Andrew Wallace, administrator of C. C. Patrick, v. John J. Craps.
Where the charges, in a suggestion of fraud against an applicant for the benefit of the Prison Bounds Act, were not sufficiently specific, and the evidence adduced in support of them was not sufficient to sustain the verdict of the jury, the Court ordered a new trial, without prejudice, with leave to the plaintiff to move to amend before the Commissioner of special bail.
On appeal from the verdict of a jury summoned by the Commissioner of Special Bail, for Lexington District, March, 1848.
REPORT OP THE COMMISSIONER OP SPECIAL BAIL.
State or South Carolina, >
Lexington District. $
Be it remembered, That on the seventh day of December, in the year of our Lord, one thousand eight hundred and forty-seven, the defendant, John J. Craps, filed a petition, with a schedule of his estate, sworn to, (the contents of which was his wearing apparel,) in the Clerk’s office for said district, petitioning for the benefit of the prison bounds Act, at a suit of capias ad satisfaciendum, in favor of Andrew Wallace, Adm’r. of C. C. Patrick. I, John Fox, as clerk of the Court of Common Pleas for the district aforesaid, published a rule, notifying and ordering the said plaintiff to appear before me on Monday, the twentieth day of the same month, to show cause why the said defendant, John J. Craps, should not be entitled to the benefit of the said Act. Accordingly on the twentieth day of December, the day appointed, the said John J. Craps, with his *453Atty’s. L. Boozer and H. A. Meetze, and the plaintiff, with his Atty. William Wallace, appeared. The defendant’s Attorneys moved for his' discharge, when the plaintiff’s Attorney objected to his discharge, and filed a suggestion containing the following grounds, viz: 1st. Because the said John J. Craps fraudulently conveyed and sold within less than three months from the time of his arrest, - a certain tract of land, for the purpose of defrauding his creditors, for which land he received three hundred dollars, and no mention thereof has been made in his schedule. 2nd. Because the said schedule is false and fraudulent; not mentioning the last crop he has made, and which he still has. 3rd. Because the said schedule is false and fraudulent, inasmuch as it does not mention a certain wagon and horses, which said John J. Craps has in his possession. 4th. Because the said John J. Craps falsely and fraudulently omitted to insert in his schedule, divers other property belonging to him, the said John J. Craps.
The parties then agreed to have the facts tried by jury on Wednesday, the 5th day of January, 1848. 1 proceeded then to have a jury summoned in pursuance of the Act of 1833. The parties with their Attoneys appeared on the day appointed. The jury impannelled, Plaintiff’s Attorney read his suggestion and grounds, and proceeded to examine Joseph A. Wolf, a witness for the plaintiff.
Witness says the defendant, Craps, sold to him a tract of land about the last of September last; he took a title from Craps and his wife, inasmuch as it was understood in the neighborhood that his wife was a freedealer. Says that Craps has horses, wagon, cattle and negroes on the plantation whereon he lives, and makes a crop with them; made corn, cotton, &c. the last year; this is the place witness purchased of Craps last September; the defendant plants corn and cotton on another place ; witness heard Craps say that there was something between him and Patrick, but not as much as the plaintiff, Wallace, claimed ; says that Craps’ children went to school to Patrick a long time ; heard'Craps say that his wife said that Wallace sent for him to come to Columbia, in order to make a settle-*454menf, if there was anything wrong it should be rectified. Witness says that in small transactions, be would take Craps’note alone, say $8 or $10; in large transactions Craps and his wife would generally sign together, inasmuch as it was the impression that his wife was a free-dealer, and that the contracts would be more valid ; says that his father, about the year 1832, took a note of Craps and his wife for a large amount; says he does not know that Craps’ wife carries on any trading in the neighborhood, such as merchandizing, (fee.
Cross. — Witness says he gave his note of $400 to Craps for his land, from which he took $90 00 blacksmith account ; Craps then gave the note to John C. Geiger to secure him and Craps’ father, as they were sureties to Henry Muller for him; witness says, so far as he was concerned, the purchase of the land from Craps was a fair sale; says he never heard Craps say that he wished to sell the land to defeat his creditors ; soys that it is said that a part of the negroes on the place came by Craps’ wife; she was a widow before marrying Craps ; one negro on the place by the name of Bob, said to come from his father; he was on the place not long since; Mrs. Craps refused to sign the title for the land to witness until she saw the note for $400 which he gave for the land, as there was only $300 expressed in the title ; witness says, heretofore he would not have been willing to have taken Craps’ note for any considerable amount without his wife would sign the note with him ; witness understood that one of the negroes (not Bob) was hired in Columbia, and that Mrs. Craps went to Columbia, to see to the hiring, or to receive the money for the hire ; witness is under the impression that the wagon alluded to was purchased by Craps about the year 1831 or 1832 ; says* it is quite old.
Witness further examined by Plaintiff. — Witness says that he heard Craps say that hp had an idea of sending one or two negroes to the west with his father, to make a crop for him. Witness says there is furniture in the house, say clock, sideboard, beds, (fee.; cannot say who it belongs to.
*455
Washington Craps, witness for the plaintiff, and son of defendant, says, that the negro man Bob is in his grandfather’s possession, that he came from his grandfather and went back to his grandfather again ; his grandfather started to move on yesterday, and Bob has not returned. Witness says his mother bought the horses and furniture with the proceeds of the crops, which she receives; his mother uses the proceeds of the crops as she pleases, buys necessaries, <fcc., for the family ; witness says there is a negro naan hired in Columbia, and his mother goes and receives the hire. Witness does not know who is his mother’s Trustee; he does not know within his own knowledge that his mother owns any property; witness says his father attends to the plantation; he does not know that his father ever sold any cotton in Columbia ; Bob was with him in Columbia last week driving the wagon ; Bob has been with his father about nine or ten years, or as long as he can-recollect ; Bob worked for his grandfather and father both ; Bob went off with his grandfather; witness says, by reports, the negroes on the place belong to his mother ; he says there are nine negroes on the premises, and one in Columbia ; witness says there are about 6 head of cattle, 16 head of hogs, 3 horses and one mule ; witness says he went to school to Mr. Patrick about two or three years, and his sister went to school to Mr. Patrick also.
Cross. — Witness says, from reports, the cattle and property belong to his mother.
Upon this evidence, all of which was received without objection by either party, the parties closed and argued the case, and submitted the same to the jury — who returned a verdict of not guilty on all the grounds. The plaintiff’s Attorney gave notice forthwith, that he would appeal, and filed his grounds of appeal'the 27th-of March, 1848, which are as follows, viz:
1st. Because the legal presumption is that possession is prima facie evidence of property, and there was no proof offered to rebut this presumption.
2d. Because evidence to establish personal property in the wife by general reputation was improperly admitted.
*4563d. Because the rule of law is, that all personal property belongs to the husband, and nothing less than a deed of settlement or other instrument will enable the wife to hold property to her separate use, and there was none produced in this case.
4th. Because the verdict was, in other respects, contrary to law and evidence.
Porcher & Wallace, for the motion.
Boozer, contra.
Withers, J.
delivered the opinion of the Court.
This case arise out of an application for the benefit of the prison-bounds Act, before a commissioner of special bail. The application was resisted before a jury, summoned by virtue of the Act of 1833, on- the several grounds recited in the report of the commissioner, which need not be repeated here in terms. The imputations relate to the omission in defendant’s schedule — 1. Of the proceeds of a tract of land, which it i's alleged he had “fraudulently conveyed and sold within less than three months before his arrest” — 2. Of a crop, the last that he had made ; and 3. Of a wagon and horses.
As to the first, it would appear, from the testimony, that a tract of land was sold, and the conveyance executed by defendant and wife, the purchaser requiring the wife to join, because, as he says, it was understood in the neighborhood that she was a free dealer. If she be, how she can acquire and hold land in that character, is incomprehensible to ns, unless it might be so much of realty as should be indispensable in.shop keeping, in which business she does not seem to have been engaged. But it is doubtful whether the plaintiff could have succeeded against the defendant, on the ground relating- to the sale of the land, for he does not charge an undue preference, though one might conjecture that such was the idea aimed at, from the use of the words, “ within less than three months from the time of his arrest.” Undue preference, however, is not charged, but the fraudulent selling and conveying his land, within the time mentioned, to defraud his creditors, which was effected, as alleged, by withholding"' from his *457schedule the purchase money received. Now, if a debtor aimed to defraud his creditors, by selling his property, and converting it into money which he concealed, this would be a fraud without respect to time, as it relates to the period of his arrest; but it would be undue preference only, if, within three months before his confinement, he had fraudulently paid it away to one creditor, over another, according to some more recent decisions, which is not to be predicated, necessarily, of a mere preference given to one creditor over another. Now, the note received for the land, it would seem, was applied by the defendant in exoneration of some securities ; and the charge being that he had fraudulently sold his land, and withheld the proceeds, it does not appear that the first charge is sustained.
But he has given no sufficient account of the disposition of the last crop he made, and of the wagon and horses ; and therefore, the verdict of the jury cannot be sustained. There is nothing, deserving the character of testimony, to show that these effects belonged to the wife.— Of the negroes, mentioned by the witnesses, nothing is said in the suggestion. If any amendment be contemplated by the plaintiff, the commissioner of special bail is supposed competent to hear and dispose of such a motion. We mean to conclude nothing upon the merits of the case ; and a new trial is ordered without prejudice.
Richardson, J. O’Neall, J. Evans, J. and Frost, J. concurred.
Motion granted.