The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-02-05
ELDRIDGE, DUNBAR, a. Co., |
L. Ill. pHILLIPsON

Il. ii. PHILLIPsON.
Appeal from the Circuit Court Of Chick
asaw County, Hon. j. A. Green, Judge.
Appellants sued out an attachment
against appellee upon the ground that the
latter had disposed Of his property, or
some part thereof, with intent to give nm
unfair preference to some of his creditors.
The principal question presented is MS to
the true construction Of that portion of
section 1420 of the Code of 1871. which
authorizes an attachment on the ground
that the debtor "has assigned or disposed
of, or is about to assign or dispose of, his
property or right in action, or some part
thereof, with intent to defraud his credi-
tors. or give an unfair preference to some
Of them"
II. Davis. Baxter ~ Mcfarland, and Muir
ply, Sykes Il Bristow. for appellants.
w. +. Tucker, for appellee.
GEORGE, j..
Held-
/. The right of Il creditor, though insol-
vent or in failing circumstances, TO give II
preference to one or more of his creditors,
if il be bona fde, and with no intent to
secure Il benefit to himself, is u firmly es-
tabished rule in the Jurisprudence of this
state.
2. The attachment law of 1857 re-enacted
in 1871, authorizes seizure of the debtors
estate, before judgment, for certain speci-
fled dispositions of his property, either con-
sumated or threatened, but il does not I'M
dertake to lay down rules by which the valid
ity of these dispositions is TO be tested, nor
to denOunce as illegal dispositions which
were therefore valid; and unless "an unfair
preference" to be AN exception, all Of the
dispositions Of property which are causes
for an attachment are Illegal by tho general
law Independent of the statute.
3. What is an "unfair preference the
Legislature has not defined. This must be
determined either in accordance with the
rules of law relating to preferences by
termined by the jury. 1t cannot be the
true meaning Of the statute that the ques-
tiOn should be left solely to the jury, since
there would then be no certain standard
for adjudging the rightfulness of the at
tachment.
4. What is an ''unfair preference" must
therefore be question of law, when the
facts attending It are ascertained 1t must
be determined, like all other legal questions
by the law of the land. which is the only
test by which to determine, in court, the
validity of any transaction.
b. The right to make preference results
from the dominion which the owner has
over his property il is a part of his pro-
prietOrship. The law has not said he shall
divide his estate ratably among his cred
itOrs. 1t has left to him the discretion to
act as he wills, provided only, he acts with
the honest intent to pay u valid debt, and
does not, under cover of such DISPOSE
ton, stipulatc for benefit to himself the
reservation of such benefit would make
the assignment different from what ii pro-
fesses to be. II would be contrary to the
full dominion and ownership of the as
conveyed. because an interest Is reserved
to the debtor and would therefore be II
mere device to secure to the debtor the
enjoyment of his property AS against the
Just rights OF his creditors.
q. The reservation must be for the per-
soual benefit Of the debtor, or "a volunteer
under him. 1t must be expressed or i'm
piled from the circumstances that the pre-
ferred creditor cannot use the property at
his will without a violation of this eX-
press or implied agreement. That the
debtor may hope, from his relationship to
the assignee, as his wife or near relative,
or from the generosity and friendship of
the preferred creditor. that he Will be AS
sisted in future, will not vitiate the
transaction. There must be a reservation
of nm interest In the property itself, or In
property to be furnished by the creditor
in lieu Of. or In exchange for il.
I. We conclude, therefore, that the word
"unfair,v as used in the statute, is the
.'illegal."
Judgment affirmed.