Ramsay ads. Gervais. The plaintiff was not bound to wait till the officers of the bank had levied on his property, and then to go through the slow process of the law, to recover the money from the defendant, who in the mean time might become insolvent. He was highly justifiable in endeavouring to raise the money from defendant, by all lawful ways and means in his power; and if practicable, to be beforehand with the officers of the bank, by levying on defendant's property, before they could levy on his effects, for the purpose of raising the money. Motion dismissed. Present, BURKE, WATIES and BAY. Charleston District,1798. The private debt of one copartner, POWRIE and DAWSON against FLETCHER and PHILLIPS. MOTION for a new trial. This was an action of assumpsit for goods sold and de cannot be set livered, to which the defendants filed a discount, for the off against the demand of the amount of a bill for painter's work, done to the house of Mr. Powrie, one of the copartners. copartner ship. The jury, contrary to the charge of the presiding judge who tried the cause, allowed the defendants the amount of their demand. This was a motion for a new trial, which was ordered without argument, and that too without costs; as the jury did wrong in allowing the discount; the law being very clear, that the private debt of one copartner, cannot be set off against a copartnership demand. Present, GRIMKE, WATIES and BAY. JOHN FABRE against PETER ZYLSTRA. Charleston District, 1798. • Insolvent debtor not to UPON a motion, to have the defendant admitted to the benefit of the insolvent debtors' act, and discharged be discharged from gaol. where fraud is alleged against him till it is tried by a jury, in all cases of a complicated ture. na Bare allegations or sug of fraud, not gestions warrant the a case to the vits contain led, on which the sugges formed. tion is to be But in cases which are not complicated, This motion was opposed by the Attorney-General and Mr. Ford, on the ground that defendant had conveyed away a large stock of goods, and other valuable property, to one Charles Baugniett, who had formerly been his clerk, with a view of defrauding the plaintiff and other just creditors of sufficient to their lawful debts; and therefore they said he was not en- court to send titled to the benefit of the insolvent debtors' act, on the jury. Affidaground of fraud. At all events they contended, that they ing the facts ought to have a fair opportunity of investigating and trying should be fithis fraud, if it had been committed; and that it had, they had no doubt, from the information they had received from the plaintiff, as well as from sundry others of his creditors. They observed, that the act had not prescribed any precise form, for trying and ascertaining fraudulent conveyances and transactions of the kind alleged against the defendant investigated, the judges in the present instance; and therefore suggested to the will proceed court the propriety of sending this case to a jury of the manner, with country, as most congenial to the principles of the common vention of law, upon a suggestion to be filed for that purpose, contain- Jury. ing the specific charges of fraudulent conduct on the part of the defendant; by which means he would be apprized of the particular allegations against him, and would have an opportunity of pleading to them, and of preparing for his defence. Mr. Gaillard and Mr. Hall, contra, on the part of the defendant, insisted, that such a kind of investigation would be attended with great delay, as well as expense and trouble, contrary to the spirit and design of the act; which was to or where the whole case can be readily in a summary out the inter Fabre V. Zylstra. give speedy and effectual relief to unfortunate debtors, who were willing to give up their all to their creditors, in order to be relieved from confinement; that the defendant had been confined within prison walls for some time, and to detain him any longer, would not be affording him the privilege allowed to persons in his unfortunate situation. Besides, they said, the first clause of the act contemplated a summary way of examining into the matter contained in an insolvent debtor's petition, by the judges, who were authorized to discharge the insolvent debtor, if they were satisfied of the truth of his petition, without detaining him for the slow process of a jury trial, which the act did not contemplate. They further observed, that all that had been alleged against the defendant was mere surmise and allegation, unsupported by any affidavits, or other document to establish such fraud. WATIES and BAY, present, said it was the duty of the court to give as speedy relief to insolvent debtors applying for the benefit of this act, as the nature of the thing and the principles of the law itself would warrant. But there were cases which often called upon the justice of the court to be cautious and circumspect in the exercise of the powers given to the judges by this act. In particular, they are to be satisfied that the person applying for the benefit of the act is about acting the fair and honest part with his creditors; and that he has not concealed, transferred, or conveyed away any part of his property, with a view of defrauding them out of any part of their just debts. In order to come at this satisfaction, they observed, there were two modes of proceeding, which might be resorted to for that purpose. The first was, by examining into the case themselves, in a summary manner, without the intervention of a jury. The second was, by sending the case to the jury, to determine on matters of fraud, which were very proper for their consideration. That in common cases, where the facts and cireumstances were easily come at and obtained, the judges would proceed agreeable to the first mode, and examine into the matters themselves; but in intricate and perplexed or complicated cases, they would send it to a jury to determine, on a suggestion to be filed for that purpose, in which they would allow the defendant the liberty of pleading, and defending himself, in like manner as on the trial of issues; and admit or refuse the party the benefit of the act, according to such finding. They were aware, they said, there were no express words authorizing them to send a case to a jury in the insolvent debtors' act; but, reasoning from analogy and principle, they thought themselves warranted in doing so, as it was the best possible mode of sifting out the truth, and coming at the justice of the case. It was analogous to the power given to the judges, by the prison-bounds act, in similar cases, where fraud is alleged; and it is conformable to the practice in equity, in sending down causes to be tried at law, in order to satisfy the conscience of the chancellor, in difficult and doubtful cases. They were further of opinion, however, that no case of this kind ought to be delayed or sent down to a jury, on bare suggestions or allegations of fraud. Affidavits ought in all cases to be produced, to warrant the court in sending it to a jury, on a suggestion of fraud. The plaintiff's counsel then moved for another day, in order that they might prepare and bring forward the affidavits; which was opposed by the opposite party; but, the Court said, as the practice in these cases had not been settled by any express adjudication, they would give that indulgence in this case, which they said should not be drawn. into a precedent in future, as the court would always expect, in every application of this kind, that the affidavits would be produced at the time of the motion. On the following day, sundry affidavits were produced and read, stating strong grounds of fraud on the part of the defendant. Whereupon the court ordered him to be re Fabre V. Zyistra. Fabre V. Zylstra. manded to gaol, and the suggestion to be filed instanter, to the end that the matters of fraud set forth in the affidavits, which were to form the substratum of the suggestion, might be tried in term time, with as little delay as possible. N. B. The merits of this case were afterwards tried in a suit brought by Baugniett against the sheriff of Charleston district, who had seized the goods in question under another execution and sold them; in which suit the fraudulent conveyances, or bills of sale, from Zylstra to Baugniett were very fully and clearly established. This case was afterwards submitted by WATIES and BAY to the other judges, who fully concurred with them in the principles laid down in it, and it has served as a precedent, in all cases of a similar nature, since. Charleston District,1798. If an alien is drawn and impanelled as a THE STATE against JOSEPH QUARREL. MURDER. Motion for new trial. The prisoner had been convicted, on very clear testimony, juror, it is a in the court of general sessions of the peace, &c. of the mur good cause of challenge be der of one fore trial; but by stabbing with a shoemaker's knife; if permitted and a motion was now made for a new trial, on the ground to be sworn by the prison that John Love, who sat on the petit jury who tried him, er, it is too late, after trial was an alien Englishman. Mr. Love had lived many years and convic it a ground for a new trial. tion, to make in Charleston, and was a tradesman in repute, who had paid his taxes, and done militia duty regularly as a citizen; but it appeared he had never taken the oaths of allegiance and fidelity to the United States, but neither the prisoner nor his counsel knew of it at the time of his trial. On behalf of the prisoner it was urged, that what was good cause of challenge before trial, was good cause for a motion in arrest of judg |