Page:Federal Reporter, 1st Series, Volume 2.djvu/176

 ANIBAL V. HEAOOCK. 169 �Anibal, Assignee, etc., v. Heacook. {District Court, Jf. D. New York. , 1880.) �Absignee — Recovert op Property Transfebred in Fraud op Bank- BtrPT Law.— To entitle an assignee inbankruptcy to successfully attack a preference given to a creditor, as being in fraud of the bankrupt law^ he must bring himself entirely within the statutory provisions. �Pkefebking Oreditobs. — There is nothing essentially immoral or dis- bonest in preferring one creditor to another, or in concealing the fact. �Same — CoHCEALMENT OF PREFERENCE. — Whileit is thc doctrine in equity that statutes of limitations, cannot be invoked to carry out a fraud, still such principle has no application to a case under the bankrupt law where a creditor, having secured a preference, keeps the same concealed from other creditora. �Wallace, J. The demurrer to the bill of complaint must be sustained. �Although one aspect of the bill is designed to present a cause of action for a fraudaient transfer, the facts do not -warrant the legal conclusions averred. The transaction dis- closed is not fraudulent as to creditors generally, but one by which certain creditors were induced to part with their prop- erty by deceit, and for which they can maintain their several actions. If the assignee can recover at ail it must be upon the theory that the defendant received a preference as a cred- itor of the bankrupt. The action cannot be sustained upon this theory, because the preference was received more than two months before the petition was filed against the debtor upon which he was adjudieated a bankrupt. The averments in the bill to the effect that the debtor fraudulently concealed the fact that a preferential transfer had been made to the defendant do not help the complainant. Assuming that the bill shows that the debtor fraudulently concealed the trans- actions from his creditors, and that the creditors filed their petition in bankruptcy against the debtor as soon as the fraud was discovered, nevertheless the admission that the transfer was actually made more than two months before the filihg of the petition is fatal to the assignee's right to recover. ■ The right of an assignee in bankruptcy to recover prbperty ����