
    
      D. F. Fleming v. L. H. P. Close.
    
    Although an applicant for the benefit of th$ Acts for the relief of imprisoned or insolvent debtors, may have practised a fraud in obtaining the very goods, the value of which was the cause of action which resulted m his arrest, still he is entitled to his discharge if he has complied with the requisitions of the law in malting a fair and full surrender of all his estate, and in having made no false conveyances or fraudulent preferences.
    The creditor of any person applying for the benefit of the Prison Bounds or Insolvent Debtor’s Acts, may, either in person or by attorney, Examine such applicant on oath, in the presence of the Judge or Commissioner of special bail, touching the truth of his schedule, &c.; and on the trial of any issue under those Acts, he may, in like manner, re-examine him before the jury.
    
      Tried in the City Court of Charleston, May Term, 1848.
    This was a suggestion of fraud tried by a jury in the City Court. The jury found a verdict of not guilty. The, nature and history of tíre case will best appear by directing the report to their respective grounds of appeal in the order in which they are made.
    The character and extent of the four grounds made in the suggestion, and referred to in the first ground of appeal, will be best understood by the following copy of them.
    First. “ Heeau se, on the day of Anno Domini, 1847, the said defendant obtained from the said plaintiff the goods of the said plaintiff by means of false and fraudulent pretences, the value of which goods so obtained was the cause of action for which the judgment of the said plaintiff against the.said defendant, and the said execution thereon, were obtained and issued; and therein was guilty of fraud against the said plaintiff: for that he the said' defendant well knew that he could not purchase the said goods on his own personal credit, and promised and engaged that he would deliver to the said plaintiff in payment of the said goods a promissory note, to be made by the said defendant, and endorsed by one Edward Harvey, now deceased, for the sum of money for which the said goods were to be sold; and in consideration of the said special agreement, the said plaintiff was induced to deliver the said goods to the said defendant, who never fulfilled his said special engagement.”
    Second. Because the said defendant well knew at the time he induced the said plaintiff to deliver to him the said goods, that he could not procure the said endorsed promissory note from the said Edward Harvey.”
    Third. “ Because, after the delivery of the said goods, and while they or the larger portion of them were yet remaining in the possession of the said defendant, and might have been returned to the said plaintiff, the said defendant fraudulently deceived the said plaintiff by pretending and falsely representing to him at times, that the said promissory note would be endorsed by the said Edward Harvey, and afterwards that it had been so endorsed and would be delivered according to his promise.”
    Fourthly. “Because the said defendant fraudulently and by fals^ pretences, obtained the said goods, not for the purpose of carrying on a fair and regular business and to pay for the same, but with the fraudulent purpose of appropriating the proceeds of the said goods to the use of himself, and to the loss and injury of the said plaintiff, and of concealing the same so as to defeat the just and legal remedies of the said plaintiff.”
    These four grounds, as stated in the notice of appeal, were, on motion of the defendant’s counsel, ordered by the Court to be stricken out, as irrelevant and insufficient, and as constituting, even if found to be true by the jury, no bar to the defendant’s discharge. As to the second ground of appeal, there being no such question before the jury, and their province being to decide the matter submitted to them under the other grounds of the suggestion, the jury cannot well be supposed to have based their verdict upon matters connected with the grounds which (from being stricken out) were withdrawn from their consideration. As to the 3d ground, in stating to the jury the prominent scope and design of the Acts for relief of insolvent debtors and the prison bounds Acts, his Honor observed that the leading purpose apparently contemplated by the Legislature, was that in order to be entitled to the privileges conferred, the applicant should make a fair and full surrender of all his estate and effects, retaining nothing covertly for his own use, and having made no false conveyances or fraudulent preferences. That an application for discharge under the provisions of these Acts, did not involve a general inquiry into the morality or propriety of one’s whole past life; and that looking to the evident intention and meaning of the Acts, if, as was assumed, the petitioner in this case had committed any fraud in the original purchase of the goods bought from the plaintiff, it would not, of itself, constitute any well founded objection to his discharge — the petitioner complying with the requisitions of the law in giving up all his effects and having made no undue preferences, or covert and fraudulent assignments of his estate.
    As to the fourth ground of appeal, he refused the motion of the plaintiff, that the defendant should be examined, under oath, on the trial of the issues made by the suggestion, holding it as a novelty and a violation of all principle. The plaintiff, upon the application of the defendant before him for his discharge, sitting as the Judge, had exercised the right conferred on him by the Act of 1836 in such cases, and had examined him fully, under oath. It was after that examination that ‘ the plaintiff filed his suggestion of fraud, the trial of which, in open Court, forms the subject of this report. He refused evidence as to what the prisoner said at the examination before him personally, holding his own notes of that examination or unaided recollection of what the party said, if important, much higher and more appropriate evidence. As there was no complaint upon the merits of the case, or of the verdict, as against law or evidence, it may be only proper and due to the defendant to say, that after considerable evidence, and a very full and thorough examination of the testimony, and an able argument of the case on both sides, the jury found a verdict of not guilty upon the four remaining grounds of fraud alleged in the suggestion.
    The plaintiff appealed and moved for a new trial, on the grounds:
    First. Because his Honor the Recorder ordered the four first grounds of the plaintiff’s suggestion of fraud against the defendant to be struck from the record, thereby ruling that the jury were not competent to inquire into the alleged fraud of the defendant, in originally obtaining the goods of the plaintiff by means of false and fraudulent pretences, and in retaining the said goods and inducing the plaintiff to permit his retention of them by false representations and deceit — and with a deliberate design to apply the proceeds of the said goods to his own use, without any prospect of payment or intention of using them in the regular course of business.
    Second. Because his Honor the Recorder charged the jury that the obtaining of goods by false and fraudulent pretences, although proved upon the defendant, would not prevent his discharge upon an application for the benefit of the prison bounds Acts.
    Third. Because his Honor the Recorder charged the jury that the only questions for them to determine were, whether there was any property belonging to the defendant at the time of rendering his schedule, which had not been included therein, and whether he had made any undue preference.
    Fourth. Because his Honor the Recorder refused the motion of plaintiff, that the defendant should be examined under oath, and also refused to allow evidence to be given of the declarations made by the defendant, when under oath, on his first application before the Court for his discharge. Respectfully submitted,
    Northrop, for the motion.
    
      A. G. McGrath, contra.
   Evans, J.

delivered the opinion of the Court.

This Court is of opinion that there is nothing in the four first grounds in the suggestion, which if true, would hinder the discharge of the defendant. These grounds allege merely that the defendant practised a fraud in obtaining the goods ( for the payment of which he had been arrested. The question to be tried was not whether the defendant had practised a fraud in obtaining the goods, but whether his schedule contained all his property. The case of Gray v. Schroder is no authority for what is contended for in this case. There the jury found that the defendant Schroder had purchased the goods with the design of assigning them to his brother, to defraud the plaintiff, and had effectuated that design by an actual assignment. In that case, there was not merely a fraudulent intent in the purchase of the goods, but the defendant had fraudulently sold, conveyed, and assigned his estate to defraud his creditors.” His case was in the very words of the Act of 1788. The fourth ground in the appeal is that his Honor the Recorder refused on the motion of the plaintiff to allow the defendant to be examined on oath, or to allow evidence to be given of the declarations of the defendant when under oath on his first application before the Court for his discharge. By the Act, 1836, it is enacted, “that the creditor of any person applying for the prison bounds Act, insolvent debtor’s Act, or any Act now of force or hereafter to be passed for the relief of insolvent debtors, or imprisoned debtors, may, either in person or by attorney, examine and cross examine such applicant on oath in the presence of the Judge, or Commissioner of special bail, touching the truth of his schedule, and touching the nature and extent of his property, rights and credits, liable to be assigned for the benefit of his creditors.” And, “ the refusal of any such applicant to answer all proper questions put to him in the course of his examination, shall prevent his discharge until he shall have fully answered the same.” On the construction of this Act it has been decided that the creditor has a right to examine the applicant on oath before the Judge without filing any suggestion; Rosser v. Moye. The object seems to have been to enable the creditor to ascertain whether there is any ground to disbelieve the truth of the schedule, and thereby to satisfy himself whether there is any reasonable ground on which to predicate such suggestion of fraud or undue preference, as will prevent the prisoner’s discharge. If upon such examination the creditor is satisfied, as is very often the case, he waives all objection and the prisoner is discharged. But if the examination is not satisfactory, then he proceeds to file his objections by way of suggestion, and the issues are tried by a jury. The right to examine the prisoner before the Judge, was not disputed in this case. It was allowed, I suppose, in the utmost latitude that the creditor desired; but he contends he is entitled to re-examine him on the trial of the issue before the jury — and that is the question we are to de-tide. The Act does not in words give a right oí examination except before the Judge, but we must construe it so as ’ to advance the remedy which the Act was intended to provide. It is understood that in England under the bankrupt and insolvent laws this right of examination is exercised in the most extensive way, and I presume the object of our Act was to enable the creditor to do the same in this State, by purging his debtor’s conscience in all matters relating to his schedule. This would be of but little value if the facts acknowledged by the debtor were to be excluded from the jury, who alone are to decide on the truth of the facts alledged against his discharge. If, as was the case in Rosser v. Moye, the debtor acknowledged some fact which would exclude him from the benefit of the Act, how can the creditor have the benefit of it unless he can in som'e way get it before the jury? for it would seem from that case, that although the Judge was satisfied the prisoner ought not to be discharged, yet he could not withhold from him the benefit of the Act without a trial by jury. It seems to me, therefore, we should defeat the great purpose of the Act to exclude from the jury the examination of the prisoner. He must be either re-examined in the presence of the jury, or what he had said may be given in evidence as declarations or admissions in some other way. That the creditor has a right to get before the jury, in some way, the facts which he has drawn out in the examination before the Judge, none of us doubt. The question is how shall this be done ? The great purpose of the Act will be best answered by the examination of the prisoner. The Act gives the plaintiff a right to purge his conscience, to draw out from him by examination or cross examination every thing that relates to the truth of his schedule. The examination of the prisoner is the surest way of obtaining this result. It is liable to the least objection. No one may have been present who recollects what was said. The Judge’s notes, if admissible at all, may be, as is often the case, imperfect. In general they contain little more than the substance of what was said. They are frequently but imperfect memoranda, made to aid his memory. Months may intervene between the examination and the final trial,, and what was said by the prisoner may fade from the memory. It is due to the prisoner himself, that what he said should not be subject to the impressions abiding in the slippery memory of others. It is within the spirit of the Act, and not inconsistent with its letter. I am therefore of opinion the plaintiff was entitled to examine the prisoner before the jury, and as this was denied him, there must be a new trial, — the motion is granted.

2 Strob. —

6 Stat. 556.

1 Rich. 62.

The whole Court concurred.

Motion granted.  