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1817.

The Jury, which was a special Jury of mer

chants, said, that inasmuch as the arrival of the FRIERE

Victorioso and of the other vessels was noticed in and Another

Lloyd's List at the time the insurance was efWoodhouse. fected, and as these Lists were in the hands of the

underwriters, they were of opinion that there was no concealment.

0.

Verdict for plaintiffs.

Lens, serjeant, and Puller, for plaintiffs.

Best and Vaughan, serjeants, for defendants.

See Durrell v. Bederley, classed, and commented upon, 283, ante; in the note to as far as relates to the ques. which the cases are collected, tion of concealment.

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1817.

ARBOUIN and Another, Assignees of BAYFIELD, a

Bankrupt, 0. HANBURY and Another.

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Where the creditor acts

wishes of the

nity ollains a

it

HIS was an action of trover to recover the

value of some wine and spirits. The bank- adverse to the rupt, Bayfield, employed the detendants as his views and bankers; and they had been accustomed to ac- traier, and

by urgency, commodate him with discounts. On the 3d of and importirJune, 1816, he deposited with them, in aid of transter of his account, a bill for 2021. drawn by himself upon cover his lia

, one Arnold. On the 17th, the defendants, hearing bill ich

bility upon a that Arnold was in embarrassed circumstances, running,

(which bill he and apprehending that he would not be able to ad

eu,) alilongh take up his acceptance, which became due in such transfer August, went to the bankrupt, and asked him if he the eve of would be in cash to honour the bill he had deposited bankrupten with them. He told them that he was afraid he fraudaleat

preference on should not be able to stand, and had no prospect of the part of taking up the bill. They then inquired if he had committed an act of bankruptcy: he told them he had not. Upon which they proposed that he should make a transfer of the wine and spirits, for which the action was brouglit, to them, by way of collateral security for the bill when it should become due. The bankrupt hesitated : but, upon their telling him that unless he made the transfer they would not permit him to draw any more money from his account, he consented to the proposal. He had then a balance of 1 101. in their hands; and he afterwards drew a check,

the trader.

1817.

which they paid, for 35l. He committed an act

of bankruptcy on the 22d. ARBOUIN

v. HANBURY Vaughan, serjeant, and Reader, for the plainand Another tiffs, contended, that this was a voluntary pre

ference. There was no threat. The bankrupt, having disclosed his circumstances, and stating that he could not go on, the defendants request a transfer of part of his stock, which, without any compulsion of law, or any threat which ought to operate on a steady mind, he consents to make. It is true that they refuse to let him draw a check unless he makes the transfer ; but this they had no right to do, because he had an ascertained balance in their hands, and he might have maintained an action for it instanter. He had, as yet, committed no default on the bill, of which he was only the drawer, and which had two months to run.

Best, serjeant, and Nolan, contrà.

BURROUGH, J.-I always think questions of this sort should be left, in as unmixed a state as possible, to the decision of a Jury, who are the best judges of the acts and motives of men.

The case is clear upon this point. A bankrupt, contemplating a commission, shall not single out one creditor in preference to another; but any creditor may endeavour to gain a preference by urgency and importunity, by diligence in fact, or diligence in law. It is not contended in this case that the importunity of the defendants was colourelle. They send for the bankrupt, and require security. He does not single out and so

1

1817.

licit them. Whether Bayfield contemplated bankruptcy or not, it was immaterial for them to en

ARBOUIN quire. They satisfy themselves by asking him the question, whether he had committed an act HANBURY

and Another of bankruptcy, which he answered in the negative. He had then the jus disponendi. They demand security. What is this but the just and natural diligence of a creditor? The bankrupt hesitates; but at length consents. It is said, that the threat of not answering his check was futile, inasmuch as he had a right to draw. Be it so; it was a threat, notwithstanding : and it is a strong circumstance to negative a fraudulent preference. Where the creditor bona fide, and not colourably, acts adverse to the views and wishes of the trader, by urgency and importunity, and thereby obtains payment, there is no fraudulent preference. Had the proposal to transfer originated with the bankrupt, it would have been another question ; but I can see nothing to impeach this transaction.

Verdict for defendants.

Vaughan, serjeant, and Reader, for plaintiffs.

Best, sergeant, and Nolan, for defendants.

In the treatises on the bank- which it is a necessary inferrupt laws much has been writ- ence, that the trader foresaw ten, upon the effect of a pre. his insolvency. ference given to a creditor by The cases under this head de a trader under a contemplation pend upon one simple principle; of bankruptcy, or in a condi- namely, that all the effects of tion of circumstances from a trader, in such a state of cir.

v.

1817. cumstances, belong equitably der terror of law, or any dex

to the whole of his creditors; mand or compulsion, urgency, ARBOUIN and that, although he has still and importunity, from which

the jus disponendi, because he such terror may reasonably be HANBURY

has not actually committed an inferred. Because the act in and Another

act of bankruptcy, the equity that case is not voluntary; it
of disposing of his property, in does not flow from his imme-
preference to a favoured cre- diate free will. This is the
ditor, is gone; and it is the po- whole doctrine.
licy of the bankrupt laws to It may be observed, in
consider such disposition of the fine, that the doctrine of
trader's effects as made in frail- such cases of fraudulent pre-
dem legis. This is the prin- ference flows entirely from
ciple.

an equitable construction of But to bring any particular the bankrupt laws, and not, as case within this principle, that in the preceding note on reputis to say, to render it a frau- edownership, from the strict dulent preference, two things letter of the statutes of bapkare manifestly necessary :- ruptcy. It was much expand. 1. The contemplation of bank- ed, if not altogether establishruptcy. 2. A voluntary pre- ed by Lord Mansfield, in the ference, (an act immediately celebrated case of Harman v. moving from the free will of Fisher, Cowp. 123. This, inthe trader) made under such deed, is one of those cases in contemplation, or expectation, which the learning, and, still of bankruptcy.

more, the ability and sagacity These two circumstances of Lord Mansfield, contrived being necessary, the following to introduce a larger equity limitations naturally attach to into commercial law, without, the above principle :

at the same time, departing 1. The act of bankruptcy from the precision and exactmust not have been committed

ness, required by the different at the time of the preference natures of courts of common given. For if so, the trader

law and equity. is not at that time in posses- Io Ilarman v. Fisher, Cowp. sion of the jus disponendi; and, 123, it was adjudged, that the therefore, of course, has no property was not transferred, right of transfer in the first because an act of bankruptcy instance. 2. He must not was previously committed. In have given such preference un- Harvey v. Liddiard, 1 Stark.

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