
    Simon Mairs and sundry other creditors, vs. Eliza Smith.
    
      Petitioner for the benefit of the “ Insolvent Heitor's Hct,” caused her goods to be secretly removed, ivith intent to defraud her creditors. They were afterwards recovered by the creditors and sold for their benefit. Held that the attempt to defraud did not deprive her of the right to the benefit of the act.
    
    This was a motion to discharge tlic defendant under the. act for the relief of insolvent debtors; which was opposed by the creditors on the ground of fraud: and they filed a suggestion containing various charges against her, and produced a number of affidavits in support of them, which induced the court to send the case to a jury; who found her guilty of the second allegation in the suggestion; namely, that she the said Eliza Smith, “fraudulently, secretly,' and in the night time, and with intent to defraud her creditors, caused a portion of her goods to- he eloigned and removed from her store in King street, and secreted in a distant part of the city and placed under the direction of others.” There were'other grounds stated in the suggestion, but tlic jury only found her guilty of the second charge or allegation. Several witnesses were produced and sworn, on the part of the creditors, who proved .substantially, that after she had been taken and imprisoned on the different executions against her body, and while she was in confinement, she sent one Phillips, a person in whom she confided and with whom she entrusted the keys of her house or store, to take out privately a quantity of her goods, to raise money for her support and to fee lawyers. That Phillips did go to the said store, at diflerent times, in a private and secret manner, and did take out of her store six boxes of merchandize, which he carried to his own house, on Sunday evening, about the middle of June last, and afterwards deposited them for safe keeping with a neighbour. Afterwards,, on Sunday morning, about day light, on or about the 4th July last, he packed up a rice cask of goods, which lie sent to Mr. Sibley’s.auction establishment in King-street, tobe sold for her use. But it came out in evidence, that by the vigilance of the creditors, these goods thus taken away, were traced out and found -by the- creditors, before any part of them were disposed of for her use, and the whole, including the six boxes and the vice cask of goods, were delivered up to the creditors and after-wards sold for their account- Phillips, who acted as her agent? •ill the transaction, swore that every article he took out' of her •store, was delivered up for the use of the creditors and nothing Was eventually withheld from them;' and it did not appear from any part of the testimony given, that any other part of her property had been concealed or withheld from her creditors; but that the whale had been sold under various executions for their benefit. The presiding judge, ordered her recommitment and irom this order an appeal was taken.
    
      Pspoon, for the motion, argued 1st.
    That the allegation on which the petitioner has been convicted, will not, if true, exclude her from the benefit of the act. An attempt to commit fraud, is not a fraud. If this be termed a fraud, it is one which has occasioned no injury to creditors, nor have they on .that ground, a claim to oppose the petitioner’s discharge.
    2d. Tiie judge before whom the petition was brought, ' thought the defendant entitled to her discharge; but fob., hi i-self restrained from ordering it, by the finding of the jury. But it was unnecessary to submit the matter to a jury. By the terms of the act, (1st. clause,) the judge is to decide. It directs that “the court” shall inquire, and if “tlie court” be satisfied •shall discharge.
    A misapprehension has arisen from confounding the proviso ions of the Prison Bounds Aci, with those ofthe act under which this application is made. The rendering of a false schedule excludes from the. benefits of that act; the fraudulent withholding of property is the offence which prevents the petitioner’s availing himself of this. That requires the schedule to be sworn to, which is not required by this act. ■ .
    
      Frost, contra.
    
    The allegation and finding of the jury, aret that the goods were removed with a fraudulent intention. Upon the removal’s being effected, the fraud was complete; nor do I perceive how a recovery of the goods by tlie creditors can annul it. It is taken for granted, in argument, that the whole of the goods secreted by her were restored; but tliis was a fact, from it’s nature incapable of proof, and I think the jury were well warranted in concluding otherwise. From the whole act, taken together, it is apparent that the burthen of proof is thrown on the petitioner: the court must he satisfied that the whole.of his property-has been surrendered. Can the court be satisfied 6f this, in the present case? The act considers fraud not as ft . civil injury, for which satisfaction may be made by a restoration of the property, but as an offence, for which the penalty of imprisonment is inflicted.
    
      Pepo on, in reply.
    Referred again to the act, for the purpose of shewing that the fact of property’s being .withheld, at the time of the application, furnishes the ground for remanding the petitioner, and that after being remanded, he may entitle, himself to his discharge, by fairly surrendering his property, to the satisfaction of the court.
   The opinion of the Court was delivered by

Mr. Justice Bay-

From the view which I have taken of the case, I am clearly of opinion there is nothing now to prevent petitioner’s discharge under our insolvent debtor’s law, upon taking the oath required by the act and complying with the other usual requisites of the same. Our insolvent debtor’s act, is a remedial law for unfortunate debtors who are incapable of paying their debts from misfortunes and losses in trade or otherwise, and ought to have a liberal construction. In all cases where a debtor gives up all his estate, real and personal, for the benefit of those to whom he stands indebted, he is entitled to his discharge. Rut in all cases where an actual fraud has been committed, and a debtor has concealed or sent away his goods or property, so as to place them beyond the reach of his creditors and to deprive them of their value, the law will not and ought not to screen him, or set him at liberty; as was determined in this court some years ago, in the case of Napier vs. Smith, who had Sent away twenty or thirty negroes, to East Florida, to place them out of the reach of his creditors. In that case, the court refused to discharge him until he sent on an agent and brought them back, and delivered them up. So, in the present case, although Mrs. Smith may have intended to conceal and withhold from the creditors, the six boxes and the rice cask of merchandize, and in a moral point of view may be said to have commuted a fraud; yet in alegal point of view the fraud was prevented, and the whole of the goods were given up and sold for the benefit of the creditors. An intent to do an illegal act will not in law constitute an offence, unless it is eventually perpetrated; and the jury in this case have only found by their verdict, that. she had caused these goods to be taken away in the night time, with intent to defraud her creditors. They have-not convicted her of an actual fraud, nor could not, as the whole of the goods were eventually delivered up. I am, therefore, of opinion that this verdict of the jury, of itself, is not such a finding in law as will’ deprive her of the benefit of the act, after the testimony which has been given in this case in her favor.

Pepoon, for the motiop.

Frost, contra.

Mott, Gantt, Johnson, Justices, concurred.  