Sage v. Wyncoop

APPEAL from the Circuit Court of the United States for the Northern District of New York.

This was a bill filed by Sage against Wyncoop, Cossitt, and Fowler, to compel the application of a fund in the custody of the District Court of the United States for the Northern District of New York, to the payment of two judgments which he had recovered against Fowler in the Supreme Court of the State of New York, May 19 and June 2, 1875. It appears that executions, forthwith sued out upon the judgments, were by Cossitt, as sheriff, levied upon goods belonging to Fowler. On the 3d of June and after the levy, Fowler filed his petition in bankruptcy. On the 7th of that month he was adjudged a bankrupt, and on the 9th Cossitt was, by order of the District Court, restrained from proceeding to enforce by sale the collection of the judgments. Wyncoop was appointed in July, 1875, assignee in bankruptcy of Fowler. On the 17th of the following month the District Court made an order authorizing him to sell the goods and deposit the proceeds in court, and declaring that the lien of Sage and of the sheriff, by virtue of the executions and levies, if it was valid, be transferred to so much of such proceeds as would be sufficient to pay them. The sale was accordingly made and the money deposited. The bill prayed for the application of the fund above mentioned.

Wyncoop alone answered, admitting the material facts alleged in the petition, and setting up, among other things, that Fowler, being wholly insolvent, did, immediately before the filing of his petition in bankruptcy, procure or suffer his goods to be seized on the executions, and that the writs were sued out on judgments which he procured or suffered to be taken against him, with the fraudulent intent to thereby give Sage an unlawful preference, contrary to the provisions of the bankrupt law, Sage having reasonable cause to believe Fowler to be insolvent, and knowing that such seizure was made in fraud of his other creditors.

The court dismissed don final hearing the bill, and Sage appealed. The remaining facts are stated in the opinion of the court.

The case was argued by Mr. Aaron J. Vanderpoel for the appellant, and by Mr. George N. Kennedy for the appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.