Bingley v. Smart

12 S.C.L. 29

Opinion

Mr. Justice yohnsott

delivered the opinion of the Court,

These grounds are resolvable into the single question of fact, whether the defendant was guilty of a fraud in not including the watch in his schedule, as originally filed ? For it certainly never was tbe intention of the Legislature to consign a citizen to perpetual imprisonment, who should from inadvertence, or a mistaken view of his rights, omit to include an article of property in his schedule, in which he had an interest. If there were no fraud in this case, tbe Recorder decided correctly in permitting him to amend it. On the subject of fraud, it appears to me, that so far frbm there being any evidmee against the defendant, thecir-cumstances,go very far to shew that he acted with all imaginable fairness. Before he applied for the benefit of the act, he told, the plaintiff that he had pledged the watch, and that it might be redeemed by advancing the money loaned on it. And whether it was qv was not pledged'for a bona fide consideration, has not been ■ made to appear; nor does it appear whether it was before or after the judgment and execution. ■ ,

Furman, for the motion.. y. P. White, contra.

Use Court are therefore of opinion that the motion ought to be discharged.

Justices Colccck, Nott, Huger, and Gantt, concurred.