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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 17   View pdf image (33K)
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BROOKS VS. THOMAS AND JEROME. 17
and improper preference to this favored creditor; and 2d, that
the payment, assignment, and delivery was made after Thomas
was insolvent, and when Jerome knew of his insolvency, and
when the former could have had no reasonable expectation
of being able to relieve himself from his liabilities otherwise than
by applying for the benefit of the insolvent laws, in other
words, that the case comes within the provisions of the Act of
1834, ch. 293, and the preference condemned by that Act.
It is, of course, quite unnecessary to repeat what has been
so often said, that a trustee of an insolvent debtor attempting
to vacate an assignment as made in violation of the insolvent
system, is not required to offer direct evidence of the facts
upon which he relics, but he may avail himself of facts and
circumstances to establish the intention with which the assign-
ment was made, and if they be sufficiently strong, the assign-
ment will be set aside. Such was the opinion of the Court of
Appeals in Dulany vs. Hoffman, 7 G. & J., 170, and the pro-
position is not to be questioned. Glenn vs. Baker, 1 Md. Ch.
Decisions, 73; Powles vs. Dilley, 2 Ibid., 119.
But though the plaintiff, in cases like the present, is not
required to produce direct evidence that the insolvent, at the
time of the assignment, intended to apply for the benefit of
the insolvent laws, but may rely upon facts and circumstances
to establish the intent, it is must manifest that the difficulty of
making out the intent is materially increased when the insol-
vent, either by his answer, if he be made a defendant, or by
his evidence, if he be examined as a witness, denies such
intent, and I am aware of no case where the intent has been
established in opposition to such answer or evidence. The
motives which may influence a party at the time of doing an
act, are generally so exclusively within his own knowledge,
that it is extremely difficult to attribute to him one different
from that which he avows. Indeed, if the avowal be made
under the obligation of an oath, as he cannot be mistaken upon
such a subject, the imputation of a contrary intention carries
with it the imputation of wilful and deliberate perjury. In
Hickley vs. The Farmers and Merchants' Bank, 5 G. & J.,

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 17   View pdf image (33K)
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