The opinion of the Court was drawn up by
Shepley J.— This suit is upon a poor debtor’s bond. The act of February 8, 1839, c. 366, provides, that when it shall appear, that the principal in the bond has been allowed to take the oath by two justices of the peace quorum unus, or by two justices of the peace and of the quorum, or by a justice of the peace and a Judge of any Municipal Court, after notice of his intention to disclose the state of his affairs, the defendants shall have a right to have the action tried by a jury, who shall find and assess the damages, if any, the plaintiff has sustained. This case coming within the express provision of the statute, the only question is, whether it appears, that, the plaintiff has sustained any damage. And these is nothing in the case to show, that the principal had any property at the time of taking the oath, unless he derived it from the estate conveyed to his wife, and by her with him conveyed in mortgage to secure the payment. That mortgage has been foreclosed; and it cannot be presumed without proof that the right of redemption was of any value to one, who must have paid the whole debt to *230obtain the benefit of whatever interest the husband might have had in it. The debtor continued to occupy that estate for one year after the disclosure, and the income is stated to have been of the value of one hundred dollars. But he had no legal right to the possession of it; and no creditor could have obtained any thing from it even by the indulgence of the mortgagee, unless he could have found a purchaser of the equity. The debtor has received the income through the mere indulgence of the mortgagee without any legal right to it. There being no legal interest in the debtor, which was of any value to the creditor, or from which he could have obtained any thing to pay his debt; there is no proof, that he has sustained any damage ; and a nonsuit is to be entered.