Page:Federal Reporter, 1st Series, Volume 3.djvu/640

 ïliEMINO V. ANDBE\^S. ,633 �to them the notes which the defendants had against WiHiam- Bon, and Stewart & Co. were to tender payment, not in ca.8h, as they had promised, but in the notes which the defendants held against the bankrupt. This was a schema ^resorted to by the defendants, and to which C. G. Stewart & Co. were parties, to enable the former to obtain a payment pro tanto oî the debt which was due to them from the bankrupt. The question is whether it can prevail. I think it cannot, and in this I agree with the district coui^t, Ail of the counts or para- graphe in the complaint, except one, proceedupon the hypothr esis that the bankrupt was a party to this conspiraoy, but the, evidence showed .that he sold the xjoal in good faith to C. G. Stewart & Co., haviag no knowledge whatever that they were aeting as the agents of the defendants, or that the defendants had anything to do with the purchase, He ex- pected to receive payment for the coal iu 30 days, acoording to the promise of C. G. Stewart & Co., but when they tendered to him bis own notes, held by the defendant, he refused to take them. Most of the paragraphe in the complaint, being founded upon the connivance and participation of the bank- rupt in this Bcheme, necessarily fail, asthere was no evidence tending to show the bankrupt had any agency in the arrange- ment. �The amendment to the fourth paragraph of the complaint sets forth substantially the facts as I have stated them; that is to eay, the arrangement made between the defendants and C. G. Stewart & Co., and the purpose of both parties, but not claiming that the bankrupt had any part in it, but simply that he was used by the defendants and C. G. Stewart & Co. for the purpose named. �Can such a trick as this, under the circumstances, be suc- cessf ul ? And can the property which belonged to the bank- rupt, and which now really belongs to his oreditors, be held by the defendants, and they thua obtain a preference of their own debt, as against the other oreditors of the bankrupt ? I think not. To suffer it, would be tendering a premium for tricks of this kind, and would be a reproach to the law ; espec- ially, would it be a reproach to the bankrupt law. But it is ����