
    A. W. Thomson et al. v. Thomas Linam.
    A debtor fraudulently sending his property out of the State, for the purpose of defeating his creditors, is disqualified from taking the. benefit of the Prison Bounds Act, though the property is specified m his schedule, and offered to be assigned.
    Any fraud by which the creditors are deprived of the benefit of their proceedings, excludes a debtor from the benefit of the Prison Bounds Act.
    
      P. L. 456,
    
    Tried before Mr. Justice Gantt, at Union, Fall Term, 1830.
    The defendant who was in confinement under divers writs of ca. sa. applied for his discharge under the act of 1788, commonly called the Prison Bounds Act. The creditors filed a suggestion charging him with fraud, in the removal of certain slaves, which were his property, out of the State. The plea denied the fact: and issue was taken upon the plea. The jury were charged with the issue, and much evidence was introduced on both sides.
    His Honor the presiding Judge charged the jury, that admitting the fact of the prisoner’s having removed the slaves before his arrest; still there was nothing in the Prison Bounds Act to hinder his discharge, provided the schedule contained a true and just account of his estate. That it was not denied that it did so; and the parties were therefore at issue on an immaterial fact. His Honor further charged, that in his opinion the evidence taken altogether, proved no fraudulent design in the removal of the slaves. The jury, however, found the defendant guilty. After the verdict was rendered, a motion was made to discharge tile prisoner, non obstante veredicto, on the ground that the issue was on an immaterial fact; and admitting the fact to be true, the prisoner was intitled to his discharge, under the act. This motion his Honor refused.
    The defendant renewed in the Court of Appeals his motion to be discharged, notwithstanding the verdict; and, if .that motion was denied, then he moved for a repleader, on the ground that the issue was on an immaterial fact.
    Dawkins, for the motion.
    Herndon, and A. W. Thomson, contra.
    Cited Mairs v. Smith, Harp. 130.
   Harper J.

delivered the opinion of the Court.

It is supposed that the issue in this case was immaterial, because the Prison Bounds Act, while it provides that no one shall be intitled to its benefits, who shall fail to make a true schedule of his property, makes no provision for a prisoner’s having fraudulently secreted or made way with his property. The act would certainly be miserably defective, if it were thus construed. But it seems to me to be a matter of strict and necessary inference from the provisions of the act, that such a fraud shall disqualify a party from being intitled to its benefits. The intention of the act in providing that a party shall make a true schedule, and assign his property, is, that creditors may have the benefit of the property for the satisfaction of their demands. This intention would be defeated, and the provisions of the act rendered nugatory, if the party might disappoint the object of the schedule and assignment, by having previously made way with the property. It would be a fraud on the act, thus to construe it, if there were no express provisions on the subject. But I think the case comes within the.meaning, if not the letter, of the clause of the act, which deprives of its benefits a debtor who shall have “ fraudulently sold, conveyed or assigned his estate to defraud his creditors;” and goes on to provide, “ but whenever a prisouer shall be accused by the plaintiff or his agent, of fraud, &e.” a jury may be empannelled. I think the “fraud” which the jury is to try, may, by a fair construction, be taken, not merely to relate to the enumerated instances, but to any fraud, by which the creditors are deprived of the benefit of their proceedings. Both motions are therefore refused.  