
    
      Weed & Fanning and E. W. Charles vs. Thomas Evans.
    
    1. A debtor arrested under sundry writs of ca. sa. filed a schedule, gave notice, and applied for his discharge under the Insolvent Debtors’s Act. A suggestion was filed, shewing various grounds of opposition, upon which issue was joined. The defendant made certain payments within three months previous to his arrest. The circumstances, as developed by the testimony, being such, as in the opinion of the presiding Judge, excluded the possibility of intention to assign the whole estate to the prejudice of plaintiffs, the question was decided by the court as a matter of law, rather than embarrass the plaintiffs’s appeal, by a seeming submission of fact to the jury, when no fact was disputed. V erdict for the defendant.
    2. It was held, although the facts from which the intention was to be collected were plain, and although the plaintiffs might be less embarrassed in appealing from the decision of a judge, that an ascertained state of facts does not constitute undue preference, than from the general verdict of a jury; .yet, under the Act of 1788, the question of undue preference must be submitted to a jury.
    3. ■ No preference is undue, which is not fraudulent.
    4. Intention is a question for the jury ; there is no fixed principle or rule by which the court, as to it, can attain a conclusion for any statement of circumstances.
    5.On a question of this kind, the jury must regard their obligation to obey the law, and feel that every administration of law is both tyranical and unjust, where, in different cases, the same premises lead to different conclusions.
    
      Before Wardlaw, J. at Marion, Fall Term, 1843.
    The defendant,'! ho mas Evans, was, 1st March, 1843, ai'rested under three writs of ca. sa. at the several suits of | Weed & Fanning, E. W. Charles, and-Gibson, which I had been lodged 2d February preceding. He gave bond! for the prison bounds, filed his schedule, gave notice, andf applied for his discharge under the insolvent debtors’s Act. The plaintiffs, in the two writs first named, opposed his ap-J plication, produced affidavits shewing grounds of opposition,/ and after the examination of the defendant, obtained leave j to file a suggestion, upon which issue was joined.
    Various grounds and specifications were set forth in the! suggestion, of which need now be mentioned only the! undue preference of certain other creditors to the prejudice of the plaintiffs; the omission in the schedule of a carriage and pair of horses, and the defendant’s carrying on, after his arrest, certain business, as set forth in the ninth ground of appeal. In relation to these matters, the case, as it appeared from the examination of witnesses and the depositions of the defendant upon his examination, which the plaintiffs read in evidence, was as follows.
    In October, 1842, there were in the sheriff’s office many writs of fi. fa. against the defendant, amounting, in the whole, to more than $27,000. Under these, all the defendant’s visible property, (with very trifling exception) was sold by the sheriff, the real estate in October, and the personal in November, 1842. There was no evidence of any collusion or irregularity on the part of the sheriff; many of the creditors were present at the sales, but the^ property all sold at extremely low prices, (except and lot) and was all purchased by William Evans,'^ifkífer V of the defendant, the bids of various persons to wl?1' were knocked down, all having been transferre After the sales, a plantation, with the negroes ai|d upon it, remained in the possession of the defienda fore; he completed gathering the cotton crop, sold' received the proceeds, and, this year, has again superif? tended and directed the operations of the plantation, with the understanding that the nett proceeds of the crop are to be taken by his brother William, and applied to the debts of defendant, for which William is surety. The house and lot, servants, furniture, and carriage and horses, have also since the sale remained in the possession of the defendant, under an agreement, (as he deposed) that he should, for the whole, pay to his brother rent and hire, at the rate of twenty-five dollars a month, whensoever he should be able. The steam mill also continued in the possession of the defendant, and he formed a partnership in it with one Lloyd, who conducts its operations; but (as defendant said,) the profits had not exceeded the expenses, and (as Lloyd said,) the grist mill has made seventy-five or eighty bushels of corn, of which defendant received half, in the ordinary support of his family, and the saw mill had made three or four hundred dollars, of which only forty or fifty had yet been realized, half of which the defendant received as it was collected. The defendant did not attend the sales, and there was no proof of any agreement concerning them, made between him and his brother beforehand; further than that when he found the sales would take place, the defendant said to his brother, “you must take care of yourself.” The brother was liable as surety upon two executions, amounting to more than twenty-five hundred dollars, and also, with Stephen God-bold, upon a large debt of nine thousand five hundred dollars, besides interest, which was secured by judgment and a mortgage of all the negroes.
    From the cotton crop of 1842, the defendant paid various debts in the fall of that year, and within three months preceding his arrest, paid to William Evans one hundred and sixty dollars, and to Lide and McLauchlin two hundred dollars or more. On 20th January, 1843, the defendant assigned to Elly Godbold, a bond and mortgage on Wheeler, upon which seven hundred dollars or more was due, towards the discharge of an execution against the defendant and Elly Godbold, his surety, in favor of Hanna, for one thousand dollars or more. The schedule contained a list of choses in action, consisting of judgments, notes and accounts (many of which were insolvent,) to the amount of four thousand one hundred and seventy-seven dollars; and very little besides. The defendant said, that before his arrest, he did not know exactly either his liabilities or the debts due to him, but supposed that he was unable to pay. After his arrest, the steam mill and house of entertainment went on as before; no exact account of receipts or expenditures was kept, but the result was, that. after sustaining his family, the barrel of flour and other such small store of provisions on hand at the arrest, yet remained in kind to be assigned ; some accounts against boarders having been earned beyond support, and being now inserted in the schedule, and nothing expended beyond the cur- ¡ rent receipts in cash.
    
      Charge. Upon the subject of undue preference, his Honor laid down the law according to the last reported case on the subject, Smith & Wright vs. Campbell, Rice’s L. R. 352. He considered that a debtor before arrest, and yvithqut a bankrupt law, had no means to divide payments in exact proportion between all his creditors, where they were numerous and of various degrees, as in this case; that mere departure from proportionate equality, did not then constitute undue preference; and that when payment was made of a bona fide debt, especially one of the highest degree, as in this case, even the discharge of the whole or greater part of it, in entire disregard of proportion, could not be held to be done with a view “altogether to delay, defeat or hinder” the opposing creditors, if means were left to make any considerable payment towards them ; in fine, unless the preference was made by an assignment of the whole, or substantially the whole, of the debtor’s estate. The intention to make more than a proportionate payment to the preferred creditors being manifest, and the circumstances being such as to exclude the possibility of intention to assign the whole estate, to the prejudice of plaintiffs, the question was decided as a matter of law, rather than embarrass the plaintiffs’s appeal, by a seeming submission of fact to the jury, when no fact was disputed.
    It was left to the jury to decide, whether there was aiiy thing connected with the sheriff’s sales, the subsequent possession by defendant, or the circumstances of the case, to create the presumption of such understanding between the defendant and his brother, as to make the latter a mere trustee for the former, or to render the transfer of property void for fraud. But in reference to the case of Smith & Henry, 1 Hill, it was held that the doctrine of possession remaining in the vendor, being conclusive evidence of fraud, where part of the consideration for the sale was a preexisting debt due to the vendee, did bot apply to sheriff’s sales, because, from the nature of such sales, there could be no preference of the vendee stipulated by the vendor, and no bribe of the vendor, by offer of continued possession, presumed.
    That there was nothing in the arrest of an insolvent, which imposed upon him the necessity of idleness, if the property contained in his schedule was not subjected to risk ; and where his personal expenditures had not exceeded the daily allowance permitted by the statute. The court could not perceive the right of the creditors to complain that his family had been supported by his exertions, without cost to the fund in hand at the arrest.
    The jury returned a verdict for the defendant. He executed the assignment required, and an order was signed for his discharge, subject to the notice of appeal given by the plaintiffs, on the annexed grounds.
    The plaintiffs moved the Court of Appeals for a new trial in this case, on the following grounds, viz:
    1. Because the payment to Élly Godbold and others, within three months previous to the arrest, was, on the part of the prisonel, an undue preference of one creditor, to the prejudice of others.
    2. Because, after the sales on 2d October, 1842, the prisoner was aware of his insolvency, and the payment of a large portion of his remaining assets, was an undue preference.
    3. Because his Honor erred in charging the jury that such payments, to be undue and illegal, must be done with the view wholly to delay, hinder and defeat the other creditors, to the whole amount of their debts.
    4. Because his Honor erred in charging the jury, that however disproportionate the preference of one creditor over another might be, yet it must be the assignment of his whole estate, to constitute such an undue preference of one creditor over another, as to deprive the prisoner of his right to be discharged.
    5. Because his Honor erred in charging, that as in this case the assignment was not to delay, defeat or hinder the other creditors, to the whole amount of their debts, it was not an undue preference, however disproportionate it might be.
    6. Because his Honor should have submitted to the jury, whether the preference was intentional.
    7. Because the horses and carriage ought to have been included in the schedule.
    8.-Because his Honor erred in charging that the presumption of fraud, from the continued possession by the vendor, did not apply to sheriff's sales.
    9. Because the prisoner, after his arrest, kept a house of entertainment, and carried on, in co-partnei’ship with another, a steam saw and grist mill, and during that time received monies which did not appear in his schedule; and the prisoner, in these operations, received and paid out money (which he had no right to do) and gave no explanation or statement of the profits and loss of this business.
    
      Dargan, for the motion.
    Cited 2 McCord, 266 ; 2 Hill Rep. 418 ; Rice Rep. 352; 2 Hill Ch. Rep. 448 ; 1 Hill, 134; 3 McCord, 438.
    
      Sims, contra.
    Cited 4 McCord, 81; Rice Eq. 300.
   Caria, per

Wardlaw, J.

This court has not entered fully upon the consideration of the instructions given to the jury upon the points submitted to them, and refrains from the expression of any opinion as to them.

The plaintiffs complain that the question of undue preference was decided as a matter of law, whereas the intention should have been left as a fact to the jury; and although it may be, that the facts from which the intention is to be collected are plain, and that the plaintiffs would really be less embarrassed in appealing from the decision of a judge, that an ascertained state of' facts does not constitute undue preference, than from the general verdict of a jury, by which all facts must be supposed to have been found that are necessary to sustain it- — yet, as the plaintiffs complain, and as the Act of 1788 requires that the suggestion of undue preference should be submitted to a jury, this court is reluctantly constrained to send the case back for a new trial.

It may be considered as settled, that no preference is undue which is not fraudulent; the purpose or intention is a material inquiry, and two defendants in like circumstances, with different purposes, may meet different facts. The intention is a question for the jury ; there is no fixed principle or rule by which the court, as to it, can attain a conclusion for any statement of circumstances. But htt reference to this question, the jury must be instructed as to the nature of fraud, and the proof of it, and as to the preference which the law permits to be made, where a fraudulent purpose does not appear; and in the decision, the jury must regard their obligation to obey the law, and feel that every administration of law is both tyranical and unjust, where, in different cases, the same premises lead to different conclusions.

The motion for a new trial is granted.

O’Neall', Richardson, Evans and Botler, JJ. concurred.  