
    
      H. Bulwinkle vs. H. Grube.
    
    A notice of appeal from a verdict, upon a suggestion of fraud, against an applicant for the benefit of the insolvent detors’s Act, is sufficient if given within time after the Judge has made his final decision.
    Application for the benefit of the insolvent debtors’s Act: the applicant had been arrested under mesne process, given bail and been surrendered by his bail: the jury found the following charge in the suggestion to be true, to wit — that the applicant “ after his arrest, and whilst under arrest at the plaintiff*’s suit, voluntarily paid or assigned his estate, or part thereof,” to a creditor in preference to the plaintiff: Held, that there was nothing in this finding which deprived the applicant of the benefit of the Act.
    The ‘ confinement’ spoken of in the 7th section of the Act of 1788, means the confinement from which the applicant has petitioned to be discharged, and c wndue,’ in the same section, means fraudulent.
    The jury also found the following charge in the suggestion to be true, to wit — that the applicant cc after his arrest, and whilst under arrest at the plaintiff’s suit, with the intention to hinder and defeat the plaintiff from being paid, voluntarily and fraudulently paid or assigned the whole of his estate and effects to one” H. B. Hdd) that this finding coul 1 not be treated as a conviction of undue preference, because it was not alleged that it was within three months; nor of fraud, because there was no proof.
    Pending an appeal from a conviction of undue preference, an applicant who has given bond for the bounds cannot be committed to prison.
    
      
      In the City Court of Charleston, February Term, 1851.
    The report of his Honor, the Recorder, is as follows.
    “ This was an issue tried before me upon a suggestion of fraud. The suggestion contained several grounds. The jury found the defendant guilty upon the 6th, 7th, and 8th grounds, and not guilty as to the others. The 6th, 7th and 8th grounds were as follows.
    “ 6th. That the said H. Grube, after his arrest, and whilst under arrest at the plaintiff’s suit, voluntarily paid or assigned his estate, or part thereof, to C. Waterman, a creditor, in preference to said H. Bulwinkle, the plaintiff
    “7th. That the said H. Grube, after his arrest, and whilst under arrest at the plaintiff’s suit, voluntarily paid or assigned the whole of his estate and effects, to one Henry Bulwinkle, a creditor, in preference to the said Henry Bulwinkle, the plaintiff.
    “ 8th. That the said H. Grube, after' his arrest, and whilst under arrest at the plaintiff’s suit, with the intention to hinder and defeat the said H. Bulwinkle from being paid, voluntarily and fraudulently paid or assigned the whole of his estate and effects to one Henry Bulwinkle.
    “The testimony in the case was as follows:
    “H. Grube, the defendant, introduced, and personally examined by the plaintiff, under the Act of 1836, swore as follows: — .
    “Witness had a store in Market street, in October, 1849; kept it to the 13th of July, 185U; then sold out his stock to one C. Waterman, at the price of $750; witness got about $200 in cash; paid the cash he received from Waterman to H. Bul-winkle, jr; witness had other money; paid out in all $318; paid some small bills. At the time witness made these payments, knew that this was all the means he had; he sold to Waterman at private sale; Waterman had threatened to shut him up; witness had promised to pay Waterman in a year; the year expired July, 1850; when witness sold out to Waterman, Waterman took possession, and next day he sold the stock to John Grube, witness’s brother; witness remained in the store as a clerk; Waterman employed him, and now employs him; Waterman paid him $ 10 for the first month; gives him now $ 10 per month; witness never received any thing from his brother; when witness paid Bulwinkle, he knew that the plaintiff could not be paid, as he had nothing left to pay with; this payment was made on the 14th or 15th July; knew that he was under arrest in this case at the time; gave bail in this case June 16.1850; the stock of goods were not worth more than $750.
    “ Cross-examined. Witness owed Waterman, and gave him a confession of judgment for the amount, $800, in the Court of Common Pleas, 26th August, 1846; witness owed Waterman bona fide; Waterman had furnished witness with the stock of goods; and set him up; plaintiff knew that witness owed Waterman; Waterman threatened to shut up witness’s store, and witness therefore sold out to Waterman; witness got goods from Bulwinkle on credit of Waterman, and this was the debt which was paid out of the purchase of defendant’s stock; witness had no watch of his own; the watch referred to, belonged to a man in a boat; it was not worth fifty cents ; afterwards given to his brother ;■ witness is a clerk at $10 per month ; it was agreed in the sale to Waterman that Bulwinkle should be paid ; witness can’t swear whether plaintiff knew of this judgment or not.
    
      “In reply. Never said if plaintiff sued him he (the plaintiff) should never be paid; plaintiff knew that Waterman bought goods for witness’s store; he bought from plaintiff at his store; saw plaintiff there, and Mr. H. Bulwinkle, jr; bought at the corner of Tradd and East Bay; H. Bulwinkle, jr. was there; he seemed to have the management of the busines ; witness hired a house from plaintiff; told him then he had no money, and Waterman was going to set him up in business : at the purchase of the goods from plaintiff, did not tell him Waterman’s judgment, (the note was given for house rent); owes something also on account for groceries; witness paid $254 for goods bought when he left his house; witness hired the store in Tradd street, from old Mr. Bulwinkle.
    
      “Henry Bischoff sworn. Knows old and young Bulwinkle; old B. had a store on the Bay; young B. managed it chiefly ; the old man was there almost every day; knows defendant; once bought a bill of goods from witness for John Grube.
    
      “ John Gaetyn. Witness called for payment of this note three or four times before plaintiff sued the defendant; on the last occasion young Bulwinkle was present; he said to witness, you need not come for money, for all this (referring to the goods in the store) is mine; defendant laughed; this was before plaintiff sued.
    “ C. Waterman sworn. Has known Grube (defendant) for many years; witness started him in Tradd street, advanced him goods, and furnished him with money; defendant confessed a judgment in favor of witness; defendant moved from Tradd street to Market street, where he kept store for some time; witness told defendant he would have to settle wilh him ; defendant sold his stock to witness for $750, on the 13th July, 1850 ; defendant paid H. Bulwinkle, jr. out of this amount his debt, because witness had been security for it.
    “ Cross-examined. Defendant owed witness $800; part for goods — some for money; witness kept store in State street; he bought goods from others for defendant; took a confession of judgment after the goods were furnished; witness bought some $100 or $200 worth of goods from H. Bulwinkle, jr; old B. was at the store; don’t know whether old B. knew of these purchases ; defendant continued to buy .at the store; witness gave a year’s indulgence; went to Mr. Kunhardt; a bill of sale was made out for the stock; witness was friendly to Grube ; he kept him as a clerk at $10 per month; as long as he stays, is to get $10 a month; witness sold stock to John Grube, directly after he had bought from defendant, and at the same price— $750; has received nothing as yet from John Grube; was to have been paid in cash ; no time for payment agreed on; found Grube going backwards, when witness took the store back ; he (witness) is now in possession ; lives there since September last, when he took it back; witness has another store; there are two clerks; sells groceries; stock worth about $500 or $b00 ; in the course of the year, goods were bought from H. Bulwinkle & Co ; witness did not know at the time of the sale that Grube (the defendant) had been held to bail; knew that defendant owed plaintiff a note; knew that defendant could not pay old Bul-winkle ; he intended to enforce the judgment; the stock was sold to him at a fair price; defendant had no credit with the Bulwinkles ; none with Bulwinkle, jr.
    The record of the judgment in favor of Waterman vs. Bul-winkle, was introduced and received in evidence. It appeared that pla ntiff had taken out and lodged as executions upon his judgment obtained for his debt, ca. sa. and fi. fa. to bind, 2d November, 1850.
    “ The case was very fully and ably argued, and as no exception is taken in the grounds of appeal to my chaige or instructions 'to the jury, I do not perceive that any thing more is required on my part to present the case to the Court oí appeals, precisely as it was presented to the '’ourt below. The jury (as already stated) found the defendant guilty upon the 6th 7th and 8th grounds in the suggestion. The annexed notice of appeal was served on me, on Monday, the 24th of February, 1851.— The case was tried, and verdict rendered on the preceding Friday, to wit, the 2Lst. On the same day, after the verdict was rendered, on an ex parte application of the plaintiff’s attorney , (which I regarded at the time as a matter of course,) I granted the following order:
    
      “ The jury having found the defendant guilty under the issue of fraud contained in the suggestion, it is ordered that the defendant be committed to the jail of Charleston district, to remain until discharged by due course of law.
    Feb. 21, 1851. Wm. Rice, Recorder.
    “ On Saturday, the next day, and last day of the term, the defendant’s counsel moved for the discharge of the defendant, upon his giving bail or security, should that be thought necessary ; or upon the supposed continued liability of the securities he had already given in his prison bounds bond in this m.se, until a final hearing and decision should be had in the Court of Appeals. On this occasion, the motion was resisted, in part, by the plaintiff’s attorney, on the ground that,no notice of appeal from the verdict of the jury had been formally given. I adjourned until Monday, the 24th, the hearing of the whole matter without prejudice. On Monday, it appears,‘the notice of appeal was served, but the resumption of the hearing of the motion, according to my notes, for some reason did hot take place until the next day, Tuesday, the 25th. I refused the motion to discharge the defendant on bail, or giving security for his appearance at the Court of Appeals, or whenever he might be called for after their review of the verdict. It appeared to me there was no provision in the law which would justify the Court, or entitle the defendant, after a conviction of fraud, or, as in this case, of having given a fraudulent preference, upon an appeal for a new trial, to go at large, or upon hail, until the hearing of the case in the Court of Appeals. In this view of the subject, I assumed what was not admitted but denied by the plaintiff’s attorney, that the notice of appeal required by the law. had been duly served. One fact was relied on by defendant’s counsel in support of his motion, that perhaps should be mentioned, to wit— that since the order granted by the Court for the commitment of the defendant, and under which, as it appeared, he had been committed by the sheriff, the plaintiff had re-lodged the ca. sa. in the sheriff’s of&'ce. I did not consider this material, or as altering the rights of the parties; and that plaintiff had a right to rely upon the order of the Court directing defendant’s commitment, carrying out the provisions of the insolvent debtors’s and prison-bounds Acts in the case. The plaintiff’s attorney, I understood to place his rights upon this principle, and expressed his willingness to abandon or withdraw, and did, so far as he could, withdraw his ca. sa. from any active force or operation. Upon refusing the motion to discharge defendant upon bail, I understood this point would be carried, up to the Court of Appeals, for review. How far it may be important or desirable, now that the principal case will be, if it can be, so soon heard by that Court, is for the parties to determine. The defendant, I am informed, is still in confinement, under the conviction of fraud, and the necessary and proper commitment which follows, according to my best judgment, and the well-settled and uniform practice in such cases. Wm. Rice.”
    The defendant appealed, and now moved for a new trial, on the grounds,
    1. Because the payment to Bulwinkle and Nimitz was not in fact his payment, but the payment of C. Waterman, who was his judgment creditor and security for this debt.
    2. Because, if there was any undue preference, it was in favor of C. Waterman, his judgment creditor.
    3. Because his delivering up his store, without a levy and sale, was only doing that which C. Waterman could have enforced under and by virtue of his judgment, and could not have been considered voluntary.
    4. Because the store was in fact the property of C. Waterman, having been purchased from him, and he never having been paid for it.
    5. Because there was no pretence that there utas any fraud m "his schedule.
    Pressley, for the motion.
    
      Phillips, contra.
   The opinion of the Court was delivered by

Evans, J.

The first question made in this case is, whether the appeal shall be heard. The verdict of the jury on the trial of the suggestion was rendered on Friday, and -the notice of appeal should, in strictness, have been given on Saturday. But this is not like an ordinary case, where the verdict settles all the matters in dispute. The trial of the issues was only a preliminary to the decision of the main question, whether the applicant should be discharged; and until this was finally decided, we think the defendant’s counsel might very well suppose his notice would suffice if given within time after the Judge had given his final decision.

If the defendant has a right to appeal, has he shewn any grounds to impeach the verdict and the decision of the Recorder upon it ? The objection made to his discharge is, that he has given an undue preference to other creditors over the plaintiff.— This question arises on the construction of the prison bounds Act of 1788, (5 Stat. 79). The 7th section of that Act, after declaring in what other cases the prisoner shall not be entitled to the benefit of the Act, says, “ or who shall have, within three months before his or her confinement, or at any time since, paid or assigned his estate, or any part thereof, to one creditor m preference to another, or fraudulently sold, conveyed or assigned his estate to defraud his creditors.” And in a subsequent part it is declared that, “ wherever a prisoner shall be accused by the plaintiff or his agent of fraud, or undue preference to one creditor to the prejudice of the plaintiff, or of having made a false return,” &c. the Judge shall direct a jury to be empannelled to try the issue.

The 6th and 7th specifications charge that the prisoner, after his arrest, and whilst under arrest at the plaintiff’s suit, voluntarily paid or assigned his estate, or part thereof, to a creditor in preference to the plaintiff. Of this the jury have found him guilty. Is there any thing in it which, by the Act, prevented the prisoner’s discharge? This was an application for a discharge on mesne process on which the defendant was held to bail, and had been surrendered by his bail. The arrest spoken of, must mean his arrest on the bail writ. If a man should be arrested on a bail writ, and before he gave bail should pay a just debt to another creditor, and should two years afterwards be arrested on final process, or surrendered by his bail, would he, on that account, be deprived of the benefit of the Act? The law allows a man to prefer one creditor to another, and the restriction is, that he shall not do so within three months before his confinement, with a fraudulent intent to the prejudice of the plaintiff. It is manifest that the confinement spoken of in the Act, means the confinement from which he has petitioned to be discharged, and the word undue, by all our cases, has been held to mean fraudulent, or done with the intent to hinder, delay or defeat the plaintiff from the recovery of his debt. Dobson vs. Teasdale, (4 McC. 81); Smith, Wright & Co. vs. Campbell & Co. (Rice, 367); Robinsons & Caldwell vs. Amy, (1 Rich. 289). From this review, I think it very clear there is nothing in the 6th and 7th specifications which deprives the defendant of the benefit of the Act.

The 8th specification is in these words, viz : — “ that the said H. Grube, after his arrest, and whilst uuder arrest at the plaintiff’s suit, with the intention to hinder and defeat the said H. Bulwinkle from being paid, voluntarily and fraudulently paid or assigned the whole of his estate and effects to one Henry Bul-wmkle.” If this was intended as an objection on account of undue preference, the intent may be sufficiently assigned, but it is still open to the objection that it is not alleged that 'it was within three months before his confinement or since. 1 think there is little doubt it was so intended, because in' the 7th, H. Bulwinkle is alleged to be a creditor. But if the words should be construed into an accusation of fraud, then it is clear there is no proof. The evidence is, that Grube confessed a judgment to Waterman to cover future advancements; that the debt to H. Bulwinkle, jr. was contracted on Waterman’s guaranty, and was, in fact, one of the debts which the judgment was intended to cover, and was paid out of the money for which the store was sold to Waterman. At first we were inclined to the opinion that there was nothing in the finding of the jury which should have prevented the discharge, but as it appears from certain certificates, which have been furnished, that the preference given to Waterman was, in fact, within three months before the confinement j>f the defendant by the surrender of his bail, we have concluded to grant a new trial, although we do not see how it can benefit the plaintiff, as I think it very clear there was nothing fraudulent or prejudicial to the plaintiff, by the assignment to a judgment creditor of the defendant’s estate at a full and fair price.

The legality or propriety of the Recorder’s committing the defendant to the prison, has been questioned in the argument in this case. A man has a right to appeal, and until his appeal is decided, there is no final decision, and to punish a man before judgment, is a reversal of the order of events; besides, I do not think it very clear that one convicted of undue preference can be punished in this way. The 10th section of the Act of 1788, applies only to those who have been convicted of rendering a false schedule. We are of opinion there should be a new trial, and that, in the mean time, the defendant is entitled to go at large under the prison bounds bond.-

O’Neall, Wardlaw, Frost and Withers, JJ. concurred.

New trial ordered.  