The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-01-27
Remedy By Attachment in Missis-
sippi.
HON. W. II. FITzGERALD's REPLY TO JUDGE
CHANDLER.

GRENADA Miss, Jan. 24th, 1881.
EDITORS CLARION In his letter pull
lished in THE CLARION of the 10Th instant
Judge Chandler, Z. S. District Attorne
: for the Northern District of Mississippi
after stating the anomalous condition ofou
attachment laws in relation to their enforce
ment in the State and Federal courts
assumes, that because the Code of 1880 doe
not contain the provision in regard to givin!
an unfair preference to some creditor, whicl
: was in the Code of 1871, the Federal form j
far preferable, to nonresident attachin!
creditors, than the State courts.
He correctly states that the Federal courts
administer the law of 1871 while the Stat,
courts are governed by the law of 1850.
| think, however, the Judge is in error
when he says "a foreign creditor suing il
1.-THE Federal courts, has the advantage O
''this important cause of attachment, over
'home creditor suing in the State courts
and it is difficult to understand why the
Legislature omitted this provision. 1t has
''been leading cause of attachment foI
many years, and had become well under
stood, though for time troublesome to the
courts to construe, ETC."
1t has never been construed by the coui
/ of last resort in the State
! In the case of Barney v. Scherling, 40
Miss, $40, an effort was made by counsel
/ to have the late High Court pass upon it,
but the case was settled upon other grounds
and no allusion made to that by the court
1t will be instructive to refer to the briefs
of counsel in that case on that point
Messrs. Harris and Hurst, attorneys for
plaintiff IN error, cOntended that IAN unfair
preference clearly means the exclusion Of
part from the benefit of the assignment,
whose claims are just and meritorious as
"those preferred" "The
claw as it stood prior to our statute, gives
'the right of a debtor to prefer any one or
"more of his creditors" etc. And conclude
their brief with this language "UnfaiI
preference is of necessity the case of dis
'crimination between creditors of the same
''grade, having no priority or recognized
illegal preference"
The view thus set out that that provision
was intended to take from the debtor the
right to prefer any creditor he saw proper,
to the exclusion of all Others was clearly
wrong, as abundantlY shown by numerous
decisions of our court since then.
The late Geo. L. Potter, Esq, attorney
on the other side, said in his brief "The
statute gives an attachment against the
"estate of a debtor when he is about to
''assign or dispose of his property with
"intent to defraud his creditors, or give an
"unfair preference to some of them. Our
claw permits preferences in such cases, and
"this statute, tacitly permitting the general
"practice, gives this remedy only where the /
preference is unfair. The preference must
''be unfair; but the law has nowhere de- |
''fiued what an unfair preference is. An i'm
solvent may prefer one creditor to the
Exclusion of another, and this has never
"been held to be unfair The law does not
require him to pay pro rata, but leaves the
''whole matter to his honest Judgment" etc. |
This question of unfair preference of
creditor is not alluded to in any of the |
reported opinions of the Supreme Court,
except in the case of Roach V. Brandon, 81 |
Miss Opinion p. sol, where the Court say, |
sc an application of firm assets to his indi- |
g vidual debts would probably be regarded |
% as violation of that clause of the statute |
20 which forbijs an unfair preference among
70 creditors, though as this record does not
" present that question, we express no
' decided opinion upon it,
If the question of the application of firm
property to the payment of the individual
1ebt of one of the partners, without the con-
ent of the others, had been directly before
the court the opinion would, very likely,
nave been in accordance with the opinion OF
he Supreme Court of Pennsylvania, in
Hartley V. White, decided March 1880.
A transfer of firm property by partner
without the knowledge and consent of his
co-partner, to pay his own individual debt
is fraudulent as to the firm creditors, and
gives the purchaser no title" Central
Jaw Journal, vol II, No. l, p. 10.
Leaving that supposed ground for attach
nent out of the Code of 1880, was not in
dvertent, nor was it, certainly, with view
o make our attachment law less effective
han before.
1t was the opinion of Judge Campbell,
concurred in by every lawyer
n the Code committee, that the latter part {
f the 9TH ground of attachment in the Code
81, to-wit: cor give an unfair preference
} some of them" (creditors) had no legal
gnifcance, in view of the fact that it was
OF intended to prevent debtor from
referring any creditor he saw proper )
There are two good reasons why the State -,
ourts should be preferred to the Federal.
ir st. The costs in the State Courts are not
ear 80 great, and second, should the credi- \
n fail in his attachment in the Federal l
curt he would be dismissed, absolutely,
it'll judgment against him for damages
r the wrongful suing out of the attach
ents whereas, in the State Court, though
sfeated in his attachment and judgment
yainst him for damages, he would be en-
tied under the present law to a judgment
pers0naqa upon his claim, if valid, with
hich he could effect the judgment for dam, !
res. Should Judge Chambers idea pre- :,
ILL., as a result, the Federal Courts would 4
bible up all the immense fees growing out a
the unprecedented number of attachments a
Nv being sued out. While in fact the
ate Courts, under the present law, are =
UGH to be preferred, as a general rule to : :
e Federal. r
Yours truly, I
W. II. FITZGERALD. L
Natchez and Jackson Railroad. \
atchez Democrat