58 Miss. 270 | Miss. | 1880
delivered the opinion of the court.
The plaintiffs in error sued out an attachment against the defendant upon the ground that the latter had disposed of his property, or some part of it, “with intent to give an unfair preference to some of his creditors,” and the principal question presented for our consideration is as to the true construction of that portion of sect. 1420 of the Code of 1871 which authorizes an attachment when the creditor will make oath “that the debtor has assigned or disposed of, or is about to assign or dispose of, his property or rights in action, or some part thereof, with intent to defraud his creditors or give an unfair preference to some of them.” This provision, so far as it relates to “ an unfair preference,” was first introduced into the statutes of the State by the Code of 1857, art. 2, p. 372. It has not as yet received a direct construction in this court, though it has, as we believe, been frequently construed in the Circuit Courts, and generally, if not uniformly, interpreted in accordance with the views which we here announce. We have giveu the question that careful examination which its importance demands. The right of a debtor, insolvent, or in failing circumstances, to give a preference to one or more of his creditors, if it be bona fide, and with no intent to secure .a benefit to himself, is a firmly established rule in the jurisprudence of this State. See Farmers’ Bank v. Douglas, 11 Smed. & M. 469 ; Ingraham v. Gregg, 13 Smed. & M. 22; Hunt v. Knox, 34 Miss. 656 ; Mangum v. Finucane, 38 Miss. 354 ; Wright v. Henderson, 7 How. 539. All of which cases were decided in reference to transactions prior in date to the Code of 1857. Since that time the rule has been also frequent!}' recognized in this court. See Savage v. Dowd, 52 Miss. 278 ; Surget v. Boyd, 57 Miss. 485 ; Kaufman v. Whitney, 50 Miss. 103.
The provision under consideration must be construed with
We conclude, therefore, that the word “ unfair,” as used in the statute, is the exact synonym with “ fraudulent ” or “ illegal . ’ ’ The correctness of this view is conclusively demonstrated by the consideration hereinbefore alluded to, viz.: that when the statute makes the debtor’s disposition of his property the ground of an attachment against his estate, it in every instance designates a disposition which the law prohibits the debtor to make. It is the illegal conduct of the debtor in making, or attempting to make, an assignment of his property prohibited by law, and therefore invalid, which subjects him to this harsh and summary proceeding. Such assignments are also invalid, and will be annulled, except only where the assignee can show he has parted with present value for it, in entire ignorance of
The charges given to the jury were in accordance with this view, and are coxTcct.
The evidence was contradictory, and while the preponderance was probably in favor of sustaining the attachment, the jury believed the contrary, and we cannot say their verdict was so clearly wrong as to authorize us to set it aside.
The judgmoxxt is affirmed.