Jones v. Talbot, 4 Mo. 279

Wash J. delivered the opinion of the court. The questions now raised for the consideration of this court are: 1 st. Did the circuit court err in refusing the continuance of course, and in adjudging the costs of the continuance upon cause, shewn against the defendant? Did the court err in giving the instructions asked for by the plaintiff? Was the verdict of .the jury against law and evidence?

And did the circuit court err in overrul- This cause might be readily disposed of without deciding the question first raised; and as the amount involved is a mere trifle, it would not now be looked into; but that itis a new question arising out of the statute, and may serve to settle and direct the practice under it hereafter, The counsel for the appellee insists that the 17th sec. of the insolvent debtors’ act, in providing for the

summary trial, deprives the defendant of the right of continuance as of course, and that a continuance granted upon shewn, is always at the sound discretion of the court, and at the eosts of the applicant. For the appellant, it is contended that the insolvent debtors’ act “provides (upon the- filing of allegations) for the issuing of a summons as in other cases;” and that the 28th sec. of the act to regulate proceedings at law (Rev. Code, p. 628,) gives the defendant aright to a continuance at the first term without shewing cause.

That the insolvent debtors’ act, relied on by the appellee’s counsel does not go the length contended for, and if it ,did, that the subsequent act to regulate proceedings at law above cited repealed that provision, and secures the right of continuance at the first term in all cases. The law we think is with the appellant on this point.

It seems that a debtor may give a preference to some of his creditors, in contemplation of taking the benefit of the insolvent aet; and The language of the 17 th sec. above cited, is that “the clerk of the court, before whom such allegations are filed, shall issue a summons as in other cases, requiring the said debtor to appear and answer the said allegations, and upon return of such summons duly served, the court, if the debtor do not appear, (or if he appear and the creditor elect to have issues made up) shall direct an issue or issues to be made up and tried by a jury in a

summary way, without the form of an action to determine the truth thereof” &c. It seems to us that the act sufficiently explains itself in what it intends, by having the issues tried in a

summary way. That no formal pleading or regular action to determine the truth of the allegations will be required, — not that the trial shall be immediate or without further time, when the defendant could not know whether the plaintiff would elect to file interrogatories or have issues made up for trial, and of course could not be prepared with evidence.

To require that the debtor should come prepared at all points with his witnesses before he could know whether or not they would be needed; and when very often they would not and could not be examined, would impose (if not an impossibility) a hardship upon him, at war with the spirit of the. act, and in mockery of the relief it profeses to extend.— When the issues have been once made up in whatever

summary or informal way, the case stands precisely as any other ordinary or formal action, and the right of the defendant to a continuance of course at the first term, will be as in other cases. On the other points, the counsel for the appellee, have insisted with much earnestness and ingenuity, first that a correct construction of the insolvent debtors’ act, will sustain the instructions given for the plaintiff; and secondly, that if the instructions given for the plaintiff were wrong, they were corrected by these subsequently given for the defendant.

It mav be conceded that the terms made use of in the 17 th sec. of the act, are somewhat broad and indefinite, but to give them the construction contended for, would be in effect to decide that a debtor cannot prefer one creditor to another; that he may do so, has been repeatedly adjudged, and is conceded by the appellee’s counsel. /The law imposes upon a debtor the obligation to pay all'his debts, yet the law will, in tain cases, prefer one creditor to another; and a debtor is often called on by the strongest feelings of friendship and affection, to secure a creditor, who without hope or prospect of remuneration or reward, has generously endeavored to sustain him, in preference to the one who has been bearing him down with the weight of interest compounded, and claims regulaiiy his pound of flesh, because ’tis his bond!

I The character of the debts provided for in the deed, is not called in question, (unless it may be in the terms of the instructions asked for which speaks of them as debts pretended to be due.) so far as any evidence was given or preserved in regard to them, they were bona fide, and of a character that well justified the preference given them. To secure the payment of bona fide debts, was a sufficient legal consideration.

The preference given was an honest, due, and legal preference, and not an undue, improper or fraudulent one. preference i* not therfore, an i^T/*! here-7 fore fraudulent, .Wliere .erroneous jfiven for'one'party, the error is not f°1Tforie^y ?iv' p^ft/instructions explanatory or those^rst^iv instructions should expressly with - jury!” r°m 8 There was no room for the jury to infer that the deed was made with intent to defraud the plaintiff, or other creditors, or to give to the creditors named, an undue preference, or made with intent to take the insolvent oath, or to secure to the defendant any unlawful profit or advantage thereby.

We think, therefore, that the verdict of the jury was against the law and the evidence given in the cause, and should have been set aside, and a new trial granted. The instructions given for the plaintiff were too general, and not warranted by the evidence, It is not enough to show that they were in effect or might have been corrected by the instructions which were giv-enfor the defendant. They should have been expressly ■withdrawn from the jury. This point has been so adjudged-in this court. Judge McGirk did not sit in this caso.