Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1843-01-03

stances attending H. to point out the many badges by
hich il was ascertained DC fraudulent by Tie
mon w or by the statute of fraucs, and Independently
Of 'ia Bankrupt system. First, he says, q. 100
"Sader the Bankrupt was - have absolute posse sion
" and disposition before, and was IN fact permitted
" 10 continue posse sslon and TO act ns owner. ID
" The more 10 deceive un5cr fictitious show OF credit,
" the bills drawn upon De Mat,os were made payable
" to aud endorsed by two Of his agents Davis,
" of his agents. told the creditors expressly, that
" Sader would do very we'll that good men
upon security o the lcas. mold, would pay his drafts,
f" bot concealed tia: he had mortgnged anything
" else. To watch Sader, De Mattos put Stills about
" him his book keeper, agrccably 10 confidence put
" in him. When Slader he could stand longer,
" he acquainted Sls and Davis, the agents Of De Mat;
" tos with it, and by their advice gave an order to de-
I" liver possession and then TO be denied. Then ::
ia he proceeds, ":nn all these circumstance We are
" Of opinion that this Conveyance OF The whole Of ts
" Bankrup,s substance, though by way of security and
" oT valuable consideration, is fraudulent ana an act
" OF Bankruptcy And this cGuft thinks II lasy be
safely assumed that the deed frautuen; - all IN
tents and purposes.
So in Wilson rs Dag, % Bur, page e30. Although
the cou. considered the deed an act OF Bankruptcy
upon its face being assignment, OF every thing the
trader possessed in the world, not excepting apparei,
vet they adver, TO other badges Of fraud TO sustain tha
conclusion; they cay The circumstances confirm It,
For here is no visible change of possessions; and the
" deed was for an unquida,ed demand. II appeared
too that there counterpart TO The deed, anu the
original remained in the possession OF the assgnor, ana
the goods were kept N his house
In Anderson rs Temple Bur, page $3.50, Lord
Mansfield is reported as saying, - The on'y question !
" make is whether, undsr The circumstances Of his
" case, the endorsing and sending the note 10 the de.
" PENDANT is frandpen and void as SUCH 50 too 10.
h. al ground ny opinion upon this; whether the
" Endorsement be fraudulent; and 10 thai, 1t is GER
" tain that the statutes CT Bankruptcy leave trader %
h. 81 IF l(,ot INTO tpI
!" every power an owner can have over his estate =
Page 2240, lie says, at never entered into the head o.
" any Judge to say that man. III contemplation OF al
. act OF Bankruptcy, might s down and dispose OF cI
" his effects to different creditors because ,h;s would
be fraud upon the nets of Bankruptcy, but If done
" in the Of trade and not fraudulent, 1t he
+" supported" And he proceeds, page a2iO-4: "Ihs
q not done in the course Of trade bat with view
:" pos:.iee nquay 70: tho RankruP;s had received
" ths note ct Dryer and Everard Tor notes Of the sane
60 amount, and knowing they should become bankrupt
" hr ncSt day, 10 defeat Buyer and EreTard OF setting
" or heir notes against IT, ,ndorse The ne:e 10 ao,r.
+" person So there fr-rSs particular tTau: L The
time Of the fac, done. Thus will appear that the
FIRST and leading upon which is founded the rue,
that conveyauccs assignments and gifts, valid D.. lie
common law and under the Stat. of Is Elizabeth shall,
nevertheless be fraudulent and Of themselves acts Of
Bankruptcy, because they violate the policy o! Ie Bank
upt system, in which there viii re perceived
ingredients necessary 10 constitute !fand either under
the statute of frauds Fl common law. Subsequent
cases. il is admitted have greatly w;dened the rule
far indeed embrace the posl,ioasls., that deeds,
gifts and transfers, By traders in nsoircn crcnGs,on
ces, of the whole ma cr par. of their effects, end
giving preferences creditors, however ner'orious;
and secondly, that deeds, &c, by ike persons, though
creating preferences, bn distributing the effects o.
the debtors fairly AID T;eaaiy, snail be deemed Pso ar1
acts Of Bankruptcy though con.ssedy clear ofany
raj O. actual iraud msa fles Such are he rri.c
;ie- :,.., III :he 4 Ect3r. - Wsa-, I Z
Iiassrls Simpson, Douglas, S9-Tcppc nden
Burgess, ! East. 800 Morgan Horseman 3 Tirn.
ton 24l-Lenon E:rtie;t Wilson I7-anG Pu'!5ov,
assoc. VS. Tucker, Barn end AID Bel. Other cases
10 the effect scattered through the English
Reporters In some recent decisions, however, tie
principles asserted above nave been checked or
d,fed as having gone beyond even what the assumed
necessities of The Bankrupt policy required. Tins, in
Sheldon vs. Harlsliorn, q and Put where debtor,
being pressed fer security, delivered goods from his
shop before the bond due; the main question was,
whether this payment in advance WIS fraudnlent pre-
ference, and, SUCH of Bankruptcy; t!.c Cou:
though. this payment uEcc. The urgency, was Tot Z
rarduen. preference, and say that Bankrupt hrs The
absolute ownership of his goods Until he commits an
act of Bankruptcy, and pa:men; by HIN. unless IN
au9r tsgis, is good, at any time before the ac OF
Bankruptcy.
F,gcon and Sharpe, Taunton, lS3, ruled that
Ia payment by trader though made in contemplation
that his trade cease, and that he cannot pay his
creditors unless they give him time, does not necessa-
ry se% that he contemplated Bankruptcy Still later,
viz in 1883 the Of Morgan, US Brundeit,
En-. Com. Law, Rep r. 20, from 5 Barn. and Ad"ph.
ESQ il decided that party who seeks avoid pay
men or transfer Of goods on The ground that 1t was
voluntarily made and in contemplation Of Bankruptcy,
must shew not merely that the trader was inso'rtst
bat that he contemplated Bankruptcy. So too in c33,
in Atkinson rs Efipdcii, - Ea Coa. H. Rep il9,
from Scott &C.. tie court sgys: "Downto the time OF
his acua! Bankruptcy, trader has the unrcstraned
+" dominion of his own property. The even conem-
platon of Insolvency does not necessarily involve
+" contemplation o! Bankruptcy" They then refer 10
the decision in the Kings bench in Morgan rs. Bum
dett, in which the judges use this language: vine
" recent cases have gone too great length. They
" TO have proceeded on the principle that II n
" party be ias0irent the tine he mikes payment or
delivery and afterwards become bankrupt he must be
" deemed To have contemplated bankruptcy at the time
i" he made such payment; bu this is not correct man
F." may BE- asovcn and yet not contemplate Bankrupt.
I" cy" The remarks Of Lord E'don in The o!
Dn;,cn Morrison IL Vcsey, !J7 nre so sriking'y
illustrative Of the origin and character Ut lie rule adopt.
ed b. The English cours in relation 10 what IS termed
frauds npon The Bankrupt system, tnat they cannot
properly be passed by in ANY question connected with
its force ard application TIE question arose upon OBJ
ec,ions made to tic &C: of Bankruptcy by tie
ton OF the trust deed; MS obecc fraudulent convey
within the Bankrupt lave, q Jas. j. {. lo) tie
defendants counsel observing tina. it was pity the
decisions upon the subject had ever been made and they
"The foundation Of the doubt upnn these cases,
s which commenced before Lord llnsiields time, IS,
" that MOTH can be act of Bankruptcy but what
4" the statutes have made such. With regard To with.
" drawing Wis Die stock from the creditors that dccs
" apply traders only but any man assigning pro-
" perty, keeping the possession hlmsef is within the
" doctrine of Twynes case, guilty Of Jraad. The
" doubt upon .hcse cases IS whether grant not fton'
" duleat by Grc IS 10 be considered :rau.
" dr!cn, upon two prnaiprs-f's;, that tie man can
" trade no longer; secondly that is an attempt 10
" make distribution Of his effects different from that
" which the Bankrupt lay permits. The observation
upon that has always been, that, until he becomes
" Bankrupt, he has right to make that distribution
1t is however after all tie decisions that have taken
place, much too late disturb them. Whether ihey
" should he extended is MISREPRESENTATION From
these remarks OF Lord Edon it would be difficult no;
10 infer, that his lordshp doubted how conveyance,
valid BY the cor;aoa lay AMI the =, If Eiz75eih conJ
BE- fraudulent within the terms and cor:ec. sgncacn
&c the s,, Jas Isl, G. 10; ~! :ha e considered en-
qniey upon this matter p'ecaded by Numerous judi
cal decs;ors though founded no. so much upon tae
terms Of Stat upon tie assumed grounds OF what
were the scope and policy of the Bankrupt system
4