
    William B. Stover, et. al. vs. Thomas Duren, Jr.
    A defendant, who has neglected to file liis schedule within forty days, cm not take the benefit of the insolvent debtor’s act; nor does the act authorize a juiy to enquire whether the omission to file a schedule was fraudulent or not.
    If a defendanthas, within three months before his confinement, or at any time since, paid another creditor in preference to the plaintiff, the court may submit it to the jury, whether the defendant had preferred another creditor, .but not whether the preference of one creditor to another is fraudulent or not ¡ as the preference of one creditor per se, deprives the defendant of the benefit of the act.
    THE defendant was arrested at the suit of the plaintiffs, upon a ca. sa. on the 25th of March, 1822.
    The sheriff, on the 11th of April following, took security from the defendant for remaining within the bounds, and rendering to the clerk of the court a schedule of his property within forty days.
    On the 8th of August following, the defendant filed a schedule, and then applied to the court for a discharge. The plaintiffs resisted this application on the ground that the defendant had not complied with the'conditions prescribed by the act; in as much, as he had not filed his -schedule within the forty days from the date of his bond. and had subsequent to his arrest preferred another creditor. A witness was called to prove that the defendant had, subsequent to his arrest, paid him upwards of twelve dollars.
    The court ordered a suggestion to be filed, which made two questions for the consideration of the jury.
    1st. Whether the schedule had been filed within the forty days prescribed by the act — and
    2 nd. Whether the defendant had preferred another creditor to the plaintiff.
    The judge, who presided, charged the jury to find for the defendant, should they be satisfied that he had not fraudulently omitted to file his schedule within the forty' days, and had not fraudulently preferred one creditor to another. ,
    A verdict was had for the defendant, who was therefore ordered to be discharged from this order. The plaintiffs appealed.
   Mr. Justice Huger

delivered the opinion of the court:

The act permits “a person in execution on any civil process,” to avail himself of the benefit of the rules, on his giving satisfactory security to the sheriff, (for the solvency of which security, the sheriff is responsible,) “That he will not only remain within the said rules, but will also, within forty days, render to the clerk of the court a schedule, on oath, of his whole estate, or so much thereof as will satisfy the execution, by fqrce of which he was confined.”

If the defendant does not comply with this condition, (filing his schedule within forty days,) he is no longer entitled to the rules, (7th section,) and his bond is forfeited, (9th section.) Nor can he be discharged until he has ful-' ly satisfied the execution on which he was confined j if he has within three months before his confinement, or at any time since, paid another creditor in preference to the plaintiffs, or fraudulently conveyed any of his estate to defraud his creditors. The Judge is permitted, by the act, to submit to tbe decision of a jui’y, whether the defendant has preferred another creditor to the plaintiffs, or whether the defendant has fraudulently conveyed away any part of his estate, but not whether the preference of one creditor to another was fraudulent or not. The preference of one creditor to another per sc, deprives the defendant of th<? benefit of the act.

Levy Sf Me Willie, for the motion,

J. -C. Carter, contra.

Nor does the act authorise a jury to enquire whether the omission to file a schedule was fraudulent or not.

The only questions which can be submitted are,

1st. Whether the defendant has been guilty of fraud ?

2nd. Whether he has preferred another creditor to the. prejudice of the plaintiff ?

3rd. Whether he has made a false return ?

4th. Whether he went without the prison walls, or'prison rules, as the case may be?

As the jury were misdirected, the order of the Circuit Court must be set aside, and a new trial granted.

Jusiices Johnson and Colcocle, concurred.

Justices Noit and Richardson :

We concur in this opinion, on the ground that no sche\ clule was rendered according to the bond. 1  