
    
      A. S. Hutchison vs. James M. Love. Warren and wife vs. the same. A. Crosby vs. the same.
    
    1. A schedule filed under the provisions of the prison bounds Act, must contain the whole of the estate, as it exists at the time it was made. If improper payments or expenditures have been made, exceptions may be taken; but on the trial of the question, whether the schedule be fraudulent or not, the inquiries before the jury must be confined to the points made by the suggestions.
    2. "Where, under two of tire plaintiff’s suggestions, alledging that the defendant had not returned the whole of his estate in certain particulars, the jury found that defendant had given an undue preference, by paying to a certain creditor a portion of the proceeds of his cotton crop of the last year, none of the suggestions complaining of an undue preference shewn to that creditor, such finding was irregular, the fact or character of the payment not having been put in issue.
    This was an application made before the Clerk of the Court of York district, as commissioner of special bail, for the benefit of the prison bounds Act. The commissioner reports that the defendant was arrested on a ca. sa. in the first of the above stated cases, on the 9th of February, 1842, and on the same day executed his bond for the prison bounds. His schedule was filed on the 15th day of March, 1842, and on the 25th of March, 1842, the day the defendant applied for his discharge, he filed an amended schedule. On that day, the plaintiff objected to his discharge, and filed suggestions setting forth nine grounds against his discharge. Oh the 13th of May, 1842, the defendant again amended his schedule, and on the 13th of July following, the plaintiff filed two additional grounds of objection to defendant’s discharge. By consent of counsel, and by order of the commissioner, the cause was continued from time to time, until the 18th of August, when the trial was had.
    The jury found for the defendant on all the issues submitted to them, except the third and fourth, in the following words : “ 3d issue : because the defendant has not returned the whole of his estate, but refuses to do so in the following particulars, to wit: one jack, his stock of cattle, hogs, a large quantity of corn, the crop of last year, say between five hundred and one thousand bushels, a large quantity of cotton, the crop of last year, say fifteen or twenty bags; a quantity of household furniture, consisting of bedsteads, beds and furniture, bureaus, sideboards, tables, and so forth.” 4th: because the defendant has not returned the proceeds of the sales of com and cotton, the crop of the last year.”
    The verdict of the jury was as follows:
    “We find for the plaintiff on the third and fourth suggestions, the defendant having given an undue preference in paying to Dr. William M’Neill'a portion of the proceeds of cotton named in the said allegation.”
    The commissioner reports the original schedule, and the subsequent amendments, and also, the various grounds of the suggestion.
    It appeared from the testimony of Dr. Wm. M’Neill, that he did receive the sum of one hundred and eighty-five dollars, proceeds of eleven bags of defendant’s cotton, shortly before defendant’s arrest. It was in payment of a just debt, and the proceeds of the cotton did not pay it all.
    It is deemed unnecessary to. insert the various particulars of the schedule, and also the whole of the suggestions, but few of them being noticed in the opinion of the Court of Appeals. The two first grounds taken in opposition to defendant’s discharge, allege an undue preference in having made payments to a Mr. Love, and a Mr. Gill, within three months previous to defendant’s arrest. On the third and fourth grounds of the suggestion, the commissioner remarks in his report, that the defendant, in his amended schedule, inserted his interest in the cotton named in the verdict of the j ury.
    Both parties appealed, on several grounds, covering exceptions to points ruled by the commissioner, and the finding of the jury. A good deal of testimony was given on the trial, the particulars of which are unnecessary to a proper understanding of the case, as decided by the Appeal Court. The third and fourth grounds of defendant’s appeal were as follows:
    “ Because the jury erred in finding for the plaintiff, on the third and fourth grounds of plaintiff’s exceptions, because the plaintiff’s counsel consented in writing, that defendant might amend his schedule up to the 23d of June, 1842, from which consent defendant did insert in his amended schedule, $185,00, the avails of the eleven bales pf cottpn paid to Dy. William M’Neill, as specified in the verdict of the jury, which exonerated defendant from the charge of undue preference or fraud.
    “ Because the jury erred in finding the defendant guilty of undue preference, in paying to Dr. William M’Neill $185,00, the avails of the eleven bales of cotton, on the third and fourth grounds of plaintiff’s suggestions, when there is no allegation of undue preference contained in those suggestions.” The commissioner states that the defendant’s schedule was amended with the consent of the parties.
    Thomson, plaintiff’s attorney. Eaves, M’Alilley, and Gregg, defendants’s attornies.
   Curia, per

Wardlaw, J.

It appears that shortly before his arrest, the defendant, in payment of a just debt, transferred eleven bales of cotton, or the proceeds that arose from the sale 1,hereof, to Dr. Wm. M’Neill; that the cotton and proceeds are both included in the amendments of the schedule, made by consent of plaintiffs’s attorney; and that the suggestions filed by the plaintiffs, although the first complains of undue preference, by reason of a payment to John G. Gill, and the second of such preference shewn to B. M. Love, do nowhere complain of a preference shewn to Dr. Wm. M’Neill.

The schedule must contain the whole estate, as it exists at the time of making the schedule; if the estate has been reduced by improper payments or expenditures, exceptions may be taken; but, as the practice has heretofore been settled, the inquiries before the jury must be confined to the points made by the suggestions. Now, if it appeared that, by reason of payments to Dr. M’Neill, that which would otherwise have been the property of the defendant, was, before the filing of the schedule, abstracted, the jury could not, therefore, say that the defendant’s schedule did not contain all he owned when it was made; and the fact or character of the payment not having been put in issue, the finding of undue preference by reason of such payment, was irregular. It may have been that the defendant, not apprised of any objection on account of such payment, was prevented from shewing that it did not constitute such undue preference as the act was intended to guard against. The verdict is therefore set aside, and the case ordered back for a rehearing.

Richardson, O’Neall, Evans, Earle, and Butler, JJ. concurred.  