Lindsey v. Hunter

18 Ga. 50

• Court: Supreme Court of Georgia
• Decided: May 15, 1855
• Docket: No. 9
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

Two questions only need be considered in this case: 1st. Whether the schedule was filed in terms of the law ? and 2dly. Whether the schedule was sufficient?

[1.] The objection to the filing is, that it was not suffered to remain in the Clerk’s office, but ivas withdrawn by the Attorney of the debtor, and withheld until the sitting of the Court to which it was made returnable. No fraudulent intent is imputed to the parties; no application was made for the paper, either at the Clerk’s office or to the Counsel. If the schedule, when produced, operated as a surprise, it would have been good ground for continuing the cause, but certainly not for imprisoning the debtor. In fact, the cause was •continued, so that no possible injury could have resulted to the creditor from the failure to leave the schedule in the Clerk’s office.

[2.] How stands the matter upon the other ground, namely : the insufficiency of the schedule ? The defendant swore that he had no property or effects of any kind, except as excepted in the oath prescribed by law for insolvent debtors. There is but one oath prescribed, by law, for insolvent debtors ; that will be found in the Act of 1801, (Cobb’s Dig. 380,) and in it the debtor swears that he is not possessed of any real or personal estate whatsoever, except Lis wearing apparel, bedding for himself and family, and the working tools or implements of his trade or calling, together with the equipments of a militia soldier.

Could the schedule have been more definite ? Could not perjury have been assigned on the oath appended to this schedule ? And if the creditor could have shown that the debtor was possessed of any other effects than those mentioned in the oath, would not a conviction have been inevitable? Was there any thing to prevent the creditors from suggesting fraud, or concealment of any property? And could not an issue have been formed and tried by a Jury upon- this schedule ?

To our minds, the case is clear; and with the 7th section of the 4th article of the Constitution of the State before our eyes, that “ the person of a debtor, where there is not a strong presumption of fraud, shall not be detained in prison after delivering, bona fide, all his estate, real and personal, for the use of his creditors,” we cannot consent 'to see a citizen deprived of his liberty, upon a more verbal quibble.