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Lessee of Lowry v. Steele and Phillips.

This was an ejectment adjourned here for decision from the county of Hamilton. It was an agreed case, and the following are the material facts :

On January 14, 1822, Sophia Cooper was seized and possessed, in fee, as tenant in common, with Maria Grimes and others, of the premises in question, on which day, being of the age of thirty years, and sole, she made and delivered to James Steele, one of the above defendants, an instrument, a copy of which is submitted as a part of the case. The agreement so far as relates to this controversy, after reciting that Sophia Cooper was heir at law of Mrs. Zeigler, and that she held in-lots, etc., and that she contemplated a marriage with Fielding Lowry, sr., and in order that she might enjoy and have said lands, and the profits thereof for her sole and separate use, and that the same might not be subject to the control, debts, or engagements of her said intended husband, “ for the consideration of one dollar, she grants, etc., to James Steele in trust, for and during the term of seventy-five years, without impediment of waste; that the said Steele sball every year during said term pay and deliver all the proceeds, rents, etc., unto such person, *and for such intents, as the [171 said Sophia Cooper shall appoint, and, in default of such appointment, then to be paid into her own hand, for her sole and separate use, etc.; and upon further trust, that Steele should transfer the premises, or any part, to such person as the said Sophia, by her writing and will shall appoint, and in default of such appointment then to the heirs of said Sophia. The term to cease upon the death of said Sophia or her intended husband.” On the 23d of January, in the same year, the said Sophia was lawfully married to said Lowry. After the marriage, partition was made between the tenants in common, and the premises in question set off to said Sophia, as by the record of partition appears, a copy of which is also made a part of the case. After the partition, Lowry, in right of bis wife, received the rents, etc., until her death, which took place in May, 1825. The lease, entry, ouster, and possession by the defendants are admitted. Mrs. Lowry died without appointment, leaving a son, issue of the marriage, and leaving other chil. dren by a former marriage, who claimed as heirs at law.

The only question submitted was, whether Lowry was entitled to possession as tenant by the courtesy.

Loines v. Phillips.

CASWELL and STARR, for plaintiff.

HAMMOND and GARRARD, for defendants.

By the Court:

To entitle Lowry to courtesy, the only requisite of which there can be any doubt is, whether he was seized during the coverture? Steele was vested in trust with an estate for seventy-five years. He was not seized of the freehold; and having but an estate for years when he entered, he was not properly possessed of the land but of the term, the possession or seizin of the land still remaining in Sophia Cooper. Woodfall's Land. and Ten. 172; 2 Black. Com. 144; 1 Cruise, D, 64, 161. And this is not considered a seizin in law, but a constructive seizin in deed. 8 Cranch, 245. It is therefore said (Hargrave's notes to Co. Lit. 29, a) if land is in lease for years, courtesy may be without entry, or 172] even receipt of rents, *the possession of the lease for years being deemed the possession of the husband and wife. The case of De Grey et al. v. Richardson et al., 3 Atk. 436, was not unlike the present. During the coverture of Alice Sewell lands descended to her as heir in tail general, under a settlement, and when they descended were in the possession, and so remained during her life, of tenants under leases. It was decided by Lord Hardwicke that there was such a possession of Alice Sewell as entitled her husband to courtesy. The law appears to be with the plaintiff, and there must be judgment for him.

JAMES AND RICHARD LOINES V. JAMES PHILLIPS.

The security in a bond for the assignment and delivery of property, by a

person applying for the benefit of the insolvent law, is liable for the creditor's whole debt, although the insolvent had not property to assign.

This case was adjourned here for decision from Ross county. It was an action of debt upon a bond, executed by the defendant as security for Stephen Loines, who, being arrested upor mespe pro

Loines v. Phillips.

cess, applied for the benefit of the insolvent act, and gave the bond in question for the making a schedule and delivering up of all his property. The point presented for decision was agreed het ween the parties as follows:

“ This cause is reserved for the special session at Columbus on an inquiry of lamages. If the court should be of opinion that the insolvency of the defendants, or the amount and value of his property, can not be given in evidence, in mitigation of damages, thon the plaintiffs are to have judgment for four hundred and thirty-seven dollars and eighty-two cents, and for costs, twelve dollars and sixty-six cents, with interest from November 15, 1821 ; otherwise the cause is to be sent to the Supreme Court of Ross county for inquiry of damages."

LEONARD, for plaintiff.

DOUGLAS, and Brush, and FITZGERALD, for defendant.

By tbe COURT:

The condition of the bond is, that the petitioner shall assign all his property for the benefit of his creditors. It is *the [173 general policy of our laws to hold the body of the debtor as a security for the payment of the judgment to be recovered. The debtor was compelled to submit to imprisonment, or find security that be would faithfully assign all his property for the benefit of his creditors. When the security is obtained the body is discharged, and the bond substituted for it. This court has nothing to do with the justice or policy of the law, which gives the creditor his power over the body of the debtor. It assumes the principle that such rigor is necessary to procure a surrender of property fraudulently concealed by the debtor. It is with another department of the government to say whether the punishment of in. dividuals, upon presumption of fraud, would not be more justly inflicted, as in other offenses, by the public, after conviction, than by an interested and perhaps exasperated creditor before. Our business, however, is to expound and not mako laws. The eifect of this bond is the discharge of the prisoner, and he has had the full benefit of it. The petition and schedule exhibited furnish no legal presumption of the truth of either. There is not even the affidavit of the applicant that they are so. Between the filing and

Loines v. Phillips.

the final hearing of the petition the inventory can be enlarged or diminished at pleasure of the petitioner. If both are untrue no penalty attaches, nor does any power exist to punish him. He can, with perfect impunity, whether solvent or not, procure his discharge from arrest, and turn his creditor round to his remedy upon his bond. And he is directly interested in doing so if the amount of his property can only be recovered for the breach. The very fact of the applicant declining to avail himself of a final discharge, under the law, raises a strong presumption, not only that his principal object was abstractedly a release from imprisonment, but that he was, at the same time, not insolvent. Between the filing of the petition and final hearing, the applicant may have acquired property which would render him criminal to make affidavit of the truth of his schedule. The petitioner himself, and he only, is able to ascertain, with perfect certainty, the true state of his property. He may have property in other states or countries. This may consist of lands, stock, vessels at sea, choses, money, the extent or amount of which can not be known to others. Shall the voluntary 174] omission of the principal in the bond *compel the creditor to rely upon vague and uncertain evidence of the debtor's property, when it is for his interest to seal in secrecy his effects, and derive a direct advantage to himself by the abuse of the law in the first instance, and afterward by his own concealment and fraud ? If the obligors in the bond are not liable beyond the amount of property of the principal, there would be a clear inducement to abuse the law and commit frauds. The court are undoubtedly authorized to put such a construction upon this bond and the damages to be assessed for a breach of its condition, as will prevent the debtor from taking advantage of his own wrong to the injury of the creditor, who is fairly pursuing the remedy the law gives him for the security and satisfaction of his debt. If damages are not recovered beyond the amount of the property of the insolvent upon the dismissal of the petition, the creditor would certainly lose the security of the person of the debtor, which the law, in the first instance, gave him, and this by the voluntary, if not fraudulent act of the insolvent. A part of his legal right would be lost without his own default and without consideration. Damages are defined to be a recompense to the plaintiff for the wrong done him by the defendaiat.

Coke Lit. 572, a.

The wrong here is procuring the body to be released under color of

Oliver and Baum v. Pray.

law, and then neglecting or refusing to assign all his property for' the benefit of his creditors. The creditor has a right to seize the body and detain it, and after the judgment to take the land and goods for its satisfaction. He has lost one part of his remedy altogether, and can receive no equivalent, unless he can recover damages beyond the amount of property of the principal in the bond. It has been the uniform practice of this court, under the statute, if the defendant is imprisoned under a capias ad respondendum to take the debt; if under a ca, sa. the judgment, as the measure of damages to which the obligee is entitled. This rule was deemed essential to prevent an abuse of the statute as well as to guard the legal rights of the creditor. Members of the court who have succeeded to the bench have sometimes doubted its correctness; but the decisions have, nevertheless, been uniform by a concurrence of a majority of the court. There appears no good grounds for making, at this late period, an innovation upon the settled practice. Judgment for the plaintiff, according to the agreement of the parties.

*WILLIAM OLIVER AND MARTIN Bauu v. John Pray. [175

Where an appeal bond is defective, occasioned by the act of the clerk taking

it, and the Supreme Court, for that reason, quash the appeal, upon showing probable ground that the appellant had a case at law, equity will interfere and grant a new trial. In such case, the case may be retained, and tried in the Supreme Court.

This cause was adjourned here for decision from the county of Wood. It was a suit in chancery, in which the original and amended bill set forth, that in August, 1827, Pray sued out process in Wood county against complainants, which was served on Oliver only.

The declaration set forth a special contract made between complainants, by their attorney in fact, Peter G. Oliver, and Pray, whereby it was alleged that complainants sold to Pray, on June 30, 1819, tract No. 35, and eighty acres of No. 29 (par. ticularly described in the declaration); that Pray paid at the time six hundred and thirty-one dollars and sixty-one cents, and the balance, one thousand eight hundred and ninety-four dollars and VOL. IV-11

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