
    William Cavan and others v. Robert W. Dunlap.
    Application for relief under the Prison Bounds Act, being resisted on the grounds that defendant’s schedule was false, and that an assignment (mentioned in the schedule) of part of his effects, was false and fraudulent; the jury found the assignment false and fraudulent. Held, that this was not such conviction of rendering a false schedule, as thereafter to exclude the defendant from the benefit of that Act and the Insolvent Debtors’ Act.
    But the defendant was not entitled to his discharge until that action, in which the verdict of fraudulent assignment had been found, was satisfied.
    Three months advertisement in a newspaper was sufficient notice, to suing creditors generally, of an application for the benefit of the Insolvent Debtors’ Act.
    One of the plaintiffs, a suing creditor, resisting the application for the benefit of the Prison Bounds Act, was not a competent witness for the other plaintiffs to prove that the defendant’s schedule was false.
    Before O’Neall, J., at Camden, Spring Term, 1840.
    In this case the defendant had applied for the benefit of the Insolvent Debtors’ Act. The plaintiffs, suing creditors, filed their suggestion, objecting to the defendant’s discharge, and setting out for cause, amongst other things, that the defendant, in confinement at a former suit of N. B. Arrants, (one of the present plaintiffs,) had, on application for the benefit of the Prison Bounds Act, been convicted of having rendered a false and fradulent schedule, and that he thereby forfeited his right to relief under the Insolvent Debtor’s Act.
    The facts were, that the defendant’s application, at the suit of Arrants, had been resisted on the grounds that his schedule was false, and an assignment of part of his effects to one James S. Dunlap, fraudulent. The articles assigned were contained in the schedule, and specifically designated, with a memorandum of the assignment at the foot. On the issue then presented, the verdict was, “We find the assignment false and fraudulent, and should be void.” 
    
    The plaintiffs, in the present case, contended that the defendant was brought, by this verdict, within the disability created by section ten of the Prison Bounds Act, (P. L. 456,) viz. “ that any person who shall deliver in a false schedule of his effects, shall suffer the penalties of wilful perjury, shall be liable to be arrested again for the action, or execution on which he was discharged, and shall be forever disabled to take any benefit from this Act, and from the Act for the more effectual relief of Insolvent Debtors, passed the seventh day of April, 1759.” But the Court held that the verdict, only finding the assignment false and fraudulent, did not subject the defendant to the penalty attached to the rendering of a false schedule.
    After the case had been partially heard, it was objected by the plaintiffs, that Levy & Hughson and Parrar & Bobinson, suing creditors, had had no notice of defendant’s application. (P. L. 247.) It appeared that a notice had been published for three months, in the Camden Journal, for the plaintiffs named, and all other suing creditors, to appear at the Court of Common Pleas,-to be holden for Kershaw district, on the fourth Monday in March next, to show cause, if any they can, why the prisoner [the defendant] should not be discharged under the Insolvent Debtors’ Act. The Court decided that this notice was sufficient.
    To prove the defendant’s schedule false, William Cavan, one of the plaintiffs in this suggestion, (and one at whose suit the defendant was confined,) was offered as a witness. But the Court excluded him as incompetent, both because he was a party on the record, and because, as a suing creditor, he was directly interested in the event of this issue.
    On the other objections, the jury found for the defendant, and he ivas discharged on taking the oath and making the assignment required by law.
    The plaintiffs moved to set aside the verdict and order for the discharge of the defendant, and to grant a new trial, on the following grounds:
    1. That, by the verdict, at the suit of Arrants, the defendant stood convicted of rendering a false schedule, and was thereby excluded from any benefit from his present application.
    2. That the defendant was not entitled to any benefit under the Insolvent Debtors’ Act, so far as respects the case of N. B. Arrants against him, inasmuch as that case was res adjudicata.
    
    3. That no legal notice had been given to Levy & Hugh-son, and to Farrar & Bobinson.
    4. That the evidence of William Cavan had been improperly excluded.
    
      
       In tlie report of Arrants v. Dunlap, (supra, p. 27,) it is inaccurately stated tlrat the jury found the schedule false and fraudulent. The error, however, was not material to the issue there involved. — R.
    
    
      
       5 Stat. 80. An.
      
    
    
      
       4 Stat. 87. An.
      
    
   CJuria, per Earle, J.

The principal question which we have to decide, arises out of the first ground of the defendant’s motion, and depends on the construction of the verdict rendered by the jury on the first issue. If we are to construe the verdict according to the meaning and intention of -the jury, (if there be anything equivocal in its terms,) we must see what questions they were called on to decide. Every verdict must conform to the issue; and this verdict, on a former occasion, in Arrants v. Dunlap, decided here last term, was held to cover the issues, or one of the issues, and therefore not to be immaterial and irrelevant. Five grounds of objection were taken to the defendant’s discharge, when arrested at the suit of Arrants, and without reciting them, it maybe confidently stated that they presented but two charges, variously modified. The first and fifth alleged that the schedule was fraudulent and false in this, that it did not contain all the effects of the defendant, but had omitted sundry articles of property enumerated, and particularly, large sums of money. The second alleged the schedule to be fraudulent and false in this, that it subjected the assets to a certain assignment, which was fraudulent, and the debts to be secured by it, pretensive and unfounded. The third was, that the defendant had fraudulently transferred and delivered his property to J. J. Dunlap, under the said fraudulent assignment, to defeat his creditors. And the fourth was, that he had given an undue preference to one creditor, to the prejudice of the plaintiff. His Honor, Mr. Justice O’Neall, therefore correctly stated the accusation to be : 1. That the schedule was false. 2. That the assignment made to J. J. Dunlap, was fraudulent. Upon those questions issue was taken, and the jury rendered the following verdict. “ We find the assignment to be false and fraudulent, and should be void.”

I cannot perceive the force of the reasoning, by which this verdict is made to convict the defendant of having rendered a false schedule. There is no pretence that it was false, for having omitted any portion of his estate or effects. It seems to be admitted that everything was included; and the argument is, that it was a false schedule, because it subjected the effects to an assignment which was fraudulent. What is meant by “ a schedule, on oath, of his or her whole estate,” is, that it shall contain a true account and statement of all the property of the defendant, or to which he had any just claim, subject, of course, to all prior liens or incumbrances; and the “ false schedule” in the tenth section, is one which omits a portion of the property. It is not rendered a false schedule because it may specify liens which are even pretended or fraudulent; much less so, if the assignment to which it may subject the effects, be for a debt really due, although the assignment may be void, as an undue preference of one creditor to another. Now the assignment in this case may have been fraudulent and void, although there may have been a just debt due to James J. Dunlap.'

The construction contended for by the actors on this motion, would abolish all distinction between three classes of cases provided for in the seventh section: 1, Making a false return. 2, Having preferred one creditor to another. 3, Having fraudulently sold, conveyed or assigned the estate to defraud creditors. By the tenth section, it is only a conviction of the first which would deprive the petitioner of the benefit of the Act then, or afterwards; and the provision itself, by the force of its own express terms, implies and supposes that there may be cases of fraudulent preference of creditors, or fraudulent assignment to one who is not a creditor, which would not come within the meaning of that section. Now, the verdict in question is obviously framed to meet the allegation of the plaintiff, that the assignment to J. J. Dunlap, was fraudulent; and not that the schedule was false. If the plaintiff had desired it, the jury might have been required to find on the other issues; or, if there was any ambiguity in the verdict, they might have been required to amend it. But if he acquiesced in it, as sufficient for his purpose, to prevent the discharge of the defendant without paying his debt, (which was the legal effect,) he cannot, or rather others cannot now, come in and claim to give it a more comprehensive effect. The use of the word “ assignment,” would alone be sufficient to point the finding to the issue made on that subject; and when they add “and should be void,” no doubt, I think, remains that such was the intention of the jury, for it would he senseless to speak of a schedule being void. The defendant by rendering a schedule which contained a true statement of all his visible effects and choses in action, or of such as he had owned, although subject to the claim of J. J. Dunlap under the assignment, cannot he deprived of the benefit of the insolvent debtors’ law in other cases, because the jury have said the assignment was fraudulent. Admitting that the the verdict is equivocal in its terms; the very fact that the intention of the jury is uncertain, that we do not know that they meant to convict the defendant of having rendered a false schedule, and that they have clearly found the assignment to be fraudulent on the other issue, which was sufficient for the plaintiffs’ purpose on that proceeding, should decide the present question, and induce us to construe the verdict so as to give it only that effect; especially when we consider that a different construction will have the effect of subjecting the defendant to lasting confinement.

On the second ground of the motion, we are all of opinion, that so far as regards the case of Arrants, the defendant was not entitled to his discharge. He was convicted, by the verdict in that case, of having made a fraudulent assignment to the prejudice of his creditors; and his case does come expressly within the second clause of the seventh section of the Prison Bounds Act, “ nor shall any prisoner be discharged without fully satisfying the action or execution on which he is confined, if” [among other things] “ he shall have fraudulently sold, conveyed or assigned his estate, to defraud his creditors.” The words any prisoner, in connection with the word action, as distinguished from execution, together with the whole scope of the Act, to provide for persons confined either on mesne process, or on execution, demonstrates that the opinion, of the Court in the case of McClure and Mims v. Vernon, (2 Hill, 433,) was formed on a hasty examination and comparison of the different sections; and that the principal enactments, both of the fourth and seventh sections, relate to both classes of prisoners. If there were any doubt, it would be removed by the Act of 1833, as remarked by Mr. J. Butler, in Arrants v. Dunlap. The defendant, under that verdict was not entitled to be discharged, without fully satisfying the action on which he was confined. And we think the Court below decided erroneously on that point.

The third ground being obviated, or abandoned, it remains only to remark on the fourth, that William Cavan, the witness proposed to be sworn, was one of those who resisted the defendant’s discharge. He was one of the plaintiffs on the issue; he was necessarily to be benefited by any verdict, which would have the effect to retain the defendant in confinement until his debt was paid; and he could not testify without effecting his own interest. This Court concurs with the Circuit Court on that point.

A majority of the Court are of opinion, that the defendant was entitled to be discharged from all the actions or executions by virtue of which he was confined, except that of Arrants, in relation to which, the motion to reverse the circuit decision is granted. In regard to all the others, the motion is refused.

Gantt, Richardson and Eyans, JJ., concurred.

Butler, X.,

dissenting. As I think by the terms of the verdict, in the case of Arrants v. Dunlap, the defendant was convicted of having rendered a false and fraudulent schedule, I dissent from the judgment of a majority of my brethren. The finding of the jury was, that the assignment by R. W. Dunlap to his brother, X. X. Dunlap, was false and fraudulent, and void; which, fairly interpreted, means that X. X. Dunlap was not a creditor, entitled to the property assigned to him; but that it was the property of defendant, and should have been returned as such; that is, the defendant had returned property as belonging to another, which belonged to himself, and had sworn to it. The statement in the schedule was not true, although it was so represented by a false oath; and it is said this is not a false schedule. I suppose the schedule would have been regarded false, if the defendant had omitted to insert any piece of property in it; or had he stated that he had a limited interest in a piece of property, when he was the absolute owner; or had he concealed the true character of property which he represented as worthless; as, that property was in Texas, which he had in his own possession, and which he could immediately take into his own charge and subject to his dominion and enjoyment: in such cases, I take it, the schedule would be both deceptive and false. Fraudulent concealment and false representation may render a schedule false, as well as ignorant or wilful omission. It would be not the less false because it was disguised -by crafty contrivance and fraudulent combination with another. In making a fraudulent conveyance, to defraud creditors, a man may also make thereby a false return, or schedule of his property. Not that every conveyance to defraud creditors would be false; for one might make a voluntary conveyance, or one on grossly inadequate consideration, to defraud creditors, and yet render a true return of his property; but when the conveyance is pre-tensive, and is intended to secure the property to the defendant himself, either directly or indirectly, it is no conveyance at all, except that it is on paper, and not verbal. Suppose it should appear, hereafter, that the property assigned by defendant had been re-delivered to him by a previous agreement, could his successful fraud exempt him from the operation of the fourth clause of the statute Í

It seems to me, the jury have said what they intended to say, that the property, represented in the schedule, as belonging to J. J. Dunlap, belonged to R. W. Dunlap himself, and should have been returned in his schedule, as liable to the demands of his just creditors.

See 9 Rich. 49 ; 10 Rich. 13. An.

Withers and J. M. De Scmssure, for the motion;

Smart, contra.

Every unfortunate debtor should have extended to him, with alacrity and promptness, the benignant provisions of the insolvent debtors’ laws ; but one who has committed a fraud supported by a false oath, should be subjected to their pro-ácriptive justice. I do not undertake to say that the defendant was guilty of fraud and falsehood ; but I do say, the jury have convicted him of them, by the terms of their verdict, when construed in reference to the subject matter submitted to them. 
      
       Supra, 17. An.
      
     
      
       6 Stat. 491. An.
      
     