Page:Federal Reporter, 1st Series, Volume 5.djvu/188

 176 FEDERAL RErOBXEB. �Daeling, Assignee, etc., v. Townsend and others. �Samb V. Weight and others. �{District Court, 3. D. Mw York. December 30, 1880.) �1. Bankbuptct — Offbb to Allow Judoment — Prefebence — Otheb Executions — ATTACKiNa Assignbb's Titlb Collateballt. �Where a creditor's petition in bankruptcy was flled on the sev- enteenth of November, and on the thirteenth and flfteenth of No- vember, before their time to answer expired, the bankrupts had offered to allow judgraents to be entered against them pursuant to section 385 of the New York code of procedure, in suits commenced by the de- fendants \>y attachment, under which the sherifE had levied on the twenty-ninth of Ootober, and judgments were immediately entered in accordance with the offers, and executions were levied on the goods and flxtures on which the attachment had beexi levied, and the sherifl alsoheld the goods, etc., under executions in favorof other creditors, levied before the defendants' executions, but after their attachment» were levied, and the defendants afterwards received on their execu- tions the whole net proceeds of the sale on execution, the lien of their attachment giving them priority, under the laws of New York, over the earlier execution creditors, the property being in fact, and being understood by the debtors and by the defendants, to be of greater value than the amounts of said earlier judgments, and the defendants knowing at the time the oSers to allow judgments were given that the debtors were insolvent, and that a proposition for a general as- signment for the beneflt of creditors had been made by them : �Hdd, that the giving of the offers to allow judgment, followed by the levy of the execution, was a procuring or suffering of their prop- erty to be seized on execution by the debtors within the meaning of the bankrupt law, and that the assignee was entitled to have the levies set aside as preferences and to recover of the defendants the value of the property. Whether the same could be held to be prefer- ences, if the property levied on had been of no greater value than the amountof the earlier executions, quœre. �Where the circumstances tend to show an intcnt to give and receive a preference, the failure to produce the testimony of the debtor, or of the alleged preferred creditor, as to the intent, held, strongly corrob- orative of the evidence of the intent to prefer. �Evidence offered as to irregularities by the petitioning creditors in instituting and;Carrying on involuntary proceedings ip bankruptcy, and that the person aftprwards made assignee in bankruptcy partic- ipated therein, held immaterial, in a suit by the assignee to recover property transferred as a preference. �In Bankruptcy. ����