Opinion bv
Mr. Justice Sterrett :In his petition for discharge under the insolvent law defendant in error sets forth, inter alia, that he was arrested on a capias ad respohdendum issued out of the court of common pleas of Butler county, in a certain action of breach of promise to marry Anna A. Eshenbaugh, the plaintiff therein; that he thereupon gave bond in the required sum of $1,000, with John Bricker as bail, conditioned that if he shall be condemned in said action, he shall satisfy the condemnation money and costs or surrender himself into the custody of the sheriff of said county, etc.; that upon the trial of said action a verdict for $1,000 damages was rendered in favor of the plaintiff; that pursuant to the terms of said bond he “has surrendered himself into the custody of said sheriff, and that he is now in such custody of the sheriff,” etc.
These and other facts averred in the petition, assuming them to be true, bring defendant in error’s case within the pro*413visions of tbe insolvent law and entitle him to the relief therein provided; but it was denied that he was in custody at the time of presenting his petition, December 7, 1886, or that he was then in any manner restrained of his liberty. In support of that denial it was shown that on December 6, 1886, petitioner was surrendered and committed to jail by the sheriff, and on the evening of the same day, upon giving a new bond, he was discharged from custody.
On the hearing of his application for discharge, Sheriff Kramer testified as follows: “On the 6th of December, 1886, John Bricker brought Perry to me; I put him in jail. Mr. Galbreath, his attorney, afterwards came to me and gave bond, and I let him out. This was on the evening of the same day. I don’t remember of ever having him in custody after this. I don’t remember of Colonel Thompson saying to me that he surrendered Perry. If he did I would have put him to jail.”
This uncontradicted evidence establishes the fact that at the time of presenting his petition defendant in error was not in custody nor in any manner restrained of his liberty. It follows, therefore, that one of the essential allegations of his petition was not only unsustained by proof, but was clearly shown to be untrue; and hence the exceptions of plaintiff in error to his discharge, covered by the sixth and seventh specifications, should have been sustained.
The order of June 13, 1887, discharging defendant in error, is reversed and set aside, and petition dismissed at his costs.