Page:Federal Reporter, 1st Series, Volume 3.djvu/800

 IN BB BIJNZI. 793 �the active participation of the bankrupt îs elight ; and the question is whether there is any evidence in this case which shows that the bankrupts, or either of tbem, had any part in the scheme, which was undoubtedly devised between Fisch- back and his counsel, to have process served upon Lehman in Montgomery county. In other words, did Lehman go to Montgomery county in order that process might be served on him in the case, or did he connive at it, or bave any intima^ tion of the design of Fisohback and his counsel? If so, then it may be said that he participated in the act, and so pro- cured, within the language of the statute, his property to be taken upon execution, and a preference to be thereby ac- quired which would be unlawful. Lehman communicated his purpose to go to Montgomery county to his wife, she to her daughter, Fischback's wife, and the latter to her husband. Both Fischback and Lehman deny that the latter had any knowledge whatever of the purpose to institute suit and serve process. It is perhaps fair to say that there are circum- stances in the case which look suspicions. Lehman mentioned to his partner his purpose to go, and his partner told him it was no use, but he finally concluded to go; obtained no money from the creditor of the firm.'who, it is conceeded, resided in Montgomery county, but obtained notes for the debt that was due. �There seems to be a little particularity in the communica- tion by Lehman's wife to her daughter, and by the latter to her husband, which is calculated to arouse suspicion; but it is incumbent on the assignee to prove that the bankrupts, or one of them, did procure, within the meaning of the decisions of the supreme court of the United States and of the law, a judgment and execution. There must, in other words, be sufficient evidence to bring conviction to the mind, and to enable the court to say that it believes, from the evidence, that this was the intention of the bankrupts. And the testi- mony hardly comes up to this demand of the law. There are suspicions circumstanees, but suspicion is not enough; there must be conviction or belief of the existance of the faet. �The view which the district court took of the case was ����