#### Smith, Wright & Co. *v.*C. C. Campbell & Co. N. Hayden *v.*The Same. Churchill, Southmayd & Co. *v.*The Same. Collins, Keese & Co. *v.*The Same. Harall, Wright & Co. *v.*The Same. Miller, Ripley & Co. *v.*The Same.

An assignment of the whole estate and effects of a debtor for the benefit of his creditors generally, though upon trusts, *preferring in the order of payment*one creditor to another, has *been*recognized in this State as valid and binding. — (See Niolon v. Douglass et ah, 2 Hill. Ch. R., 443, 446.

Such a preference is not “ the *undue preference of*one creditor to another,” contemplated by the 7th section of the prison bounds acts, (P. L. 456,) and in itself constitutes no sufficient ground of opposition to the discharge of a debtor under the provisions of that act.

By the *undue preference*spoken of in the prison bounds act, is meant such an *intentional*preferring of *one creditor,*as may enable him to receive payment and *altogether defeat, delay,*or *hinder,*another creditor from being paid: a preference to come within the inhibition of this act, must be *fraudulent.*

*353Where a deed of assignment for the benefit of creditors *generally,*though upon trusts, preferring in the order of payment some creditors to others, conveyed to the assignees all the effects of the assignor, and among other things choses in action to a considerable amount: Held, that such assignment could not, on the face of the deed, be considered as made to *defeat, delay,*or *hinder,*the plaintiffs, creditors of the assignor, though not among the preferred creditors.

Where upon the trial of an issue upon a suggestion of fraud, before a commissioner of special bail, a question is put to a witness touching his opinion of the value of certain property assigned, which question is objected to and overruled by the commissioner : This court will not grant a new trial on that ground, if it perceives the point has been answered to by the witness in other parts of his testimony, as far as the nature of the inquiry would allow.

This case came up on an appeal and-motion for a new trial, upon thé finding of the jury in a question of fraud, tried before John Hanks, Esq., a commissioner of special bail for Sumter District. The report of the commissioner, which presents all the facts of the case, is as follows:

“Vm. H. Bowen, one of the parties of the firm of C. C. Campbell & Co., who, was in arrest under the executions of the above stated plaintiffs, (together with three other executions, on which C. C. Campbell & Co. had been security for one A. China, which, since the appeal taken, have been partially arranged by said A. China, and the appeal as to them discontinued, as I am instructed by the plaintiffs attorney,) after the usual notice given and schedule filed, applied to be discharged under the prison bounds act. His application was resisted on behalf of above stated plaintiffs, on the ground of fraud and an undue preference given to some of his creditors within three months previous to the time of his arrest. A suggestion was filed, containing various grounds, which is herewith submitted. A jury was summoned and a court was organized conformably to the act of 1833, to try the facts contained in the suggestion. The cases being the same, were, by the arrangement of the parties, tried under the same suggestions. The schedule of Bowen contained nothing but his wearing apparel, and a small quantity of house and kitchen furniture, which was then under levy by the sheriff of the district, under senior executions.— *354The plaintiffs introduced in evidence, a deed of assignment executed by W. H. Bowen and Jacques Bishop, (two of the parties of the firm of C. C. Campbell & Co.,) on the 19th.day of February, 1838, being within three months previous to the time of his arrest under these executions and present application to be discharged. The assignment was made to T. J. Withers, John M. Desaussure and John M. Gilchrist. The two former declined, the latter accepted the trust. The plaintiffs then introduced their judgments and showed that their debts ranked in the fifth and last class, according to .the order specified in the assignment, a certified copy of which, together with the schedule of debts, accompanies this report. The sheriff of the district, (a witness of plaintiffs,) testified that he understood from Mr. Bowen, that he had included all his property in his assignment — that he had examined the schedule accompanying the assignment — that he considers the notes and accounts, specified in the first and second divisions, worth about $22,000 — that he had not seen the notes or accounts, but only spoke of that amount being put down against persons whom he regarded solvent, and the judgments enumerated, together with the executions, worth $2000. That he had sold under executions against Bishop, Bowen and Campbell, which are older than the assignment, but which are provided for in it, property almost entirely of Dr. Bishop, to the amount of $80,000, most of which was not embraced in the assignment, and that there still remained in Sumter district, liable to those judgments, about $10,000 worth of property, exclusive of the Bishopville houses and lands, which were under mortgages to the Messrs. Du Boses, of Darlington, to secure them as securities upon the bond held by John Robinson, John Robinson & Son, and Robinsons and Caldwell, of Charleston — that he should be obliged to return the executions of fi. fa. in these cases, under which the defendant was arrested, *nulla*bona.— That *the*amount of *judgments*in his *office*against these defendants, is about 170,000 or 180,000 dollars, of which about $40,000 is against Jacques Bishop alone, in favor of John M. Gilchrist, (preferred under'the fourth class in the assignment) — 110,000 due the banks, (preferred under the second class in the assignment,) one of *355■which judgments was confessed some time before the assignment, and the others a'few days before — the balance coming in under the different classespf the assignment; the plaintiffs under the fifth class which Nthe last. The sheriff also testified,that of the debts due by persons in Darlington, stated -in the. schedules, he had no knowledge and could not speak as'to thepn. That the schedule comprised all the debts, good and bad, that appeared upon the books for the las.t twelve or fifteen years — a great number of writs lodged to the last court. John M. Niolon, plaintiffs witness, testified that in Feb. 1836, he ceased to be a partner with Dr. Bishop, in the firm of J, M. Niolon & Co. The store at Bishopville was *then*worth eight or ten thousand dollars. He took, the Camden store at *$14,000. The*firm of C. C. Campbell & Co., went into operation when that of J. M. Niolon & Co. ceased. Dr. Bishop then owned at Bishopville, all the property which he, lately owned ; the lands at Bishopville and one hundred and sixty negroes. He tranferred all the J. M. Niolon & Co. debts, to Dr. Bishop, about 50 or 60,000 dollars. Dr. Bishop then owed John Robinson about $35,000 — 'knows of no losses — regarded Dr. Bishop perfectly solvent at the time of the dissolution and apprehended no disaster.— On his cross examination, the witness stated that Dr. Bishop paid John Robinson $90,000, by a plantation in the west, by which operation he made a considerable amount. W. H. Bowen was worth nothing when Niolon & Co. ceased. C. C. Campbell & Co. sustained losses in cotton in 1836 and 1837 — they dealt very largely in cotton — owed some debts besides that to Robinson. Bowen was liberal in his dealings — does not know of a dollar that he has not assigned.

John M. Gilchrist, the plaintiffs witness, testified that the bonds due John Robinson, Robinson & Son, and Robinsons &'Caldwell, mentioned in the first part of the assignment, amount to $60,000, payable in one, two, and three years. That the amounts due the banks, preferred in, the second class, was $110,000, $90,000 of which would be paid out of the sales of the property in Sumter district, under the bank executions, which were the oldest. He was unable to testify what was the amount of the debts due by the *356firm of C. C. Campbell & Co., but that he supposed they amounted to $200,000. That few persons had taken the trouble to send in statements of their debts to him, as they thought it useless.— That it will take him five years to wind up the affairs of the concern. The confessions of judgment which he had against Dr. Bishop, amounted to $40,000, and are preferred in the fourth class of the assignment. On his cross examination, he stated that the amount of western paper, all of which could be collected in two years, is $42,000, in the hands of Robinson &'CaldweIl — 16,000 had been withdrawn by himself before that, leaving the $42,000. There was due from Christopher H. Taylor, of Alabama, $10,000. The shoe store in Camden had been sold for $6,250. The Bishopville houses and lands, which were mortgaged to secure the securities of the bonds to Robinson, were worth 30 or $40,000— that Bowen had placed in one of the banks in Camden, and in the hands of Charles J. Shannon, (a judgment creditor to the amount of $9,000,) $14,000 in notes as collateral security. There was also some bank, rail road and hotel stock, mentioned in the assignment ; also some Alabama lands, worth $10,000 — also a lot, or lots, in Camden, mentioned in the assignment. George Q. MTntosh, plaintiffs witness, testified that he had the notes and accounts specified in the third and fourth division for collection, and not more than $4,000 would be collected from them. The question was asked of witness, John M. Gilchrist, the assignee, if from his acquaintance with the amount due and the value of the assigned property, the debts specified in the fifth class would ever receive *anything*? It being objected to and overruled as incompetent, I also excluded his opinion and estimate as to the value of the assigned property. The witness, on cross examination, afterwards testified that as to the debts mentioned in the schedule, he had no knowledge of the solvency of many of the persons who were put down as debtors. That he had not examined, the papers that had been turned over to him. The plaintiffs also offered in evidence, a paper signed by W. H. Bowen, the defendant, in April, 1838, certifying to a large amount of money delivered over and paid to J. M. Gilchrist. This paper is in possession of plaintiffs attorney, and is to *357be submitted with this report. All the witnesses concurred in stating that Bowen was' very liberal and careless in his dealings, and had lost by going security and loaning money. The defendant called no witnesses. The jury found for the defendant on all the grounds contained in the suggestion, and the plaintiffs appealed on the accompanying grounds. At the suggestion of both party’s attornies, for the plaintiffs and defendants, I herewith submit this amended report.”

COPY DEED OE ASSIGNMENT.

*J. Bishop and Wm. H. Bowen, to John M. Gilchrist.*

State oe South-Caroeina, 1 *Sumter District.*j

Whereas, John M. Niolin and Jacques Bishop, late merchants and partners in trade, trading at Camden, under the name and style of John M. Niolin & Co., having dissolved their connection in business, and the books, accounts, notes, bills, bonds, judgments and choses in action and possession, of every description whatever, transferred, assigned, and set over to Jacques Bishop, and he is now the owner of what remains. And whereas, Lewis Johnston and Jacques Bishop, late merchants and partners in trade, trading under the firm of Lewis Johnston & Co., at Camden, have dissolved, and the books, accounts, notes, bills, bonds, judgments and choses in possession and action, have been assigned and set over to Jacques Bishop. And, whereas, also, the establishment at Camden, called the Millinery Store, was transferred to Jacques Bishop; and the whole, including all the debts and choses in action and possession, accounts, notes, bills, bonds and judgments, were assigned, transferred and set over to C. C. Campbell, Jacques Bishop, and William H. Bowen, late merchants and partners, at Bishopville, trading under the name and style of C. C. Campbell & Co., and the whole have become somewhat embarrassed, and desire to assign property in trust for the payment of their debts. Therefore, know all men by these presents, that we, William H. Bowen and Jacques Bishop, members of the firm of C. C. Campbell & Co., do, each for himself, and not one for the other, for and in consideration of $10 to each of us, paid by Thomas J.' Withers *358and John M. Desaussure, of the town *of*Camden, and John M. Gilchrist, of Bishopville, the receipt of which we do hereby acknowledge — and for and in consideration of the premises, have bargained, sold, released and assigned,- transferred, conveyed and set over, and by these presents do bargain, sell, release, assign, transfer, convey and set over to Thomas J. Withers and John M. Desaussure, of Camden, and John M. Gilchrist, of Bishopville, their heirs and assigns forever, the following property: that is to say, the said Jacques Bishop does hereby bargain, sell, release and convey to the said Withers, Desaussure and Gilchrist, their heirs and assigns, the lots and tracts of land described as follows, to wit: one house and lot in the town of Camden, on *Littleton*street, being the former dwelling of William H. Bowen; also, one house and lot in the town of Camden, on State-street, opposite De Kalb monument, both lots being purchased of William B. Parker; one lot of land in Sumterville, with store house and stables, being the lot purchased of H. Holleyman; one-third part of a house and lot in Sumterville, purchased at sheriff’s sale, of Thos. Cogland; one tract of land containing one. hundred and fifty acres, more or less, called Daniel’s Tract of Land, situate in Salem, in the district of Sumter; one other tract of land in Salem, containing one hundred and fifty acres, more or less, being the tract of land now occupied by Samuel M’Kay; one other tract- of land lying near Bradford Springs, containing one hundred and seventy-five acres, more or 'less, purchased at sheriff’s sale as the property of Stephen Burkett; one house and lot in Sumterville, occupied by John D. Bowen, purchased at sheriff’s sale as the property of John D. Bowen: one house and lot at Bishopville, on Camden-street, occupied by Wm. H. Bowen'; one storehouse and lot at Bishopville, on Broad-street, having a front of seventy feet, and one hundred and ten feet back, now rented to P. L. M’Intyre; one house and lot at Bishopville, on Broad-sffeet, containing half an acre, now.rented to Henry Holleyman; ten vacant lots at Bishopville, coiltaining one hundred and ten feet front, and two hundred and twenty feet back, on Camden-street, to be designated and laid out by Jacques Bishop; three vacant lots at Bishopville, sit*359uate on Broad-street, containing ninety feet front, and running back one hundred and ten feet, to be designated by Dr. Bishop, Isaiah Dubose, and K. C. Dubose, to release the lots sold at Bishopville, from the mortgage thereon ; also, seven hundred and twenty acres of land in the county of Marengo, in the State of Alabama, being the land for which Gaines Whitfield gave bonds for titles, to be sold on a credit of one and two years, if demandable ; one half of about twenty-two hundred and fifty acres of land, say his interest in about twenty-two hundred and fifty acres of land in the county of Marengo and State of Alabama, being the entries of land purchased of the concern of John M. Niolin & Co., Wm. E. Johns ton and John J. Blair, subject to one-fifth of the profits over costs, to be paid to James H. Bradfoot for entering it, to be sold on a credit of one and two years, with interest if practicable and advisable. Also, the following personal property, to wit: all the leather and hides at the tan yard, to be sold by the assignees so soon as it can be got up and prepared for market; also, all the household and kitchen furniture, now in the hands of John D. Bowen; also, one chestnut sorrel horse in the possession of John D. Bowen, the last two, to wit; the furniture and the horse, to be sold on the first day of January next, or so soon thereafter as the assignees can make sale thereof, as they are not to be delivered up before that time; also, three mules; one sorrel horse ; one wagon, now in the possession of John D. Bowen; also, all the debts due the said Jacques Bishop, individually, consisting of judgments, notes, accounts, bonds and choses in action of any and every description, a schedule of which the assignees agree to make out and furnish in fifteen days from the date hereof, which, when signed, shall be attached hereto and made part of this assignment; also, all the accounts, notes, bonds, judgments and demands of what sort soever, which belonged to the late firm of John M- Niolin & Co., Lewis Johnston & Co. and the Millinery store, a schedule of which shall be made out and signed within fifteen days from the date of these presents, or as soon after as practicable, attached hereto and become part of this assignment; also, all the notes, bonds, bills, judgments, and other debts whatsoever, which belong*360edto Bishop & Gilchrist, in the hands of John Rohinson & Son, or Robinson & Caldwell, of Charleston, or in the hands or possession or control of William Robinson, of Linden, in the county of Marengo and State of Alabama, to be collected by the said Robinson & Caldwell, and applied as hereinafter set forth and declared ; and the said Wm. H. Bowen does hereby assign and set over to the said Thomas J. Withers, John M. Desaussure, and John M. Gilchrist, their heirs and assigns, all the dues, demands, and sums of money due him from the firm of Christopher H. Taylor, William H. Bowen, and John M. Gilchrist, to speculate on negroes, as per written agreement; also, all his interest in nine negroes, now in the possession of Isaiah Dubose, in the county of Marengo and State of Alabama; also, all the demands he has on Christopher H. Taylor, of Marengo county, Alabama, consisting of notes, and one negro slave, named David, and one grey stud horse, the two last now in possession of said Taylor; also, one house and lot in the town of Kirkwood, near Camden: also, one vacant lot in Camden, on Broad-st. and the said Jacques Bishop and William H.' Bowen, two of the late firm of C. C. Campbell & Co., the said C. C. Campbell having retired from the concern, and being now out of the district, and the said Jacques Bishop and William H. Bowen, being now the owners and proprietors of the whole assets of the late firm of C. C. Campbell & Co., late merchants at Bishopville, do hereby assign, transfer and set over to the said Thomas J. Withers, John M. Desaussure, and John M. Gilchrist, all the notes, bonds, judgments, accounts, books and demands of any and every description whatsoever, a complete schedule of which shall be made out within fifteen days from this date, or so soon thereafter as it can be done, signed and attached hereto as a part of this assignment, in trust, nevertheless and to and for the uses and purposes hereinafter specified, set forth and declared; that is to say, to sell all the property, collect all the debts and sum or sums of money, and pay and appropriate the same as follows, to wit: that the proceeds of all the lots of land at Bishopville, directed to be sold by the assignees, be applied to the payment of the bonds now held and owned by John Robinson & Son, *361John Robinson, and Robinson & Caldwell, to which Isaiah Dubose, K. C. Dubose and A. G. Crosswell, or either of them, is security ; also, that the proceeds of all the lands directed to be sold, situate in Alabama, the interest of the negroes in Alabama above as signed, and all the drafts and bills of exchange, and other papers, notes, &c., now in the possesion and power of John Robinson, John Robinson & Son, and Robinson & Caldwell, of Charleston, and William Robinson, of Linden, in the county of Marengo, in the State of Alabama, be applied to the payment of the said bonds to Robinson, Robinson & Son, and Robinson & Caldwell, or either or any of them, secured by the persons above stated, and that the said drafts and bills which formerly belonged to Bishop & Gilchrist, C. C. Campbell & Co. or William H. Bowen, be collected by the said Robinson & Caldwell, and appropriated by them, and if a sufficient amount to pay the first instalment of said bonds be not collected, then the assignees aré required to pay said first instalment out of any money arising from any of the property assigned, and the said debts in the hands of the Robinsons and Caldwell shall stand for the balance of said bonds, each to be paid equally, that is, the same per centum: Secondly, that the assignees shall sell and convey all the lots and tracts of land above assigned, (except the lots of land at Bishopville and the lands in the State of Alabama, which are already disposed of,) on such terms as they think most for the benefit of the assignors, and that the proceeds be applied to the payment of the Bank of the State of South-Carolina, at Charleston, against C. C. Campbell & Co., Jacques Bishop and William H. Bowen, or any or all of them. Thirdly: that the said assignees collect all the accounts, notes, bonds, judgments and debts of every description, so soon as it can conveniently be done, and with the monies collected pay first the first instalment of the bond due Robinson & Caldwell, John Robinson & Son, and John Robinson, if it be not paid by collections out of debts and from the sales of property above designated for that purpose, the costs and charges of this assignment, and the principal and interest due on a bond given in eighteen-hundred and eighteen, or nineteen, to Moses Sanders, at Dar*362lington Court House, which was drawn, or directed to be drawn, by the Pión. Josiah J. Evans, to secure Mrs. Penelope Bishop the sum of about five thousand dollars, being the amount of her share of the real estate of Col. Benton, purchased by William Thomas. Fourthly: after the payments above designated be made, all other funds arising from 'this assignment, unless herein otherwise disposed of, shall be appropriated from time to time, of which one month’s notice shall be given, to all the judgments against Jacques Bishop, C. C. Campbell & Co. John M. Niolin & Co. Bishop & Gilchrist, or either or any of them, and to all notes, bonds, bills of exchange, or other evidences of debt, or any, either, or all of them oh which there is an indorsement or security, (including those bonds *above*partly specifically provided for to Robinson & Caldwell,) and any sum of money that may appear upon settlement, if any such will appear to be due to John M. Gilchrist by Jacques Bishop, pro rata, provided the debts of the grades above specified be presented ; but if, after notice of one month given, they are not presented for payment, those not presented need not be regarded in the payment directed to be made. Fifthly: after the payments above designated to be paid, be made, the balance of the funds shall be applied ' to the payment of all debts owed by Jacques Bishop, C. C. Campbell & Co. William H. Bowen, Bishop & Gilchrist, or either of them, and all debts for which all or either of them are, or is liable, pro rata. In every instance where payments are directed to be made pro rata, notice of an intention to pay shall be given for one month, designating *the time and*place of such payment; and any one not presenting his debts shall receive nothing at that time, nor can he render the assignees liable for paying away the funds to other debts and omitting to pay his. His debt may be presented at any'other payment. Any one or more of the assignees who will accept has full power and authority to carryout the purposes of the trust herein stated, and for that purpose to employ an attorney or attorneys under him or them to dismiss them or any of them at pleasure, to pay said attorney or attornej's, agent or agents so employed, what they may judge reasonable and proper for their services, out of the trust fund. They *363shall also have fall power and authority to settle, arrange and compromise debts, supposed to be bad or doubtful, as they may judge most conducive to the interest of the assignors, and all interested in the property and debts assigned, and .the payments made to *agents*and *attorneys for their*services, shall not interfere in any way with the compensation to be received by the assignees, or be considered part of their compensation. The acting assignees shall receive 5 per centum commission for their trouble over and above all costs, charges and expenses of collecting and paying away, and each shall be responsible for his own acts only, and if the property and debts above assigned, be insufficient,to pay the debts due and directed to be paid, then, and in that case, J. Bishop agrees, and hereby binds himself to deliver over to the assignees, and the right of property is hereby changed, fifty negroes, to be designated in families by J. Bishop, and any'other surplus property he may think proper to be disposed of; and if after payment of all debts directed to be paid, there shall still remain in the hands of the assignees any property or funds, then, and in thqt case, the assignees will return the surplus to J. Bishop or his assigns. In witness whereof we have hereunto set our hands and seals, at Bishopville, this nineteenth day of February,, in the year of our Lord one thousand eight hundred and thirty-eight,'and in the sixty-second year of American Independence.

Jacques Bishop, (u. s.) .

William H. Bowen, (l. s.)

Signed, sealed and delivered,) in presence of , $

Alex. Graham,

T. D. Bishop.

The plaintiffs appealed, and now moved for a new trial upon the following grounds: . -

1. That the assignment executed by Jacques Bishop and William H. Bowen, on the 19th of February, 1838, did by its very terms, give an undue preference, within three months previous to his arrest, to some of the creditors of the defendant, to the prejudice of the plaintiffs.

*3642. That the facts in evidence before the jury, made out a case of undue preference of some of his creditors by the defendant, to the prejudice of the plaintiffs, within three months before his arrest.

3. That the assignment by Wm. H. Bowen of. his property, to pay the bond given in 1818 or T9, to Moses Sanders, at Darling-ton Court-house, which was drawn, or directed to be drawn, by the Hon. Josiah J. Evans, to secure to Mrs. Penelope Bishop, the sum of about five thousand dollars, being the amount of the share of the real estate of Col. Benton, purchased by Wm. Thomas, was a voluntary gift for the benefit of Mrs. Bishop, and such a fraud on the creditors of the defendant, within three months before his arrest, as to deprive him of the benefit of the prison bounds act.

4. That the said assignment by the defendant, on the 19th February, 1838, to pay the debts of Jacques Bishop, and particularly of such balance as might be due to John M. Gilchrist by Jacques Bishop on settlement, is a fraudulent conveyance of the defendant’s property to defraud his creditors, within three months before his arrest.

5. That the commissioner of special bail excluded the testimony of John M.,Gilchrist, the assignee, as to the value of the property set forth in the assignment and schedule of the 19th Feb., 1838.

6. That the commissioner of special bail refused to suffer the said John M. Gilchrist, the assignee, to state whether A. R. Ruffin and others, named as debtors in the said schedule, did not inform him that they had claims against the assignors in the said assignment.

CuRiA, per O’Neaxl, J.

The first and fifth grounds of the plaintiffs motion will alone be considered: the others were either abandoned, or are involved in the first ground, or present naked questions of fact, which the court regard as resolved by the verdict of the jury. I will consider the fifth ground first. Looking to the general terms in which it is set down, and to the manner in which the commissioner of special bail reports his decision, I should be inclined to think the question overruled was competent, and ought to have been answered: for the valuation of property is always *365matter of opinion. Bat in passing upon the report made by a commissioner of special bail, it is not right that we should decide any point upon a rigid construction. If it be possible, the precise point decided, with its attendant .circumstances, oughtto.be ascertained from the entire statement. On looking through the report, it is plain that Gilchrist was examined as to the value of parts of the assigned estate. He stated the amount of the debts due to the assignors in Mississippi and Alabama: the amount at which the shoe store ih Camden was sold: the value of the Bishopville lands: the amount of notes deposited by Bowen in one of the banks at Camden, and in the hands of Mr. Shannon: and the value of some Alabama lands. All of the property which was susceptible of valuation, and as to which any inquiry was made, he valued. It would seem, therefore, that it could not have been as to the actual value of the assigned estate within his knowledge, that'the witness was about to be examined. The report of his cross examination, after the justice had overruled the question, furnishes, I think, the clue to the ascertainment of the question put and overruled. The witness stated, “ that as to the debtors mentioned in the schedule, he had no knowledge of the solvency of many of the persons who were put down as debtors ; that he had not examined the papers turned over to him.” — 'And therefore it was, I conclude, that he could not give any opinion as to the general value of the assigned estate. In this point of view, the commissioner of special 'bail was right in overruling the question. For if answered one way or the other, it would be a mere guess, and could not be considered as any sort of evidence. Looking to this explanation as the true state of the matter before the commissioner of special bail, the first ground cannot be considered as furnishing any reason for a new trial. But if it was more doubtfql than it is, how the matter .stood before the commissioner of special bail, still; after it is seen that the witness could not have answered from the want of information, the question put to him, the fact that the commissioner overruled it when he ought to have permitted the witness to answer, that he was unable to give any opinion, is no cause why the case should be sent back. We see that the answer would have been nothing — and hence to send back the case would be a merely idle ceremony.

*366The first ground is *really the only*important one in the case. — ■ Before I commence the regular discussion of it, I would observe, that until the formation of the firm of C. C. Campbell & Co., Bowen, the prisoner in execution, was not worth a'ny thing. That firm it is now alleged, is insolvent to a great amount; but their assets are either included in the assignment executed by Bowen-and Bishop, or in the schedule filed by Bowen. The bulk of the property and assets covered by the deed’ of assignment, is the private estate of Dr. Bishop. So that in point of fact, instead of the assets of the firm of C. C. Campbell & Co. being diminished by being applied to the payment of Dr. Bishop’s private debts, his estate furnishes a more than ample fund for that purpose, and will contribute la'rgely to the payment of the debts of C. C. Campbell & Co. Their creditors ought not therefore to complain, that Bowen united in the execution of the deed. He was doing them no prejudice — instead of it he was directly bonefitting them. For by the execution of the deed, he was at once bringing Dr. Bishop’s estate, (upon which his private creditors had liens, and which had it .not been for the assignment, they might have sacrificed, and thus have deprived the creditors of C. C. Campbell & Co., of all benefit *therefrom,)*into a common fund, out of which they in their order *might*expect payment., According to the case of Niolon v. Douglass and others, 2 Hill. Ch. R. 443, 446, the debtors might legally execute such a deed of assignment as that Which they did : and that the trusts contained in it to pay some creditors in preference to others, did not make it fraudulent and void. The act of 1828, p. 32, undertakes to regulate assignments, “ whenever any debtor shall assign his, or her property, for the benefit of his creditors.” This shows the sense of the legislature, that these voluntary assignments were proper: and when that is followed up by the decision of the Appeal Court, that such an assignment may be upon trusts, preferring in the order of payment one creditor to another, how can that which is thus legalized and made superior to' exception, be considered as an undue preference under the prison bounds act ? It is unnecessary to. examine -this question. The 7th section of the “Act to establish the bounds of prisons or common gaols in this State,” (P. *367L. 456,) prohibits the discharge of any prisoner, “who within three months before his, or her confinement, or at any time since, has paid or assigned his estate, or any par,t thereof, tó one creditor in preference to.another.” A subsequent part of the same section, characterizes this preference as an “undue preference.”. The assignment in this case, it must be borne in mind, is not to one creditor — it is to assignees, one of whom happens to be a judgment creditor, and who is not preferred beyond the position which his lien gave to him. The deed is not a payment, or assignment of the estate, to one creditor; it is for the payment of all the creditors, in an order established by it. • It is not prohibited by the words of the prison bounds act. Does the trust make it an undue preference of one creditor to another? In Walker v. Briggs, 1 Hill. R., 128, I stated my notion of an undue preference to be, “ such an *intentional*preferring of one creditor, as may enable him to receive payment and altogether defeat, delay, or hinder, another from being paid.” This is, I still think, a just definition,of an undue preference. To be within it, the preference must be fraudulent : and this is what is said by the subsequent cases. The intentional preference of one to another, so as to altogether defeat, delay ? or hinder, another creditor from being paid, presents all the ingredients which make out a fraud, at either common law, or under the statutes to prevent fraudulent conveyances.

In this case the intentional preference of some creditors to another, cannot be denied: but this is not enough. Was .it so done to defeat, delay, or hinder? It is plain it was not. For the fund provided by the deed, with the other property of the assignors,, may yet pay the plaintiffs. If this should turn out to be the case, there can be no pretence that they have been defeated. It is apparent that the assignors supposed that they had provided ample means for the payment of all their debts. The words of the deed sufficiently indicate this. Does the assignment delay, or hinder, the plaintiffs in the collection of their debts ? ■ Unquestionably it does not. It rather facilitates than delays. For by the deed, assets are placed in the hands- of the assignees, which could- not be reached by the ordinary process of execution. These reasons *368satisfy me that there was not in law, on the face of the deed of assignment, an undue preference of one creditor to another: and hence, as the jury have negatived its existence on the facts, there is now no pretence to say that it existed.

N *Mayrant*& *W. F. Desaussure,*for the motion.

*Withers,*contra.

The motion for a new trial is dismissed.

Evans, Eakle and Butojek, Justices, concurred.