Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1843-08-04
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tle property of Dwinne and Pearce, aud to
make o transfer oilhe notes to Them before the
dng OF the Barkrupi's petition; and of course
| he could not Claim either The goods or the notes
us his property in his schedule. There H. then,
on fairly weighing the testimony, no evidence to
support the objection OF wiliul cOncealinent Of
property.
2. The next inquiry is, under the second head
of objections, whether the bankrupt has given
preferences to particular creditors 80 as to pre-
| clude hlIn from discharge And here II may DO
observed, that II ~ unnecessary to 60 into any Ut
the transactions which took place before the pas
sing OF the Bankrupt Act, because there is no
evidence 10 warrant the conclusion that any OF the
payments or transfers made before that ,ltne were
made in contemplate Of the passing Of the law.
| The inquiry will of course be confined 10 transnc-
| lions which took place since .he passing of the
| law; and 10 such transactions only as have been
spucliied aud relied upon as preferences, aud con-
corning which some pros has beer given.
All the transactions of this character, except
one, appear TO lie quite free from difficulty. The
| payments to Town, Pearce, aud Rich, rest solely
aud enirely upon the testimony OF the Bankrupt
himself, whom the creditors have chosen 10 exam
amlue for the purpose ol proving the payments.
He says that each of these payments was made
| Oh Application aud demand ct the creditor; and
| that being the clss, and The pIymen,s not appear
| ing to hG out of the ordinary course OF business,
| they cannot in my opinion, under The clrcuui@Iau-
| Ces stated IN regard 10 theiu be teaied as fraud.
lent preferences.
But the payment or transfer to ID Nnucll and
! Pusrce is Presented hy the proofs in dlGreu;
| aspect; aud cOuf'ss that with every disposition
to view the transIcliO IN the most literal au,l law
| Orihle ight, | have not been able TO overcun the
| iii iicutles which attend it, las evident enough
that The bankrupt uid his primers, AT the time this
| transfer waD naie were irfculevihy asolvent.-
| ABOUT this there can he n question. IT IS also
the fair Inference from tn tcsIItuIny that the
transfer was voluntary ON the pnrt vi the bInkrup;
Tor u seeuIs that he net only nude out and dev
cred lhe Isl Ut the notes to DwuneII aud Pearce
without request, but that he Afterwards sent the
notes To them by messenger without amy demand
solicitation on their part.
The question Ilieu is, was this transfer pref.
ence within The meaning orthe bankrupt law? 1t
is difficult, g. indeed Inpossbie,o reconcile all the
decisions To ba oLnd in the books applicable to this
question: In sulne cases, il is held, that payment
by debior III itoyeiIt circumstances rOiuniJriiy
mate, Is preSump!ne evidence of ~ preference.
IN others, II is held, that you cannot iulel con
temptation Of bankruptcy from mere insolvency.
thuk the latter Is the sUunder aud ter opinion.
tIul; that transfer being voluntary aud while
the debtor is in state OF insolvency, when it is
only of part of his property, aud does not appear
to he out of the ordinary course OF business Is
not enough. tlink it must appear that the debit
or, III making the transfer though lie did ii vOun-
tarily and while in fact Ilsolveut acted in con-
temptation N bankruptcy; That H. III anticipation of
breakIng or ialng IN his business, OF committing
an act OF bankruptcy, or OF being declared bank
rupt at his own instance on the ground OF inabll-
" to pay his debts aud intending to defeat the
general dIsrilmuon ut effects which takes place
under II proceeding in bankruptcy A IMAM may
be Insulven aud yet 90 on with his business with
HE real hope Of retrieving his affairs, md with a
bona file intention aud expectation of saving him.
self breaking or falling, aud OF beng able TO
: pay his dehs and u layne nt or transfer under
such crcunis alces, though voluntary, would not
| he n preference within Tie OF the la W,
BIT N the present case, there ~ as something
) more thnn mere insolvency. The Bankrupt aud
his partners n,t ouIy hopelessly iusol,ert at
the time Of the transfer, but they ad actually fail
ed and stopped business. Their iallure was COM
pe;c aud notorious some Ii c before. Dwlunell,
Peaice, and the Bankrupt hnIseli IN Their tesII-
y mony, all speak OF the failure as having been com.
pete und rretrlevable. And in tina, condition OF
i absolute insolvency aud known actual failure,
what does the Bankrupt do ? Why instead oi et.
isciing compromise with his creditors upon g
qual terms as 10 ali, he voluntarily pays certain
creditors III inll, leaving large mass OF other
creditors wholly unpaid. lie transfers TO OWN.
y nell aud Pearce, without any demand or request
on Their part, notes TO The amount of seven hun
dred dollars 10 pay a debt OF five hundred, aud
!, does not much as notice set up any clnim n
II gnins them lar his IUll yeats servl ices rs their
: gent. Aud lie does this while under the apprc-
II hen.ion and just on the eve Of being committed
= TO iall upon an execution in favor Of one OF his
! discharged on taking the poor debtors oath lie
:, thus strips himself, once, OF all his remaining
II properly except I:iere trIile aud in about two
u months alter, whether more or less does not dis
q iincty appear, he files his petition in bankruptcy.
i If u transfer OF properly of such mn amount
under such circumstances, followed up, as this
II was, in IL short time hller with proceeding il
% bankruptcy Instituted by the bankrupt himself, il
" mol held to he preference given III contempIa
y ton OF bankruptcy, with intent to defeat the e
y quality among creditors secured Ivy The bankrnp
u law, do not but that the mann object OF tn
l. law might be- defeated in every OF vountar
u bankruptcy Whatever, since the party in ever
D, snch is AT liberty TO choose his own time an
III apay for The benefit OF the law whatsoever h
10 pleases
u 1t does not appear to me that the question is il
any way affected 10y what is stated 10 have bee
Oh tho agreement understanding with DIVINE
- All pearce. They Say that the Bankrupt ha
liberty to take goods out OF the store on conii,lo
=. o.! turning OUT good notes OF other property 10 pa
~ for them that Is, any good notes or other proper
10 ~. There was no specific appropriation by III
agreement of these particular notes 10 pay tor IN
!" goods, hui the agreement was general. Under
Vi the Binkrup became a debtor To Dwinnel IN
II Pearce fur what goods he took. with the right
u" pay in ANY good notes Other property; an
- D,vinne aud Pearc1 became his creditors, hu
M Ing Il debt against him with the rights
>" other creditors.
en- Upon The whole, do not see how this paymel
'e transfer b1 regarded IN my other light Il
~ rs unlawful preferences within the sense al
III inlent ol the bankrupt law. The general charact
ny Of the Bankrupt, well ms his deeply ennarra
lP' Sc condition, would render It more desirable
'o we'll ayr cable, TO have been able u cone TO
l" different conclusion. Bun VIZ must lake the Ia
'P- as we find IL aud as Lord Peterborough sad
~ another case, whatever may be tie personal wis
o feelings oithc court, II is not al liberty 10 Ill
p- regard established principles sanction any tran
"a acllUn y hlch Just construction of the law iorbd
the rne conseu,.nce "a ia, n certificate of J,schar,
must be refused.
ley
De- go
red FREE Trade, were II Introduced, Woun VI,
i've the labor OF our own cuizehs ih'o cOhlpetI'