
    *Ross v. Colville & Co.
    [Wednesday, May 11, 1803.]
    Sequestration — When Proper — Case at Bar. — A sequestration is proper, if the defendant obstinately lies in jail to save his estate or exhausts it in paying' other creditors, to the injury of the plaintifi.
    Same — Appeal—Quaere.—If an appeal lies to this Court, from an order of the Court of Chancery awarding a sequestration.
    Colville & Co. obtained writs of sequestration from the High Court of Chancery against Ross, in order to enforce perform - anee of a decree. Eoss offered to appeal to this Court; which the Court of Chancery allowed. Whereupon, the motion to appeal, and the allowance thereof, were entered on the record, which states, that the defendant is in the prison rules, for his contempt in not performing' the decree, and is charged in execution in other suits; that he has paid sundry debts since he was so in jail; that he produced a deed conveying property for further securing the plaintiffs ; a copy of which is made part of the record : And that the plaintiffs opposed the appeal, but the Court allowed it.
    Wickham, for the appellee.
    It was not a decree that the appeal W'as taken from; but a mere award of process ■on a decree already made. The security taken was collateral to the decree, and not a payment. A deed of trust is not of so high a nature as a decree; and there is an express stipulation that it should not affect the decree. Besides, the appellee might pursue all his remedies at once; for, a man may proceed at law upon his bond, and in equity upon his mortgage.
    Duval, contra.
    The part3T may appeal from an award of execution. Harrison v. Tomkins, 1 Call, 295. A sequestration ought never to issue, where the application for it is unconscionable ; and, here, it was unreasonable in the plaintiff to ask it, when he had such abundant security for his money.
    Warden, on the same side.
    The act of Assembly allows an appeal from any final •order of an inferior Court. E. C. 67. And this exposition is expressly confirmed by the case of Harrison v. Tomkins.
    ^Wickham, in reply.
    If the defendant, having property enough to pay his debts, lies in prison for a long time rather than satisfy the decree, he lies there obstinately; and, therefore, it is right to sequester his estate, until he will comply. Besides, the order states, that it was awarded for good cause shewn.
    Cur. adv. vult.
    
      
      Sequestration — When Proper. — For the proposition that, if the defendant obstinately lies in jail, a sequestration of his property is proper, the principal case is cited and approved in Hook v. Ross, 1 Hen. & M. 320.
    
   PENDLETON, President,

delivered the resolution of the Court, as follows:

This is an appeal from an order of the High Court of Chancery, awarding writs ■of sequestration upon a former decree in favor of the appellees against the appellant ; which is stated to have been done for good cause shewn; and we presume the reasons assigned were satisfactory, since the appellant did not, by exception, place them upon the record, to enable the Court to judge of their force.

What the appellant states by way of objection, is very unsatisfactory; first, he is in custody for contempt of a decree of that Court, not stated to be the decree of the appellees; or, if it had been, it was no objection to the sequestration; which, perhaps, might be awarded, although his body is in confinement, if it shall appear that he obstinately resolved to lie in prison, to save his estate. His second objection, that he has been paying debts since he was in prison, seems rather a good reason for awarding the writs, as he is thereby exhausting his funds in preferring other creditors, to the injury of the appellees. His third objection is on account of the deed of trust, by which certain property was conveyed to trustees, to be sold by ,them, or any one, to satisfy the instalments as they should become due; which the Court at first thought a reasonable objection; since it did not appear to be on the footing of a common mortgage, as a collateral security, but answering the effect of a sequestration *by an immediate sale for satisfaction; and the rather as the counsel for the appellees was one of the trustees, and had alone a power to sell at any time. But, on further reflection, considering that there might be prior in-cumbrances on the property, or that the appellant might withhold the possession of it, in order to prevent a sale, which might have been part of the good causes shewn, the Court is now of opinion, that the order ought to be affirmed, with costs leaving the question, whether the appeal ought to have been allowed, to be decided in some future case, wherein it shall be necessary.  