
    *Sherman and Debruhl vs. Judah Barrett.
    
    An applicant for his discharge under the Insolvent Debtors’ Act, will not be permitted to discontinue or withdraw his application after a suggestion charging his schedule with fraud has been filed. 
    
    A defendant’s schedule is amenable, under the discretion of the Court; but it must be shown by affidavit, or otherwise, to the satisfaction of the Court, that the omission to insert the property omitted in the schedule, arose from ignorance, inadvertence, or mistake. He will not be permitted to amend, if it will create surprise or delay to the other party.
    Whenever the right of a person to be discharged is resisted, on the ground of fraud, it is not necessary that there should be any showing on oath, unless the result of the allegation would be to delay the hearing of the debtor’s application. In that event, the Court, m the exercise of a sound discretion, may require the creditor to verify his accusation by affidavits, 
    
    The limitation of time, in the seventh section of the Prison Bounds’ Act, (P. L. 457,) 
       applies solely to undue preference ; and a fraudulent sale or conveyance, and a fraudulent preference, arc two distinct things.
    A witness attending under a subpoena duces tecum, is not required to testify, but merely to bring into Court a paper which the party needs.
    A deed to a concubine to procure future cohabitation is void; also, a deed for services rendered by a kept mistress is void, if the grantor be in debt at the time of the conveyance, or continues to retain possession of the property from the date of the deed until he becomes insolvent.
    Where a debtor had conveyed to his son-in-law a number of houses and lots in the town of Columbia, and a number of slaves, for which he is said to have received a large sum of money, and at the date of the conveyance was very much in debt; on the trial of the validity of his schedule, it was held that the onus lay on the defendant, to account for the proceeds of the sale of this property.
    When a debtor alleges that the proceeds of a sale of property made by him, has been gambled away, the question of his gaming may be submitted to the jury, and their finding will not be disturbed.
    Before O’Neall, J., at Charleston, January Term, 1840.
    The defendant was an applicant for the benefit of the Insolvent Debtors’ Act. During the first part of the term, held by my brother Evans, the plaintiffs, two of his creditors, appeared and objected to his discharge, and filed their suggestion, charging the defendant’s schedule to be fraudulent in many particulars. Monday of the last week of the term was fixed at that time for the trial of the cause. It was, to accommodate the bar, allowed to stand over until Friday. When the trial was about to proceed, Mr. Yeadon, for the defendant, moved *for leave to withdraw his applications for a discharge, and brought to my view that no formal issue had been made up. The plaintiffs insisted on their right to try the issue. I thought according to the case of Walker vs. Briggs, (1 Hill, 291,) he could not be permitted now to withdraw his application. A motion was made to continue the case, on the ground that the defendant had not had sufficient time to answer the facts set out in the third allegation of fraud on the part of the plaintiffs. No affidavit was submitted, and the defendant did not show himself in the court house. The motion was overruled. The defendant’s counsel made repeated motions to amend his schedule, by inserting therein all his interest in the western lands, the house and lot and negroes and other personal property conveyed to Eliza Smith, alias Barrett, and the houses and lots and slaves conveyed to Jacob Cohen; these motions were made before the case was gone into, and were repeated at various stages of the case. But I never thought it was shown that the omission to insert the same in the schedule arose from either ignorance, inadvertence or mistake. Throughout the case, no such affidavit of the defendant was presented. Indeed, he was not present to amend his *schedule, if any order had been made. The defendant’s defence seemed to be that his schedule was true, and that he had no interest in the property alluded to ; and if there was any surprise in the matter on his part, it was that the plaintiffs were prepared to prove that he had an interest, and he was not prepared to rebut their testimony ; and to get out of this difficulty, it was proposed to amend the schedule. I thought that I ought not to permit the amendment. It was, at the very moment of trial, making an entirely new issue, and would both surprise and delay the plaintiffs. Mr. He Saussure stated no fact that went to show either ignorance or mistake on the part of the defendant, about the western lands. He said that he called on Barrett during his confinement and spoke to him on the subject; that he was very chary in imparting information, but told him he would in a few days send him a statement; one in a few days was left at his office by Mr. Cohen. When it was about to be given in evidence, the defendant’s attorney objected to it, on the ground that it was not shown to have come from the defendant. It was excluded. What were its contents I do not know. Mr. Cohen’s affidavit can be produced and will speak for itself. Under the insolvent ^debtors’ Act, I presume an oath or affidavit of the truth of the suggestions disputing the debtor’s schedule, was never required. Under the prison bounds’ Act, it was required that there should be some showing of the truth of the allegation of fraud, to oust the commissioners of special bail of jurisdiction. But since the Act of 1833, that is not now required. Notwithstanding Mr. Yeadon objected that the suggestion was not sworn to, I ruled that the plaintiffs were properly before me and entitled to proceed. I refused to strike out any of the allegations of fraud in the suggestion, None of them seemed to me to be obnoxious to the charge of being “frivolous,” and it is only for this cause that I should have been justified in striking them out. The special objections taken in the 6th, 7th, 8th, 9th, 10th and 11th grounds of appeal, to the sufficiency of the allegations of fraud, and the finding of the jury thereon, will be sufficiently understood by referring to the record. It ought, however to be remarked, that if these objections are of any value, they ought to have been taken by the way of special demurrer, and I presume the Court will be very well satisfied after verdict that enough appears on the record to show that the defendant is not entitled to the benefit of the Act. *In the course of the case, Mr. Cohen produced, under a subpoena duces tecum, the deeds to him. It was held that a witness so subpoenaed and attending need not be sworn, and that the papers must be produced. Having now disposed of the preliminary matters, I will, as well as I am able, state the case as it appeared in proof under the different heads of fraud. The second allegation in the suggestion was, that the defendant had in his hands a large sum of money, $21,650, not included in his schedule. It appeared (if the sale to Cohen was bona fide,) that on the 31st July, 1838, the defendant sold to Jacob Cohen, his son-in-law, his houses and lots in Columbia, (not before conveyed,) for the sum of $16,500, and sixteen slaves for $5,150. His letter to his creditors of the 1st of August, stated that he had made this sale to enable him to begin business again, and that for the lots he received $10,000 cash, and the balance was to be paid in two, four and six months, and that the price of the slaves was to be paid in sixty days. The defendant was unable to show what had become of this large sum of money (if, in point of fact, he ever received it.) His counsel contended that he had gambled it away. It appeared that when he engaged in gaming, he pursued it without Hear or judgment. I supposed, from the proof, that when once fairly embarked, he would have hazarded every thing he owned. It was proved by a man of the name of Davega, that the defendant gambled during the last races on the race course and in the gaming houses in the City, and lost considerably as Barrett said. He said the defendant had lived with him for the last ninety days, in the bounds, without any apparent means of defraying even ordinary expenses. He proved that defendant had escaped.
    
    In the third allegation, the plaintiffs charged that the defendant had not embraced in his schedule large quantities of land and town lots in the south-west.
    The evidence consisted of the defendant’s written statements of entries and purchases of lands for himself and others. To the plaintiff, Sherman, as one of his co-partners, he stated entries and purchases to the amount of $80,100. To Dr. Wells he stated an entry or purchase of $1799, of which he, Wells, was to have one half of the profits.
    The fourth and fifth allegations charged that the conveyance of a house and lot in Columbia, and nine slaves, to or for the use of his wife, Eliza Barrett, or Eliza Smith, were fraudulent. *TJnder this head it appeared that Barrett, at or about the time of these conveyances, was indebted to the amount of $23,195. In his letter to his creditors of the first of August, 1838, which was a little subsequent to these conveyances, he stated that the proceeds of his alleged sale to Cohen, $21,500 would not pay his debts.
    The grantee, Eliza Barrett, or Smith, lived with the defendant from 1820. When their intercourse first commenced he was a married man. Ilis then wife died at some time between ’29 and ’38. The conveyances were to Col. Chappell, as a trustee, for the use of Eliza Smith, and stated valuable consideration, but it was clear from the proof and the papers adduced that all these considerations might be referred to future or past cohabitation. The defendant, on the 6th December, 1837, drew an order on Stribling, for the payment of $45, rent to my wife, Eliza Barrett. While the defendant was absent at the west, he addressed letters to her as his wife, and in the name of “Eliza Barrett.” He desired Coleman, as she was illiterate, to write replies for her, which he did. He asked her how he should sign the letters in reply. She replied, answer the defendant’s letters, by which he understood her to direct him to sign her name as his wife, Eliza Barrett. He said the report was that they were married in North Carolina. On being asked by the defendant’s counsel, whether he believed a marriage in fact had taken place, he said he did not.
    John Shultz proved that the defendant asked him in December, 1836, to go to his house, to witness a conveyance to be executed by Eliza. He told him that they were married in North Carolina. When she was about to sign the deed, the defendant wrote her name Eliza Smith, and she made her mark. He said “ you know what you promised me in North Carolina;” she said yes; he said, “you must stick to that.” The defendant is a Jew, and Eliza Smith is not. Told the witness the reason why he wished to conceal his marriage was on account of his faith. Witness said it was a question with him whether they were ever married. In all the conveyances and mortgages made by the defendant she did not join or renounce dower. The defendant was in the possession of the house and personal property conveyed to her to the time of his removal to Charleston, which was in ’38, I suppose about the date of his conveyance to Cohen ; though it might *have been at an earlier day, for there was no certain proof in the matter.
    In the sixth allegation, the conveyances to Cohen were charged to be fraudulent. The proof was, that on the day when the deeds were executed, Cohen gave to the defendant a cheek ; but the amount did not appear, nor did it appear whether it had or had not been paid. The value of the houses and lots conveyed, were proved by Gregg and McLaughlin, tobe $36,500; they proved the rents tobe less than 10 per cent. ($2,300,) but notwithstanding their unproductiveness was presented to their attention, they still asserted their value to be $36,500. These conveyances covered the whole remaining property of the defendant, except his interest in the western lands, and the property conveyed to his wife or concubine, which ever she may have been. Mr. Cohen was proved to be a man of good character. Ilis means to make such a purchase was rather dubious. He had in his possession as owner, a large rice plantation, (six hundred and fifty-eight acres,) and fifty slaves. The conveyances to Cohen were of the houses and lots in Columbia, already spoken of, for $16,500, and sixteen slaves for $5,150. The defendant, according to his letter at the date of these conveyances, owed more than $21,650.
    The seventh allegation was a general one, covering pretty much, in general terms, the charges made in the second, third, fourth, fifth and sixth allegations.
    The jury were instructed, first, as to the second allegation. If they believed the sale to Cohen to be bona fide, and that the defendant had received the proceeds, $21,650, to enquire what had become of that sum. They were told it was for the defendant to show this. This was attempted to be done by showing his reckless character as a gambler, and his gaming within a year previous to his application for a discharge. They were told that they might find he had gamed away $21,650 but I advised them that I thought the evidence hardly warranted the conclusion. I told them then that the effect of gaming within a year, would exclude the defendant from the benefit of the Act; but I said not to them, that it would have the same effect as a conviction of fraud. Indeed, upon Mr. Yeadon’s requisition, at the close of my charge, I told them it would not have the same effect. If I said any thing like what is stated in the 13th ground, I have no recollection *of it. On the third allegation they were told that the proof was plain, that the defendant had an interest in western lands not included in the schedule. To understand the defendant’s fourteenth ground, it is necessary to understand the course of the argument. I had decided that the defendant could not now amend his schedule. The defendant’s attorney, in words, appealed from my decision to the jury, and contended that they were to consider the amendment as made. In commenting on this part of the case, I said the course pursued was a most unjustifiable one ; my error, if I had committed one, was not to be corrected by the jury, but by the Court of Appeals, That they could not find upon facts which did not appear; and that there was no evidence that he had omitted the western lands through ignorance, inadvertence or mistake. On the fourth, fifth and sixth allegations, the jury were instructed that the limitation of three months in the prison bounds’ Act, applied to the preference of one creditor to another, and not to fraudulent conveyances
    As to the conveyances of Eliza Barrett, alias Smith, they were instructed that they could not be supported if she was the defendant’s wife. They were referred to the evidence in this behalf, and they were told that on it they might find her to be his wife. In commenting upon the deeds, supposing her to be his concubine and not his wife, the distinction between a consideration arising from a past or future cohabitation, was carefully pointed out; and the jury were told, if the consideration of either or both the deeds was future cohabitation, then that one or both could not be supported. For Barrett had retained possession of the property up to a period when he was insolvent. If he had separated himself from the possession, then his gift of the personal property, if made when he was abundantly able to pay his debts, would be good. But this could not now avail, as the proof was clear he had the possession to May, 1838.
    
      In reference to the deed to Cohen, they were told that if they believed the consideration, $21,650, was not paid, then they might find these deeds to be fraudulent. For they were conveyances of the debtor’s most valuable estate, within his creditor’s reach, on the verge of insolvency. These were, since Twine’s case, regarded as strong badges of fraud. It might be, that comparing the price paid, with the value *of the property, they might with these other circumstances, find the conveyances to be fraudulent. Here, I suppose, is the alleged error complained of in the sixteenth ground. I did say to the jury, that they ought to rely on Gregg and McLaughlin’s testimony, in fixing the value of the real estate conveyed to Cohen, at 36,500, although the rents do not amount to 10 per cent. ; and I have yet to learn, both as a Lawyer and a Judge, that there is any error in believing respectable and intelligent men, acquainted with the property, although their estimated value should exceed a sum on which the animal rent was less than 10 per cent.
    The jury found against the defendant on the second, third, fourth, fifth, sixth and seventh allegations.
    The defendant appealed, on the annexed twenty-three grounds :
    1. Because his Honor, before issue joined on the suggestion, refused permission to the defendant to withdraw or discontinue his petition and schedule.
    2. Because his Honor refused to continue the cause on the application of defendant, although it was manifest, from the face of the third count, that the defendant could not, by any human effort, have procured the testimony necessary to his defence against the allegations therein contained, between the day of the filing of the‘Suggestion, January 16, and the days of the trial of the cause. January 31 and February 1, 1840.
    3. Because his Honor, before issue joined on the suggestion, refused permission to the defendant to amend his schedule, by inserting therein an assignment of all his right, title, and interest in the property alleged by various counts in the suggestion to be held by fraudulent conveyances from the defendant; and especially because his Honor refused to allow the schedule to be amended in relation to the western and southwestern lands, alleged in the third count to be the property of the defendant, although it clearly appeared from the affidavit subsequently submitted to his Honor, and from the testimony of Mr. De Saussure, that the omission to insert these lands arose from ignorance or mistake on the part of the defendant.
    4. Because his Honor compelled the defendant to take issue and go to trial on a suggestion unsupported by oath or affidavit.
    *5. Because his Honor, before issue joined on the suggestion, refused a motion on behalf of defendant, to strike out the irregular, informal, and defective counts of the suggestion, and compelled the defendant to take issue on all of them.
    6. Because the second count is defective, in not alleging the time when the money alleged to have been received by defendant, was received by him, nor the person or persons from whom it was received, and therefore the count cannot support the finding of the jury.
    7. Because the third count is multifold and voluminous, and blends various inconsistent and and alternative issues, and therefore cannot support the finding of the jury.
    8. Because the fourth count shows on its face that the conveyance therein mentioned and alleged to be fraudulent, was made more than three months before the filing of defendant’s petition for his discharge, and the finding of the jury thereon is contrary to law, and ought to be set aside.
    
      9. Because the fifth count and the finding of the jury thereon, are also liable to the same objection.
    10. Because the sixth count and the finding of the jury thereon, are also liable to the same objection.
    11. Because the seventh or last count is informal, irregular and indefinite, ami entirely too vague to support the finding' of the jury thereon.
    12. Because the finding of the jury on the second, is inconsistent with their finding on the sixth count, and a new trial, therefore, on both, should be awarded.
    13. Because his Honor, it is respectfully submitted, erred in charging the jury that the limitation of three months, in the clause in the prison bounds’ Act, applies only to assignments and payments to one creditor in preference to another, and not to fraudulent conveyances. Whereas it is submitted Unit the plain letter and meaning of the clause, show its applications to the latter as well as to the former, and the defendant’s plea to that effect should have been sustained.
    14. Because his Honor erred in charging the jury that it was questionable whether their finding that the defendant had lost the money alluded to in the second count, by gaming, within twelve months preceding the filing the petition, would not be attended with the same consequences of perpetual imprisonment and disfranchisement of insolvent relief, as a conviction *of fraud; whereas it is submitted that the conviction of loss of money by gaming within the inhibited period, would only submit the defendant, to imprisonment, until payment of the debts for which he was arrested, or in other words, that it would only deny him relief in the particular case without payment of the money due ; and operate no disfranchisement in other cases ; ami as this was a material point in the case, his Honor, (as he was requested to do,) should have so charged the jury.
    15. Because his Honor erred in charging the jury that they had no right to acquit the defendant of the charge of rendering a false schedule, on the ground that he had inadvertently, ignorantly, or by mistake, omitted to insert in his schedule the property alleged In the suggestion to belong to him.
    16. Because his Honor erred in charging the jury that a bond or conveyance of property, in consideration of future cohabitation, made by one in good circumstances, would be void as against creditors, whose claims against the donor originated long subsequent to the bond or conveyance; whereas it is submitted that such bond or conveyance, under such circumstances, would stand on the footing of any other voluntary bond or conveyance, and would be valid against subsequent creditors.
    17. Because his Honor erred in charging the jury that in estimating the value of the real estate alleged to have been fraudulently conveyed by defendant, they ought to rely on the valuation of the two witnesses, (Messrs. McLaughlin and Gregg,) who fixed the value at §36,000, but estimated the rent at the most, but ¡¡§2,650, which showed their estimate to be not worth a straw, especially too. as one of them (Mr. Gregg,) admitted that he would not buy the property at his own estimate.
    18. Because the multiplied and alternative charges in the third count, relating to the western and southwestern lands, were unsustained by the evidence, and because there was no proof whatever of fraud in the conveyances to Jacob Cohen, or those to Eliza Smith ; but the proof, on the contrary was, that those conveyances were bona fide and for valuable consideration, and the verdict of the jury in respect to these conveyances, and in respect to the western and southwestern lands, ought to be set aside.
    *19- Because bis Honor charged the jury that there was sufficient evidence to authorize them to find that Judah Barrett and Eliza Smith were man and wife, whereas the plaintiffs themselves by both documents and witnesses proved the contrary to be the case.
    20. Because there was no proof whatever applicable to the seventh count, and the finding of the jury thereon, having been entirely without evidence, ought to be set aside.
    21. Because his Honor ruled that Mr. Jacob Cohen, a witness, served with súpome duces tecum, in behalf of the plaintiffs, should be compelled to produce the papers called for by the subpoena, without being sworn as a witness, although such papers were used to the prejudice of his rights.
    22. Because his Honor erred in charging the jury that it was not necessary for them to believe, or for it to be proved, that defendant had been guilty of wilful and deliberate perjury, in order to convict that defendant of rendering a false schedule, and in refusing to charge the jury that such proof was necessary.
    23. Because the verdict was, in other respects, contrary to law and evidence.
    
      
      а) S. C. again and again; 2 Sp., 529; 1 Rich, 457; 2 Strob., 553. An.
      
    
    
      
       See N. Cohen’s case, 11 Rich.; Sleeper & Fenner, N. A. Cohen. An.
      
    
    
      
       Sup. 66. 11 Rich. 360.
    
    
      
       5 Stat. 79. An.
      
      
        
        State of South Carolina, Charleston District:
      
      Be it remembered, that on the fifteenth day of .January, in the year of our Lord one thousand eight hundred and forty, to which day the suing creditors of Judah Barrett, who is in custody of the Sheriff of Charleston District, by virtue of sundry writs of capias ad satisfaciendum, at the suits of Coleman Bedford and Christian P. Bookter, and all others to whom the said Judah Barrett is in any wise indebted, were summoned and notified to be and appear before the Judges of the Court of Common Pleas, at the Court to be holden at Charleston, in the District and State aforesaid, to show cause, if any they can, why the said Judah Barrett should not he admitted to the benefit of the Acts of the General Assembly made for the relief of insolvent debtors, according to the prayer of his petition in that behalf, come here into Court S. 0. Debruhl, a judgment creditor of the said Judah Barrett, and L. Sherman, a creditor of the said Judah Barrett, by De Saussure, their attorney, and give the Court here to understand and be informed that the said Judah Barrett ought not to have the prayer of his petition granted, and ought not to he admitted to the benefit of t-lie said Acts, for divers causes and considerations hereinafter set forth and specified, that is to say:
      First — Because the said defendant, Judah Barrett, has within three months before his confinement paid some one or more of' the creditors of him the said Judah Barrett, the debts due by him to them, or one of them, in preference to the debts of these relators, and such preference of one creditor, per se, deprived the said Judah Barrett of the right of taking the benefit of the said Acts, according to the statutes in such case made and provided.
      Second — Because the said Judah Barrett has not inserted in his schedule, nor accounted for, a certain large sum of money, to wit: the sum of sixteen thousand five hundred dollars, paid, or seemed to be paid to him; nor for certain other large sums of money accruing from his sales of certain negro slaves belonging to him, and which sums he reserved in his hands, as stated in his letter to certain of his creditors, to enable him to enter into new business ; nor lias he set forth in what property the same was invested, nor in any manner accounted for the said property.
      Third — Because the schedule filed by the said Judah Barrett, purporting to be a schedule of all the real and personal estate of the said Judah Barrett, does not contain a just and true account and enumeration thereof, but is false, fraudulent and covinous, inasmuch as it does not contain several thousand acres of land in the States of Mississippi, Alabama and Arkansas ; numerous lots in the town of upper and lower Aberdeen ; houses and lots in New Aberdeen and New Alabama; sundry lots bought of the Columbus Jjand Company, and other real estate; which said houses, lands and lots, were purchased by, or on account of, the said Judah Barrett, some time in the years 1S8G and 1837, and are now held under titles either in his own name or in the name or names of some other person or persons, as these relators charge and believe, upon secret trusts not apparent upon the face of the deeds, but which enure in fact to the use and benefit of the said Judah Barrett, or are covinously held by other person or persons under fraudulent confessions of judgment or judgments, by default, to hinder, delay and defraud the bona fide creditors of the said Judah Barrett, of their just and legal rights, or were conveyed, fraudulently, for a mere nominal or very inadequate consideration, to some other person or persons, to defraud his creditors.
      Fourth — Because that the said Judah Barrett, some time in the year of our Lord one thousand eight hundred and thirty-eight, fraudulently conveyed his house and lot in the town of Columbia, in the State of South Carolina, to a person called in the deed Eliza Smith, or to some other person in trust for her, for the nominal consideration of three thousand dollars, when these relators believe and are informed, and so charge, that in fact, the said Eliza Smith had no means or funds to pay for the same ; and the said house and lot are now held by her, or some other person in trust for her, to the hindrance and detriment of the creditors of the said Judah Barrett.
      Fifth — Because that the said Judah Barrett, on the seventeenth day of May, in the year of our Lord one thousand eight hundred and thirty-eight, fraudulently conveyed certain negro or mulatto slaves named Ann, Mary, Josephine, Collins and Nicholas, and household and kitchen furniture, unto Eliza Smith, or to some other person in trust for her use and benefit, without valuable consideration, whereby the creditors of the said Judah Barrett are defeated and deprived of their just and legal claims.
      Sixth — Because that the said Judah Barrett, on the thirty-first of July, in the year of our Lord one thousand eight hundred and thirty-eight, fraudulently conveyed a house and lot of land in the town of Columbia, in the State of South Carolina, situate on the east side of Richardson street, at the corner of Richardson and plane streets, fronting on Richardson, measuring on the said street fifty-two feet, and on Plane street two hundred and eighty feet; also, another house and lot of land in Columbia, in the State aforesaid, on the west side of Richardson street, fronting on Richardson street, sixty-seven feet, running west on Assembly street, four hundred and seventeen feet, and fronting on Assembly street, eighty-seven feet: And also, another house and lot of land in Columbia, in the State aforesaid, situated at the corner of Assembly and Washington streets, fronting and containing on Washington street, two hundred and eight feet,' and on Assembly street eighty-eight feet; and also, a large number of negro slaves, to his son-in-law, Jacob Cohen, without valuable consideration for the same, with the intent to delay, hinder and defraud the creditors of him the said Judah Barrett.
      Seventh — Because that the said Judah Barrett has omitted in the aforesaid schedule, divers other property in his possession at the time of the filing of the same, both in the States of South Carolina, Mississippi, Alabama, Arkansas and elsewhere.
      H. A. DE SATTSSURE, Attorney for Relators.
      
      And the said Judah Barrett, by Wilson, his attorney, comes and defends the wrong and injury, when and so forth, and saitli he is not guilty of. the said several premises in manner and form as in that behalf as alleged against him, and of this he puts himself upon the country, and so forth.
      And for further plea in this behalf, the said defendant says that the said several conveyances and deeds alleged to have been executed by the said Judah, in the 3d, 4th, 5th and 6th specifications above set forth, were not executed at any time within three months preceding the time of filing the petition of the said Judah for his discharge, under the Acts of the General Assembly made for the relief of insolvent debtors, and this he is ready to verify ; wherefore, he prays judgment, whether the said relators ought to be permitted to proceed further as against him upon the said specifications, or any one of them.
      WILSON, for defendant.
      
    
   Curia, per

O’Neall, J.

Where the grounds of appeal are not noticed in this opinion, they are considered by the Court as sufficiently answered, explained or ruled, by the report of the Judge below.

The third and fourteenth grounds may be considered together. For they both in fact relate to the amendment of the schedule. If the fourteenth ground was right, it would be no more than this: the jury would be permitted to make for the defendant, the amendment which he could not do.

This would be giving to them powers which I never supposed to rest any where. But, without wasting words about it, the rule may be stated at once, that the jury cannot inquire beyond the issue ; that, in this case, was, is the defendant’s schedule true or false The ground admits that it was, but insists that that which was false in fact, the jury should find true in fact. This they had no right to do. There is no doubt that the defendant’s schedule is amendable within the discretion of the Circuit Court, But I do not understand by discretion, when used as a law phrase, the power of doing as *the Judge’s caprice may direct. He is invested with discretionary powers over many matters of practice, to subserve the purposes of justice. But in reference to the subject now before us, the discretion of the Circuit Judge was never intended to help a fraudulent debtor out of the meshes of the net into which either his fraud or folly may have cast him. Here I never could perceive that the defendant had “inadvertently, ignorantly or by mistake,”, omitted to insert in his schedule the property alleged in the suggestion to belong to him. To say that, this was the fact, would be to say that a debtor did not know of what his estate consisted. Me has, according to the verdict of the jury, left out of his schedule all of his most valuable property and rights. When detected in this, and he is about to be saddled with the consequences, he begs to be secured from them by amendment. It is true “that ceasing to do evil and learning to do well,” in the sublime book of holy inspiration, with which the defendant ought to be acquainted, is the condition on which the penalties of the moral world are waived. But here, he who wilfully, or with the means of knowledge within his reach, does wrong, falls under that legal maxim, “vjnoranta Jeejis reminen exemat,” and must'abide the consequence. This is the case with the defendant. He made the issue, that he had presented a schedule of his whole estate ; this was verified by the solemn sanction of his oath ; if in fact he did not return a tithe of his estate, how can he complain, that this omission is set down to any thing else than ignorance of the fact ? The predicate of the amendment being thus removed, the defendant has nothing to stand upon.

Bnt, I go still further ; an amendment ought never to be made when it will surprise or delay the other party. That was peculiarly the case. They had traversed the defendant’s schedule, and specified its falsehood, and at the moment of trial, when they are waiting to prove their allegations, the defendant asks by amendment to destroy the whole issue. This is going to defeat the ends of justice, and cannot be allowed In general, a schedule is amendable where it is apparent that the omission resulted from “ ignorance, inadvertence or mistake.” The usual illustration is, where a man leaves out some trifling article of property, to which his attention *was not turned ; in such a case, he may well be supposed to have accidentally omitted it.

To the fourth ground the following answer may be given : under the Act of 1833, (Acts. p. 43,) if the defendant be “ accused of fraud,” it is to be tried by jury. Whenever the right of a prisoner to be discharged is resisted, on the ground of fraud, there is nothing which requires that there should be any showing on oath. But still if the result of the allegation would be to delay the hearing of the debtor’s application then I have no doubt that the Circuit Judge, in the exercise of a sound discretion, might require the creditor to verify his accusation by affidavits. If there was any merit in this objection, it ought to have been taken when the plaintiffs appeared before my brother Evans and objected to the defendant’s discharge, and were permitted to file their suggestion. When the case was called for trial it was too late to make the objection.

The eighth and twelfth grounds may be considered together. The prison bounds’ Act, in the 7th sec. (P. L. 457,) provides that no prisoner shall be discharged “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.” According to my reading, these two parts of the same sentence are distinct, and have not the same qualification of time, The limitation of three months applies solely to undue preference. It was reasonable that there should be some limitation in this behalf. For a man might be allowed, at a period when insolvency was not apparent and manifest, to do an act which at a later day it would be altogether wrong to permit. But if a man sells or conveys his estate to defraud his creditors, his conveyance is most commonly inoperative, and the estate thus sold or conveyed, remains his against his creditors, and its omission in his schedule might, when he was wholly silent on the subject, subject him to the penalties of a false schedule : but where the conveyance might be good in the hands of the alienee, still the defendant has, in thus putting the property out of the reach of his creditors, been guilty of a fraud on them, whid is equally criminal whether it be within ’Three months or J at a more distant day. The concluding part of the section shows that this is the true construction. It provides whenever a prisoner shall be accused by the plaintiff, or his agent, of fraud, or of his having given an undue preference to one creditor to the prejudice of the plaintiff, or of having made a false return, or of having gone without the prison walls, or prison rules, as the case may be, it shall be lawful for the Judge or Justice before whom the prisoner is brought, to direct a jury to be impanneiled and sworn to determine the fact ” From these provisions, referring to the former ones, being so perfectly distinct, we are very properly brought to conclude that a fraudulent sale or conveyance, and a fraudulent preference, are two wholly distinct things, and that the limitation of time was intended to attach to the preference of one creditor to another.

The fifteenth ground, as explained in the report, is without foundation. The instruction given by the presiding Judge to the jury, enabled them to understand fully the facts on which they were to pass and the law applicable to them.

If, in point of fact, Eliza Smith, or Barrett, was the wife of the defendant, then there was certainly no doubt that the deeds could not be supported. For in this point of view they were voluntary. That there was evidence that they were man and wife, cannot be denied, unless it be that acknowledgments of each other as such, and living together and cohabiting, be no evidence of such a fact ; no one will hardly venture that far. That there was conflicting and opposing evidence, makes the very case to be resolved by the verdict of a jury. And if the case depended upon this question, I should say that they ought to be regarded as man and wife.

But if it is conceded that they never were married, and that Eliza was Judah’s concubine, then I think the case is also free from difficulty. If the deeds were executed to procure a continuance of cohabitation, then it is beyond all doubt that they are void, I think the evidence would even justify this conclusion. For the parlies lived and cohabited together after the execution of the deeds, and had the common enjoyment of the property.

If, however, the deeds stand on the footing of voluntary conveyances to a kept mistress, as the counsel seems to *desire, still the verdict could not be otherwise than it is. That a man, not in debt, may do any act of folly he chooses, is generally unquestionable ; and if that had been Barrett’s position, these deeds might have been supported. But at every moment of time during his intercourse with Eliza, he was more or less in debt. He retained the possession of the property to the moment of acknowledged insolvency. How a voluntary conveyance, thus situated, is to be supported, I am at a loss to conceive, Our cases as to the rights of creditors, as against voluntary donors, must all be wrong, or these deeds are void.

If it were true, as is contended, that the defendant made these convey-to Eliza, for her services as house keeper, or for any other debt, still his possession of the property would render the conveyances fraudulent.

The seventeenth ground cannot avail the defendant. For if Mr. Cohen paid the consideration acknowledged by Barrett, for the houses and lots and slaves, his deeds ought not to be regarded as fraudulent. Yet it may be, as the plaintiff alleged, that in fact no money was paid. In this respect, there was evidence from which the jury might have concluded that the plaintiff’s allegation was true, and if so, then the defendant is rightfully convicted of fraud under this head. If they were bona fide, the defendant had $21,650, their proceeds, for which he had failed to account, and in this respect he was guilty of having made a false schedule. The jury have found both that the deeds were fraudulent and that the defendant had the consideration, $21,650, which was omitted in his schedule. These are inconsistent findings. But reject either, and the defendant is convicted of fraud. It is, therefore, unavailing to the defendant. As to the western and southwestern lands, it was plain that these, to a large amount, were omitted in the schedule, and as to them, the falseness of his schedule was palpable.

Note. — This case was argued before the present Reporter was elected, and postponed by the Court for further consideration, which will account for the omission of argument of counsel.

Yeadon, for the motion. II. A. JDe Saussure, contra.

In answer to the twentieth ground, it would be enough to refer to the return of the subpoena duces tecum. It does not require the person thus summoned, to testify, but to bring into Court a paper which the party needs. When this is done, nothing further is required. In the case of the Treasurer vs. Moore, (3 Brev. 550,) it was ruled that before going into *trial, the plaintiff had the right to have a J return made to the subpoena duces tecum. This shows that the party need not put the person so summoned on the stand as a witness.

The motion is dismissed.

The whole Court concurred. 
      
       1 Rich. 463. An.
      
     
      
      
         Ante 33. An.
      
     
      
      
         6 Stat. 492, § 1. An.
      
     
      
      
         Blease vs. Farrow, 9 Rich. 49. An.
      
     
      
       5 Stat. 78. An.
      
     
      
       7 Rich. 473; 2 Strob. 139. An.
      
     
      
       Harp. 201. An.
      
     
      
      
         2 Bail. 123. An.
      
     