
    
      C. M. Gray and others v. F. A. Schroder.
    
    Where two suggestions, involving the same, or similar facts, are filed by different creditors against the same debtor, applying for the benefit of the Prison Bounds Act, and they are met by him with pleas of the general issue, and are tried by the same jury, the jury cannot do otherwise than render two verdicts in the same matter or trial.
    The proceeding by suggestion against an applicant for his discharge under the Prison Bounds Act, should be brought within the main scope of the leading purposes of all pleading, though all the strict and precise rules of the science may not be properly applicable. If form or substance be wanting, the means exist, common to all forms of practice, of attacldng such defects.
    In a suggestion against an applicant for his discharge under the Prison Bounds Act, it is not necessary to specify time, place, sum, person, item, and other facts, with the same precision which is required in setting forth a cause of action in an ordinary case.
    The undue preference of a creditor, under the Act of 1788, must be within three months before the confinement of tire debtor, or at any time since; but this limitation of time does not apply to the fraudulent sale, conveyance, or assignment of his estate, with a view of defrauding creditors.
    
      On appeal from proceedings before the Commissioner of Special Bail, at Edgefield, 1847.
    REPORT OF THE COMMISSIONER OF SPECIAL BAIL.
    Ferdinand A. Schroder, being in the custody of the Sheriff of this District, under sundry writs of capias ad responden-dum, duly endorsed for bail, at the suits of C. M. Gray and others of his creditors, on the 18th June, 1847, filed his petition in my office to be admitted to the benefit of the Prison Bounds Acts, upon executing the assignment required by law ; and on the same day filed in my office-a schedule, purporting to be a full enumeration of his whole estate and effects: an order was therefore made by me, and duly published, requiring the plaintiffs in the said suits to show cause why the defendant’s said application should not be granted. Sundry grounds of objections to the discharge of the defendant were filed in my office, on behalf of the plaintiffs, and an issue in writing having been made up between the said defendant and plaintiffs, (of which grounds of objections and issue a copy is herewith submitted,) the same was, on the 2d July last, duly submitted to a jury, organized in pursuance of the .Act of 1833, and thereupon the following evidence was introduced :
    
      Evidence for Plaintiffs.
    
    The notes upon which the several writs were founded under which the defendant was arrested, are offered in evidence, and are as follows: One note signed by F. A. Schroder and S. O. Schroder, dated Charleston, -10th Nov. 1846, for $545 2Í, payable four months after date, to S. Mowry & Son; also an account for $1,220 67. One note for $463 43, dated Charleston, 15th Dec. 1846, and payable to Matherson & Simons, four months after date, with two credits endorsed thereon. One note for $488 78, dated New York, 28th Aug. 1846, and payable to O. & A. Wetmore, six months after date. One note for $222 71, dated New York, Sept. 1,1846, payable to O. & A. Wetmore, six months after date. One note for $655 32, dated New York, 8th Sept. 1846, and payable four months after date. One note for $151 18, dated New York, 14th Sept. 1846, and payable to O. & A. Wet-more, six months after date. Demands in favor of Otis J. Chaffee and E. L. Adams. These two last demands were not shown on the day of trial, but the entries of the writs on the Sheriff’s books, proved by the Sheriff, were admitted as evidence.
    It further appeared in evidence, that the assignment from F. A. Schroder to S. C. Schroder, was executed on the 7th of January, 1847. That F. A. Schroder was arrested on the 11th day of Jan. 1847, at the suit of S. Mowry & Son, and was released upon his giving bail. That on the 10th of May following, the said F. A. Schroder was arrested, and gave bail, at the suit of C. M. Gray. That on the 12th of June, 1847, he was arrested at the suit of O. & A. Wetmore, and gave bail. It did not appear at what time he had been arrested at the suits of Otis J. Chaffee and E. L. Adams, as no writs were adduced in these cases, but the plaintiffs contented themselves by adducing the Sheriff’s writ book, from which it appeared that bail writs had been lodged at the suits of Otis J. Chaffee and E. L. Adams on the 14th of January, 1847. It further appeared that F. A. Schroder was surrendered by his bail, on the 18th day of June, 1847.
    
      H. Boulware sworn, says — He knows F. A. Schroder; that he is a grocer in the town of Hamburg, South Carolina; that he owned a storehouse and lot there, and did business in same house last fall; he also knows S. C. Schroder; saw him about the store, but only considered him a clerk.
    
      Cross-examined — Says he lived in Hamburg in 1840, and knew F. A. Schroder; does not know when S. C. Schroder came to Hamburg; knew him in 1844, ’45 and ’46.
    
      George Parrott sworn, says — He knows Mr. Mowry, in Charleston; that there is a firm of O. & A. Wetmore, in New York; a firm of Matherson & Simons, and a firm of E. L. Adams, in Charleston. That he lives in Hamburg; knows F. A. Schroder; has done business there from three to four years; kept a respectable stock of groceries for two seasons. Last fall moved to his own house; stock supposed to be good; was the ostensible owner of a house and lot in Hamburg, on Centre Street; offered it to him (Parrott). That he saw S. C. Schroder about the store; supposed him to be a clerk; never knew him in business; he is younger than F. A. Schro-der. F. A. is a man of family.
    A bill in Equity vs. F. A. <fe S. C. Schroder, showing that the notes in suit now, were the notes given for the goods which were transferred to S. C. Schroder.
    
      J W. Gibbs sworn, says- — He has been in F. A. Schroder’s house, in Hamburg; it was about the 23d of January, 1847; found him at his store. Saw very good furniture in house.
    
      Cross-examined — Says S. C. Schroder lived in house near bridge; F. A. also lived in same house.
    
      George Mathis sworn, says — He had execution vs. S. C. Schroder, in August, 1846; that S. C. said he had nothing' to pay it with; therefore it was returned nulla bona.
    
    
      Cross-examined — Says about 4th August, 1846, he called on S. C. Schroder to pay execution. Part has been paid, since 7th Jan. S. C. said he would pay the principal, but would not pay witnesses’ costs.
    
      W. Spires, sworn, says — He knows F. A. Schroder was a merchant in Hamburg, about 7th Jan.. 1847; had house and lot, and merchandize; resided in house Woods built, near bridge; that he heard F. A. Schroder had sold out to S. C. Schroder, about the 7th Jan. F. A. resides in Hamburg; that he has seen him about the store, since the assignment.
    
      Cross-examined — Says he never saw F. A. sell since the assignment was made. In 1840 F. A. Schroder ran a boat across the river. Afterwards he kept a grog-shop; that he does not exactly recollect when S. C. came to Hamburg; that he knows F. A. increased his stock soon after S. C. came ; F. A. kept grog shop two years before S. C. came to Hamburg ; that he made money by his grog-shop.
    
      W. H. Green, sworn on the part of defendant, says — He knew F. A. Schroder in 1840; that he ran a boat across the river between Hamburg and Augusta; that he next saw him keeping a grog-shop, selling by the drink. He was worth $200 or $300. In 1843 he kept pickles, candy, &c.; the stock was worth $2,000; that he cannot say when S. C. Schroder came to Hamburg. Business for the last two years has increased ten times the amount before; that he saw money in possession of S. C. Schroder, $800 at one time; that he borrowed money from S. C. Schroder.
    
      
      Cross-examinéd — Says S. C. Schroder is younger than F. A. Schroder. That S. C. Schroder has been in possession of all the property since the execution of the deed.
    
      C. Richter sworn, says — He came to Hamburg in 1842; S. C. Schroder came in 1843; that he saw a large sum of money in his room, of both gold and paper, in 1844; that F. A. Schroder had a small capital in 1842, and until after S. C. Schroder came to Hamburg; that the business of F. A. increased every year after S. C. came, to the extent of more than $2,000; that S. C. promised to go into business with him in Oct. 1844.
    
      L. H. Brooks sworn, says — The following amounts of money were given in notes from F. A. to S. C. in the handwriting of F. A. One note dated New Orleans, January 30, 1838, for $3,500. One dated May 12, 1844, for $3,500; one note dated 7th July, 1844, for $2,300; one dated January 4, 1845, for $1,300; that he calculated the interest on the notes; that S. C. became dissatisfied, and urged F. A. to settlement; that he was clerk for F. A. in 1846. After a settlement was made, and F. A. had made the transfer, there was a balance in favor of S. C. of $250; that when F. A. inserted in his schedule some articles of furniture, S.- C. objected, saying they were his property; that he saw the execution vs. S. C. in favor of Mr. Bauskett, but S. C. said it was not just, though he would pay it; that S. C. had money, but he never saw it; that S. C. owned a horse two years ago.
    
      Cross-examined, says — He was clerk for F. A. last winter and fall; that he’ bought goods of the plaintiffs, which goods were brought to Hamburg; some of which were sold for cash. They were bought on a credit of four months, in New York and Charleston; that F. A. had accounts with S. Mowry & Son, for a long time; thinks Mowry’s account was made about the date of the account. F. A. did as good business as usual; sales amounted to about $12,000 or $15,000 a year. Knew he paid debts last year. Part of the goods were sold before the assignment was made; did very little business on ■credit; collected money in Nov. and Dec. 1846; paid some to S. Mowry; paid witness some small amount. Sold from 1st July 1846 to 1st January, 1847, about $6,000 worth of articles; that the assignment embraced the house and lot, and all articles, except a few; that he prepared F. A’s schedule of furniture conveyed by the deed; that three-fourths of the articles were always sold for cash; that F. A. received the money; that he.has collected for F. A. since the 1st of January $200 or $300, and given it to him. F. A. purchased since 23d Dec. 1846, 20 barrels of whiskey from Chaffee, and transferred, it to S. C. S. 0. was in Hamburg when F, A. went to Charleston to buy the goods before mentioned. That F. A. is in the habit of gaming, and has been for some years.
    
      William Gronard sworn, says — He commenced keeping bar for F. A. Schroder, in May, 1844; that S. C. Schroder was living in Hamburg then; that he saw in his possession a note on F. A. for $3,500; he saw it about eighteen months ago; that he saw money in the possession of S. C.; that S. C. sent $1,000 with F. A. to New York, and paid $200; that F. A. spends a great deal of money; has often seen him gaming.
    
      Cross-ex aanined — Says that the business still went on while F. A. was in New York.
    /S'. C. Schroder sworn, says — tie lived in New Orleans, and made money by keeping a grocery; had about $9,000 when he came to Hamburg; loaned his brother F. A. money, soon after he came there; that F. A. gave him the note for $3,500, for his portion of a legacy that he had spent; loaned him a little money at times, until the amount was $3,500; in 1844, loaned him $1,600; sent him $1,000 when in New York, loaned him $1,300; became alarmed at his spending too much; in 1845, that he was unwilling to come to a settlement with witness, and angry words passed between them before he would settle. Brooks made the settlement; he took possession of every thing in the house; there was a balance in favor of S. C. Schroder after settlement.
    
      Cross-examined — Says the assignment was intended to include all the property of F. A.; did not know he owed any debts when assignment was made; he took the house and lot at $900; F. A. wanted $1200 for the house and lot; took goods at cost prices; took furniture at $300, $400 or $500; was in store about $9,000 ; a balance was due S. C. but he took no note; did not want a note; has demanded balance of F. A. but he could not pay it; he had a deed for.what he was worth; that he has sold many of the goods, and has some of them still — probably $2,000, $3,000, $4,000 or $5,-000 — not so much as $8,000; keeps no books; cannot say how much he has sold since he has bought the goods; cannot say 'how much cash he had in January last; he sold the goods for $4,000 or $5,000; frequently aided F. A. in selling goods; heard F. A. say what the goods cost; was present when the assignment was made; saw invoices of the goods; left his notes in possession of Col. Yancey, to prepare an answer to the bill in Equity against F. A. & S. C. Schroder.
    THOMAS G. BACON,
    Clerk, and C. S. JB.
    
    
      SMITH MOWRY & SON 1 IN THE COMMON PLEAS, F. A. & S. CJ3CHRODER. ) Edgefield District.
    
    The plaintiffs in the above stated case come and object to the discharge of Ferdinand A. Schroder, under his petition for the benefit of the Prison Bounds Acts, and suggest the following grounds:
    1st. That the said Ferdinand A. Schroder was guilty of fraud in holding himself out to the plaintiffs as a man of property, and worthy of credit, when he contracted the debt on which the suit is brought in the above case.
    2d. Because the said F. A. Schroder purchased the goods of the plaintiffs, for which the debt in the above case was created, with the view and intention to assign them over to his brother, (S. C. Schroder) and thereby cheat and defraud the plaintiffs out of the means of obtaining payment of their said debt.
    3d. Because the said F. A. Schroder, on or about the 7th of January, 1847, made a fraudulent assignment of his slock of goods and other property in Hamburg, to his brother, (S. C. Schroder) with a view to hinder and defraud the said plaintiffs, as also his other creditors, of their just debts.
    4th. Because the said assignment to S. C. Schroder, dated about the 7th of January, 1847, was without consideration, only colorable, and intended to shift the property from the debtor to the hands of his brother, with a view to defraud his creditors, for the sole benefit of the said F. A. Schroder, or the joint benefit of himself and his said brother.
    5th. Because, if said deed of assignment was for a valuable consideration, then the plaintiffs suggest that the said F. A. Schroder thereby gave an unjust and undue preference to one of his creditors, to the prejudice of the said plaintiffs.
    6th. Because the said F. A. Schroder has omitted to include, in his said schedule, his interest in the stock of goods, store, furniture, accounts, books of account and other assets belonging to said store, now in the possession of the said S. C. Schroder.
    7th. Because he has not included in his said schedule the ' house and lot on Centre Street, Hamburg, which he owned at the time he contracted the said debt with the plaintiffs.
    
      8th. Because the said F. A. Schroder has not included in his said schedule all the estate and property, chattels, effects, and dioses in action, which are specified and enumerated in the said deed of assignment from the said F. A. Schroder to the said Segismund C. Schroder.
    9th. Because the said Ferdinand A. Schroder, for the reasons above assigned, and others not herein specified, is not entitled to his discharge, or any other of the benefits of the Acts of the General Assembly of the said State, commonly called the Prison Bounds Acts.
    BAUSKETT, Plaintiffs1 Attorney.
    
    And the said F. A. Schroder, by Messrs. Gray & Yancey, his attorneys, comes and defends the wrong, injury, when, &c. and says that he is not guilty of the frauds and other matters charged against him in the foregoing suggestion, and of this he puts himself upon the country, &c.
    GRAY & YANCEY, Defendant’s Att’ys.
    
    And the said Smith Mowry & Son, the suggestors, do the like- BAUSKETT, Plaintiffs’ Attorney.
    
    We, the jury, impanneled to try the issues on the within suggestion, do' find for the plaintiffs on the second, third, fifth and ninth grounds, within stated, and on all the other grounds of the within suggestion, we find for the defendant, F. A. Schroder. E. J. YOUNGBLOOD, Foreman.
    C. M. GRAY vs. F. A. & S. C. SCHRODER. 'i O. & A. WETMORE vs. F. A. SCHRODER. | Writs of Capias OTIS J. CHAFFEE vs. the same. y ad E. L. ADAMS vs. the same. J Respondendum. S. MOWRY & SON vs. F. A. & S. C. SCHRODER, j
    Application by F. A. Schroder to be discharged under the Prison Bounds Acts. C. M. Gray and other plaintiffs in the above stated cases, come and suggest the following grounds against the discharge of the said F. A. under the Prison Bounds Acts:
    1st. Because the said F. A. Schroder is guilty of fraud, in having omitted to include in his schedule filed in the above stated cases, his whole estate, and particularly in not including in said schedule the whole of his household and kitchen furniture; and the said plaintiffs charge the following articles to be so omitted, viz: one wardrobe, one cradle, one crib, one set of chandeliers, two dozen chairs, four bedsteads, four feather beds, four mattresses, four bolsters, eight pillows, eight blankets, and a large quantity of bed clothes, two dozen plates, one dozen dishes, half a dozen waiters, two dozen cups and saucers, one coffee and one tea pot, three bowls and pitchers, two wash stands, three tables, one side board, one bureau, two sofas, one carpet, and other articles of household furniture; three pots, three ovens, and other articles of kitchen furniture; and one house and lot in the town of Hamburg, situate on the west side of Centre Street.
    2d. Because the said F. A. Schroder is guilty of fraud in not including in his schedule his interest in the stock of goods on hand in the grocery store in the town of Hamburg, wherein he has been doing business as a grocer or merchant for some time past, either alone, or as partner of his brother, S. C. Schroder.
    3d. Because the said F. A. Schroder is guilty of fraud in making a false return, in not including in his schedule his whole estate, and particularly the articles and estate enumerated in the first ground of the suggestion, and his interest in the stock of goods mentioned in the second grpund of this suggestion.
    4th. Because the said F. A. Schroder has been guilty of fraud in giving an undue and fraudulent preference to other of his creditors, to the prejudice of the plaintiffs, in this, to wit: that he has assigned or attempted to assign and transfer his house and lot aforesaid; his stock of goods in the said grocery store in Hamburg; his debts due him, notes, accounts, and other choses in action, being his whole estate, to his brother S. C. Schroder, and has, within three months of his arrest, paid other of his creditors their demands, in fraud of the plaintiffs.
    5th. Because the said F. A. Schroder is guilty of fraud in having assigned to his brother, S. C. Schroder, a house and lot, in the town of Hamburg, situate on the west side of the centre street, his stock of goods, groceries, &c. in the aforesaid grocery store in the said town, at the time of said assignment, and his household and kitchen furniture, and the debts due to him as a merchant or grocer as aforesaid, with the view of defrauding the plaintiffs and his other creditors.
    6th. Because the said F. A. Schroder has expended more than two shillings and sixpence per day, since his arrest in these cases.
    7th. Because the said F. A. Schroder is guilty of fraud, and of making a false return, in not including in his schedule his interest in the proceeds of the sale of the stock of goods, wares, and merchandize, (on hand in his grocery store in the town of Hamburg, at the date of the paper purporting to be an assignment thereof to his brother, S. C. Schroder,) which sales have been made since the said assignment, and because he has not included in his said schedule his interest in moneys collected, since the said assignment, on notes, bonds and accounts due him, the said F. A. S. at the time of the assignment — and because he has not included in his said schedule all his notes, bonds and accounts, and evidence of debts due to him, the said F. A. Schroder.
    8th. Because the said F. A. Schroder is guilty of fraud in buying the goods, wares and merchandize, for which the notes sued on in these cases were given, with the view of assigning said goods to his brother, S. C. Schroder, who was conspiring and confederating with said F. A. Schroder thus to cheat and defraud the plaintiffs and the other creditors of said F. A. Schroder.
    GRIFFIN, 'Plaintiffs’ Attorney.
    
    And the said F. A. Schroder, by Messrs. Gray & Yancey, his Attorneys, come and defend the wrong, injury, when, &c. and says that he is not guilty of the frauds and other matters charged against him in the foregoing suggestion, and of this he puts himself upon the country, &c.
    GRAY & YANCEY, Defendants Attys.
    
    And the suggestors do so likewise.
    GRIFFIN, Plaintiffs’ Attorney.
    
    We find for the plaintiffs on the seventh and eighth grounds of this suggestion, and also all of the fourth and fifth grounds, except so much as relates to the debts, notes and other choses in action, due to the said F. A. Schroder; and we find for the defendant on all the other grounds of this suggestion, and on so much of the fourth and fifth grounds as relates to said debts, notes and other choses in action, included in the deed of the said F. A. Schroder to his brother. E. J. YOUNGBLOOD, Foreman.
    The defendant appealed from the verdicts of the jury in this matter, and moved the Court of Appeals for a new trial, on the grounds—
    1st. That the Commissioner of Special Bail erred in allowing the plaintiffs to challenge peremptorily one of the jury.
    2d. That the Commissioner of Special Bail erred in receiving the Sheriff’s writ book as evidence that the plaintiffs, O. J. Chaffee and E. L. Adams, had issued Bail Writs against the applicant, and of the time of his arrest, without production of the writs, or accounting for the absence of the writs.
    3d. That the jury rendered two separate verdicts in one matter or trial.
    4fh. That the suggestions of the plaintiffs and the verdicts of the jury do not set forth distinctly any general charge, such as fraud, false return, or undue preference of one creditor, which might deprive the applicant of the benefit of the Prison Bounds Acts.
    5th. That the grounds in the suggestions are not specifications under any general charge of time, place, sum, person, item, or other facts, with reasonable certainty, constituting a bar to applicant’s discharge.
    
      6th. That the verdicts of the jury against the applicant are inconsistent with so much of the findings as are in his favor; particularly that the finding against him of fraud and undue preference is inconsistent with- the finding that S. C. was his bona fide creditor.
    7th. That the verdicts are not upon material issues distinctly made, are against law, and without evidence.
    Gray, for the motion,
    contended that a debtor may prefer his creditor, if the deed be for valuable consideration. — Smith v. Henry, 1 Hill, 16. That the Act of 1788 (5 Stat. 79) mitigates the severity of the Act of 1759, (4 Stat. 86) and that the Act of 1841 goes farther, showing a gradual relaxation in favor of the debtor; and that the debtor is not strictly in confinement until he has been surrendered by his bail. — 5 Stat. 79 ; Sherman v. Barrett, 1 McMul. 147; 2 Spears, 76.
    Bauskett, contra,
    
    said that each creditor might suggest: then there can be more than one suggestion, and necessarily more than one verdict. — 6 Stat. 492 (Act of 1833); Crenshaw v. Wetsel, 2 Hill,'418; Walker v. Briggs, 1 Hill, 118; Thomson v. Idnam, 1 Bail. 131; Sherman v. Barrett, 1 McMul. 160.
    Wardl aw, in reply,
    cited Robertson 6p Caldwell v. Amy, 1 Rich. 291, and insisted that the 7th section of the Act of 1788 specifies the delinquencies or frauds which will prevent a prisoner from the benefit of the Act. That in this case there was no fraudulent preference of the brother, and that the assignment was made more than three months previous to the arrest of the prisoner, and more than six months before his confinement.
   Withers, J.

delivered the opinion of the Court.

The first ground of appeal, imputing error to the Commissioner of Special Bail in allowing the plaintiffs to challenge peremptorily one of the jury, has not been pressed or argued before this Court, and hence it is not regarded in making up our judgment.

Nor is the matter of the second ground of appeal considered substantial, for the object in adducing the Sheriff’s writ book was collateral, to wit — either to show the number who had sued the defendant, or the time when two writs were lodged. This does not appear to have been any how material, for if the disclosures of the book had been excluded, it is not perceived how the result could have been affected.

The third ground complains that the jury rendered two separate verdicts in one matter or trial.

How could they have done otherwise? Two separate sug-. gestions were filed, and the defendant made an issue on each. If the matters presented were capable of consolidation, still no motion was made to that effect. However, it is not supposed that there is any thing irregular in different creditors filing separate suggestions, if they are willing to encounter the inconvenience of such course in a protracted trial. Represented by divers counsel, even co-operation may not be practicable, much less can we undertake to say that totally distinct cases of creditors wholly unknown to each other, (it may be) and possibly presenting different issues, sustainable by different testimony, shall be fused, as it were, into each other. Perhaps this Court might be astute to devise or discover some mode of counteracting the mere purpose to har-rass a debtor, when so unworthy an end might betray itself —but we see nothing in the present case except the very common occurrence of two suggestions against the same debtor, met by him with the plea of the general issue, presenting in the main the same points, submitted to and determined-by the same jury.

The real questions in the case may be presented thus:

1st. Are the specifications of the suggestions filed and found against the defendant, or any of them, sufficiently precise in terms, and material in substance?

2d. Must the act of the defendant, in fraudulently selling, conveying, or assigning his estate to defraud his creditors, as well as undue preference,” have been perpetrated within the three months contemplated by the law, in order to work the defeat of the defendant’s application ?

3d. Can this term of three months, within which an undue preference is denounced, be taken to have reference to the period of a party’s arrest on mesne process, where he is enlarged on bail, though more than three months have elapsed between that event and the time when the party is subjected to actual confinement or the prison rules 1

1st. As to the form and substance of accusation in the suggestions.

Undoubtedly this species of proceeding should be brought within the main scope of the leading purposes of all pleading, though it need not be affirmed that all the strict and precise rules of the science are properly applicable. It will, however, readity occur, that if form or substance be wanting, there are the means, common to all practice, of attacking such defects, to wit, demurrer; and such was a view of the like question, suggested in Sherman & DeBruhl v. Barrett, 1 McMullan, 147. It would not seem unfair that while the defendant would hold creditors to that strictness dictated by the common law in proceedings known to it, he should, in return, be required to use the weapons also equally well known. But besides this, such proceedings as that now in question are so much under the control of the officer presiding, at every step of-the progress, by way of motion and order, that all matters pertaining to the pleadings may be, and ought to be, properly adjusted before the trial takes place. Still it is not intended to be broadly affirmed, that we shall cut off, under all circumstances, a motion in arrest of judgment, or for a new trial, on account of the want of substance in the allegations.

It is insisted, in the fifth ground of appeal, that time, place, suffi, person, item, and other facts, should have been specified. It ought to be observed, in general, that as the rules of law do not require of a party to assume the burthen of proving that which is peculiarly within the knowledge of his adversary, so no rule of practice ought to be allowed to work a similar hardship. Judges, as well as others, are presumed to know that fraud is accustomed to lurk under guises — -its badges are not designedly carried upon the front. That precision of definition and description which is wisely required in setting forth a cause of action in an ordinary case, must be somewhat relaxed in cases such as that under examination, having proper reference to the subject matter and the position of the parties. We do not, however, perceive how any of the particulars above mentioned, not set forth by the plaintiffs, became matters of contest or importance; or how the defendant was, in any respect, surprised by a course of testimony not indicated by the issues tendered in the pleadings. We cannot discover ground for just exception to the form or precision of such of the specifications as were found against the defendant, except the 9th of those filed by Mr. Bauskett, which obviously embraced nothing that was within the province of the jury, but that only which should enter into the order or judgment arising from their finding.

The more material branch of the first enquiry is, whether .the issues resolved by the jury were immaterial or unsubstantial, and this will also involve the second proposition above stated. We do not attach any importance to the idea that the finding of the jury in favor of the defendant, on sundry of the specifications, neutralized their verdict against him on others. This amounted to no more than selecting the language of those propositions which the jury considered to have been proved, and was equivalent to adopting that language as a part of their verdict. Incorporating then, this matter, what have they found ? Why thus, upon the first suggestion, (that filed by Mr. Bauskett,)' excluding the 9th proposition: “We find that F. A. Schroder purchased goods of S. Mowry & Son, for.which the debts sued upon in this case were created, with the view and intention.to assign them over to his brother, (S. C. Schroder) and thereby cheat and defraud Mowry & Son out of the means of obtaining payment of their said debts: that defendant, on or about the 7th January, 1847, made a fraudulent assignment of his stock of goods in Hamburg to his said brother, with a view to hinder and defraud Mowry & Son, his said creditors, as also his other creditors) of their just debts: and that if said assignment was even for a valuable consideration, it was an undue preference of one of his creditors to the prejudice of the plaintiffs.”

In the second case, (that in which Mr. Griffin filed the suggestions for C. M. Gray and sundry other creditors,) the jury found substantially thus:

“We find that F. A. Schroder is guilty of fraud in buying the goods, wares and merchandize for which the notes sued upon in these cases were given, with a view of assigning the said goods, &c. to S. C. Schroder, his brother, who was conspiring and confederating with him thus to cheat and defraud the plaintiffs and his other creditors: that he was guilty of fraud in having assigned to his said brother a house and lot in the town of Hamburg, and his stock of goods in the said grocery store at the date of said assignment, and his household and kitchen furniture, with a view of defrauding the plaintiffs and his other creditors: that he has been guilty of fraud and of making a false return in not including in his schedule his interest in the proceeds of the sale of his stock of goods, &c. in his grocery store at the date of said assignment, which sales have been made since that time: and because he did not include his interest in moneys collected since that time on notes and so forth, due to him at that time: and because he has not included in his schedule all his notes, bonds, accounts, and evidence of debts due to him: and that he has been guilty of fraud in giving an undue preference to others of his creditors, to the prejudice of the plaintiffs, to wit, in assigning or attempting to assign, his house and lot, and his stock of goods in his grocery store in Hamburg.”

Excluding,'for the present, from enquiry the latter clause of each verdict, as above stated, to wit, those relating to undue preference, do these findings bring the defendant within any of the definitions of guilt contained in the law ? What are they ? (See A. A. 1788, 2 Brevard’s Dig. 160, sec. 7, and read in connection with it the Act of 1833, 6 Stat. 491, sec. 1.) They are — first, fraud; second, undue preference; third, false return; fourth, going beyond the Prison Rules.

We have not.a doubt that the fraud here contemplated is such precisely as the law, in general, inhibits — that it is not a peculiar species, for the first time defined in the Insolvent Debtors and Prison Bounds Acts, and taking a distinguishing hue from them alone. Nor have we a doubt that the fraud intended is well found in that portion of both verdicts which affirms that the goods assigned were bought primarily for the purpose of being assigned to defendant’s brother, and thus to cheat and defraud the plaintiffs; and that the same is well found in that portion of the verdict which affirms that the assignment to his brother of his house and lot, furniture, goods, <fcc. was fraudulent, and made with a view to defraud his creditors.

What could be a clearer fraud, according to any respectable code of morals, in fact or in law, than to procure goods from one with a concerted design to smuggle them into the hands of a brother who was conspiring and confederating to effect that object? This has been found upon the 7th specification of the suggestion filed by Mr. Griffin — and we are at a loss for any reasoning or illustration more clear than the proposition itself — that this must be a fraud upon the creditors thus swindled out of their property.

That the assignment of these goods, though made more than three months prior to the actual confinement of the defendant, was an act which, when found (as it has been) fraudulent by the jury, is prohibited or condemned by the statute, we well believe. The words are, (7 sec. A. A. 1788,) “who shall have, within three months before his or her confinement, or at any time since, paid or assigned his estate, or any part thereof, to one creditor in preference to another, or fraudulently sold, conveyed or assigned his estate, to defraud his creditors.” The limitation of time does not apply to the last branch of the foregoing quotation, touching a sale, conveyance or assignment of the debtor’s estate. Nor is this a novel or unfamiliar construction. The doctrine was ruled in Sherman & DeBruhl v. Barrett, before cited, where the question was made. It is enough to add that the same has been not unfrequently ruled. In one instance it was held that where one had removed his property beyond the limits of the State, in order fraudulently to deprive his creditors of the benefit of the same, he was excluded from the privileges of the Act, though the property was included in his schedule. That the undue preference, which it is conceded must be within the prescribed period, and a fraudulent sale, conveyance or assignment, are wholly separate and distinct, may-be clearly perceived in the Act of 1833, under which the proceeding in the present case has taken place. It is reasonable to hold that undue preference is one thing, and a fraudulent disposition of property another — the first may well be confined to the prescribed period, as it is to occur by a sale or payment to a creditor, and this might very easily happen in the current transactions of one who was embarrassed, with no purpose to do wrong, or knowledge that wrong was done — and hence should have a limit. The other needs no such protection ; it cannot happen by mistake or from ignorance; it is as full of iniquity if perpetrated within twelve as within three months before the specified period, and is the very thing that is likely to be done far in advance of the approaching crisis, and is contemplated 1 y the Act as a transaction that will be attempted and effected with any third person, whether creditor or not. It is vain to attempt to enumerate the great variety of form in which this latter purpose may be attempted and detected. It has been determined tha.t a general assignment, in favor of all creditors, though giving preference among them, is not the fraudulent assignment denounced by the law: but such is not this case — it is very different, and may afford a good illustration of what is contemplated.

To all this we may add, that a part of the finding develops a false return, a distinct and specific offence; and the particulars are stated in which it is false. If there were nothing else, it is not perceived how the defendant can escape the effect of this portion of the verdict.

We cannot hesitate in holding, therefore, that the issues are material — that is, such as the law has in view; that they are resolved against the defendant, and that there was abundant evidence to justify the result.

3d. Upon the third- proposition announced in the outset, we do not feel disposed, upon the present occasion, to pronounce a judgment. The word “confinement” is used in the Act of 1788, and also in that of 1833; and in the cursory consideration given to the argument on that point, it appears to some of the Court not to be without plausibility. On the other hand it has occurred to us that if the term of three months shall never be applied to the period of a party’s arrest, merely because he gives bail, it may happen that a creditor, becoming such bail, may procure a sale or assignment from his debtor, and waiting for more than three months, actual “confinement” may then be made to commence, and the question of undue influence at any foregoing period will be thus wholly evaded. The question is not necessarily involved in the conclusion to which we are conducted by other satisfactory views in the present case, and it is therefore not intended to determine it. The motion is refused.

Richardson, J. O’Neall, J. Evans, J. Wardlaw, J. and Frost, J. concurred.

Motion refused.  