Page:Federal Reporter, 1st Series, Volume 9.djvu/277

 262 rBDEBAL BEFOBTEB. �snccess or completion, and is under no legal or moral obligation to hinder or prevent them; that all the other modes of preferring cred- itors found in direct context in the statute are of a positive and affirmative character, and are evidences of an active desire or wish to prefer one crediter to others, and that a passive indifference and inaction, where no action is required by positive law or good morals, cannot be construed into such a preference as the law forbids. The summary by the court of its conclusions was : �" (1) That Bomething more than passive non-resistance of an insolvent debtor to regular judicial proceedings, in which a judgment and levy on his property are obtained when the d©btis due and he is without justdefence to the action, is necessary to show a preference of a creditor, or a purpose to def eat or delay the operation of the bankrupt act; (2) that the fact that the debtor, under such circumstances, does net file a petition in bankruptcy, is net sufflcient evidence of such preference, or of intent to def eat the operation of the act; (3) that, though the judgment creditor in such case may know the insolvent condition of the debtor, his levy and seizure are not void, under the circumstances, nor any violation of the bankrupt law ; (4) that a lien thus obtained by him will not be displaced by subsequent proceedings in bankruptcy against the debtor, though within four months of the flling of the petition." �In the present case the illegality of the levy is sought to be main- tained on the ground of a distinction between the facts in this case and those in Wilson v. City Bank. It is contended that in this case evidence exists of a wish or design on the part of the debtors to give the creditor a preference, or oppose or delay the operation of the bankruptcy statute, and stress is laid upon these remarks of the court in Wilson v. City Bank: �"Undoubtedly, very slight evidence of an affirmative character of the exist- ence of a desire to prefer one creditor, or of acts done with a view to secure such preference, might be sufficient to invalidate the whole transaction. Such evidence might be sufficient to leave the matter to a jury, or to support a decree, because the known existence of a motive to prefer or to defraud the bankrupt act would color acts or decisions otherwise of no significance. These cases must rest on their own circumstances. But the case before us is destitute of any evidence of the existence of such a motive, unless it is to be imputed as a conclusion of law from facts which we do not think raise such an implication." �In that case the debtors were insolvent when the suit was brought. The creditor had then reasonable cause to believe it, and knew that the debtors had committed an act of bankruptcy, and that they had no property but the stock of goods, which the creditor afterwards levied on. The debtors gave no notice to any of their creditors that the suit had been brought, and, having no defence to it, did not de- ��� �