
    
      Moses D. Hyams v. Israel Valentine.
    
    Sales at auction, or otherwise, of his goods, with the intent to defraud his creditors out of the proceeds, is such a fraud as the law contemplates, and wil prevent the discharge under the Insolvent Debtor’s Act, of the party malting such sale.
    On the trial of a suggestion of fraud, where defendant’s books have been intrt-duced, it is not for the Circuit Judge to instruct the jury that they are evidente to discharge him. The jury are to pass upon their sufficiency for that purposi.
    Any fraudulent device, executed, whereby a creditor is swindled out of assets :o which he is entitled, is such a fraud as the law contemplates. And if a course of cunning trickery is employed to effect that object, the juiy have a iightto track the fraud through the circumstances which the perpetrator has soughtto throw around it, and to employ for that end the test of common sense, in m-ravelling and weighing the circumstances, well proved, that may affect thsir judgment.
    On the trial of a suggestion of fraud, a verdict of “ guilty generally,” where til the grounds charge fraud of the same character, is sufficient.
    When the evidence is of that kind which, when resolved by the verdict of a jiry, it is impossible for the Court to say that the verdict is against its weight, tley will not interfere with the verdict.
    
      Before Withers, J. at Charleston, May Term, 1849.
    REPORT OP THE CIRCUIT JUDGE.
    Hyams had caused Valentine to be arrested on mesne pro cess for a very large debt, and after the trial of the case, obtained judgment against him for a sum exceeding, I think. $16,000. Valentine had filed a schedule, containing nothing but his wearing apparel, and sought relief under the law in behalf of insolvent debtors. A suggestion of fraud was filed for Hyams against this schedule, and the case coming before Judge Evans in October, 1848, resulted in a mistrial. Valentine had conducted the business of a store on Edisto Island, Hyams being a partner and furnishing the capital.
    The suggestion contained eleven specifications, the purport whereof was as follows :
    1. That the profits of the business on Edisto Island, according','. to' Valentine’s own books, amounted, on tlie 26th 'March”, 1$47< to $7,189 78, increased up to July of same year .$1,000 more, which was not set forth or accounted’ for in his schedule.'
    2. That"in 1847, the hooks, kept by Valentine, show cash s.ales of. only $805, instead of $2,000 ; and the difference had not been acbovinted for or stated in the schedule.
    • 3. That.at the date of schedule, V. had a note of J. Mikell for $394, not in schedule, or accounted for.
    
      4. That on or before the 81st July, 1847, he had part of stock equal to $1,506 or more, and by fraudulent entries in his books, he had charged the same to have been sold to one J. Friedlander, when they were not sold in good faith, and he had.neither accounted for nor specified them in his sche-dale,
    5. That before said date (31st July, ’47) he had caused purchases on credit, in his name, for $1,506, and by fraudulent entries in his books, or otherwise, he had so dealt with said goods that neither they nor the proceeds thereof are stated or accounted for in his schedule.
    6. In September, 1846, and September, 1847, he.made purchases at the North of a large amount of merchandise, more than $8,000, apparently for the store on Edisto, whereas, they were not sent to the Island, but to Dick &• Crews, and Dick, Holmes.& Co. at auction, to defraud his creditors, and to defraud them he forced the sales at auction, to their fraudulent injury $2,779 20.
    7. That on 31st March, 1847, he received $128 7.9 from 1. Mikell, and has not placed the same in his schedule or accounted therefor.
    8. That on the 22d February, 1848, he had entered in his books $2L 97 as paid to Etiwan for freight, whereas no such freight was paid or owing.
    9. That on 11th August, 1846, he received from Hyams $386, not accounted for or entered in schedule.
    10. Because on 1847, he had a note of John C. Mikell, dated 1st January, .1846, for-$654 44, not accounted for or mentioned in schedule.
    11. That his schedule does not contain a true account of his whole estate and effects.
    The defence, announced by Mr. Petigru, was directed to each of the specifications, and was substantially as follows:
    1st specification : $1,018 14 should be deducted as then owing by defendant himself; $1,000 more for a note payable by the concern, put down at $4,000, when it was in fact $5,000; to be further reduced by $635 56, being aggregate of sums paid to several persons, on account of and not included in the statement showing thi forth, as they should have been; all which woti profits to $4,536 05, instead of $7,189 75, whi shown to have been extinguished by profit and arising from bad debts, loss on goods sold at subsequent expenses.
    2d. Was traversed as untrue.
    3d. The note of Mikell, therein referred to, had up — he did not owe it all, only a part was received received were not credited to the accounts of dealers, but were sent to Hyams, and never entered on Valentine’s books, an(j hence the mistake.
    4th. Friedlander, who was defendant’s brother-in-law, bought goods on defendant’s credit to the extent of $1,500, and when defendant had to pay for them he entered them in his books as sold to Friedlander, because defendant had to pay for them, and F. owes him the money.
    5th. Was only a variation of the 4th.
    6th. Defendant did purchase goods and sell at auction, at a loss ; but he bought them at the instance of the plaintiff, and after the dissolution, expecting plaintiff still to aid him, who did not; and there was no fraud in this.
    7th. The money was received as charged, and by error, and not fraud, it was not entered. It was the same transaction as that referred to in 3d specification.
    8th. The freight was paid by defendant’s father, acting as his agent, and his account would show it.
    9th. $380 were received from plaintiff by defendant’s father, who applied it as agent — but defendant was in New York, and though not entered in the book, it was no fraud of defendant, since he was absent.
    10th. The note therein referred to was MikellV note, endorsed by defendant to raise money, from Mairs ; it belonged to Mairs and not to defendant, and his representatives have demanded it.
    From this abstract of the nature of thé attack and defence, some idea may be gathered of the points in controversy, and the testimony perhaps better comprehended. It was voluminous — often had reference to Valentine’s books, and other statements and papers used on the trial, but not now accessible — the trial was tedious, ardently conducted, and however laborious the task may be, I am not sure that I can escape the labor of reporting the testimony, if I look to the satisfaction of the parties and the difficulty of otherwise placing the Court of Appeals in possession of the case. The result was calamitous to the defendant, worse than death, said his counsel, and perhaps I had better err, if at all, on the safe side ; wherefore I report the testimony as follows :
    
      For Plaintiff, (Hyams.)
    
      John Burns:
    
    I have been plaintiff’s book-keeper and clerk for fourteen years. In 1844 plaintiff made a limited copart-nership with Valentine for five years. Plaintiff to put in $5,00U; defendant to carry on business on Edisto Island.— The partnership ended in May, 1847. Defendant often rendered a statement. In March, 1846, I took one of the statements of the business from defendant’s books, he supervising and assisting. (This statement was exhibited.) The result was a balance of assets over all the liabilities of $6,649 21, the item of stock then being $9,571 54. This, defendant acknowledged to be correct, and frequently said the business was profitable. In March, 1847, I took another statement in the same way. The summary showed a clear profit of $7,-189 78. On the 31st July, 1847, Samuel Valentine, defendant’s father, showed an additional profit of $>1,000; (his statement was produced,) it represented the probable profit on sales from March 26 to July 31, of $1,000.
    Items of account taken in March, 1846 :
    Stock, $9,571 54; houses, &c. $1,000; three horses, $200; one buggy, $70; one dray, $35 ; cash $200; — aggregate, $11,076 54
    Add amount on notes due - 22,139 97
    33,216 51
    Liabilities, total 26,567 30
    Balance $6,649 21
    At this date, Friedlander was neither debtor nor creditor? according to the statement, (defendant's books were here produced.) Stock was taken in detail; stock was estimated at cost, referring to private marks. When the second statement was made, in March, 1847, stock was estimated in the same way, and the following result appeared :
    Assets: Debts due to concern - $35,357 95
    Stock ------ 9,660 51
    Cash ------ 18 58
    Goods in hands of Tobias - - 200 00
    Total.$45,237 04
    Liabilities : Ac’t. due by defendant $4,080 99 Notes payable - 8,876 91
    M. D. JHyams’s ac’t. 25,189 36
    -- 38,047 26
    Balance to profit - $7,189 78
    
    At this time Friedlander appeared to be creditor for $322 93.
    On the' 6th May, 1847, parties determined to dissolve the copartnership. Nothing was said about the insolvency of the concern, nor was there any contradiction of the statement, (as above.) Hyams was to take for his investments Valentine’s note, and he gave it April 6, 1847, for $28,173 72, with legal rate of interest from date, for value received. I never heard of any difficulty in the concern until shortly before Valentine’s assignment, (he meant an assignment to Bancroft, hereafter to be spoken of.) Meantime he carried on the business on Edis-to. I-saw defendant once or twice. On the eve of the assignment (to Bancroft) plaintiff directed me to demand the defen d- ’ ant’s books for examination, and at 6 in the evening I so said t0 defendant, and told him, if satisfactory, plaintiff would accept the offer that had been made. He said the books had to be given up the following morning at 12, and I could have them till then. I said I could not examine them in that time; he took them away and no examination was made. Friedlan-der was then present, came with defendant, and they consulted. I could not have examined the books in the time allowed. (Here, Burns’ attention was called to entries in Day Book and Leger, to J. Friedlander, (defendant’s’brother-in-law.)¡ In day book, “ 31 July, 1847; J. Friedlander, to merchandise
    “ To amount of goods delivered him to date, $1,506 00” Leger, same item, July 28,1847: To merchandise, 1,506 00.” Witness said this last entry seems to him to have been scratched out, to wit, the month, day, and sum, and the reference to the page of day book. In leger, at p. 365, the original entry seems to have been $100 33, scratched out and entry of 1,606 made instead, to credit of merchandise. The entry in day book, “July 31, 1847, J. Friedlander, to merchandise; to amount of goods to date, $1,506,” does not seem to have been made at the date set to it — was not made, I think, on that day. The effect of these entries was to convert so much of assets into a debt due by Friedlander, who was a jobber in dry goods in Charleston, and failed in December, ’47, or January, ’48.
    Cash sales as shown by Valentine's boolcs • viz :
    In 1845, $1,770; 1846, $2,477; 1847, only $805. I don’t know why cash sales fell off. In ’45 and ’46 cash sales were entered monthly. In 1847, three or four entries composed them — not entered monthly that year; one entry was of a large sale. Defendant had a note of Mikell for $394, and that note, among others, he delivered to plaintiff. He wrote for it, Nov. 30, 1847, desiring that and the notes of Seabrook and Baring to be sent by steamer Etiwan — -said Adm. of Mikell wanted to pay it — that he would try to get endorser on Baring’s, and would send notes or cash ; would arrange the matter. Mikell’s note was sent and I never heard more of it. Entry in day book : “31 March, 1847: cash Dr. to John G. Mikell, amount paid this day, bill to 1st January, 1847, $128 79.” I don’t'find this entry at all in the cash book or elsewhere.
    On the 11th August, 1847, Hyams paid to Sami. Valentine, defendant’s attorney, $386, not to be traced in defendant’s books.
    
      Cross-Examined. Defendant owed to plaintiff the amount for which he gave his note. It was balance due. Before it was given, Hyams received notes from time to time on EcLis-
      to people; which, when paid, were a credit on defendant’s due bill. None were received till long after the business was ( begun in October, 1844. (The witness proved two agreements of partnership between the parties, of which I have only very summary notes. The first was of date 30th July, 1844; declared a limited copartnership to have been that day formed. Plaintiff had contributed, in cash, $2,010; defendant, $500, and was to conduct the business — to open store in country, at some proper place-hire clerks, &c. each to have one half the profits, and other special terms declared ; to continue three years. Burns said the $2,010 was paid ; defendant went to New York, bought goods, and opened a store on Edisto Island. After that a regular agreement was made and advertised, the first was not. The final agreement was produced, or a copy, and referred A. A; 1837 ¡ summary of it y business to be conducted on Edisto-Island, under the name' of I. Valentine; stock to be so and so ; defendant general partner ; plaintiff has contributed $5,v000 ; to commence 1st November, 1844, and continue 4: years — refers to previous agreement of October, 1844. Hyams’s object declared to be to assist Valentine, to the end that Hyams’s sons should afterwards become partners y agrefed that partnership should terminate 1st January, 184 T, at plaintiff’s option, when plaintiff’s sons might become partners ; if then ended, the new partnership should be formed, and profits equally divided— the plaintiff to have 6 per cent, on money to be advanced to new firm, and on that already advanced ; dated Sept. 22d, 1845. This agreement had been recorded,, and the proper' oath, according to statute, required, taken by Valentine, in which it was sworn that the $5,000 had'been paid in cash.
    Burns proved two letters from Hyams to Valentine; the first, dated 21st March, 1846,state d that he (Hyams) had sent Burns to take stock and regulate the books, and report — af-terwards, said Hyams, I will come myself — hope we may not have to close business, but that collections may warrant its continuance. The other was of 11th February, 1846, (is it not Í847 ?) in which Hyams said, I note your remarks as to collections — nothing certain — when you have notes I will send some one to regulate the books, and will then form a judgment as to closing or continuing; will soon determine.
    Burns was then examined as to certain items that entered into the balance of profits ($7,189 78) formed in March, 1847. He said one item going to make up that amount was defendant’s account for $1,018 14; that among the liabilities was J. B. Seabrook’s note stated as 4,000, whereas in leger and bill book, examined in court, that note was entered as being $5,000, and when the note itself was produced it was for $5,000, and no credit appeared on it. In the day book was entered as due by Wm. Seabrook, 110 11. Same item in-leger, p. 41, was stated to be $111 10. Burns said that no debts against concern were taken in the statement in favor of H. G. 'Street, nor G. H. Milnor, nor L. Fabian. Burns said: In my statement the expense account is set down at $2,541 00; that account, as in the leger now, i. e., up to January 21, 1848, is $6,798 89, (of which Valentine contended $2,013 76 were incurred prior to and above and beyond the sum embraced in Burns’ statement.) Bums said the leger contained no statement of notes taken by Valentine; accounts were all open; nor did Hyams enter on his leger the notes he received from Valentine. When parties settled, Hyams' took V.’s note for all he had advanced and interest, with no reference to profit. In my statement I charged the concern with items not on the books, but which the defendant said were due ; to-wit: Valentine’s salary, $450 ; freight to $72, to Etiwan, $60 ; Hanahan for rent, $200; John Lewis for wages, $60, ($842.) All debts to concern were considered good. I thought the books right and the amount of profits real. Total sales by Valentine from beginning to March, 1847, were $54,580 65. Hyams looked to deft.’s assets for the chance of payment of his note.
    
      {In Reply.) Hyams had then $12,000 worth of notes. They now appeared entered on defendant’s books as bills receivable $11,525 10. The statement I made of them corresponds in the main with the book. (An entry in the day book, December, 1847, to expense account, Burns said, did not seem to be in same hand writing as the foregoing and following pages.)
    Valentine assigned to Bancroft all the remaining notes. Seabrook’s note for $5,000 was held by Bancroft, and these were discount against the account of Bancroft. In that account, in leger, B.’s debt was $610 68, credit, $5,388 62. In Fabian’s account, she is credited with a note and some cash items and an account $121 85. When I said notes were not credited in leger, I meant Valentine had not credited these, the notes Hyams held. I would charge a bread bill as expense. I took down all additional items of expense that Valentine said would have to be paid.
    Valentine turned over to Bancroft, of assets, $16,720 25
    Whole amount of assets in my account, 45,237 04
    Difference,.$28,516 79
    Deduct notes turned over to Hyams, - - 14,967 00
    Balance of assets according to my account, $13,549 79. Valentine has given no account of this last balance that I know of, though I have not taken pains to inquire.
    It appeared in evidence from iSandiford Holmes that he had been engaged in a business such as Valentine’s on Edis-to for 14 years; that the dealers there were remarkably substantial; with a little care bad debts need never be contracted. v His cash sales, having no competitor, were from $25 to $30 per day — would be a poor business that did not produce $10. From 15 to 20 per cent profit reasonable. He went there again in ’47. He considered only Milnor and Valentine competitors. The Streets were there, but he did not regard them competitors — and Fabian sold bread and cake &c. His sales had reached $45,000 per year, would average $35,000. To M. B. Carroll, Valentine, in Oct., 1847, said that he had done a very profitable business, had cleared between $20 and $30,000 — that cash business would embrace about \ of the gross sales, but did not say his had done so — said his sales would be safely rated at from $35 to $40,000, and profits were large. Mr. Carroll thought from 30 to 35 per cent, profit could be had when Valentine was there. He knew the community well, and no bad debts need ever be made with the. residents.
    
      E. B. Crews,
    
    (of firm of Dick & Crews, auctioneers. We received goods from Samuel Valentine; sold once on account of Friedlander, and again on account of Sami. -Valentine., Most of the goods came from New-York. We sold, I conjecture, between 3 and $4,000 worth at a loss, of 15 to 25 per cent. Loss on all sold by Dick & Crews, and Dick' & Holmes, as I remember, was about $5,000. One lot (ker-seys) was bought by Valentine in July, 1847, sent to Charleston by agreement with me, and. sold at a loss of some $200— shipped, I think, to the care of Friedlander; did not go to store on Edisto — Sold in 1847 and spring of 1848. Goods sold, cost in neighborhood of $10,000. I thought Valentine was the owner of the goods he bought in New-York. Money was, however, paid to his father just before defendant’s failure. I advised Valentine to send the kerseys to auction.
    We made'advances to Samuel Valentine and were forced to sell to be reimbursed.
    The agent of the steamer Etiwan said that there was no entry on the books, on .the 22d' February, 1848, for $21, freight, as paid by either of the Valentines. Such a sum would have covered the transportation to' Edisto of a large lot of goods, the charge being 6 cents per foot. Freight to 1st January, 1848, was paid by defendant. Samuel Valentine generally settled the freight for the Edisto store.
    
      Edward N. Fuller of Edisto,
    answered to the soundness of the dealers at Valentine’s store — and that he did a profitable business, as other stores did — told him once, before he left, he supposed there were over $40,000 due- to him on Edisto. He said, after John C. Mikell’s death, his estate owed him for balance of acceptance, for mechanic, a note and an open account; mentioned the amount, I think, 7 or $800. I had such conversation twice with defendant. Mikell died in June, 1847. He said nothing as to his being Mikell’s endorser for accommodation, nor of Mikell’s debt being due to Mairs — spoke of debts as being due to him — nothing said as to Mail'S.
    
      James W. Gray,
    
    (Master in Equity,) spoke of a note, rendered to his office, of John C. Mikell, for $654 24, dated 1st January, 1846, payable on or before 1st January, 1847, to I. Valentine or order, endorsed, without date, by payee, to L. Mairs or order for value received — I called' in claims against estate of Mikell, and L. Mairs rendered this note — swore it was his property; defendant and his father have appeared before me to establish the same. Mairs swore he lent the money for the note (which was contested as a forgery and on account of minority,) and presented also an account for $280 95, charged “estate of Mikell to I. Valentine,” and endorsed 21 February, 1848, by Valentine to Mairs.
    
      J. J. Mikell:
    
    am a brother of John C. Mikell, who died m 1847, worth about $35 or $40,000, not embarrassed. Debts rendered from 7 to $8,000. John C. was of age in March, 1846, and could have had $1,000 the January before, if he had applied to me, and he knew it. I never saw him at defendant’s store, and was surprised to hear he owed defendant any thing. I lived about five miles from store, though not often there ;• always thought it a profitable business. I met Valentine in 1846 and 7, in New-York. I bought a service of silver, and he said he could cash a draft, and he did for $100, which I drew on Charleston; this was in 1847. I dealt with him, and thought he sold at quite a moderate profit.
    
      Wm. Eddings,
    
    a planter on Edisto, concurred with other witnesses, as to'Valentine’s profitable business, and the responsibility of customers. He said: In February, 1848, I paid, I think, $700 to Samuel Valentine for goods bought of defendant. I paid also in February another due bill to defendant for $419; I bought the goods for the due bills, and defendant said he dealt with me on moderate terms. I suppose I paid from 15 to 20 per cent, on Charleston prices. I scrupled about paying to Samuel Valentine, (it was after the assignment to Bancroft,) but he said he held the paper and defendant had not assigned all the papers. I speak of the last payment of $700 which was made in 1849; the $419 were paid before the assignment.
    
      Col. Jos. Whaley,
    
    had bought plains in Nov. or Oct., 1847, from defendant, as cheap as those he bought of Lawton. In Nov., 1846, he paid $292 22; in March (22d) he paid $43 59; May 25, 1847, $99 18; January 7, 1849, $47 64, — $482 43.
    DEFENCE.
    Plaintiff’s leger was introduced to show that his advance-merits, as entered there, up to 7th November, 1844, were $4,-062 39. , '
    
      E. W. Bancroft
    
    (assignment by Valentine to him produced, dated 29th February, 1848, included all his debts, monies, accounts, books of account, <fcc. in trust, 1st. to pay expenses; 2d, to pay, rateably and in proportion, persons named in schedule A. 3d next, those named in schedule B. and others rateably, -on condition that each should, by 10th April following, execute release. Remainder, after payment of all creditors, to go to assignor. Hyams is in schedule B.) All the creditors accepted but Hyams. Valentine was pressed for assignment to escape vigorous proceedings — agent of creditors abroad insisted on its being completed. It embraced about $16,720. His debts, according to his books, were about $22 or $23,000, including Hyams; to New York creditors, from $9 to $ 10,000; Charleston debts, exclusive of plaintiff’s, about $1,800; deficit, $6 or $7,000; sales on Edisto, according to books, about $60,000, exclusive of auction sales. I have examined books in settlements, and have no cause to suspect them. Defendant’s note, favor of Jas. B. Seabrook, at 6 months, for $5,000, dated 12th January, 1847, was paid after two renewals. Defendant came to Charleston and said he was in trouble. I had a claim of my own and two for triends in New York, about $3,000 in the aggregate, tie said he could not pay, but could get endorsers ; afterwards brought the above note ; I gave him a receipt for it, dated 19th January, 1847, specifying that the note was to be appropriated to pay several demands mentioned, and for $1,000 worth of goods which he was to take out of my store; and in this way he got $4,000 cash for the note, and $1,000 in goods, which he was to have as he wanted. At the time he told me to let Friedlander have some of the goods, and he did get perhaps the larger part.. I had some doubts of the responsibility of the concern at the time. I find Edisto the hardest place to collect money I ever knew, that is, the people are slow. Fearing defendant’s business, I required some security from him from six months after he began. A deficiency of $6,000 in such a concern would not be remarkable for Charleston. Thought creditors said nothing about the assignment, heard no dissatisfaction expressed. I never made a test examination of the books — -doubt if they could be balanced. Notes defendant owed to me were for goods bought from me; were packed for country use, and I think none of these were sent to Friedlander. Defendant said Seabrook endorsed for his accommodation. Defendant paid note before the assignment — about $2,000 have been collected- — 40 per cent, paid to the Charleston creditors, none to ■the New York creditors. I got another note for $995 from defendant, on 19th January, 1847, in favor of M. Lewis & Co., and by them endorsed, I thought, for his accommodation. , For this, defendant got the money upon discounting the note. Friedlander failed — went to California, poor ; was engaged in " buying goods for St. Augustine, when the above transactions occurred. He compromised at 20 per cent, and I accepted.— Most of the demands assigned by defendant are in attorney’s hands for collection.
    
      Abram Tobias:
    
    I sold goods for Hyams <fc Valentine: Valentine put them in my store, with concurrence of Hyams, to be sold at auction. Loss from invoice price, as rendered to me, (and I suppose 5 or 10 per cent, had been put on previous cost) was about $1,300, including my commissions. One sale was in December, ’46, one in February, and another in April, ’47. Hyams said Valentine had bought goods at the north which he did not wish him to buy, but as he had bought, he desired me to have charge of them, and the proceeds to be applied to the debts. Valentine put them in my hands, and sometimes the one and sometimes the other received the proceeds and paid them on notes in bank. Some of the goods out of $4,700 ($140 worth) were sent to Edisto to defendant. — ■ Hyams seemed uneasy about the Edisto business a year or ■two before it closed.
    
      Emarmd Valentine,
    
    defendant’s brother and book keeper, said, I remember when, in 1847, Burns came to take an ac■count. (Witness examined the book to show how it was made up, and refers to date of 26th March, 1847.) As to expense account, the amount of $2,541 appeared up to that time. The amount incurred before 26th March, ’47, and not included in Burns’ account, but due then, was $2,013 76, and every item of it was paid. (Examines in day book and leger entries of $1506 in J. Friedlander’s account.) I made both entries, defendant was then at the north, and there is no scratch about it. The enjtry in the day book was made in regular order. My father came and showed Friedlander had bought that much. .In leger 1 made a mistake by reversing Friedlander’s and merchandize accounts, and scratched both out. Defendant was not then on the island. He left on the 30th June, and I kept the book until about the middle of September. (Examines J. Mikell’s account, “March 31st, 1847, by cash $128 79.”) Defendant was not then on the Island. I received that money, not entered in cash book, but the error was mine. I was not told by defendant to omit the entry in cash book, which I kept on the 30th and 31st ktarch. I know of no other time of cash received and not entered. In last of 1847 we had no goods to suit negroes, from whom most of our cash was received, and that is the reason our cash receipts were so small. Mikell’s note, (that for $654 24 he meant) was transferred to Mairs. I saw it signed. My brother was to give to Mikell a certain amount of Mairs’s money sent to Edisto for the note. He received it, and the note was sent to Mairs. In November, 1847, I went to Hyams for my brother, to get goods for the store from Dick & Crews, and requested him to refund the advance and get the goods ; he refused, I offered him a good note ; he said if my brother would give him a good noté for $20,000 he might have all the goods. I said that was impossible and left. At .the last trial I. was in Cincinnati; arrived here two or three weeks ago. (Cross examined.) Referring to leger as to item in Friedlander’s account altered; I altered the figures because I had transposed them in. the accounts. I must haye made a mistake in the month also, else I would not have scratched out that too.— $1506, without cents, was the entry where $1606 now appears. -It was not originally $100 33.
    (Witness examines day book to verify the items making the additional sum of $2,013 76 in the expense account.)— Most of the items were incurred before -26th March, 1847. .$277 25, not in the expense account, is charged I. Valentine, 1 owe the $128 paid by Mikell, as it was my error. I sold to Mairs a note .of Mikell. for $280 for $260, in February, 1848. We call Mairs cousin; he has lived with us; I don’t know what relation he is ; he lives now with my father.
    The money of Mairs was handed to John C. Mikell in the morning, in the store, bank notes. He owed us part; owed us some-money. He is credited on 2d February, 1847, with $200 on his account; don’t know it was out of that money. It was agreed he should pay us some of the money; don’t know he paid any to us at that moment. He got $600 for the note; think he carried it all away. Saw my brother write out the note January 1st, 1846; it was immediately sent to Mairs; got the money from him before the note was sent. We sold out all the stock but odds and ends, worth but little. (In reply.) My brother boarded at first for some time with Mr. Eddings. In 1847, boarded with Johnson. I am not confident of the date of Mikell’s note as to the year; made no memorandum. (I believe he first said it was dated in January, 1847, and then said 1846.)
    
      John Hill:
    
    I knew John C. Mikell. He borrowed from me once $100, another time $60 odd, some two or three years ago, and paid soon after. This was before he was of age.— Some- three years ago Hyams did not speak favorably of the business on Edisto. I.called on him about my note, sent to him by Valentine, and he appeared dissatisfied about the business. I dealt with Valentine; did not think his prices higher than others. ‘ Some goods not so high.
    
      Levi Mairs:
    
    Old Valentine desired me to loan $600 to Mikell on his note endorsed by Israel V. I said the money could be got if he thought the note good. I gave Samuel V. $600 and he sent it to Edisto. Soon after I received a note for $650 odd, at one year. Money was sent a few days be-
      i fore the note bears date, which has been in my possession ever since. It was my money. Note is still mine, is in Mr. ' Gray’s hands as my claim. I did not know Mikell — thought defendant good. ■ His endorsement was for Mikell’s accommodation. I did not check for all the money, but a part on the Charleston Bank — don’t know the time, but it was in 1846. I kept a bank book — don’t know if I now have it.— Check was in favor of myself; somewhere in January, 1846. I bought an account on Mikell to oblige Valentine — know the defendant assigned the account before I bought, but don’t know when.
    
      Sami. Valentine:
    
    I am defendant’s father; he is now in his 25th year, was 21 in March, ’45. I was pleased to hear Hyams would put him in business. After it began, at plaintiff’s request, particularly, I was to attend to the busines in Charleston, and go occasionally to Edisto; for he said he could not attend to it, but would to notes, and when I wanted money to call on him. In March, ’47,1 went with Burns. — . By the books, Wm Seabrook was indebted, but he had a claim not then posted, (bill presented as rendered by Sea-brook in December,) $101 11 were due before 26th March, 1847. His whole bill was paid in January, 1848, by discount. Street had a discount, not on the books, of $163 66. Milnor had a discount before that date of about $150. Fabian a demand for $220 80 for bread furnished to store to be sold. In ’45 and ’46 Mrs. Eddings’ bill for board for Israel, myself and Emanuel was contracted, but not paid till after March 26, 1847. (The items are now entered in the book.) • Two produced amounted to $437 25.
    Israel Valentine’s private account by the book is $3066.— Burns states the sum to be $1018 14, account to 14th March, 1847. As to Mikell’s note for $394, Hyams once had it. In December, 1847, (the note was payable January, 1848) Mikell being dead, I and my son tore it up, the greater part having been paid by Mikell. Balance of his account in book, in January, 1847, was $356 85. When he died, balance of account against him was about $280 73. He did not owe this balance and the note too. He was not credited with the note. Hyams got another note in place of this. The balance of account, $280 73, was sold to Mairs. Friedlander got goods on defendant’s account, to $1,506. I kept a book here showing all my transactions with the firm. Friedlander bought of various persons on defendant’s credit, and I charged F. with them. F.’s credit was limited and Israel wished to help his brother-in-law. The item of 31st July, 1847, of $1,506 was charged at my instance and made in day book in my presence. I was not present when the leger was posted. Entry in day book was regular and in proper place. F. has gone to California, compromised with his creditors ; defendant got his share and has credited it.
    
      
      Sales by Dick & Crews:
    
    In 1847 the amount placed in their hands was $6050. Hyams approved of the transaction. I consulted Hyams about it several months before the were bought in New York. He and I agreed the partnership should be dissolved, and he would furnish means to keep up the defendant’s credit during the summer. It was agreed goods should be bought, placed in the hands of Dick & Crews, and Tobias, and sold to pay the debts of the concern. The amount to be bought was to be $25 or $30,000 worth; $9,000 were bought, and Hyams wanted them to pay the debts. I resisted, on account of the New York creditors, and that was the reason they went to auction. The loss sustained was $1,900. In 1846 goods were sold by Dick, Holmes & Co., $2,679 20 ; Hyams knew of it; proceeds went to pay debts of the concern. Tobias paid some money to Hyams. Dick & Holmes paid to me. (A letter from Hyams to Emanuel Valentine was produced — calls for accounts of books, and said, “Israel is in New York purchasing goods for the store.” When these goods came, Hyams would not pay notes due here, and told me to place them at auction to raise money if it could not be got otherwise. I kept them till my son came and they did go to auction.
    Freight, $21 37, 22d February, 1848. This was a balance due to me on freight bill, could not otherwise have originated.
    
      August 21,1847, by cash from M. D. Hyams. It was paid to me and is allowed as a credit to the store in my account.; $386 of it were paid to W atson, Johnson & Co., the rest to S. B. Bernard. I know of no $380 received in August, 1846. Probably I forgot to write to Emanuel to enter this in his books, defendant was then at the north. January 13, 1847, Hyams paid to me $1,000, as he had agreed, to keep up defendant’s credit.
    
      Mikell’s note for $654 40. Mikell first applied to me for the loan of $1,000. Defendant being sick I had taken charge of the business. When my son (who had come to the city) returned in December, I told him of the application; he thought it could not be obtained. But I suggested to lend $600, and he sent the money, and the above note was returned. It was Mairs’ money, and the note is his. I took Mr. ■Eddings’ due bill for $661, interest from date, payable 12 months, and gave my son> the money, in February, 1848.— Defendant wanted money to pay debts, was obliged to have it to pay note Seabrook had endorsed, or some acceptance of defendant. (Cross examined.) Witness was required to examine Mikell’s account in books, and said, first credit, March 31st, 1847, is $128 79. In the leger it is 1846, and I think looks as if it had been erased. ‘ Balance was struck 1st January, 1847, $356 85. February 2, 1847, is a credit of u o’ s" a< T & HH CP » Sa hj ~ p-> ¿ CP CO § ® 4 o 3-S * 3 3 “ s £8 g ¡ ® » asíi S g a j O ® ffi p ttBrn • $ t*r 2 Oro i’T g P-copBwPg-p,®!-! ca o CP « Qj CO a. u {-¡H >Xj Pf CD o ^agg $ g as w c-r- i-- . ■ w CD O ■‘J <-+• O hi .35 ro> 3 g. P N W3 d H « cS £3 id a & Sí w tl, ^ £3 2- ^ £3“ e>.‘ £3-* h-h co h. P ffl © g vT1 29 « a a-o g cr2 g dQ £ » ro Bjg ro. 2 gd § O aT§ 5’5 Bq 0,2 m 01 BBBrmHt3gpjat5co^.Br0ri ® ¡3’ 2. _ o S’ u I» « B ro S B'OProS:,i>^S-B h d s» § 1 g o £ ~ ID 0 3 2 tO ^ o ^ ro _a¡ <+=< a • S,g CP £5 £3 O Cu CP 2 o « ¿3 o. © © c5 ¿o g 5 -S * sf © ^ s ^ o SB — 2. R £3 CO . 0 £3^ co co £^ * i-r» H,ffl .. Q n . . K B ° B CP p- a CD ^ ^ M B g" § p c¿ O o g m O - s ® S? s ffi «2 !>■» . B g g^«) g o; 2 ® o <-• IS © s 0 tH 'O co o S3 © eS P" © II? o o S n a o3 «3 rr. * HO >, cá O iyl ^ ^ O P CO CP CP Hi á Oo^ <1 © CO CP “■SpoWsSIxi^b g-° ^ 3 CP r * -2 2 0 ^ fe t4_, tlO&j HB 5 m 1-1 ri O CO ro ^ CD Hy ® § o o a £
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    REPLY, BY PLAINTIFF.
    
      Mr. Barns.
    
    I left Edisto ’47 about 28th or 29th of March; left defendant there. I don’t think he came to Charleston in March.
    It is easy to perceive how much was to be said to the jury, who had such a case as this before them, by counsel who sifted it thoroughly on both sides. Frauds in the books were im-' puted, omissions, obscure entries, erasures, &c., all tending to perpetrate the frauds specified in some of the plaintiff’s specifications in his suggestion. It was imputed and argued that defendant had smuggled off his assets by the process of selling at auction, and thus so changing their price and perverting the proceeds as to elude and cheat his creditors. In remarking upon the many positions taken in the case, I alluded to this, and told the jury, that sales at auction or otherwise of his goods with the intent to defraud his creditors out of the proceeds, in the manner charged by Hyams, was such a fraud as the law contemplated, and that is the matter alluded to, I pre-| sume, in the first ground of appeal.
    Touching the matter set forth in the 3d ground, I have to remark, that I adopted, upon that subject, the doctrine laid down in Gray v. Schroder, that any fraudulent device executed, whereby a creditor was swindled out of assets to which he was entitled, was such a fraud as the law contemplated; and if a course of cunning trick was employed to effect that object, the jury had a right to track the fraud through the circumstances which, the perpetrator had sought to throw around it, and to employ for that end the test of common sense, in un-ravelling and weighing the circumstances, well proved, that might affect their judgment. No observation of this nature was allowed to be theoretical merely, for the facts in testimony relied upon to establish and rebut were referred to, and they are easily to be gathered from the mass of testimony herewith reported. I forbear to recount them herq Nor have I any reason to suspect that the jury was misled, for they were admonished that every thing I said on the facts, was merely matter of advice and suggestion to them, they being the fit and paramount arbiters of the facts. I am persuaded that, on the other hand, no mitigating view for the defendant was omitted in this line of remark; for the jury were told that the fraud of defendant was the matter in issue, to be ascertained satisfactorily to them, by some species of convincing proof; that if frauds had been committed in entries in the books by Emanuel or Sami. Yalentine, or otherwise by them, neither procured nor sanctioned by the defendant, he was not accountable for such; not his misfortune nor his indiscretion, leading to losses and bankruptcy, were in question, but his fraud. I appealed to the jury (of whom Mr. John Kirkpatrick was foreman, and others familiar with mercantile books and business, were members,) as far more competeut than I pro- . fessed to be to unravel and adjudge the many points of control in the case.
    I now refer to the second ground of appeal.
    I submitted the following figures to the jury:
    Balance to profit found by Burns in March, ’47, $7,189 78
    Less mistake in Seabrook’s note, $1,000 00
    Do. Items to expense account prov- ) ed by Sami, and Emanuel Talen- v 635 56 — 1,635 56 tine, )
    5,554 22
    Less by defendant’s own account, 1,018 14
    $4,536 18
    The jury were told that defendant claimed these items of j reduction, as set forth in a statement submitted by him, and ' tliey were invited to enquire whether he had sustained them, or any of them.
    Again:
    By Bums’ statement: Assets in March,’47,
    were.#45,237 04
    Less: Assets transferred to Bancroft, - 16,720 25
    28,516 79
    Do. Notes passed to Hyams, 14,967 00
    Balance, #13,549 79
    This statement was submitted to the jury, and they were invited to inquire whether the defendant had accounted for the disposition of the above balance. Had he shown that the debts found to be owing in March, ’47, had been paid, or what portion of them? What payments on account of expenses after, the account of March, 1847, had been proved?
    In making such calculations, defendant might fairly be charged with any additional assets, if any such had come to his hands after March, 1847.
    It is true, I apprehend, that I did not tell the jury defendant’s books were evidence to discharge — that is, sufficient evidence in my opinion. But the books were often referred to in the course of the testimony, in the argument, and, I believe, were taken out by the jury. I should have hesitated to have given any such virtue as that suggested to the books, while they were gravely assaulted before the jury as to completeness and fidelity; while it was apparent that after the dissolution, any entries made by Yalentine were, as to Hyams, Valentine’s mere declarations ; when made was unknown; while proof of payments of money to creditors of the concern was capable of a higher grade; while all entries made by Emanuel Valentine, or Sami. Valentine, .in discharge of defendant, those witnesses were present to confirm, and did confirm, so far as the jury believed them, in relation to every thing defendant sought to prove by his books.
    The jury rendered a general verdict of guilty.
    The defendant gives notice that he appeals in this case and will move the Conrt of Appeals at its next sitting in Charleston, for a new trial, on the following grounds.
    1. Because the Judge erred in charging the jury that the purchase of goods on credit and selling them for cash at auc. tion, was competent evidence to convict the defendant of having made a fraudulent sale within the terms of the Act.
    2. That the pi oof that the defendant had in his possession in March, 1847, property to the amount of forty-five thousand dollars, threw upon him the responsibility of accounting for, so much of that property as he did not purchase, and did not instruct the jury that his books were evidence to discharge him.
    3. That his Honor charged the jury that fraud need not be positively proved, by which charge the jury were misled, in supposing that a bare probability was sufficient for conviction.
    4. Because the verdict of the jury should have been upon each specification, and not a verdict of guilty generally.
    5. Because the verdict of the jury was not sustained by the evidence.
    
      Brewster, Munro, Petigru, for the motion.
    
      Philips, Me Qrath, Memminger', contra.
   Curia, per O’Neall, J.

I have read over the charge of the Judge, with care and attention, and 1 concur fully in it. The first ground, as explained by the Judge’s statement of his own charge, removes all the difficulty in that respect. He told the jury that, “sales at auction or otherwise, of his goods, with the intent to defraud his creditors out of the proceeds, in the manner charged by Hyams, was such a fraud as the law contemplated.” This did not intend to say, that when Hyams assented to such a sale, it would be a fraud upon him ; nor could it have been so understood by the jury. No matter what might be the fraud upon other creditors, as all had discharged the defendant, except Hyams, it followed that, to prevent his discharge under the Insolvent Debtors’ Act, the fraud must be a fraud on Hyams. A general charge of fraud on creditors, in this particular, of course included Hyams, and when the proof was heard, he alone could have the right to complain of the fraud. When the Judge speaks generally of fraudulent sales at auction, or other alienation of the debtor’s goods, it follows, that he uses the terms in reference to the case made.

The matter complained of in the second ground, seems to me to have been properly submitted to the Jury. It was laid before them for their examination, and, according to the result of that examination, would be their conclusion for or against the prisoner. In such an examination, the defendant’s books could only have exonerated him, by being given in evidence by the plaintiff, and by shewing perfect fairness. I understand, from the Judge’s report, that they were in evidence, were examined by the jury; and that, therefore, the whole force of the defendant’s objection is, that the Judge did not tell the jury that the books were conclusive evidence in favor of the defendant. This would have been assuming the province of the jury. The Bd ground is conclusively settled by the. case of Gray v. Schroder, and its reaffirmation, in the case of Smith, Mowry & Son v. Schroder.

This brings me to the 4th ground, which makes the only ]ega| question in the case. I have no doubt that a general verdict, “guilty,” or as written in this case, “generally guil-wjjere ap the grounds charge fraud of the same character, is sufficient; our cases mean no more than that. The case of Walker v. Briggs, only decided that finding one jssue against the defendant, which deprived him of the benefit of the Prison Bounds Act, did not preclude the jury from going on and finding also on the other issues. In Lemon and Aiken v. Moore, four issues were made, viz: — 1st. The payment of debts, in preference to that of the plaintiff; 2d. the omission of five hundred dollars in the schedule; 3d. a fraudulent confession of judgment to Henry Moore ; and 4th. failing to insert in the schedule v'arious articles. The jury found a,general verdict, “guilty of fraud,” but told the Court they were' not agreed on any but the first ground. The party required him to insist on the jury, that they should find on the other issues; this he refused to do, and the Court,- on that account, ordered a new trial. In Headly and Street v. Jordan, there was a general verdict “guilty,” on charges imputing a fraudulent schedule and a fraudulent preference. A new trial was ordered, on account of the difference in the legal effect of these two charges. For the first would forever deprive the defendant of the benefit of the Insolvent Debtors’ and Prison Bounds Act, and would charge his sureties on the prison bounds bond with the debt. McCarley, ex’or. v. Davis et al. The other charge might not have such effects. In this case, notwithstanding the many particulars specified in the eleven grounds or issues, yet, in substance, they constitute only one general charge, and that is, that the defendant had not made a full surrender of his whole estate. “Guilty generally,” is only saying, we ■find the defendant guilty in each particular making up this general charge. The other ground of appeal cannot avail the defendant. The evidence was of that kind which, when resolved by the verdict of a jury, it is impossible for this court to say that the verdict is against its weight. It is very true, that we naturally revolt against perpetual imprisonment, which seems to be the consequence of this verdict, and more especially when it falls upon one so young as the defendant; but our sympathies' cannot control the law. It is for the plaintiff to weigh and consider, in the scales of his own conscience, enlightened by the Holy Book which is the rule of his faith, whether he can inexorably enforce such judgment, and meet the consequences in a future day.

The motion is dismissed.

Richardson, Evans, Wardlaw and Frost, JJ. concurred.

Motion refused.  