Page:Federal Reporter, 1st Series, Volume 9.djvu/279

 264 FEDERAL REPORTEU. �isted but for such act, and that it is not enough to show merely a mental state of acquiescence or satisfaction or approval, in view of the prospect that the judgment and the levy will resuit in a prefer- ance. There must be enough to warrant the court in saying that the debtor did something towards procuring the preference, and did it with intent that there should be the preference. Lonaon v. First Nat. Bank, 15 N. B. E. 476, 483 ; Will v. Hereth, 13 N. B. R. 106 ; In re Runyi, 3 Fed. Eep. 790; Darling v, Townsend, 5 Ped. Ebp. 176. �Five judgments in favor of the Jefferson County National Bank, amounting to $7,968.06, were recovered against the debtors on the Bixth of April, 1877, and execution"» were issued and levied on tha debtor 's property on that day. Afterwards, on the same day, a peti- tion in involuntary bankruptcy was filed against the debtors. The judgments were recovered in suits regularly commenced and prose- cuted, as adversary suits, by summons and complaint, and the pro- ceedings were, as to manner and time, all in accordance with the usual practice under the laws of New York. The summonses and complaints were served by the sheriff March 16, 1881, and the full time for the defendants to answer expired before the judgments were entered. The suits were brought on commercial paper, drawn, made, or indorsed by the bankrupts, It is conceded that the debtors were insohent when the suits were commenced. The bill alleges that the suits were commenced "with the assent, connivance, and procurement" of the debtors, and that the debtors "did procure and suffer" their property to be seized on the executions with intent to give a preference to the bank, a creditor of them, and who had rea- sonable cause to believe them to be insolvent, and knew that a fraud on the bankruptcy act was intended. Under an order made by the district court in bankruptcy, the property levied on was sold, and the net proceeds, $9,351.50, were deposited, subject to the order of said court. The district court made a decree in this suit, decreeing the judgments and executions to be void as against the plaintiff, and that the $9,351.50 belongs to the plaintiff, and awarding to him his costs of this suit. �It is contended for the plaintiff that the bankrupts procured their property to be seized on the executions, and that they were not passive, but positive and active, in their efforts to procure and secure the preferences. Henry V. Cadwell, one of the debtors, testifies that he understood they could be put into bankruptcy 40 days after their paper had gone to protest, and that he desired the judgments to mature before a petition in bankruptcy should be iiled against them. ��� �