Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-01-30
W RIGHT
Lewis Metcalf V. John p. Hsrnsr

A Jourdau, on the 23d December, 1851, being
largely indebted, and having haLds, as a me 4
chant as0ck Of goods OF the value Of upwards Of se
thousand dollars, made assignment of the same
on that day 10 Lewis Mecalf, as trustee, for the
benefit of specified creditors. The defendant, a
constable held sundry executions issued by Justices
of the Peace against Jourdsn, some judgments
rend ,red before, and others after the date Of the
deed Of trust, amounting in the aggregate perhaps
the full value of the goods. Many or them il not
all are embraced 10 the deed, but here is diserm-
inaiion against some, or all of those who had sued,
10 case of a deficiency.
The trust was to be closed during the next year,
ard the goods 10 be sold for cash, by Jourdan, as
agent Of the trustee otherwise, for the purposes
Of he trust
Upon the validity Of this deed dispute arose
between the officer and The trustee, and sn agreed
case was made up by them, under the statute on
that subject, and submit ed to the Circuit Court
The decision in favor of the deed
The argument here, in favor Of reversal, Is based
upon this statement in the case agreed.
at Is agreed tha5 he object of making said deed
Of trust was 10 prevent such Of his creditors, who
we're about 10 sue, might sue said Jourdan, from
sacrificing his goods by sale, when he desired that
his goods shoulI not be left u a race of diligence
among r between his creditors; but he desired that
be should have the opportunity, through his trustee
of ling he goods as provided in said dee aud of
distributing the funds raieab'y as therein provided
There is nothing IN the DE- Ell ITSELF, no defect IN
its provisions upon IT'S face, which assailed in
the argument As quest il made upon that.
its prlyisioas need not he noticed There is
doubt about the debts set forth being real, o. that
there is an excess Of properly or auy rther Of the
comuO badges Of fraud, palPatle in he deed
But the objects and purposes OF H. as admitted in
the agreement are The grounds Of attack Il is in
sisted that to make ass gnmeBt to prevent the
sacrificing has goods by saks' TO be made by bis
creditors or 10 protect them from "Tace Of iiii~
gspcs among his cys0rs is equivalent TO the words
Of the Statute Of frauds, "Eade 10 hinder and deL0y
creditors" We are referred 10 BurTsll Assign
msnt 3Jl and some reported cases cited by him ia
note 10 sustain this position. The Statutes Of
frauds Of the different States well as their in oil
vent laws are so dssimilar in their provisions, that
we are not able TO deleTmine what wei ght should
be given TO their decisions on those subjects, in
controversy under our laws
The words "hinder aud dsa - are to be taken in
their legal eshnca, aud not their literal sense,
or no dee could stand where all the creditors
not providedfor. II this were otherwise, the right
to prefer one creditor to a7OtheT, where debiOr
cannot pay ALL would b. defeated. But "debtOr
may prefer one creditor aud MS debt, though
others may suffer loss; Isrg 1874 He may At
aUy time before lien has been obia'nel upon his
property by Judgment in court or levy appToprate
IL by bona tide sale or assignment to the payment,
or security Of other creditors. This will not fail
becauss a reasona BILE "delay" is taken, to sell aud
apply. He may thus interFose Obsiac es IN the way
ofothers that IS hinder" them as wei as delay"
them. The Statute only refers to ao improper or
illegal hindrance ami delay, not such as is reIs
onabe and fair in the exercise Of the well est1b-
lisbed right to prefer creditors.
Ifit appeared from his own acknowledgment or
othrWise that his object to defeat certain cred
tors entirely in the collection Of her debts though
in suit, by the assignment Of all his T perry for
the payment Of 9th r creditors, what would that be
more than is implied in all assignments That is
the object always, when ali cannot be paid There
is no other reason for allowing him to elect who he
will pIy-that is the essence and reason Of the
rule If be bad said, then, that his object vas TO
defeat one set Of creditors entirely, by applying all
his property to others, it would not have made Il
fraudulent, much less to prevent the latter from
"sserih0iHg his property" If his purpose was 70