WOODS, Circuit Judge,
after making tbe foregoing statement, delivered the opinion of the court.
The circuit court, on an informal oral motion (73 Fed. 430), ordered the discharge of Rudolph Deimel from imprisonment in a county jail in Illinois, where he was held by virtue of a writ of capias ad satisfaciendum issued upon the judgment in the case of Stroheim v. Deimel, reviewed and affirmed by this court, as reported in U. S. v. Arnold, 34 U. S. App. 177, 16 C. C. A. 575, and 69 Fed. 987, and in Deimel v. Stroheim, Id. The discharge was ordered under sections 30 and 31 of chapter 72 of the Revised- Statutes of Illinois, and section 990 of the federal Revised Statutes, because the creditor had not, as required by tbe statute of the state, paid to the jailer in advance, “at the commencement of each week,” “the hoard of the debtor for the succeeding week,” it being provided that, “in default of such payment in advance, the debtor may be discharged by such jailer.” Before the present case was argued upon the merits, a motion was made to dismiss the writ of error, on the ground that the order of discharge was not a final decision which, under section 6 of the act creating the circuit court of appeals (Act March 3, 1891), “jurisdiction to review by appeal or writ of error” was conferred. In support of the motion were cited Wells v. McGregor, 13 Wall. 188; Harrington v. Holler, 111 U. S. 796, 4 Sup. Ct. 697; Boyle v. Zacharie, 6 Pet. 648; Pickett’s Heirs v. Legerwood, 7 Pet. 144; Smith v. Trabue’s Heirs, 9 Pet. 4; Connor v. Peugh’s Lessee, 18 How. 394; McCargo v. Chapman, 20 How. 555; Callan v. May, 2 Black, 542; Barten v. Forsyth, 5 Wall. 190. Per contra were cited: 3 Enc. Prac. & Pl. 124, 125; Newhart v. Wolfe, 102 Pa. St. 561; Harper v. Kean, 11 Serg. & R. 280, 298; Gleason v. Peck, 12 Vt. 56; Avery v. U. S., [805]*80512 Wall. 304; Hunt v. Brooks, 18 Johns. 4; Smock v. Dade, 5 Rand. (Va.) 639, 644; Steele v. Boyd, 6 Leigh, 547; McMillan v. Baker, 20 Kan. 50; Ironworks Co. v. Tappan, 56 Miss. 659; Dunlap v. Clements, 18 Ala. 778; Chambers v. Neal, 13 B. Mon. 256; Marsh v. Haywood, 6 Humph. 210; McDonald v. Falvey, 18 Wis. 571; Lench v. Pargiter, 1 Doug. 68. The motion to dismiss was denied.
If the proceedings in the circuit court had been by audita querela, in accordance, it would seem, with the better practice, the right to a writ of error would have been beyond question. As made upon motion, the order of discharge was no less final in its character and effect. If the motion to discharge had been denied, it might be said, as in Boyle v. Zacliarie, supra, that the court was not bound to act summarily, and that, as the refusal of such a motion leaves other remedies ojien, the order is not final, and therefore not appealable. But, by whatever method obtained, an order of discharge in such a case, is in its nature final. Its revocation or correction cannot be eomjielled by mandamus, and the only means of relief is by writ of error. Ex parte Flippen, 94 U. S. 348.
Upon the general question whether the omission to pay jail fees in literal compliance with statutory terms entitles a prisoner held under civil jirocess to discharge, a number of subordinate propositions have been discussed; but ii is not deemed necessary to follow the briefs in the minute analysis made of the statutes and cited eases. The provisions of sections 30 and 31 in the statutes of Illinois and like enactments of other states, it is agreed, were modeled after what is known as the “Lords’ Act”'(32 Geo. II. c. 28, §§ 13, 14); and, though there has not been a constant harmony of rulings fondling the subject either in the English or American courts, ii: is clear that ihe tendency of the later decisions, except in California, has been to a strict construction of the statutes in favor of personal liberty. 1 Tidd; Prac. 382; Anon., Sayer, 102; Fisher v. Bull, 5 Term R. 36; Lench v. Pargiter. supra; Parker v. Harvey, Barnes, Notes Cas. 395; Beech v. Paxton. Id. 367; Shaw v. Gimbert, Id. 369; In re Franklyn, 5 Term R. 36, note; Rex v. Wilkinson, 7 Term R. 156; People Y. McHugh, 19 Chi. Leg. News, 177; Hanchett v. Weber, 17 Ill. App. 134; Lambert v. Wiltshire, 144 Ill. 517, 33 N. E. 538; Ex parte Lamson, 50 Cal. 306.
The contention of the plaintiffs in error is — First, that the Illinois si a lute does not apjfiy to jirisonera held under process issued from the courts of the United States; and, second, that, if it does ajiply, there was in this instance a failure to conform to its requirements.
Fpon (he firs! proposition our attention is called to the decision in MeNutt v. Bland, 2 How. 9, involving statutes of Mississippi, and to the fact that there is another statute in Illinois (chapter 75, Rev. St., approved March 3, 1874) which makes special and distinct provision for prisoners committed under federal authority, requiring that the fees of the jailer be paid by the marshal or the person delivering the prisoner. The argument is that the provisions of sections 30 and 31 of chapter 72, enacted in 1872, and the amendment of 3.887, should not be regarded as intended to ajiply to the federal [806]*806prisoners, since they are especially provided for in the other enactment, which, excepting the amendment to section 31, is the later act of the two. This view is borne out by the decision in McNutt v. Bland, unless by later legislation of congress a different rule has been introduced. In Mississippi, as in Illinois, there was a special provision for prisoners committed under federal process, and a distinct and more general provision for the regulation of imprisonment on civil process. In the case referred to, the latter provision was held to be only a municipal regulation for the guidance of state officials; and we are unable to see that sections 30 and 31 of the Illinois statute, besides being a local, municipal regulation, can constitute a restriction upon imprisonment for debt upon federal process, unless given that effect by force of section 990 of the Revised Statutes, the substance of which seems to have been first enacted in the act of February 28, 1839 (5 Stat. 321). The case of McNutt v. Bland was decided in 1844, but the cause of action accrued in 1837. The proposition, in the opinion below, that section 990 is applicable to judgments for torts, it is contended, is inconsistent with the opinion of this court in U. S. v. Arnold, supra, where it was said that “ 'imprisonment for debt,’ as used in this and like statutory provisions, means debts arising out of contracts, and does not extend to actions for tort nor to fines or penalties arising from a violation of the penal laws of the state.” Whether the circuit court was justified in treating that part of the opinion as a dictum only, intended simply as a reiteration of the rule that in a constitutional provision abolishing imprisonment for debt the word “debt” does not necessarily comprehend, and should not be construed as comprehending, judgments in tort, we do not deem it necessarv now to consider. See In re Tool Co., 160 U. S. 247, 16 Sup. Ct. 291; Railroad Co. v. Schutte, 103 U. S. 118, 143. Neither do we consider section 991, which, as stated in McNutt v. Bland, “provides for the mode of discharging insolvent debtors, committed under process from the courts of the United States.”
We rest our decision upon the second proposition, that, if the state statute be conceded to be applicable, there was a failure to comply with its requirements.
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WOODS, Circuit Judge,
after making tbe foregoing statement, delivered the opinion of the court.
The circuit court, on an informal oral motion (73 Fed. 430), ordered the discharge of Rudolph Deimel from imprisonment in a county jail in Illinois, where he was held by virtue of a writ of capias ad satisfaciendum issued upon the judgment in the case of Stroheim v. Deimel, reviewed and affirmed by this court, as reported in U. S. v. Arnold, 34 U. S. App. 177, 16 C. C. A. 575, and 69 Fed. 987, and in Deimel v. Stroheim, Id. The discharge was ordered under sections 30 and 31 of chapter 72 of the Revised- Statutes of Illinois, and section 990 of the federal Revised Statutes, because the creditor had not, as required by tbe statute of the state, paid to the jailer in advance, “at the commencement of each week,” “the hoard of the debtor for the succeeding week,” it being provided that, “in default of such payment in advance, the debtor may be discharged by such jailer.” Before the present case was argued upon the merits, a motion was made to dismiss the writ of error, on the ground that the order of discharge was not a final decision which, under section 6 of the act creating the circuit court of appeals (Act March 3, 1891), “jurisdiction to review by appeal or writ of error” was conferred. In support of the motion were cited Wells v. McGregor, 13 Wall. 188; Harrington v. Holler, 111 U. S. 796, 4 Sup. Ct. 697; Boyle v. Zacharie, 6 Pet. 648; Pickett’s Heirs v. Legerwood, 7 Pet. 144; Smith v. Trabue’s Heirs, 9 Pet. 4; Connor v. Peugh’s Lessee, 18 How. 394; McCargo v. Chapman, 20 How. 555; Callan v. May, 2 Black, 542; Barten v. Forsyth, 5 Wall. 190. Per contra were cited: 3 Enc. Prac. & Pl. 124, 125; Newhart v. Wolfe, 102 Pa. St. 561; Harper v. Kean, 11 Serg. & R. 280, 298; Gleason v. Peck, 12 Vt. 56; Avery v. U. S., [805]*80512 Wall. 304; Hunt v. Brooks, 18 Johns. 4; Smock v. Dade, 5 Rand. (Va.) 639, 644; Steele v. Boyd, 6 Leigh, 547; McMillan v. Baker, 20 Kan. 50; Ironworks Co. v. Tappan, 56 Miss. 659; Dunlap v. Clements, 18 Ala. 778; Chambers v. Neal, 13 B. Mon. 256; Marsh v. Haywood, 6 Humph. 210; McDonald v. Falvey, 18 Wis. 571; Lench v. Pargiter, 1 Doug. 68. The motion to dismiss was denied.
If the proceedings in the circuit court had been by audita querela, in accordance, it would seem, with the better practice, the right to a writ of error would have been beyond question. As made upon motion, the order of discharge was no less final in its character and effect. If the motion to discharge had been denied, it might be said, as in Boyle v. Zacliarie, supra, that the court was not bound to act summarily, and that, as the refusal of such a motion leaves other remedies ojien, the order is not final, and therefore not appealable. But, by whatever method obtained, an order of discharge in such a case, is in its nature final. Its revocation or correction cannot be eomjielled by mandamus, and the only means of relief is by writ of error. Ex parte Flippen, 94 U. S. 348.
Upon the general question whether the omission to pay jail fees in literal compliance with statutory terms entitles a prisoner held under civil jirocess to discharge, a number of subordinate propositions have been discussed; but ii is not deemed necessary to follow the briefs in the minute analysis made of the statutes and cited eases. The provisions of sections 30 and 31 in the statutes of Illinois and like enactments of other states, it is agreed, were modeled after what is known as the “Lords’ Act”'(32 Geo. II. c. 28, §§ 13, 14); and, though there has not been a constant harmony of rulings fondling the subject either in the English or American courts, ii: is clear that ihe tendency of the later decisions, except in California, has been to a strict construction of the statutes in favor of personal liberty. 1 Tidd; Prac. 382; Anon., Sayer, 102; Fisher v. Bull, 5 Term R. 36; Lench v. Pargiter. supra; Parker v. Harvey, Barnes, Notes Cas. 395; Beech v. Paxton. Id. 367; Shaw v. Gimbert, Id. 369; In re Franklyn, 5 Term R. 36, note; Rex v. Wilkinson, 7 Term R. 156; People Y. McHugh, 19 Chi. Leg. News, 177; Hanchett v. Weber, 17 Ill. App. 134; Lambert v. Wiltshire, 144 Ill. 517, 33 N. E. 538; Ex parte Lamson, 50 Cal. 306.
The contention of the plaintiffs in error is — First, that the Illinois si a lute does not apjfiy to jirisonera held under process issued from the courts of the United States; and, second, that, if it does ajiply, there was in this instance a failure to conform to its requirements.
Fpon (he firs! proposition our attention is called to the decision in MeNutt v. Bland, 2 How. 9, involving statutes of Mississippi, and to the fact that there is another statute in Illinois (chapter 75, Rev. St., approved March 3, 1874) which makes special and distinct provision for prisoners committed under federal authority, requiring that the fees of the jailer be paid by the marshal or the person delivering the prisoner. The argument is that the provisions of sections 30 and 31 of chapter 72, enacted in 1872, and the amendment of 3.887, should not be regarded as intended to ajiply to the federal [806]*806prisoners, since they are especially provided for in the other enactment, which, excepting the amendment to section 31, is the later act of the two. This view is borne out by the decision in McNutt v. Bland, unless by later legislation of congress a different rule has been introduced. In Mississippi, as in Illinois, there was a special provision for prisoners committed under federal process, and a distinct and more general provision for the regulation of imprisonment on civil process. In the case referred to, the latter provision was held to be only a municipal regulation for the guidance of state officials; and we are unable to see that sections 30 and 31 of the Illinois statute, besides being a local, municipal regulation, can constitute a restriction upon imprisonment for debt upon federal process, unless given that effect by force of section 990 of the Revised Statutes, the substance of which seems to have been first enacted in the act of February 28, 1839 (5 Stat. 321). The case of McNutt v. Bland was decided in 1844, but the cause of action accrued in 1837. The proposition, in the opinion below, that section 990 is applicable to judgments for torts, it is contended, is inconsistent with the opinion of this court in U. S. v. Arnold, supra, where it was said that “ 'imprisonment for debt,’ as used in this and like statutory provisions, means debts arising out of contracts, and does not extend to actions for tort nor to fines or penalties arising from a violation of the penal laws of the state.” Whether the circuit court was justified in treating that part of the opinion as a dictum only, intended simply as a reiteration of the rule that in a constitutional provision abolishing imprisonment for debt the word “debt” does not necessarily comprehend, and should not be construed as comprehending, judgments in tort, we do not deem it necessarv now to consider. See In re Tool Co., 160 U. S. 247, 16 Sup. Ct. 291; Railroad Co. v. Schutte, 103 U. S. 118, 143. Neither do we consider section 991, which, as stated in McNutt v. Bland, “provides for the mode of discharging insolvent debtors, committed under process from the courts of the United States.”
We rest our decision upon the second proposition, that, if the state statute be conceded to be applicable, there was a failure to comply with its requirements. Let it be assumed that, once a judgment is rendered in an action for tort, it becomes a debt in such sense as to be embraced in a statutory provision concerning imprisonment for debt, and so, coming within the scope of section 990, is brought thereby under sections 30 and 31 of the statute of the state. The full consequence of the proposition must be accepted, and, when a discharge from imprisonment is sought, it must be upon the condition prescribed, that no person shall be released who neglects or refuses to schedule in the maDner and form provided by the act of which those sections are a part To say that the requirement to schedule does not apply to such judgments is to depart from the assumption that a judgment in tort becomes a debt within the meaning of section 990, and consequently within the meaning of sections 30 and 31 of the state statute. If sections 2 to 11 of chapter 72 have no application to a prisoner taken on process upon a judgment [807]*807in tort, on what ground can it be said that sections 30 and 31 of the same act apply to such a prisoner? On the other hand, if imprisonment under a judgment in tort is imprisonment for debt, within the meaning of section 990, what difficulty is there in adhering throughout to the idea of debt, and requiring compliance upon that theory with all the conditions of the statute? If the statute cannot be applied in all essential particulars, it should be applied in none. But while it is true that section 2 of chapter 72 and the following sections, which prescribe the proceedings by which a discharge from imprisonment shall be obtained, do not in terms apply to prisoners held under judgments for torts, yet when section 34, which, by its original terms, “arrested on final process,” did include judgments for torts, was so amended as to provide that no one should be released under the act who neglected or refused to schedule in manner and form as provided by the act, the clear effect was to make the manner and form prescribed applicable thereafter to prisoners com initted by virtue of process upon judgments for torts. If inference be made to chapter 77, which, it would seem clear, must be deemed to be in pari materia with chapter 72, the same observations are applicable. Section 5 of that act, if it did not give, recognized the right to take, execution against the body of the defendant upon a. judgment for tort; and it follows that- section 65 of that act, both before and after the amendment of 1887, had reference to prisoners held under such judgments, as well as to those referred to in section 62 of the same act; and when the amendment was added to section 65, “that no person shall be released from imprisonment under ibis act who neglects or refuses to schedule in manner and form as provided by ‘An act concerning insolvent debtors,’” etc. (chapter 72, supra), the plain intention and effect were to include defendants In judgments ex delicto, as well as defendants in judgments ex contractu, wrho, by subsequent fraudulent conduct, should become subject to execution against the person.
The order discharging the defendant in error from imprisonment is reversed and set aside, and the court below directed to discharge the writ, and remand the prisoner to the custody of the jailer, to be held until discharged according to law.