#### JOSIAH CHEEK *vs.*LINDSEY DAVIS.

A debtor, who proposes to take the benefit of the insolvent debtor’s act, may at any time after his arrest upon a *ca. sa.*and before he files bis schedule, transfer any portion of his property *bona fide*for the payment of any of his debts, contracted before his arrest.

A *ca. sa.*binds nothing but the debtor’s body, and leaves his property free to be disposed of for any *bona fide*purpose of discharging other debts.

Appeal from the Superior Court of Law of Randolph County, his Honor Judge Dick presiding.

In this case the defendant had been arrested on a ca. *sa.,*at the instance of the plaintiff, on the 15th of February, 1842, and gave bond for his appearance at the County Court of Randolph at February Term, 1842. The defendant, on the 18th of April, 1842, filed his schedule in the office of the Clerk of the County Court aforesaid, which schedule was dated on the 1st day of April, 1842. And, at May Term, 1842, the defendant moved the said Court to be discharged from custody, under the provisions of the Act of the General Assembly for the relief of insolvent debtors. The plaintiff suggested fraud, and made up an issue with the defendant, which issue was tried in the County Court of Randolph and found in favor of the defendant, when the plaintiff appealed to the Superior Court. On the trial in the Superior Court, the plaintiff proved by a Mr. Drake, that, during the week of the Superior Court of Randolph County, about the last day of March or first day of April, 1842, he paid to the defendant the sum of eighty dollars, which sum had been *285brought from the County of Columbus, for the defendant by a man of the name of Swaim. The plaintiff further proposed to prove by the said witness* that,- at the time Swaim left the money for the defendant, he also left a receipt given by a, constable of Columbus County to the defendant for a note of twenty four dollars, due by some person in Columbus. This evidence was objected to by the defendant’s counsel, on the ground that the plaintiff had not given notice to the defendant to produce the said receipt. The Court sustained the objection, and rejected the evidence. The plaintiff then proved, that, on the 7th of March, 1842, the defendant obtained a bond payable to himself for one hundred and twenty five dollars, executed by one Asa Godbolt, which bond was assigned by the defendant to one Close Davis, before the IS'th of April, 1842, in payment of a *bona fide*debt of the defendant, due and owing before he was arrested on the ca,. sa. It was admitted by the plaintiff' on the trial, that the eighty dollars paid by Drake to the defendant, as before stated, had all been paid out to the defendant, before he filed his schedule, in .the discharge of *bona fide*debts. It was further admitted by both parties, that a part of the above sum of eighty dollars was paid out' by the defendant in the discharge of his . debts, between the 1st and 18th of April, 1842. The plaintiff’s counsel moved the Court to instruct the jury, 1st, That all payments of debts and transfers of property, made by the defendant after he Avas -arrested on the ca. *sa.,*were a fraud upon the law, and *per se*fraudulent as to the plaintiff; 2dly, That the payment of debts, made by the defendant between the 1st and 18th of April, 1842, were fraudulent, and entitled the plaintiff to a verdict.

The Court refused' the instructions prayed for, but instructed the jury', that the defendant might pay *bona fide*debts after his arrest which were due and owing from him at the time of his arrest,-provided such payment were made before he filed his schedule. The Court further instructed the. jury, that any payment of bona *fide*debts, or transfers of *286property in the discharge of. *bona fide*debts, made by the defendant before the filing of his schedule on the 18th *of*April, 1842, would be lawful provided they were satisfied the debt or debts were justly owing from the defendant, and the payment or transfer was *bona fide*and for the sole purpose of discharging the said debts.

The jury found a verdict for the defendant and judgment being rendered pursuant thereto, the plaintiff appealed.

No counsel for the plaintiff in this Court.

*Mendenhall*and *Iredell*for the defendant.

Nash,- I.

The only question, arising under the instructions prayed for, is, whether the payments made by the defendant, after his arrest on the *ca. sa,*and *before the*filing of his schedule, were in fraud of the rights of the plaintiff. We are clearly of opinion that they were not — in other words,- that the law gave the defendant the right to pay any debt, which he justly owed, before the filing of his schedule, provided the debt was due before the arrest. The insolvent Act,- as it is called, evidently by its phraseology, contemplates that the schedule, filed by a defendant; shall contain a true account of all his property, as it is at the time of its being filed. The 4th section of the Act, in pointing out what measures a debtor who has remained in close confinement for twenty days, shall pursue to obtain his discharge, prescribes the oath tobe taken by him. It is, “I, A. B., in the presence of Almighty God, solemnly swear, profess and declare that the schedule *now*delivered &c.” This section emphatically shews, that the time, to which the Act refers, as governing the insolvent’s right to take the oath is, when the schedule is filed. If, at that time, he makes a true statement of his property, and in the mean time *“*has not directly or indirectly, in any way disposed. of any of it, either real or personal, whereby to secure to himself any profit or advantage, or to defraud or deceive any of his creditors,” the laAV is content, and he is entitled to his discharge. A *fieri*fa-*287
      *cias*binds the property of the debtor from its leste, *so*that he cannot alien any portion of it, to the disappointment of the plaintiff. A *ca. sa.*binds nothing but the body, upon which it is executed, and leaves the debtor’s property free to be disposed of, as he pleases. When, however, he comes to claim the benefit of the law provided for him, he must be prepared to bring himself within its provisions. In this case it is admitted, that the money in question was appropriated by the defendant to the payment of debts *bona jide*and justly due by him. In paying these debts he has violated no law, nor been guilty of any fraud. We think, therefore, there was no error in the charge of the Judge, and the judgment must be affirmed.

Per Coeiam, Judgment affirmed.