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

rs. , in bANhnUI lL1
MARSH,
TIE decision of this cause has been delayed by n
painful attack which for mary days has diverted my
attention from almost every thing txcep. my ow sui
ftrngs 1t has been ny wsh 10 come to no concusion
upon ,his case without particular examination Of The
many authorities elaboracly adduced and ably COM
upon BY the counse! either side and this, /;
believed, has been accomplished far al least MS II
has been necessary to ascertain their true bearing upon
the question regularly before the court.
THIS is founded upon Tie several petitions oil
Hugh Mon,gomere Of the firm OF Boyd, Edmond "
Co, ol Cornelius Crow and Of james Evans, praying
That Joseph Mash may be declared i Bankrupt ihe
ac. OF Bankruptcy aedged to have been committed by
The SAID Marsh, who s stated TO b merchant actually
carrying on The trade Of merchandise, the making
fraudulent conveyance assignment ahd transfer OF
and singular his goods, chaels and evidences oil
debI, creating thereby, preference Of certain deSig.
mated creditors, and with view to hinder, delay and
deraud the petitioners and other creditors omitted by
the deed. In each Of the petitions it IL averred that
the debtor amount not less thnn $4,000, ard
in two Of them, that he is indebted 10 the petitioners
respectively, beyond the Of $500
The instrument impeached by the petitioners and
relied constituting act of Bankruptcy, is in
the following words. TO the petitions Of Mongomere
and Crow, separate answers are flied by Marsh In
his answer 10 the former, the respondent denies that
he is the debtor of the Petitioner, in any amount
whatsoever, but admits that be TO his firm n
the respondent series being Indebted al all 10 the peii
! TONER whilst he admits that Crow had endorsed for
nm the three drafts mentioned III the petition and that
one OF them had been protested Tor naapuyment, yet
:bat neither OF them had been paid. There il no an
s.cr TO the petition Of Evans-thG deed 10 Dabney,
however admits a debt of 81 900 10 Evans and pro.
vision is r7ds by that deed Tor the indemnify Of Doth
i Evans and Crow though there IL no evidence going
to show that such indemnity accepted. The re.
cord contains evidence Of ether debts dce from The re-
spondent, which unsalisfed, and which are moi
provided for in the deed before mentioned i he exc.
cuiion Of The deed to Dabney IS admitted by the re-
spoIteEt aui lie denies every fraudulent purpose or the
intent 10 niu7e delay the denies, more
oYe., the contemplation commission CT A." act OF
anktup,ry- any desire 10 nya.i himself, Voluntarily,
o the provisions of The Baakup, Law, and his liability,
in consequence of the deed above aentioned 10 ae sub
ec,ed 10 the operation oil that law, the instance O.
! others.
| Upnn The hce-ne before tie Judge Of the Eastern
Distrc! of Virginia, the following order was made b.
I that Judge
"The Court doth order ,iG. the petitions in these
cases, Of Moncomers against Marsh, Crow against
/ Marsh, and Evans against Marsh, be consolidated,
and that they hereafter he conducted one case, and
tie Court no. deciding question IN this case, doth
adjourn 10 the Circuit Court OF the United States, for
this District to be there heard and deiermned-,he
following gocstion arising said petitions, whether
the deed If t,.s: Of :0ib day of larch, 1912 exc
cncd by Joseph Marsh TO Chswcll Dabney, referred
10 IN the said petitions such !rarduen! convey
arce assignment sale other transfer, constituted
an Act Of Bankruptcy and lar which this Court
should decree the said Joseph Marsh Bankrupt II
having been proved By the evidence IN the cause that
tho ,,.re OF the execution OF SAID deed the sad j"
St ph Marsh merchant actually engaged IN the
buyinr and selling of merchandise, and that line said
deed conveyed the hole estate Of the said Marsh, and
gave preference To the creditors named IN said deed,
| over the petitioners and others
To that single question here propounded the OPT.
mon OF this Court wIll be limited.
In their discussions of tie question propounded in
the o.der 9: ,;ia District Judge, the Counsel have
taken an extensive Of the English statutes, and
Of their Interpretation by English Judges and, w'lh
much ability, haze eEeagnred 10 apply either the
press terms Of these laws Of the egpoSIlloas OF
..ieTrirc:1, n illustration of the positions they have
respectively sou.hi 10 mai2tain In such an under
tsknr every one will find himself not w',hcut EN-
baTrasu,ent, from what must be acknowledged, as al
any rae apparent want of consistency, IN the rules
or principles that have been adopted for enforcing what
is called n system Of public commercial policy, and
in country wherein i. has been in practical operation
! for long eerIcs OF years
| The English Bankrupt Laws, far as they are
known to me- do from the Stat of "a and 80 Henry
WILL down to the Stat. Of q George ~, conain q
sincl c CLAUSE which declares that transactions not
mefated and specifically defined to be acts Of Bank
rupcy ssl! BE- nevertheless pronounced such because
they may be frauds upoa the policy cf Me Bankrnpt
~ picy either ty the Stats of 81 aud 81 Henry VIII
or By TIE Is of Elizabeth, c. Z. They - frs.
declared TO BE- such by the Stat. James Z. lo-nnd,
Twynes decided in the last year ci Eliza
BETH has been supposed that this oct ct Bankruptcy
wv: the maxim, fraudulent conveyancr) was intro.
duecd in reference 10 tina, decision Twynes VIC
know settled upon The principles contained IN The
Stat of l3 Elizlbcth, {. 5. the Stat Of Frauds. AZ
ter this OF Bankruptcy was introduced INTO The sys'
TEN BY HE Sta, of ls, James l., e. ID, we are inform.
a..
century after TIE law, and that the case of Cock
rs Goodfeow reported in 10th Modern $50. In this
case, though lh1Tc we're other acts of Bankruptcy
proved the deed made by The Bankrupt, and which was
impeacbed, sustained, because II was mt deemed
be void either Common Law under The Sta. Of
Frauds Next in The order Of time s The Of Small
rs Dudley . p Williams a27, decided in 1927. The
trader in this made the assignment after he shut up
his ship, which h. opened agaIn-br. on the day
after lie assgnmenv of, and HnsreguaFly declared
Bankrupt. The assignee from the trader was plaintiff,
100 in fguiiy bill brought by him against the assignee
under lie commission and The partncr of the Bank
r1p, 10 make them account. The bill sustained by
Sir Jose phi Jfky who said, "As to the matter Of Bank
g ruptcy this is term not known to our common
5" law, but introduced by seyesa statutes. Now these
" sataIcs ascertain what acts make Bankruptcy
" and there c.n be no such thing NJ IN Eqait0bie
" Bankrrpic,e it must be icgG! one. There may be
Just reason FOR sinking trader TO give preference TO
" creditor another; 10 one that has been a
faithful fienG, ard Tor tusl GeDl lent MN IN C-
- tTcmiy, when the rest OF his debts might be due
from han cs dealer in trade, wherein his creditors
" may have been gamers; whereas the other may he
not only just debt, but all c. such creditor has in
The world to subsst upon: in tbs Il say and so
crcunstnneed the trader honestly mag, nay, ought
" to give he preference. In such case it is not the
time ,chen the assignment made by the trader,
tha, is material prOeided is t;tere s act Of Bank-
rupfcy hut the justn>.s Of the debt is very material
He cites the CAGE from 10Th Mod before mentioned, de
cided ty Id Alacclesfeld, and the case Of Jowl vs.
Shepherd, very iui! 10 lie point % stated BY his ilo
nor, hut wich have not Subsequently, to the
decisions JUS, adveried to, 10 have grown up the
ule by which transactions by traders, though mol
meraled or defined in tie English statutes acts OF
Bankruptcy, shall nevertheless be acts OF Bankruptcy
because they i'aads upon the Bankrupt sys,e
| Il rule, in oicr words creating that Equitable uk-
ruplcy, sadty Sir Joseph Jcsy to be unknown 70 The
terms Of The English Bankrupt laws and BY The fo:c,
and operation Of which the language of the sattcs o!
! Jas Is. c Is, and OF Gee. 4, 10, VIZ "mase or
to be made any fraudulent grant or convey
I" ance Of any Of his lands, &c, make or cause 10
' be made any Fraudulent. gift delivery or transfer Of
e ans Of his goods or cha;tels," &c. might be