
    Haviland, Lindsley & Co. vs. Victor Wolff.
    
      Insolvent Debtors and Prison Bounds Acts — New Trial — Suggestion— Verdict.
    
    Applicant for tlie benefit of the Prison Bounds Act tried on a general • charge of fraud, with specifications thereunder, and verdict for defendant. New trial refused, though the evidence might have been sufficient to sustain a charge of undue preference.
    The general charges under’ the Act of 1788 are (1) false schedule, (2) fraudulent sale, conveyance or assignment, and (3) undue preference within three months. These general charges and the specifications under each should be clearly made in the suggestion, and the verdict should answer each charge and specification, that it is true or untrue.
    BEFORE THE CLERK OF THE COURT, CHARLESTON, MAY 29, 1866.
    The defendant being in the custody of the Sheriff under a bail writ at the suit of the plaintiffs, on the 10th May, 1866, filed a schedule and applied for the benefit of the Prison Bounds Act. The plaintiffs resisted his discharge and filed a suggestion, which, as reported by the Commissioner of Special Bail, contained a general charge of fraud, with specifications thereunder as follows:
    “Specification 1st. Cash in possession at time of filing schedule not included.
    “Specification 2d. To defraud his creditors, defendant, within three months before his arrest, voluntarily assigned his whole estate to Edward Stevenhagen.
    “Specification 3d. That the said Wolff, having little or no capital, represented himself as a man of means — say $7,000— and obtained credit for a large amount of goods — upwards of twelve hundred dollars — which goods he put in his store, in King street. He then took an account of stock and his whole estate, and for the purpose of hindering and preventing the said plaintiffs from being paid, within three months of his confinement fraudulently assigned the same to Edward Stevenhagen.”
    The defendant was the only witness- examined. He testified in substance, that he came to Charleston in April, 1865. In October of that year he contracted with the plaintiffs in New York the debt sued for, amounting to about $1,300. He was a store-keeper, and was indebted to others. Owed when he went'to New York about $5,300. Stevenhagen married his sister. Soon after he came to Charleston became indebted to him for merchandise. In January, 1866, gave him a confession of judgment for $4,018.75. Owed him then about $4,000. In March, 1866, gave him another confession of judgment for $3,021.68. A few days after the second confession turned over to Stevenhagen his store and stock in trade.
    The Commissioner submitted the case to the jury, who .found a verdict of not guilty on the general charge and on each of the -specifications.
    The plaintiffs appealed, and now moved this Court for "a new trial, on the grounds:
    1. That the said Victor Wolff, having taken stock and ascertained the value of his whole estate, his transferring the same to Edward Stevenhagen, to the exclusion of the plaintiffs, within three months before his arrest, was such an undue preference as should have prevented his being discharged by the jury.
    2. That the said Victor Wolff knowing he was insolvent, did, voluntarily, within three months of his arrest by the plaintiffs at their suit, assign to Edward Stevenhagen the whole of his estate, which was an intentional and fraudulent hindering of the plaintiffs from being paid, and should have prevented his discharge by the iury. 10 Rich. 238 ; Rice, 367 ; 2 Spear, 237.
    
      Phillips, for appellants.
    Buist, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

Prom the report made in this case by the Commissioner of Special Bail, we suppose that the suggestion contained only a general charge of fraud and three specifications, which are set forth in the report, and that the only witness examined was the defendant. Nothing has been said at the bar to correct this supposition, if it is erroneous.

If the specifications alleged only a fraudulent assignment, the verdict for the defendant is well supported by evidence that Stevenhagen, the assignee, was a bona fide creditor. Crayton & Sloan vs. Dickerson, 3 McC. 438; Bulwinkle vs. Grube, 5 Rich. 286.

The specifications nowhere speak of Stevenhagen as a creditor, and do not contain 'the word preference. It appears from the report that, on the argument before the Commissioner of Special Bail, acts of the defendant were said by the plaintiffs’ attorney to constitute undue and fraudulent preference;- but that to this the answer was made in behalf of the defendant, that those acts did not amount to a fraudulent assignment, and that the specifications alleged fraudulent assignment and not undue preference.

It may be that if a charge of undue preference had been made with proper specifications, that charge might have been sustained; 1 Hill, 291; 2 Hill, 418 ; 10 Rich. 238 ; but it may be also that in that case other evidence in defence would have been adduced sufficient to rebut the charges. Hutchinson vs. Love, 1 Spear, 145.

The suggestion must, contain the charges and specifications to which the verdict must answer; Robinson & Caldwell vs. Amy, 1 Rich. 29; and the verdict must answer with reference to each charge and specification that it is true or untrue. Headley & Street vs. Jordon, 2 Rich.454. The latter is required by the diversity of effect which, under the Act of 1788, 5 Stat. 79, different charges have when established against the applicant for relief from imprisonment; 2 McC. 80; and the former is no less required by the principles of justice, which would be violated by any ambiguity in the notice given to the applicant of the matters to be decided in a trial so important to him. The general charges under the seventh section of the Act of 1788 are, false schedule, fraudulent sale, conveyance or assignment, (2 Bail. 682,) and undue preference within three months, (Cavan vs. Dunlap, Chev. 245,) under each of which may be specifications according to the facts of the case, giving definiteness to the general charge.

“The purpose of hindering and preventing the said plaintiffs from being paid,” mentioned in the third specification here, is suitable to either fraudulent assignment or undue preference; and if there had been an allegation that Steven-hagen was a creditor, possibly the statement of evidence instead of fact, which this specification contains, coupled with the purpose and the creditor-assignee, might have been indulged so far as to be considered an allegation of undue preference. Something like this was done in Bulwinkle vs. Grube, 5 Rich. 294. But we cannot go beyond the indulgence extended in that case.

“ Within three months,” contained in the third specification, does not convert fraudulent assignment into undue preference. It serves only to give some precision to an allegation which, without it, would be wholly indefinite as to time. It seems to have been introduced under a notion, which may very well have been suggested by the words of the seventh section of the Act of 1788, that a fraudulent assignment as well as an undue preference was required to be within three months of the confinement. This notion has been corrected by decisions. Gray vs. Schroeder, 2 Strob. 139.

Leave to amend has' not been asked on the part of the plaintiffs. It would be unreasonable to grant such leave after a verdict upon the issues joined. Bentley vs. Pope, 2 McMul. 53. It would be no less so to set aside a verdict, which is a just response to the questions submitted, because the evidence shows that a different verdict might have been rendered if another question had been submitted.

The motion is dismissed.

Dunkin, C. J., and Inglis, A. J., concurred.

Motion dismissed.  