after stating the case:' If it be granted that the Court had authority, upon motion in the course of the action, to grant relief in cases sufficiently proven, such as that invoked by the motion now under review, we think the Court properly denied the motion here.
Apart from the payment of the preferred debt of John S. Mclver, one of the assignees, shortly before this-aetion began, the only evidence to support the motion was the sworn complaint used as an affidavit. The allegation of fraud as to that debt was very general; the principal facts stated as evidence of it were, that he was insolvent and son of one and the brother of the other member of the firm which made the deed of assignment. But he and his co-defendants of the firm positively deny the alleged fraud and aver the perfect honesty of the debt, stating the consideration thereof, and that a substantial part of it was money advanced to the firm to aid it in the prosecution of its business. He also denies that he was'or is insolvent; he avers his solvency, and states facts much in detail as to his property, going to show that he is solvent. He further swears that the payment of the debt was made before this action began, in good faith, and that he had no notice of the action or a purpose to bring it; that such payment was made fairly and with no fraudulent or dishonest intent. All the defendants positively deny all fraud and fraudulent intent, and give in evidence facts and circumstances tending more or less to sustain their denial as true. There is some evidence of bad faith and fraudulent purpose; but all this is strenuously denied by the defendants, *124and they give evidence of facts and circumstances that tend strongly to show good faith and a purpose on the part of John S. Mclver to avail himself of an advantage that he might not dishonestly take. The evidence preponderates, as we see it, in favor of the appellee.
The plaintiffs are not entitled to the relief demanded by the motion, unless it appears with reasonable certainty that the transaction and acts complained of are fraudulent and-that they will suffer injustice and loss if relief shall not be granted pending the action until the hearing upon the merits. The evidence of the plaintiffs, for the present purpose, in view of that of the defendants, is not satisfactory or sufficient to entitle them to have their motion allowed. It appears strongly that John S. Mclver is not insolvent, and they will have their remedy against him when the case shall be disposed of on the whole merits. If it turns out that he and others have perpetrated the alleged fraud, as he may have done, he will be amenable in this action.
Affirmed.