to relate to a proceeding similar to the proceeding mentioned in that section. He then denied the motion to nonsuit. That

was proper.

Saying to a trial judge that the plaintiff has failed to make out a case is not pointing out to him any absence of proof, or any matter of law, disentitling the plaintiff to go to the jury. Counsel cannot require the judge to run over in his mind all the evidence adduced by the plaintiff and conjure up objections of fact or law which might disentitle the plaintiff to recover, and thus run the risk of making errors of his own motion, so to speak. It is the duty of counsel to point. out the questions of law or fact, or both, upon which he relies for a nonsuit.

It is pertinent here to remark that in moving for a nonsuit counsel should state specifically the grounds upon which the motion is rested, and then proceed to argue them. The arguments should not be taken down by the stenographer and should not be returned with the record or printed.

The second ground of appeal is that the trial judge directed the verdict for plaintiff when he should have directed it for defendants.

At the conclusion of the whole case, counsel for plaintiff moved to overrule the defence and asked the court to direct a verdict. After argument, which properly enough is not printed, the trial judge observed, among other things, that in his view the argument for defendants proceeded upon an erroneous assumption that the proceedings were had, and bond given, under section 13, but that the bond, however, was not given under that section as appeared by the determination of the Supreme Court in Koch v. Burpo, 91 N. J. L. 116. The learned trial judge was mistaken in this assumption. Counsel for plaintiff-respondent states in his brief that this bond was adjudicated to be proper by the Supreme Court in Koch v. Burpo. He also is mistaken. Mr. Justice Kalisch, in his opinion in that case, says that after the giving of the bond (the one in suit here), the sheriff released Costello, and that the plaintiff contended that this constituted an escape, because the debtor, after having been twice refused a

discharge, was not entitled to make a third application, and the learned justice winds up by the assertion that the result of the views expressed in the opinion is, that the insolvent debtor was lawfully entitled to make a third application for his discharge, and that upon the giving of a new bond and inventory by him to the sheriff, the sheriff had a lawful right to release him from custody. The form and sufficiency of none of the bonds were considered in Koch v. Burpo. The trial judge ruled that Costello had not complied with the insolvent laws. This was the uncontradicted testimony and he directed a verdict for plaintiff.

The third ground of appeal is, that the trial judge should have submitted the case to the jury. This is not so. The answer to this objection is the same as that directed above to the second ground of appeal, namely, that the uncontradicted testimony entitled the plaintiff to recover.

The fourth ground of appeal, that the judgment was contrary to law, is answered by the same reason.

The fifth ground of appeal, that the evidence 'did not warrant a judgment in favor of the plaintiff, and

The sixth ground, because the evidence warranted a judg ment for defendants, is equally bad with

The seventh ground, that the verdict was contrary to the weight of the evidence.

That this court in reviewing judgments of courts of law has no power to pass upon the weight of evidence, has long since been definitively settled; and all such judgments under review are to be sustained, so far as factual questions are concerned, if there be any competent evidence to support them.

Some observations upon the character of the bond sued and recovered on, and the breaches thereof, will not be out of place.

In Koch v. Burpo, supra, it was held that the number of times an insolvent debtor might apply for his discharge was unrestricted, and that being refused his discharge for any cause, he might make any number of new applications. Therefore, when Costello was refused his second discharge he was at liberty to make a third one; but the kind of proceeding he

was authorized to take was the giving to the officer in whose custody he was a true and perfect inventory, under oath or affirmation, of all his goods, &c., lands, &c., and the giving of a bond to the plaintiff at whose suit he was arrested, under section 2 of the act, with sufficient security in double the sum for which he was taken in execution, with condition that he appear before the next Court of Common Pleas and petition for the benefit of the insolvent laws, and in all things comply with the requirements of those laws, and appear in person at every subsequent court until duly discharged, and if refused discharge surrender himself to the sheriff or keeper of the jail, there to remain until discharged by due course of law. It is provided, in section 8, that at the hearing in this proceeding the debtor shall appear and exhibit a just and true inventory of his estate, and a list of all his creditors with the amount of debts to them due and owing, and that the court shall proceed to examine into the truth and justice of such application, and to consider and examine the truth and fairness of the account and inventory. This examination, under section 9, is of the debtor himself. This proceeding was had in the first two applications of Costello, and in each instance it appeared to the court that he had not complied with the act, and it was ordered and adjudged that his petition be dismissed and his discharge refused, and he was remanded to prison. In this situation he assumed to give a bond under section 13 of the act. In this he erred. The trial judge was right in his assertion that the assumption that the proceeding and bond were under section 13 was erroneous.

The situation contemplated by section 13 did not exist. If the execution creditor was not satisfied with the truth and honesty of the declaration, &c., of the debtor, &c., and offered and undertook to prove that such debtor had concealed and secreted part of his estate, &c., it would have been lawful for the court to remand the debtor if such creditor undertook for his keep, &c., and the debtor might have entered into bond to such creditor that he would in all things remaining fully and honesty comply with the requirements of the insolvent laws, &c., and if refused a discharge surrender himself imme

diately to the sheriff or keeper of the jail, which bond, if forfeited, might be prosecuted, &c. The next section, 14, provides that after such debtor shall be so remanded, or shall not have been discharged on bond, he may file in the clerk's office a declaration in the form prescribed by the statute, averring that he ought to be discharged out of custody because he hath well and truly complied with the Insolvent Debtors' act, and that the creditor may file a plea traversing the declaration, to which the debtor may join issue, which shall be tried before the court and jury, and if the jury find for the debtor he shall be discharged out of custody, and if they find for the creditor he shall be continued in custody until thence delivered by due course of law. These are the things remaining to be complied with on the bond under section 13. Obviously, sections 13 and 14 had no application to Costello's case.

Now, the bond sued upon not having been a proper one, the recovery had thereon is, nevertheless, sustainable as on a voluntary bond. In Emanuel v. McNeil, 87 N. J. L. 499, we held that where there was no coercion or duress, and the bond sued on not being prohibited by statute, and not being contrary to public policy, but being founded upon a good and sufficient consideration, and intended to subserve a good and lawful purpose is, between the parties, good as a voluntary bond. The bond sued on here was not the product of coercion or duress; was not prohibited by statute in the circumstances of this case, and would have been according to the statute if the proper situation had existed; was not contrary to public policy, and is founded upon a good and sufficient consideration and intended to subserve a lawful purpose, namely, to secure the release from imprisonment of the principal obligor, and it is, therefore, between the parties, good as a voluntary bond. The defence, by the way, was not that the bond is invalid, but that its conditions were performed.

It is argued for defendants-appellants that the plaintiff failed to offer evidence that the defendant did not appear before the Court of Common Pleas as required by the bond sued on. In Sholes v. Eisner, 90 N. J. L. 151, this court held that,

because the plaintiff did not produce affirmative proof that his judgment debtor, who petitioned for discharge under the Insolvent Debtors' act, did not appear in person at every subsequent court until discharged, the motion to nonsuit should have been granted, lack of that evidence not having been supplied in the further progress of the trial. Assuming that the defendants here were entitled to a nonsuit at the close of the plaintiff's case, for the reason just mentioned, they showed in the testimony adduced on their behalf that, although Costello perfunctorily appeared in court, he did nothing to comply with the conditions of his bond.

Merely appearing in the Common Pleas Court is not a compliance with the condition to appear. The debtor is required to do more; he must appear for a purpose. He is required, by himself or counsel, to crave audience of the court and announce the purpose of his presence, and must also in all things required of him comply with the insolvent laws. That was the undertaking in his bond. As a fact, as already remarked, he did nothing unless it were to appear perfunctorily in court on the given day. There was, therefore, a breach of every condition of the bond, and, therefore, the plaintiff was entitled to recover.

An important question is suggested by the state of the record in the case at bar. In Koch v. Burpo, Mr. Justice Kalisch refers to section 17 (b) of the Insolvent Debtors' act as leaving unrestricted the number of times that such a debtor may apply for his discharge. But does the right to make subsequent applications give the debtor the right to so apply on the identical state of facts adjudged against him on his last prior application? The inventory of Costello, on his first application, contained fourteen items, aggregating in amount $53.20, and his list of creditors contained ten names, with claims aggregating in amount $956.54. After hearing the first application, the court held that the petitioner had not complied with his petition and the Insolvent Debtors' act, and dismissed his petition, refused his discharge and remanded him to prison. A few days later Costello filed a second peti