Eldridge, Dunham & Co. v. Phillipson

Citations

• 58 Miss. 270

Syllabus

<p>1. Attachment. “ Unfair preference.” A question of law.</p> <p>One of the grounds of attachment under the Oode of 1871 was 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.” Whether a preference of a creditor by his insolvent debtor is “unfair” within the meaning of this sta'ute is not a question of fact to be left to the jury in a case, but is a question of law, to be determined by the rules laid down by the courts ns the law of the land, and to be solved by instructions of the trial judge applied to the facts proven in evidence.</p> <p>2. Same. What is, and what is not, an unfair preference.</p> <p>No preference of a creditor by an insolvent debtor is “unfair,” under the statute above quoted from, unless it be fraudulent or illegal. And where the preference of a creditor by his insolvent debtor is bona fide, and neither expressly nor by implication, of circumstances reserves an interest in the property, or-something to be given in lieu thereof, to the debtor or a volunteer under him, it is valid in law; and the fact that the debtor may hope, through relationship, or from the generosity and friendship of the preferred creditor, that he will at a future time derive some benefit from the preference made, does not vitiate the same. The right to make such preference results from the dominion which the debtor, as owner, has over his property, and is a part of his proprietorship.</p> <p>3. Same. Meaning of “ unfair.” Its omission from the Code of 1880.</p> <p>The word “unfair,” as used in the statutory provision above quoted, is synonymous with “fraudulent” or “illegal;” and the clause in that provision, “ with intent to give an unfair preference,” was surplusage, and its omission from the Code of 1880 leaves the law as it stood before.</p>