivered by
Haines, J.
Edward A. Cox, having been discharged, as an insolvent debtor, by the Court of Common Pleas of the county of Burlington, the plaintiffs in certiorari, being creditors, question the legality of the proceedings. One of the reasons assigned for reversing the judgment and setting aside the proceedings is, that the creditors were not allowed by the court to examine witnesses, or to offer any evidence on the subject of the arrest of the debtor. On such hearing, witnesses are to be examined to prove the service and publication of the notices of the application and all preliminary questions, that the court may determine whether the applicant is in a condition to be heard; his creditors having had no opportunity of being present to make their objections. One of the requirements to the condition of the creditor to be heard is, his being under arrest or in custody at the time of giving bond conditioned for his making application for his discharge. He must show, to the satisfaction of the court, that he has a right to make his application; that he was either in actual custody under the act of 1795, and its sup plements, or in the constructive confinement of subsequent .acts. He is competent to prove his arrest or confinement, but his answers to interrogatories on that question are not conclusive. The court may, if it see fit, require additional evidence, or the creditors may controvert his statement. Hamilton v. Chevallier, 3 Harrison’s R. 434. In Wallace v. Coil, it was by this court, after full argument, held that evi- • deuce offered by the opposing creditor’, to show that the cause • of imprisonment was such that the debtor was not entitled to ■his discharge, was properly received. In this case the court erred in not permitting the creditors to introduce proof on that subject.
2. Another reason assigned is, that the court refused to allow the opposing creditors, or their counsel, to ask the debtor any question in respect to his giving an inventory to the officer who arrested him. The act of February, 1830, .re-enacted 15th April, 1846, Nix. Dig. 331, prescribes the terms on which a ¡verson arrested or held in custody, in any civil action, may be discharged from such arrest or custody. One of those terms is the delivery to the officer of a true and perfect inventory, under oath, of all his property, rights, and effects. The delivery of the inventory was held by the •court, in Davis v. Hendrickson, 3 Green’s R. 481, to be necessary to place the debtor in a condition to make application for his discharge as an insolvent debtor. It is only on the •delivery of the bond mentioned in the statute, together with the inventory, that the officer had a right to discharge him from custody. It was proper, therefore, that the creditors should have been permitted to inquire respecting this first preliminary step in the proceedings to obtain his discharge, and the refusal was an error in the court below. On the argument here, it was insisted, and it seems to have been made a point before the Court of Common Pleas, that the creditors have de jiore no power of examination; that they can examine only by permission of the court. The statute provides for the examination of the debtor on interrogatories proposed by the court; but it does not contemplate that the court will, of itself, dictate or write the interrogatories. It may, and usually does act through its officers, the clerk, or counsel. The statute gives power to control the course of examination, and to prevent illegal or irrelevant questions, and to exercise therein a legal, and not an arbitrary discretion.. But it is the right of the opposing creditor to propound interrogatories, and the duty of the court to allow all that are-legal and pertinent to be put to the debtor. The creditor is a party to the proceedings, entitled to be heard, and to make a ground for his objections through interrogatories. The creditor stands somewhat in the relation of a witness, to make tascase and show his right to a discharge; the interrogatories proposed by the creditors are in the nature of a cross-examination, and if legal and pertinent, should not be overruled.
3. Another reason for reversal is, that the debtor, at the-time of giving bond conditioned for his appearance, and application for the benefit of the insolvent laws, was not under-arrest or held in custody. The court can entertain no jurisdiction of such an application, unless it is alleged in the-petition, and shown on the examination of the debtor, that he was under arrest ór held in custody at the time of giving bond. The bond and inventory, so given are substituted for the actual confinement within the four walls, and for the prison limits provided by statute. This requisite is as indispensable-to the creditor, to apply for a final discharge in the one case-as in the other. He must either be in actual confinement within the walls of the prison, or in the prison limits, or under the obligation of the bond required by the act. By the 5th section of the act for the relief of persons imprisoned on civil-process, Nix. Dig. 352, it is made the duty of the court at the time of the hearing, to examine the debtor touching his confinement, whether his imprisonment was compulsory or voluntary; and if it appear that his confinement was not compulsory, to stay all further proceedings in the case. The debtor must, therefore, not only have been under arrest or in custody, but under compulsory confinement. ■ By the state- of the case, it appears that the debtor was arrested on a writ of capais ad satisfaciendum on the third day of May, 1862, and was in the custody of the sheriff at the jail, but not locked up; that he was released from the custody of the sheriff that evening, and by him allowed to go at large; and that, on the fifth of Mav, he executed and delivered to the sheriff the bond conditioned for his application for a discharge. The debtor clearly was not in custody nor under the control of the officer at the time of giving the bond. The sheriff, by suffering him to go at large, was guilty of a voluntary escape, and had no power to re-arrest him. If, as was suggested on the argument, the right to re-arrest was personal with the debtor, and that with his assent the sheriff might again take him into custody, then such consent made the confinement voluntary, and not compulsory, and the court was bound to stay all further proceedings in the case.
The discharge of the debtor under such circumstances was erroneous, and the judgment and proceedings of the Court of Common Pleas must be reversed and set aside. ■
Rev., p. 857.
Rev., p, 499, § 10.