The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-06-14
Nudge HiiTs Construction OF 'he
Attachment Laws.
10 the Editor of the Comet ;

the Eullul VI INV S'H'NN'
During the recent term of the ohi'eu
States Circuit Court several important az
tacbnent cases were tried, and it has Deem
suggested to me that those interested III
such matters would be glad to know 'he
ruling of Judge Hill with reference 10 oui
attachment laws. l have, therefore, cons
cluded to give you the substance OF his
rrlines for publication, if you think the
matter of enough interest.
As you know, before an attachment can
issue the creditor is required to make an
affidavit
LIST. That the debtor is a foreign corpo- !
ration, or Is a nonresident of this state; OF
2nd. That he has removed, or is about
to remove, himself, or his property out OF
this State; or
Sd. That he so absconds, OF conceals
himself, that he cannot be served with a
summons; or
4th. That he has property or rights IN
action, which he conceals, and unJustly re-
fuses to apply to the payment OF MS
debts; or
.th That he has assigned or disposed or,
is alb out to assign or dispose Of, his proper
ty or rights in action or some part thereof
with intent to defraud his creditors, or
give an unfair preference to some OF
them; or
9Th That he hath converted, or is about
to convert his property into money, or evil
dences of debt with intent to place 1t be-
yond the reach of his creditors; or
18th. That he fraudulently contracted the
debt. or incurred the obligation, for which
suit has been, or is about to be brought.
The rulings | speak of were more partlc-
ularly upon the 9Th and 18th grounds;
Upon the 9TH ground, the Court charged
substantially as follows
This ground creates two substantive or
lenses, the existence of either OF winch
will sustain an attachment. The first con-
sists in the assignment or disposition OF
his property, or some part thereof, by tho
debtor, with the intent to defraud his cred-
tors. The second consists in the assign
ment or disposition by the debtor OF his
property, or some part thereof, with intent
to give an unfair preference to some OF LIS
creditors.
1t is not difficult to determine what as
signments or dispositions of property come
under the first head. Any conveyance OF
property actually fraudulent or made with
intent to defraud, would be within the
statute.
If debtor should sell his property for
money, or in any manner dlvest himself o.
his title, even though he should recelyea
full consideration therefor; he would never
theless subject himself to attachment, II
he acted with intent to defraud his creditors.
II is the intent in such cases, which
brings the transaction within the statute.
Hence, a debtor may subject himself to at,
tachment for making disposition of his
property or some part thereof, while rs be-
tween his creditors and the person receiv-
ing the property, the disposition of the
property would be perfectly legal and valid
By virtue of the absolute dominion which
every man has over his property, debtor
may sell his property whenever he pleases.
If he does SO with intent to defraud his
creditors he is liable to attachment, and If
the person receiving the property is aware
of this intent, he becomes participant IN
the fraud, and the property remains liable
to the creditors; but if he is not aware OF
this intent, he takes good title, although
the debtor may be attached.
1t is more difficult to say what disposlN
ton of debtors property will be deemed
to have been made with intent to give al
unfair preference TO some of his creditors.
A man has the right to prefer one creditor
over another if he chooses to do so. SO
long as he applies his property to the pay
ment of his debts, the law cannot and does
not complain.
This is undoubtedly the rule, aside from
the statute under consideration. How far
this rule is modified by the statute, is the
point to SETTLE The statute does not
denounce a disposition of the debtors
property, made with intent to give pre-
ference to some of his creditors, but only
a disposition of his property made with in
tent to give an UNFAIR preference to some
of them
W hat is meant by an "unfair prefer
enco ~
1t cannot mean trau}Ulebt preference,
for disposition Of property by debtor,
with intent to give fiW0JuJCit preference
to some of his creditors would be dispo~
sition of his property with ''intent to de-
GraId his creditors = and so would be con-
demned by the law fully, if we should strike
out of the statute the clause under dis
cussion.
1t is well settled, that in putting a con-
struction upon a statute, every part should
be regarded and it shall be SO expounded if
practicable, as to give some effect to every
part of it.
But if it be held that, by an unfair prefer
erence, is only meant fraudulent prefer
ence, this canon of construction Is aitogeth-
er ignored, and no effect whatever is given
TO the words to the words unfair prefer
ence;' for fraudulent preference, as
already shown, is condemned by the pre-
ceding clause of the statute.
Under such construction, to strike from
the statute the words, ''or give an unfair
preference to some of them" would not in
the least degree, infect, change or restrict
its meaning.
IL is not to be presumed that the Legis-
lature added these words needJessly and
without purpose. What then is meant
by an unfair preference? Whether
pref renee is unfair or not, must depend
upon the intent with which it is given.
II debtor gives a preference TO some of
his creditors simply because he would
rather pay them than others with no purN
pose to hinder or d, lay his other creditors
and rescrving no benefit to himself, ho does
not bring himself within the statute. q.
II, however, a debtor is insolyent, and
appropriates his property to the payment
Of one or more Of his creditors, to the ex-
elusion of others, intending and designing
by so doing, to hinder and delay them in
the collection of their debts, he does come
within the statute; for the intent with
which he has acted was unfair, and it is
the intent with which preference is made
which gives character to it. The distinc-
ton is between a transfer made solely by
way of preference Of one creditor over
others, and similar transfer made with q
design to secure some benefit or advantage
theTefrom to the debtor, OF to delay credi-
tors in the collection Of their debts While
the law permits IN insolyent debtor to
make choice Of the persons he viii pay,
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