In re Drummond

7 F. Cas. 1108, 1 Am. Law T. Rep. Bankr. 7

• Court: District Court, D. Indiana
• Decided: July 1, 1827
• Status: Published

Opinion

McDonald, District Judge.

Those provisions of the bankrupt act, which relate to the points under consideration, are found in the 39th section [14 Stat. 536]. and declare that every person who shall “make any assignment, gift, sale, conveyance, or transfer of his estate, property, rights, or credits, with intent to delay, defraud, or hinder his creditors,” shall be deemed to have committed an act of bankruptcy; and that every person, “being bankrupt or insolvent, or in contemplation of bankruptcy or insolvency, who shall make any payment, gift, grant, sale, conveyance, or transfer of money or other property, estate, rights, or credits, * * * with intent to give a preference to one or more of his creditors, * * * or with intent, by such disposition of his property, to defeat or delay the operation of the bankrupt act, * * * shall be deemed to have committed an act of bankruptcy.” The counsel for Drummond have contended that, to make him a bankrupt under any of these provisions, the wrongful intent must exist on the part of the persons receiving his property, as well as on the part of Drum-mond. This is undoubtedly the rule in cases arising under the statutes against fraudulent conveyances. And it may be the rule under the 35th and 39th sections of the bankrupt act in a suit by an assignee against a preferred creditor. But it is clearly not the rule in the ease on trial. Here we look only to the interest of the party charged with an act of bankruptcy. If he intends, by his act, to delay, hinder, or defraud his creditors, or to give a preference to any of them, or to defeat or delay the operation of the bankrupt act, he clearly commits an act of bankruptcy, however innocent the intent of the preferred creditor, or the person to whom the transfer is made.

The petition first charges that Drummond transferred his property with intent to delay, hinder, and defraud his creditors. Is this charge proved? Is it proved that such an intent existed in his mind when he made the transfer to Trimble <& Read? I construe the intent under consideration to mean an actual design in the mind. Drummond positively swears that he had no such intent And there is nothing in the evidence that leads me to conclude that he swears falsely. I hold, therefore, that the first charge of bankruptcy is not proved as alleged in the petition.

The second charge of bankruptcy set out in the petition is that Drummond, in contemplation of insolvency', transferred, by way of payment to certain creditors, his property with an intent to defeat and to delay the operation of the bankrupt act, and to give a preference to said creditors. This averment really contains a charge of two acts of bankruptcy—the intent to defeat and delay the operation of the bankrupt act, and the intent to prefer some of his creditors. The counsel for Drummond have argued +Uat. in order to success, the petitioners must prove both these. In this I think they are mistaken. It is never good pleading to make averment in the alternative, nor is it sufficient evidence to prove that either one or the other of the two propositions is true, but leaving it uncertain which of them is true. But when two distinct matters, each of which contains a good cause of action or defence, are alleged conjunctively, it is enough that either of them be satisfactorily proved. As to the charge that Drummond disposed of his property with intent to defeat and delay the operation of the bankrupt act, tlie same reason seems to apply as we have applied to the first act of bankruptcy charged in the petition. I do not think that, in the transactions above detailed, it is sufficiently proved that Drummond intended to defeat and delay the operation of the bankrupt act. Rather, I think from evidence, that he had no thought at all concerning that law, as it had only been passed eighteen days before—had not then been published, and even lawyers were ignorant of its provisions. As to the charge that Drum-mond transferred all his property to some of his creditors with intent to give them a preference over his other creditors, I do not see how he can escape it. It appears, indeed, that no intent to prefer any creditor existed in his mind at any time before the inventory already mentioned amounted to $4,000. For up to that time he supposed he had enough assets to pay all his debts, and he seems to have intended to pay them all out of those assets. But he himself swears that, when the invoicing reached that amount, he perceived that his property was not sufficient to satisfy his creditors. At that moment he was an insolvent man; and he then clearly saw it and knew it At that time his arrangement with Trimble & Read was incomplete. No delivery of any property had been as yet .made to them. They had paid him nothing on the contract; they had executed no writing in. relation to it, and it clearly had not proceeded'to such a consummation as to make it binding on anybody. The locus poenitentiae then existed, and he had at that moment a perfect right in law to drop the whole matter, and refuse to carry- out his arrangement with Trimble & Read. Had he done so, it is plain that, they could have maintained no action, on it, against him. But, with this knowledge of his insolvency, he proceeded to transfer all his property for the benefit of a portion of his creditors, then well'knowing that he was thereby giving them a preference, and that he had not a dollar left to apply to the debts due by him to the petitioners.

Now, it is a rule that every sane man is presumed to intend the probable consequences of his voluntary act. The consequences of this transfer by Drummond of all his property to a portion of his creditors, were not only that it would probably give them a preference, but that it would necessarily and certainly produce that effect. He 1 must have known that this consequence ' would follow that act; and he must, there- j fore, be conclusively presumed to have intended it. In so doing he committed an act of bankruptcy, and a judgment that he is a bankrupt must follow.

It is due to the parties concerned to say that I see no moral turpitude in this matter on the part of any of them. Under the law, as it stood before the bankrupt act took effect, a debtor had a right to prefer a portion of his creditors, and the most diligent creditor generally obtained the preference. The equity maxim was “vigilantibus, et non dormientibus, jura subveniunt.” But the bankrupt act abolished this rule; and now every. failing debtor, who gives a preference to a part of his creditors, thereby commits an act of bankruptcy; and the bankrupt law will not allow the preference. But our bankrupt act took effect March 2, 1867. The transactions under consideration occurred only eighteen days afterwards, and, though every man is bound at his peril to know the law, yet as this act was not published till several months afterwards, it is probable that these parties were not in fact aware that they were violating its provisions. It is proper, also, to say tnat I give no opinion touching the liability of any of the preferred creditors in case of a suit against them by the assignee in bankruptcy who may be appointed in this case. Whether they are bound to bring into the general fund of the bankrupt’s estate, the amount which they have received from Drummond, must depend, to some extent at least, on other considerations and other evidence not relevant to the present adjudication. And indeed as the preferred creditors are not parties to this proceeding, it would be unjust that the present decision should in any manner affect their interest except so far as it fixes the status of Drummond as a bankrupt.