Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1893-05-25

Topkiss.
Continuing, the Chief Justice said that
in order to aid the court in determining to
which OF the creditors OF Topkiss the
money regularly belonged these issIies
had been framed and submitted to the
Jury for a decision The issues were then
cited by the court, after which the Jury
were Informed that it rested with that
body to pass intellectually upon the ques-
tiOns submitted to them.
The court desired to say that it is the |
well settled law of this state, established |
ill the case of Lockly vs.. lIorsey, Mnllin & |
Co., Fourth Houston, by the Judgment of |
the court of errors and appeals. that an in.
solvent or failing creditor may give bond |
and warrant, confess Judgment and prefer |
one or more creditors, if given in good
faith TO secure bona tide debts, even though
such secured creditors reCeive thereby a
greater proportion of their respective debts |
| than could be secured to all his creditors
Our statute does not prohibit such prefer
enCes.
By section 4, chapter 1872 Of the Revised
| Code: ut is not preferences given in con
| temptation Of insolvency. or under failing
| circumstances which are prohibited, but
| preferences given under an assignment
made for the benefit of creditors; 1t is the
| act OF assignment and not merely his being
| i'll failing circumstances which brings the
| debtor within the scope of this statute.
| Our law recognizes two distinct policies
| with respect TO the liquidation of failing
| debtors estate, and one OF the policies is
| giving to a creditor the benefit OF his dill
| gence against other creditors. This policy
obtains 80 long rs the debtor keeps control
| OF his property By making an assignment.
| If no assignment be made, lie may
| prefer all honest creditor though he be i'll
failing circumstances, and although the
preferences i'll effect carries all his prop
| erty for the benefit of creditors; but the
| moment he makes an assignment, and not
before the policy Of equal distribution
among all the creditors prevails, and the
debtor can give no preference either under
the assignment or BY any accident i'll CON
temptation of it. There is sound reason
for treating the act Of assignment as a test
OF the application of this statute to the
debtor.
1T is highly penal statute, and upon
general principles penal statutes are to be
strictly construed, and especially should
that rule apply to this statute,for il the fact
of an assignment alone, subjects the debtor
TO its provision, and renders him Punisha-
BILE for Il preference. We have u certain
test of his liabilities which he himself
could not misunderstood, and which
could be easily proven against him.
But il his being in failing cir
cnmstances is held to render the
preference Of creditor Illegal, and sub
iects the debtor to the penalty Of the law
a very uncertain test of his Liabilities
would be created, depending upon wide
range of proof; and frequently injustice
might be done to debtors who as often fail
to appreciate their real situation and be-
lieye themselves to be solvent when they
are not solvent. On the whole ID is u
sound policy of the statute working the
least injustice, which avoids preference
only when gwen under or IN conteinpla-
ton of an assignment"
In commenting on the statute quoted
above, the Chief Justice held that the law
not only recognizes but favors and protects
u preferred creditor, who III good faith has
! thus secured Just debt, although it covers
and absorbs the entire property of the
debtor In order to avoid a preference given
to bona tidG creditor, it must be given
by an assignment co nomine or by an in
strument that is in fact an assignment,
| under cover OF another form. The couri
5 further said
THE law then gentlemen, clearly is
that Jacob II. Topkiss, had the right tc
give Samuel Slesinger and David Abram
. son or either of them, such Judgments a.
he did, if he was justly indebted to then
in the sums named and the judgment wa!
= honestly given to. secure just debts not
/, withstanding that he was insolvent and il
@ falling circumstances.
. In order to avoid these judgments til,
I court charged that the jury must be salts
fled from the evidence III this case, that il
n giving such judgment, Jacob II, Topkis
IS did not intend IN good faith to secur
o honest debts, but intended on Gontem
e plated insolvency The jury must be sat
l. istied that the facts proved admit of IL
= other Interpretation but that the judy
" ments were confessed with distinct m
tenton OH the part of both parties to them
q to deny or prevent Topkiss' other creditor
6 in the recovery of their debts.
II If the jury believe from the evidence il
"a this case, that in confessing these ludg
ments to Slesinger and Abranlson. Topks,
intended insolvency, then their finding il
y the false issue should be that he contenl
IS plated insolvency; but if the Jury believ
that he intended thereby to secure debt
n. honestly due them, the finding should Il
ID that he did not contemplate Insolvency.
lie If the jury in like manner believe this
le Topkss intended by the judgments t
he hinder, delay or defraui his creditors the
TO the finding should be for the plaintiff
es But ii the jury believe that he only il
&c tended to prefer il good faith just debt
III the finding should be that Topkiss pu
i'd pose thereby, was not TO defraud or della,
to The jury retired at 1870 O'clock.
ne Court took a recess until :. O'Clock p. II
The case came to an end at the afte
i. noon session, when a jury decided TIL
id Slesinger and Abramson judgments u
Mt were fraudulently preferred. These we
ie the issues sent TO the jury;
as ''First. Did the said Jacob II. Topki
g- contemplate insolvency ut the time
er voluntarily confessed SAID judgments
Us said Samuel Slesinger and David Abrar
no son?
as Second. Did said Jacob H. Topkiss /
voluntarily confcssing said judgments I
~ aforesaid, attempt to prefer the SAID SAINT
by Slesinger and David Abramson, the cred
Be tors to whom said Judgments were SO GO
fessed to other Of his creditors, and d
mt said Jacob II. TnpkiSs thereby attempt
he secure or pay to said SlesinEer and AraI
by SON or either of them 4 greater proportit
zee OF their respective debts or demands ths
So he could secure or pay to all his creditor:
ny Third Did SAID Jacob II. Topkiss co
lal fcsss said Judgments for the purpose
d. hindering, delaying or defending the cree
Of tors Of him the said Topkiss or any
an them" ~
To each of the above questions the iu
he answered yes" The jury retired at 10,
vid o'clock yesterday morning and peached
Ice verdict ~ 4.l5 O'Clock in the atternoo
be The Judges we're OH the bench when Il
jury filed into the room. Prothonota
he Horty took the verdict.
IL. After the verdict had been render
zen George A. Elliott, counsel for the dcfen,
ird asked that the Jury be polled. In reply
the usual question: lis that your verdict
sc, all except one Juror replied in the atlirir
set. tive. The exception was Thomas Film
md who, when his name was called, arc
ish and told the court he did not feel capat
m of rendering a verdict and al through {
d. proceedings he had possessed this fceAr
on Ibid You agree to come in With t
rs. jury?' asked Chief Justice Lore.
w. II did, replied the juror This end
OF the case and court discharged the ju
until Yesterday.