Robbins v. Leverich

Bullard, J., delivered the opinion of the court. The plaintiff sues, as syndic, to annul certain contracts made by the insolvent with the defendants, within the three [344] months proceeding his surrender, as having been made in fraud of the creditors. The acts complained of as prejudicial to the rights of the creditors, are the alleged delivery of certain goods and merchandi e from time to time, and the transfer of certain notes and other evidences of debts, to secure a debt due to the defendants, and to give them an unjust preference over other creditors. ven^and^imother KigrocerSband received°inSsmaii tSsoiventfand are iu“thfhaSt of interchanging for the dation of their customers, held that such trans-business, are not liable to be anFent^mder^the t t h suit made a witness by an applimieSSe0 aS |u™¿dilbyfb6ucí answers as 1 chooses to give. answers as he It appears that the insolvent and the defendants were engaged in the same kind of trade, that of retail grocers. The articles received by the defendants, from time to time, in small quantities, were such as grocers are in the habit of interchanging for the accommodation of their customers, The court is of opinion, that such transactions, in the usual course of business, are not liable to be annulled as fraudulent^ under the insolvent laws of the state. The jury seems to have been of that opinion, and we concur with them. We shall, therefore, confine our attention to the transfer of cerdebts, between the 28th of May and the 4th of June, 1 J 7 1830 the insolvent’s bilan having been filed on the 10th of 5 © latter month. to the transfer of these claims. rogatories, as not pertinent to the issue, and not in conformity to the dates, circumstances and allegations in the petition. Without calling the court to decide on the exceptions, the defendants proceeded to answer on oath. Some were answered fully, but others relating to the transfer of the debts, are only partially answered, and the exception first made, was reserved and reiterated as to parts of the interrogatories not answered. The court overruled the exceptions, and the defendants went to trial without taking a bill of exceptions, and without making further answer. We cannot inquire into the correctness of the opinion of the district judge, in overruling the exceptions. The defendants might have answered more fully afterwards, or might have © J ' ° taken a bill of exceptions. Interrogatories were propounded to the defendants relating They excepted to the inter-Having been made witnesses, by an application to their Own consciences, they cannot Complain being judged by such answers as they have chosen to give. t¡^epro*<Seá was'fn substance! Svíri ¡«retfiyor transfer y’or as! signment of a particular debt* only the transaction directly between the insolvent and pe^onaiiyf ¡sin! a transfer is by an insolvent one week before his surrender, of debts due him, so s®c“® t °jf *® t0 By the sixth interrogato-ry, they were asked whether Greenleaf, or some one for him, did not, on or about a particular day, transfer, assign, or deliver to them or their order, or to some one for them, or on their account, an account or debt for one hundred and sixty-six dollars and seventy-four cents, due said Greenleaf, by N. Barlow & Co. ? Their answer is, that Greenleaf did not assign, transfer, or deliver to these respondents, on or about that day, an account or debt for one hundred and sixty-six dollars and seventy-four cents, due by any such persons as R. Barlow & Co. This is not a full answer to that branch of the interrogatory. The question was in substance, whether they received, directly or indirectly, the transfer or assignment of such a debt. The answer negatives only the transaction, directly between the insolvent and the defendant personally. Similar partial answers are given to the seventh and eighth interrogatories, relating to other claims alleged to have been transfered. Even those parts of the interrogatories, clearly susceptible of a direct and categorical answer, are not fully x ° 1 J aTISWPrPfl cuib WtilLU. The ninth and tenth interrogatories, are answered in the affirmative, but the defendants go on to say, that the was given and the note transferred “ in the usual course of business, in good faith, and in payment of a just debt, due by said Greenleaf to the respondents.’’’’ They admit, therefore, that on the 3d and 4th of June, they were creditors of Greenleaf, and that their claim was either secured or novated, by taking a draft at six months,’ and accepting the transfer of a note, which had about two months to run. 'This does not appear to the court one of those transactions in the usual course of business, on payment of a first debt in money, which are spoken of in article 1981 of the Code, as not voidable under the insolvent laws’of the' state. One week before the surrender, the defendants were creditors; they ^ were not set down as such on the schedule, and the debt had been provided for, not by a payment in money, but by assignments of debts due to the insolvent, which, independently of .his transaction, would have gone into the mass. We think [346] this is giving a preference to one creditor, which is reprobated by law. 3 Martin, 270. 4 Louisiana, Reports, 247. Whether the defendants knew, at the time of these transactJons, that the insolvent was unable to pay all his debts, was a question left to the jury, and which they have found against the defendants. The evidence on that point is not so unequivocal as to enable us to say, that the jury was manifestly wrong, and we cannot disturb the verdict. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.