Windham, et al. v. Coates, use, &c. The objection, that all the evidence offered by the defendant, tended to contradict the line, as set out in the patent of the plaintiffs, was considered when this case was previously here. Let the judgment be affirmed. WINDHAM, ET AL. v. COATS, USE, &c. 1. Upon an appeal from a justice of the peace, the defendant and his sureties acknowledged that they were bound unto the plaintiff in a definite sum "for the payment of the principal, costs, charges, and all expenses attending the suit," between the plaintiff and the defendant, and that the latter had "appealed from the justice's court of Beat No. 3, for the county," &c. to the Circuit Court, to be holden, &c. Held, that although the bond does not conform literally to the act, yet it was substantially sufficient, and was equivalent to a condition "to prosecute the appeal to effect, and in case the appellant be cast therein, to pay and satisfy the condemnation of the Court." 2. The sureties in an appeal bond, are not liable beyond its penalty, and if a judgment is rendered for a greater amount, though objected to, in the primary Court, it will be reversed on error. 3. The clerk of a Court is not authorized, without the consent of the plaintiff, to receive before judgment, the amount for which the sureties of the defendant are liable, and thus discharge them. Writ of error to the Circuit Court of Coosa. THIS was a suit instituted before a justice of the peace, at the instance of the defendant in error, against the plaintiff, Windham, for the recovery of $5 6 1-4. A judgment was rendered against Windham, for the amount claimed, with interest and costs. Thereupon he entered into a bond with his co-plaintiffs, Rose and Beard, as his sureties, of which the following is a copy, viz; "Coosa county, State of Alabama, know all men by these presents, that we, Stephen Windham, Howell Rose, our heirs, executors and administrators, are firmly held and bound in the Windham, et al. v. Coates, use, &c. full sum of twenty dollars, for the payment of the principal, costs, charges, and all expenses attending the suit between Nathan Coats, the plaintiff, and myself, Stephen Windham, the defendant, in which I have appealed from the justice's court, of Beat No. three, for the county aforesaid, to the Circuit Court, to be held for the County aforesaid, at the town of Rockford, on the third Monday in April, in the year of our Lord one thousand eight hundred and forty-four, this, the third day of February, 1844." Signed and sealed by Windham, Rose and Beard, and attested by the justice of the peace who rendered the verdict. The plaintiffs in error objected to the rendition of a judgment against them on the bond, because it did not conform to the statute, and because, previous to the disposition of the case against Windham, he fully paid to the clerk of the Court, the amount of the penalty of the bond. But their objections were overruled, and the judgment rendered against all the obligors in the bond, for the sum of $5 39, debt and interest, eighty cents damages, and all costs, amounting to $193 35. S. HEYDENFEDDT, for the plaintiff in error, insisted that the bond was not such as the statute requires, and no summary judgment could be rendered upon it. [4 Ala. Rep. 315.] That even if it was good,no judgment could be rendered upon it beyond the amount of the penalty. "[6 Ala. Rep. 476.] No counsel appeared for the defendant. COLLIER, C. J.-It is provided by statute, that any person aggrieved by the judgment of a justice of the peace, may, within five days thereafter, appeal to the next superior Court, sitting for his county, first giving to such justice, bond, with good security, in double the amount of such judgment, conditioned to prosecute such appeal to effect; and in case he be cast therein, to pay and satisfy the condemnation of the Court. The bond in the present case, does not conform literally to the act, but we think it substantially sufficient. It recites the names of the parties to the judgment before the justice, states that the defendant had appealed, contains a specific penalty, which is no doubt for the proper sum, and if not, the obligors upon the state of the record, cannot object to it. The bond is an acknowledgment that the obli Windham, et al. v. Coates, use, &c. gors are bound in the penalty designated, for the payment of the principal, costs, charges, and all expenses attending the suit. This we think equivalent to a condition in totidem verbis, to prosecute the appeal to effect, and in case the appellant be cast therein, to pay and satisfy the condemnation of the Court. In McBarnett and Kerr v. Breed, 6 Ala. R. 476, the penalty of the appeal bond was $5 25, this Court said, that we would judicially know, that the costs exceeded the penalty, and beyond that sum the obligors in the bond were not liable. Here the amount of the costs are not left to conjecture, but they are explicitly stated in the bill of exceptions. If no objection had been made and overruled, to the rendition of a judgment by the Circuit Court, for an amount exceeding the bond, we should have regarded the irregularity as a mere clerical misprision, amendable at the cost of the plaintiff' in error. But the sureties there appeared by counsel, and resisted a recovery against them, for any thing more than the penalty; and the act of 1824, authorises the revision of the judgment on error. [Clay's Dig. 322, § 55.] The payment of the amount of the bond, to the clerk of the Court, before judgment, did not, in itself, absolve the obligors from liability; inasmuch as the clerk had not authority, under the circumstances, to receive the money. [Murray v. Charles, 6 Ala. Rep. 678.] To have made the payment effectual, it should have been shown, that it was assented to by the plaintiff, or that the money was paid over. The judgment of the Circuit Court must be reversed, and here rendered, that the plaintiff below recover of Windham and his sureties in the appeal bond, the debt, damages and costs, amounting to $20, and for the residue of the costs, the judgment will be against Windham alone. Morrow and Nelson v. Weaver and Frow. MORROW AND NELSON v. WEAVER AND FROW. 1. When a debtor has been arrested, and has given a bond to keep the prison bounds, the creditor is not discharged by his making affidavit that the particular ground upon which he was arrested is untrue. Under the act to abolish imprisonment for debt, he can be discharged by reason of this affidavit only, only when in custody of the arresting officer. 2. The act to abolish imprisonment for debt, is to be construed in connection with the previous legislation on the same subject, and under it, when the prisoner seeks a discharge by a surrender of his property, &c. or by swearing that he has none, the application must be made to a judge, or two justices of the peace, as required by the previous acts: but if the schedule, &c. be contradicted by the creditor, one justice will constitute a court competent for that purpose, under the act of 1839. 3. A plea in avoidance of a bond for the prison bounds, on the ground of a discharge under the statutes relating to the discharge of debtors, is bad if it does not aver that notice was given to the creditor, and which does not show a discharge by a judge, or two justices of the peace, as provided by the act of 1821. 4. If one in the limits under a prison bounds bond voluntarily surrenders himself in the common jail of the county, and to the custody of the sheriff, in discharge of his sureties, it is a discharge of the bond, although done before the expiration of sixty days. 5. But if such surrender is colorable merely, and not intended to be for the purpose of discharging the bond, it does not have that effect. The intention of the going within the jail, and the surrender to the sheriff, is a matter for the determination of the jury. Writ of Error to the Circuit Court of Dallas. ACTION of debt, by Morrow and Nelson, against Weaver and Frow, as the sureties of one Parkman, on a prison bounds bond, conditioned that the said Parkman, should continue a true prisoner, in the custody, guard, and safe keeping of the keeper of the prison, or of his steward, bailiff, deputy, or other officer, or of some of them, within the limits of the prison bounds of said prison, as by law established, until he should be thence discharged, by due course of law, without committing any escape in the mean time. Breach assigned, that the said Parkman, on the 25th Morrow and Nelson v. Weaver and Frow. May, 1842, did escape, and out of, and beyond the limits of said prison bounds, without having been discharged therefrom by due course of law. The defendants pleaded as follows, among other pleas, to wit: That before the supposed breach of the said bond, as alledged in the declaration, the said Parkman was discharged from such arrest and imprisonment, by due course of law, by virtue of his complying with the provisions of the act of the General Assembly, entitled an act to abolish imprisonment for debt, by making oath before W. F. an acting justice of the peace, in and for said county, a person authorized to administer the same, that the particular ground on which he was arrested was untrue, and that he had neither estate, effects, or monies, whereby to satisfy the debt, or liable for the same, and was thereupon released by the arresting officer, to wit: the sheriff of Dallas county. Also, that before the supposed breach of said bond, alledged. that the said Parkman was discharged from such arrest, and imprisonment, by due course of law, by virtue of his complying with the requisitions of the act, &c. entitled an act to abolish imprisonment for debt, by rendering a schedule of all the estate he had in possession, or was entitled to, and taking an oath before W. F. a justice of the peace, &c. that he, the said Parkman, did solemnly swear, that he had not any estate, real or personal, to the amount of twenty dollars, except what was therein rendered, and such goods and chattels, which, by law, were excepted from execution, and that he had not any other estate then conveyed or concealed, or in any way disposed, with a design to secure the same to his use, or to defraud his creditors; and was thereupon immediately released by the arresting officer, to wit: the sheriff of Dallas. These pleas were demurred to, but the demurrer being overruled, issue was taken on them to the country, as it also was to a plea of performance of the condition of the bond. On the trial of these issues, it was in evidence before the jury, that Parkman, the debtor, voluntarily placed himself in the custody of the sheriff, while on the prison bounds, and went into close confinement in the county jail; that while in said close confinement, he sent for W. F., a justice of the peace, who went to the jail with the sheriff, when Parkman asked the justice to qualify him to an affidavit, appended to a schedule of his effects, made |