Bunting v. Wright.

If the word "imprison" had not been used in the act, some question might have been made as to its application to cases where a debtor had been arrested and was in prison, or out on bail at the date of the passage of the act. We must reject that word or hold that the act was to be general in its application, and that the intention was to abolish all imprisonment for debt from and after the passage of the act.

We concur in opinion with his Honor that no judgment could be rendered on the bail bond, which is the nature of the bond given in this case. The securities had no right to arrest or imprison their principal after the passage of the act, in order to surrender him, and the sheriff would have had no right to imprison him; so the condition was made impossible by the act of law, and the bond is saved.

In this case an issue of fraud had been made up. It is provided, Rev. Code, ch. 59, sec. 14, "if, on the trial, the jury shall find that there is any fraud or concealment, &c., the debtor shall be deemed in custody of the sheriff, and shall be adjudged to be imprisoned," &c. But by the act of 1866-'7, sec. 3, "all laws and clauses of laws coming in conflict with this act are hereby repealed;" so, if the debtor had made his appearance and a trial had taken place, and a verdict finding fraud been entered, the court could not have adjudged that he be imprisoned. Cui bono, require him to appear and go through the useless and expensive form of a trial, as the plaintiff could not have the fruit of a verdict in his favor?

On the whole, as the object of the litigation has been put an end to by the act of law, all such cases must go off by something like an abatement; that is, be dismissed, each party paying his own costs, as was the case of actions when slaves were the only subject of the litigation, after their political death.

In this age of innovation, when there are no ancient

Grissett v. Smith.

paths, the courts are obliged to make new ones, in order to carry into effect the will of the law-making power.

It was urged on the argument that the act cannot open the jail doors proprio vigore, and there must be some formal mode of discharging debtors who are in jail. It would seem in such cases that a writ of habeas corpus would apply, so as to have it adjudged that the debtor was entitled to the benefit of the act, unless the creditors consent to his being turned out without such proceedings. However, that ques

tion is not before us.

There is no error.


Judgment affirmed.


When a final judgment is rendered in the Supreme Court upon an appeal from a final judgment in the Superior Court, the latter court has power to issue no other process in the case than an execution for its own costs.

MOTION, for an execution for costs, and a writ of re-restitution upon a certificate of the judgment of the Supreme Court, in a case of forcible entry and detainer, before Fowle, J., at Spring Term, 1867, of the Superior Court of Columbus.

This case was before this court at the last term, (ante p. 164,) upon an appeal from a judgment of the Superior Court of Columbus, at Fall Term, 1866, quashing the proceedings before the justices and ordering a writ of re-restitution for the plaintiff in the recordari, by which the proceedings were carried up. The judgment of the court below was affirmed by the Supreme Court, with costs.

The certificate of the decision having been transmitted to the Superior Court, the plaintiff's counsel made the mo

Grissett v. Smith.

tions, as above, for an execution for costs, and a writ of rerestitution. It appeared from the record that the plaintiff's term in the premises expired January 1st, 1867, and his Honor refused to grant the writ, assigning that as his reason for the refusal. The motion for execution for costs was allowed. The plaintiff appealed.

Person, for the appellant.

Moore, contra.

1. The court below, to which the decision of the Supreme Court was certified, exercised all its powers when it ordered execution to issue for the costs incurred in that court. Rev. Code, c. 33, ss. 6 and 21.

2. But if the court below had possessed the power to order a writ of re-restitution, it should not have exercised it.

3. The plaintiff's term had expired, and with it the right of possession. Wilson v. Hall, 13 Ire., 484; Watson v. Trustees F. College, 2 Jon., 211; Bac. Abr., F. & D.—G.

To ask of the law to be now re-possessed of land which the petitioner admits is no longer his, but belongs to another, is a plain request of the law to justify what it forbids, namely: entries into land without title. The plaintiff's case begins with a prayer to be allowed to keep his own land, and ends with a prayer to be allowed to enter on the lands of another!

BATTLE, J. The refusal of his Honor in the court below to order the issue of the writ of re-restitution was right and proper; but not for the reason assigned by him. The first appeal took the whole case to the Supreme Court, and the judgment rendered therein was final; and any execution, or process in the nature of an execution, except for the costs incurred in the Superior Court, must issue from the Supreme Court. The certificate of the decision of that court in the present case was transmitted to the Superior Court by virtue

Grissett v. Smith.

of the provision contained in the Rev. Code, c. 33, s. 21, for the purpose of having the costs of the latter court taxed therein, and an execution therefor issued therefrom. Any other execution upon a final judgment in the Supreme Court must issue in the first instance from that court, though it may, in the discretion of the court, be made returnable to the Superior Court, which may enforce obedience to it, and may, if necessary, issue new or further execution or process thereon. See Rev. Code, c. 33, s. 6.

When the appeal to the Supreme Court is from an interlocutory judgment at law of a Superior Court, the former court cannot enter any judgment reversing, affirming or modifying the judgment so appealed from, but must cause its decision to be certified to the court below, with instructions to proceed upon such judgment, or to reverse or modify the same, according to the said opinion; and the court below shall enter upon its records the opinion at length, and proceed in the cause according to the instructions. See Rev. Code, c. 33, s. 14.

In the case now before us the first appeal was from a final, and not an interlocutory, judgment of the Superior Court, and the judgment of this court on such appeal was final. The motion for the writ of re-restitution ought to have been made here, and not in the Superior Court, which, as indeed appears from the certificate sent down to it, had no authority to issue any execution except one for the costs of that court.

The judgment from which the present appeal was taken must be affirmed.



Judgment affirmed.

McCorkle v. Earnhardt.


A purchaser for value without notice, under a deed in trust in which some of the debts secured are fictitious, gets a good title, even against the creditors of the fraudulent trustor.

(Shober v. Hauser, 4 Dev. & Bat., 91, and Brannock v. Brannock, 10 Ire., 428, cited and approved.)

EJECTMENT, tried before Fowle, J., upon a case agreed, at Spring Term, 1867, of the Superior Court of STANLY.

The lessor of the plaintiff claimed title to the land in dispute by virtue of a deed from the administrator of Evan Stoker, deceased, executed under a decree of the County Court in a petition to make real estate assets. Evan Stoker claimed under a deed made by the trustee in a deed in trust executed by John Stoker. The deed in trust was executed and registered in March, 1856, and some of the debts mentioned as secured by it were fictitious; others were bona fide. Neither the trustee nor Evan Stoker, at the time of the purchase by the latter, was aware that any of the debts were feigned; and the sale was for valuable consideration.

The defendant claimed through one Kirk, a creditor of John Stoker, but not secured in the deed in trust. Kirk had bought at execution sale under a judgment obtained after the registration of the deed in trust.

Upon these facts his Honor instructed the jury to find for the plaintiff. Verdict accordingly; judgment, and appeal by the defendant.

No counsel for the appellant.

Phillips & Battle, contra.

1. A deed in trust securing debts, as well bona fide as fictitious, is not void. Brannock v. Brannock, 10 Ire., 428.

2. Since the act of 1842, Rev. Code, ch. 50, sec. 5, a pur

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