Ex parte BRENEMAN, 4 F. Cas. 54

RANDALL, District Judge. On the 7th of April, 1842, John C. Weber and others, trading as Weber, Miller & Hand, and Dom--inic Eagle and others, trading as Eagle, Wes-cott & Cambios, of Philadelphia, presented their petition to this court, setting forth that Henry Breneman,'a retailer of merchandise in the county of Lancaster, owed debts exceeding two thousand dollars, and owed the petitioners five hundred dollars and upwards.

They alleged that the said Henry Breneman had, on the 10th day of March then last past, become bankrupt within the act of congress, by 1st, having on that day made a fraudulent assignment, gift, and transfer of his lands, tenements, goods, chattels, credits, and evidences of debts; and 2d, having (in contemplation of bankruptcy, and for the purpose of giving Gideon Breneman, a creditor, endorser, and surety of said Henry Breneman, as also other creditors and endorsers of the said Henry Breneman, a preference or priority over the general creditors of him the said Henry Breneman) conveyed and transferred all his property to Reuben Mullison, of Lancaster county, by indenture of assignment, dated the 10th day of March, 1842.

And they prayed that proceedings might be had to declare the said Henry Breneman a bankrupt within the purview of the act of congress. Notice of the application was published, as required by the act of congress and rules of court,' and also served personally on the said Henry Breneman, who opposes the decree prayed for, and in answer to the said petition, says: 1. That he has not made a fraudulent conveyance, assignment, &c. 2.

That he has not, in contemplation of bankruptcy, and for the purpose of giving Gideon Breneman, a creditor, endorser, and surety, or other creditors and endorsers, a preference over his general creditors, conveyed and transferred his property as stated in the said petition. 3. That he has never contemplated bankruptcy, or any application for the benefit of the bankrupt law. 4. That the assignment made by him was yielded to the importunity of one or more of his creditors, to secure bona fide debts, and without collusion.

Evidence has been exhibited on behalf of the respondent which proves that he was a retailer of merchandise in Columbia, Lancaster county, and was indebted to his broth-, or Gideon Breneman, in his individual capacity, and also as trustee for Levi Brene-man, another brother, who is said to be of unsound mind; that he was also indebted to the Columbia Bank and Bridge Company in the amount of a bill drawn by him on J.

Ivettléwell & Co., of Baltimore, payable at sight, and protested for non-payment; that be was importuned to pay or secure payment of other debts, and on the 9th of March, applied to Reuben Mullison, told him he was compelled to make an assignment, and requested him to become the assignee; his ■ brother Gideon was troubling him, he said, •and he could not get along any further; that be owed his brother a large sum of borrowed money, part of which belonged to his brother Levi, who was in the hospital, and for whom •Gideon was guardian; and if it was not for this and some other borrowed money, he had from other people, he would apply for the benefit of the bankrupt law.

On the 10th of March, 1842, he executed an assignment of all his property to Mullison, in trust, after payment of expenses, to' pay, as of the first class, a debt of $2,200, due to Gideon Breneman, trustee of Levi Breneman, or in his individual capacity; a debt of $876.25, due on a bond to Gideon Breneman; a debt of $700, due to Henry Heisse, for which •Gideon Breneman was security; a note for ••$1,000, drawn by Henry Breneman, endorsed by Gideon Breneman, and discounted by the -Columbia Bank and Bridge Company; a •debt of $120, owing on a due bill to James Long; a debt of $127.48 to the estate of ■Christian Yeanish; a debt of $500 to Dr.

Hugh McCorkle; the freedom dues of Polly Hogendobler, a bound girl; a debt of $300 rto the sheriff of Lancaster county, being a balance of purchase-money due on property purchased by him at sheriff’s sale; and a debt of $1,251.10 to the Columbia Bank and Bridge Company, being the amount of the draft on Kettlewell & Co. And, after payment of these preferred debts, the balance was to be paid to those creditors who should execute a release within ninety days.

When the assignment was made known in Philadelphia, some of the creditors residing here, and among them one or more of the petitioners, went to Columbia, and proposed that the assignee should decline acting, and some of the Philadelphia creditors be appointed in bis place, as it was supposed the goods ■could be sold to better advantage here, and. in event of that arrangement being effected, the Philadelphia creditors were to pay or secure all the preferences. This proposition was submitted to Gideon Breneman and declined by him, and soon after the present proceedings were commenced.

On the part of the creditors it is contended that the assignment is in violation of the act of congress entitled “An act to establish a uniform system of bankruptcy throughout the United States,” passed on the 19th of August, 1841 (5 Stat. 440), and therefore void, and in itself

an act of bankruptcy; while the respondent contends that the assignment is not fraudulent within the meaning of the act of congress, as all the preferred debts were honestly and justly due; that it was not made in contemplation of bankruptcy, as the respondent at the time avowed his determination not to apply for the benefit of the bankrupt law; and that it was yielded to the importunity of his creditors.

THE COURT then proceeded to read the first and second sections of the bankrupt law, and continued: It is admitted that in this case there was no moral fraud; that all the debts preferred were bona fide and justly due; and that under the laws of Pennsylvania, independently of the bankrupt law, the legality of the assignment could not be questioned. It was the exercise of a power resulting from ownership of property, which those laws had not restrained. But there are many cases in which the acts of parties who intend nothing dishonest or immoral become legally fraudulent, as being contrary to the policy of the law.

A familiar instance of this is the sale of personal property for a valuable consideration, where the property is left in the possession of the vendor; this, although perfectly honest and binding between the parties, is in law fraudulent as to creditors, because it enables the debtor to obtain a credit by the possession of goods to which he is not entitled. • The whole policy of the bankrupt law is equality among the creditors (with the exceptions mentioned in the act); it was intended to prevent the debtor from giving all his property to some relative, or favorite creditor, to the exclusion of all the rest; and it declares that such a disposition of his property shall be void, as a fraud upon the creditors not preferred.

That such was the intention of congress in passing the law now in force cannot be questioned. The second

section of the act provides, first, for the case of involuntary bankrupts, by declaring that all future conveyances, payments, securities, &c., made or given by any bankrupt, in contemplation of bankruptcy, shall be void, and a fraud within the act; and the assignee under the bankruptcy shall be entitled to claim the property so conveyed as part of 'the assets of the bankrupt; it then provides that, in case of a voluntary application, if any such assignment had been made by the petitioner after the 1st of January, 1S41 (upwards of seven months before the passage of the law, and more than a year before it took effect), in contemplation •of the passage of a bankrupt law, he should not be entitled to his discharge, unless it was assented to by a majority of the creditors not preferred.

Showing a marked distinction between the cases of voluntary and involuntary bankrupts. Again, it is made the •duty of the assignee to claim the property as part of the assets of the bankrupt; but how can this be done unless the party be declared a bankrupt? for until this, until the decree of bankruptcy, there can be no assignee. The doctrine contended for by the respondent’s counsel would completely nullify so much of the law as prohibits a preference of one creditor over another.

A man might assign the whole of his estate to one or more favorite creditors, to whom he was bona fide indebted, and then decline to apply for the benefit of the bankrupt law, but if pressed by his other creditors, be content with an exemption from personal arrest by a discharge under the state insolvent law; and if his creditors cannot proceed against him, and have him declared a bankrupt by adverse proceedings, the assignment would remain effectual. Such, I conceive, could not have been the intention of congress.

The law was intended for the benefit of creditors as well as of debtors; but the construction of the respondent would render it for the benefit of ■debtors only. It has been said that congress had no power to pass a law which would have the effect of making void an assignment recog-nised by the laws of Pennsylvania. This argument was not much pressed; indeed, it •could not be, for, independent of the power given to congress by the eighth

section of the first

article of the constitution of the United States, the decisions which recognise the validity of assignments with such preferences do so express!y on the ground that there was no bankrupt law in existence at the time. But, it is said, the respondent never intended applying for the benefit of the bankrupt law, and, therefore, the assignment was not made in contemplation of bankruptcy. Bankruptcy, however, does not •consist in the proceedings in court.

It takes place in the course of a man’s business, and the proceedings in court are to ascertain whether the party was or was not a bankrupt at the time the original petition was filed. Bankruptcy is well defined to be “the •state of a man -unable to pursue his business, and meet his engagements, in consequence of the derangement of his affairs.” Now what ■can more effectually render a man unable to pursue his business, and meet his engagements, than a transfer of all his property for the benefit of some of his creditors to the exclusion of others?

Can it be supposed he did not contemplate the entire breaking up of his business, and his inability to meet his engagements, at the time he executed the assignment? In the case before us the instrument itself avers, as part of the consideration, “sundry debts and sums of money owing by the said Henry Breneman, which he is unable to pay at present.” It would be difficult indeed to establish that any act was done in contemplation of bankruptcy within the meaning of the act of congress if this was not such

an act. Again, it is said this assignment was yielded by the respondent to the importunity of his creditors, and therefore it is not

an act of bankruptcy. In England it has been decided that a debtor who, yielding to the importunity of his creditor, delivers him a portion of his property in satisfaction of his debt, whereby the creditor obtains more than the other creditors will receive on an equal distribution, does not thereby commit

an act of bankruptcy. But no ease is found in which the debtor surrendered the whole of his property to the importunity of his creditor, which was not declared

an act of bankruptcy; because, by a surrender of the whole and breaking up of his business, the debtor does not relieve himself from any present difficulty, which is considered the motive for such

an act when really done under the pressure of a threat. But in this case that question can hardly be said to arise under the evidence; the proof of pressure by any one before the assignment, is extremely slight, and several persons are preferred who do not appear to have made any demand at all of the amount due them. Ifi my opinion the petitioners have fully established their right to the decree prayed for, and it is accordingly awarded to them.