Page:Federal Reporter, 1st Series, Volume 2.djvu/202

 CBANB V. PHNNT. 195 �neBtly led, that she is entirely unworthy of belief. The only fact seriously confiieting with her testimony on this point is the fact that, in the books of the company kept by Mr. Penny, the notes were not entered. Upon the proofs as to the mode of keeping the books I think this fact is far from being suffi- cient to overcome her positive testimony of the fact of their receipt by her. The books were not scientiûcally kept. These loans were evidently regarded, both by Mr. and Mrs. Penny, as an investment in a business which was Bubstantially his regular business. They were not notes which were expected to be paid or provided for upon their due day, or at any par- tioular time. They were more in the nature of loans for an indeiinite time, though the notes were, in form, payable in one day after date. This may, not unnaturally, bave led to their being differently treated from notes and bills payable, ma- turing and to be provided for at a time certain. Upon the whole evidence I think the preponderance of the proof clearly is that they were issued at or about their apparent date. There may be ground for suspicion to the contrary, but that is not enough to rest a conclusion upon against the positive testimony of the witness, and the evidence of the notes them- selves. �As to the design and purposes of Mr. and Mrs. Penny those matters will be more properly considered in the discussion of the question whether there was an illegal preference under the bankrupt law. As it is found that Mrs. Penny is à cred- itor, it is unnecessary to consider further the point that the judgments, executions and levies constituted an assignment in fraud of the bankrupt law. That specification in the bill was probably inserted in view of the posaibility that the evi- dence might show that there was no debt due Mrs. Penny, and that the design was to cover up the property of the bankrupt by a fraudulent assignment. �The only remaining question is whether there was an ille- " gai preference within the terms of the bankrupt law. The burden of proof on this point is upon the complainants. They must prove that the security obtained by means of the judg- ment and lien of the execution was obtained by something ����