1817.

FRIERE

The Jury, which was a special Jury of merchants, said, that inasmuch as the arrival of the Victorioso and of the other vessels was noticed in Lloyd's List at the time the insurance was efWOODHOUSE. fected, and as these Lists were in the hands of the

and Another

0.

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

Verdict for plaintiffs.

Lens, serjeant, and Puller, for plaintiffs.

Best and Vaughan, serjeants, for defendants.

See Durrell v. Bederley, 283, ante; in the note to which the cases are collected,

classed, and commented upon, as far as relates to the question of concealment.

1817.

ARBOUIN and Another, Assignees of BAYFIELD, a
Bankrupt, . HANBURY and Another.

HIS was an action of trover to recover the

TH

Where the creditor acts

adverse to the

his

views and wishes of the

ac

of

and importu

nity obtains a

of

transter of

cover his lia

property, to

bill then
running,
(which bill he

bility upon a

bad discount

ed,) although

in

sech transfer

be made on

he

value of some wine and spirits. The bankrupt, Bayfield, employed the defendants as bankers; and they had been accustomed to commodate him with discounts. On the 3d June, 1816, he deposited with them, in aid his account, a bill for 4021. drawn by himself upon one Arnold. On the 17th, the defendants, hearing that Arnold was in embarrassed circumstances, and apprehending that he would not be able to take up his acceptance, which became due August, went to the bankrupt, and asked him if would be in cash to honour the bill he had deposited with them. He told them that he was afraid he should not be able to stand, and had no prospect 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 brought, 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 140%. in their hands; and he afterwards drew a check,

the eve of

bankruptcy, it

fraudulent preference on

the part of

the trader.

1817.

ARBOUIN

v.

HANBURY

which they paid, for 35l. He committed an act of bankruptcy on the 22d.

Vaughan, serjeant, and Reader, for the plainand Another tiffs, contended, that this was a voluntary preference. 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 colourable. They send for the bankrupt, and require security. He does not single out and so

1817.

ARBOUIN

v.

and Another

licit them. Whether Bayfield contemplated bankruptcy or not, it was immaterial for them to enquire. They satisfy themselves by asking him the question, whether he had committed an act HANBURY 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 bankrupt laws much has been written, upon the effect of a preference given to a creditor by a trader under a contemplation of bankruptcy, or in a condition of circumstances from

which it is a necessary infer-
ence, that the trader foresaw
his insolvency.

The cases under this head de-
pend upon one simple principle;
namely, that all the effects of
a trader, in such a state of cir-

1817.

ARBOUIN

v.

HANBURY

and Another