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Freeman
Enforcement of Judgments Against Bankrupts



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IDG : TS AGAI2TST BANKRUPTS. 1G77.



THE ENFORCEMENT



-OF —



Judgments Against Bankrupts.



BY A. C. FREEMAN,

Author op Treatises on "Judgments,'" "Executions," "Co-



tenancy and Partition. "



ST. LOUTS:

THE CENTRAL LAW JOURNAL

1877.



T

Km



Entered according to Act of Congress, in the year 1877, by

A. C. Freeman,
In the office of the Librarian of Congress at Washington.



MAYNARD & THOMPSON, LAW PRINTERS.
ST. LOUIS.



a






V

*



TABLE OF CASES



Alcott v. Avery,
Allen v. Montgomery,

Angier, In re,
Epperson v. Stewart.
Appleton v. Bowles,
Armstrong v. Rickey,
Atkinson, In re,
Austin v. O'Reilly,
Avery v. Hackley,



B.



[The references are to sections.]

Bridgman, In re,
Briggs v. Stephens,
Brinkman, In re,
Britton v. Payen,
Brown v. Gibbons,
Brown, Stephen, In re,
Buchanan v. Smith,
Burns, In re,
Burns, S. M., In re,
Bush v. Lester,



14
11

8
13
11

S
12

8

8



Baker, In re,


3


Barber v. Terrell,


13


Barron v. Benedict,


13


Barron v. Morris,


8


Barrow, In re,


9,12


Batchclder v. Putnam,


4


Bates v. Tappan,


4,11


Baum v. Stern.


11


Beattie v. Gardner,


3


Beers v. Place,


8


Belden, In re,


4


Bellamy v. Woodson,


4


Bernstein, In re,


S


Bigelow, In re,


9,11


Black v. McClelland,


5


Bloss, In re,


10


Blum v. Ellis,


11


Boone v. Rcvis,


11,13


Borst, In re,


6


Bowman v. Harding,


4


Boyd v. Vanderkenip,


2


Bracken v. .Johnson,


4


Bradford v. Rice,


I. :.. 7


Bradley v. Frost,


11


Brand, In re,


10




tf



Campbell. In re,
Campbell, Hugh, In re,
Catlin v. Hoffman,
Chambers v. Neal,
Clark & Binninger, In r< .
Clark v. Binninger,
Clark v. Iselin,
Clark v. Rowling,
Clarke, In re,
Cogburn v. Spcnce,
Cole v. Duncan,
Comstock, In re,
Comstock v. Grout,
Cook, In re.
Cook v. Farrington,
Cornell v. Dakin,
Cotton, J. S., In re,
Cozart, In re,
Crawford, In re,
Creditors v. < 'ozzens,
Cross v. Hobson,
Cniuinings v. ( 'legg.
Cutter v. Dingee,
I 'utter v. Evans,



ii

10

11, 12
3
4
5
3
2
12

11,13



2
12

8

11

11

11

3

5

11

II

11

7

7

S

10

14

7

8

5

12

.">

in. 11

ii

5



IV



TABLE OF CASES.



I>.



Daggett v. Cook.


4.


11


Davis, In re,


-t-


12


Davis v. Anderson,




11


Davis v. E. E. Co.,




11


Devoe. In re,




6


Dibblee. 1,




2


Dick v. Powell.




7


Dingee v. Becker.


4. 6,


11


Doe v. Childre - .


4.


11


Douglas v. St. L. Z. Co..




10


Downer v. Eowell.




5


Dresser v. Brook-.




7


Dunbar v. Baker,




4


Dunn. In re,




2


Dusenbury v. Hoyt,




13



E.

Eastburn v. YartUy.
Edge v. Parker.
Elliott v. Booth.
Elli- v. Ham.
Ey-ter v. Gall'.



F.



12

11

13

5, 7

4.11



Fehley v. Fair.


11


Field v. Baker.


3


Flanagan v. Pearson,


2,4,7


Fletcher v. Morey,


8


Foster v. Ames.


9


Francis v. Ogden,


14


Frizelle. In re,


11



«..



Galli -on. In '■ . 5

Glaser, In re. 6
Goddard v. Weaver. 11. 12

Gold M. M. Co., I,- re, 2

Golson v. Xeihoff, 3

Granger & Sabin, In ft ■ 10

Grinnell, In re, 9



II.



Hanibright. /;' re, 8

Hanna, In re, 12
Harrington v. IvIeXaughton. 5, 7

Hatch v. Seely, 10

Hatcher v. Jones. 8

Haughey v. Albin. 8

Haughton v. Eu^ti>, 8

Haworth v. Travis, 8

Haxtun v. Corse. 10

Hazleton v. Valentine, 6

Heard v. Jones, 10

Heller. In re. 3

Henkehnan v. Smith. 3

Hennocksburgh. In re, 5

Herpich. In re, 3

Hester. In re, S

Hewett v. Norton, 4

Hill v. Fleming, 11

Hoadley v. Cawood, 10

Holbrook v. Fos-. 5

Hollister v. Abbott, 7

Hood v. Karper, 3

Hoover v. Greenbaum. 3

Horner v. Spelman, 7

Horter v. Harlan, 6, 8

House v. Swanson, 8

Huber v. Klauberg, 4

Hufnagel. In re, 11

Hughes, In re, 8

Hyde v. Bancroft, 12



Iron M. Co., 12

Ironsides. The. In re, 8

Irving. In re, 4. 12

Irving v. Hughes, 12



J.



Jaycox i^ Green, //< ft . 10

Johnson v. Bishop, 4

Johnson v. Collins, 4

Johnson v. Fitzhugh, 7



TABLE OF CASES.



Johnson v. Poag,

.Font- v. Leach,
Jones v. Lellvett.



K.

Keller, In re,
Kellogg v. Russell,
Kellogg v. Schuyler,

Kent v. Downing,
Kerosene Oil Co.,
Kerr. In re,
Kimball. In re,
King v. Bowman.
Kintzing, Zn /•< .



Lady Bryan M. Co.
Lee v. Phillip-.
Leighton v. Harwood,
Leighton v. Kelsey,
Lenihan v. Haraan.
Levy. In re,
Linn v. Hamilton.
Little v. Alexander,
Livingston v. Livingston,
Loueheim v. Henszey,



M.

Macy v. Jordan, ,
Mallory. In re.
Manning v. Keyes,
Mansfield, In re.
Manwarring v. Kouns,
Maris v. Duron,
Markson v. Heaney,
Marsh v. Armstrong,
Marshall v. Knox,
Marshon v. Haney.
Mason v. Warthens,
May v. Courtnay,
May- v. Fritton,
McCance v. Taylor.



11


McClellan, in re.


9


12


McDonald v. Lngraham,


7


10. 11


McGie,i


3




McGilton, //' re,


5,




Mcintosh, In re,


a




McKay v. Funk.


4




McKinsey v. Harding.


2


3


Mebane. In re.


8


3


Meeks v. Whatley,


8, 9


.">. 7


Metzler, In re.


12


4


Mitllin. In re,


6


12


Migel. //


6


8


Minor v. Van Nostrand,


6


6


Mollison v. Eaton.


11


10


Monroe v. Upton.


5, 14


12


Moshy v. Steele.


13




Moses, In re,


12




Munsonv. B. H. cV E. K. K.


CO., 4




Murphy v. Smith.


14




Myerv. C. L. ct P. W.,


11


12






14






11


X.




4






4


Nassau v. Parker,


7


7


National Iron Co.. hire,


9


7. 14


New H. S. B. v. Webster,


5


3


N. Y. M. S. Co.. In re.


-



2

12

7

5

5. 14

11

12

11

11

11

4

4

3

11



Xoe v. Gibson.
Norton v. Boyd,



O.



O'Brien v. Weld,
O'Mara, In rt .

O'Neill, Ex parte.



Palmer v. Merrill.
Palmer v. Preston,
Park v. Casey,
Parker v. Muggridge,
Parks v. Sheldon.
Partridge v. Dearborn,
Patterson. In re,



11
11



11
6



4

7

5, 14

11

6,7



VI



TABLE OF CASES.



Payne v. Able, 11

Payne v. Drewe, 11

Peck v. Jenness, 11

Pennington v. Sale, 12

Perdue, In re, 8

Pettis, In re, 6

Phelps v. Sellick, 11

Phillips v. Bowdoin, 8, 10

Pierce v. Wilcox, 11

Pike v. McDonald, 5

Piper v. Baldy, 3



B.



Ray v. Brigham, 9

Reed v. Bullington, 11

Rees v. Butler, 7

Reeser v. Johnson, 11

Ripley v. Sears, 3

Robinson, In re, 6, 7

Robinson v. Pesant, 13

Robinson v. Wilson, 11, 13

Roden v. Jaco, 7, 14

Rogers v. Ins. Co., 7

Rosey, In re, 2, 5

Rowe v. Page, 4

Ruckman v. Cowell, 14

Rudge v. Rundle, 14

Ruehle, In re, 11

Russell v. Cheatham, 11



S.



Sacchi, In re, 4
Sampson v. Burton, 4, 11

Sampson v. Clark, 5

Savage v. Best, . 11

Savings Rank v. Webster, 14

Savory v. Stocking, 13
Second Nat. Bank v. N. S. B.

of Newark, 11

Sedgwick v. Menck, 11

Seibel v. Simeon, 10

Seymour, In re, 7

Sharman v. Howell, 11

Sheehan, In re, 2



Shuey,W. H., In re,
Shuman v. Strauss,
Sidle, In re,
Simpson, In re,
Sleek v, Turner,
Smith & Smith, In re,
Snedaker, In re,
Spalding v. State,
Sparhawk v. Broome,
Stansell, In re,
Stemmons v. Burford,
Stephens, In re,
Steward v. Green,
Stewart v. Isidor,
Stewart, T. R., In re,
Stinemets v. Ainslie,
Stoddard v. Locke,
Stoll v. Wilson,
Stone v. National Bank,
Stuart v. Hines,
Sutherland, In re,
Sutherland v. L. S. C. Co.,
Swope v. Arnold,



T.

Talbert v. Melton,
Taylor v. Bonnett,
Taylor v. Carryl,
Tenth Nat. B. v. Sanger,
Terry, In re,
Thomas v. Shaw,
Thompson v. Moses,
Tills & May, In re,
Tooker, In re,
Townsend v. Leonard,
Trimble v. Williamson,
Truitt v. Truitt,
Turner v. Gatewood,
Turner v. The Skylark,



U.

Urau v. Houdlette,
Usher v. Pease



11,12

7
2
6
3
6, 8, 11

12
2

13

10

11
5
4

10
9

13
4,11

14
4,11

11
2
9



11
11
11
12
3

14

11

8

4

11

13

11, 13

13

11



TABLE OF CASES.



VI 1



V.

Valk, In re, G

Valkenburgh v. Dederick, 5

Valliant v. Childress, -4, 11



W.

Walker, In re, 6

Wallace, In re, 12

Warner v. Cronkhite, 7
Warren v. D. L. & W. R. W. Co., 3

Wan-en v. Tenth N. B., 3

Weamer, In re, 1 1

Webb v. Sachs, 3

Webster v. Woolbridge, S

Weeks, In re, 8

Westenberger v. Wheaton, 14

Whipple, In re, 11

Whitehouse, In re, 7



Whitaker v. Chapman, 7

Whitman v. Butler, 12

Wicks v. Perkins, 11

Wiggers, In re, 6, 7

Wilbur, In re, 12

Wilcox v. Pollard, 8

Wiley, W. II., In re, 8

Williams, In re, 5
Williams &. McPheeters, In re, G

Wilson v. Brinkman, 3

Wilson v. Childs, 8, 11

Wilson v. City Bank, 3
Winship v. Phillips, 8, 10, 11

Witt v. Hereth, S

Woodbury v. Perkins. 5

Wright, J. S., In re, 7

Wynne, In re, 8, 11



Zahm v. Fry,



THK ENFORCEMENT



-OF—



JUDGMENTS AGAINST BANKRUPTS.



Section 1. Bankrupts, like other persons, arc subject to the jurisdic-
tion of the various courts.

Sec. 2. Classification of Judgments against Bankrupts.

Sec. 3. Judgments entered within four months prior to Bankruptcy,
when may be avoided as unlawful preferences.

Sec. 4. Validity of Judgments entered after the Petition in Bank-
ruptcy.

See. 5. Enforcing Judgments entered subsequent to the Petition in
Bankruptcy.

Sec. 6. Proceedings by Execution pending Proceedings in Bankruptcy.

Sec. 7. Judgments not Released by Proceedings in Bankruptcy.

Sec. 8. Judgment and Execution Liens not Extinguished by Bank-
ruptcy.

Sec. 9. Enforcing Judgment and other Liens in Court of Bankruptcy.

SEC 10. Cases where the Creditor may proceed in the State Court after
presenting his Judgment as a claim against the Bankrupt.

Sec. 11. Enforcing Judgments never presented to the Court of Bank-
ruptcy.

Sec. 12. Enforcing Proceedings in the State Courts.

Sec. 13. Effect of a Discharge in Bankruptcy.

Sec. 14. The Method of making a Discharge Available.

Section 1. Bankrupts are, like other Persons, subject to
the Jurisdiction of the Court*. — The term bankrupt will, in
this article, be employed to denote a person who has, either
upon his own petition or thai of one or more of his credi-
tors, been "adjudged a bankrupt" in proceedings authorized
by the present statutes of the United States. Before pro-
ceeding to consider the effect of any particular class of



2 ENFORCEMENT OF JUDGMENTS AGAINST BANKRUPTS.

judgments, or the means by which the holders thereof may
make such judgments productive, we shall first inquire
whether there are any judgments which may be regarded as
having no validity against the bankrupt. Tne answer to
this question must be, that a bankrupt, like most other per-
sons, is subject to the jurisdiction of the different courts,
state and national . When summoned to appear before one
of these courts, he must not treat its process with contempt,
nor assume that it will take judicial knowledge of those cir-
cumstances, which, if properly pleaded, would cause the
court either to suspend its proceeding, or to grant judg-
ment in his favor. In other words, whether an action be
pending against a bankrupt prior to the commencement of
the proceedings in bankruptcy, or commenced during the
pendency of those proceedings, or subsequent to his final
discharge, he must, in either case, exercise a proper degree
of vigilance in preventing the entry of a judgment in con-
flict with his rights ; for, if such judgment be entered, he
will not be permitted to treat it as void.

Sec. 2. Classification of Judgments against Bankrupts. —
Judgments capable of enforcement against a bankrupt and
his estate will, for the sake of convenience, be classified as
follows: first, judgments entered so long anterior to the
institution of the proceedings in bankruptcy, that they can
not be assailed on the ground that they were given with a
view of permitting the plaintiff to obtain a preference over
the other creditors of the bankrupt ; second, judgments
entered before the institution of the proceedings, but at so
recent a date as to be liable to assault and overthrow if in-
fected by such a preference ; third, judgments entered after
the commencement of the bankruptcy proceedings ; and,
fourth, judgments which, whensoever entered, are of such a
character that the proceedings in bankruptcy do uot afford
the bankrupt any immunity therefrom. The judgments of
the first class do not require any special consideration.
Their validity must be conceded in the courts of bank-
ruptcy. They can not, in those courts, be impeached for



ENFORCEMENT OF JUDGMENTS AGAINST BANKRUPTS. 3

error or irregularity, nor otherwise subjected to any collat-
eral attack. 1

If they are presented as claims against the estate of the
bankrupt, they, with all costs and interest accrued before
the bankruptcy, are entitled to allowance. 2 Whether a
judgment of this class constitutes a claim against the estate
of the bankrupt must be determined by deciding whether it
is a " debt," demand or liability within the meaning of Sec.
50G 7 of the Kevised Statutes. Generally a judgment
merges or extinguishes the cause of action out of which it
arose, and is, therefore, entitled to the same consideration
when founded upon a tort, as when founded on a contract.
It is a " debt " irrespective of its origin. There is there-
fore no doubt that a judgment may be a provable debt, al-
though the cause of action on which it was based could not
have been proved as a claim against the bankrupt. 3 As a
general rule, all judgments of the class of which we are
now writing are provable debts within the meaning of the
Bankrupt Act. 4 Judgments for fines imposed for the com-
mission of crimes, or for contempts of court, are not
within the general rule, and are not provable debts. 5 Pen-
alties given by statutes are treated as debts. A judgment
for such a penalty is therefore provable. 6 The pendency of
an appeal does not destroy the provable character of a
judgment. 7

Sec. 3. Judgments Entered within Four Months prior to
the Bankruptcy. — Judgments of the second class, when at-

1 McKinsey v. Harding, 4 B. R. 39; In re J. H. Dunn, 11 B. R. 270; In
re Dibblee, 2 B. R. G17; 3 Ben. 283; Flanagan v. Pearson. 14 B. R. 37;
In re Campbell, 1 B. R. 165; 1 Abb. C. C. 185; 1 L. T. B. 30; In re
Burns, 1 B. R. 174; 7 A. L. Reg. (N. S.) 105; 24 Leg. Int. 357.

2 Ex parte O'Neill, 1 Lowell, 163; 1 B. R. 677.
3 3 Parsons on Contracts, 6tb ed., 466.

*Inre J. W. Sidle, 2 B. R. 220; Boyd v. Vanderkemp, 1 Barb. Ch. 27:?.

s/n re Sutherland, 3 B. R. 314; 1 Deady, 416; Spalding v. State, 4 How.
(IT. S.) 21; s. C, 10 Paige Ch., 2S4; 7 Hill, 301; Macv v. Jordan, 2 Den.
570.

6 In re Rosey, 8 B. R. 509.

"In re Sheehan, 8 B. R. 345; In re Gold. M. M. Co. 3 Saw. C. C. 601.



4 ENFORCEMENT OF JUDGMENTS AGAINST BANKRUPTS.

tempted to be asserted as the basis of a lien against the
estate of the bankrupt, are likely to be attacked on the
ground that, for the purpose of creating such liens, they
are void by the provisions of sections 5021 and 5128 of the
Revised Statutes. 8 Section 5128 provides that " if any per-
son, being insolvent, or in contemplation of insolvency,
within four months before the filing of the petition by or
against him, with a view to give preference to any creditor
or person having a claim against him, procures or sutlers
any part of his property to be attached, sequestered, or
seized on execution, or makes any payment, pledge, assign-
ment, transfer, or conveyance, of any part of his property,
either directly or indirectly, absolutely or conditionally, the
person receiving such payment, pledge, assignment, trans-
fer, or conveyance, or to be benefited thereby, or by such
attachment, having reasonable cause to believe such person
is insolvent, and knowing that such attachment, sequestra-
tion, seizure, payment, pledge, assignment, or conveyance,
is made in fraud of the provisions of this title, the same
shall be void, and the assignee ma}- recover the property, or
the value of it, from the person so receiving it, or so to be
benefited." By section 5130 a, " in cases of involuntary or
compulsory bankruptcy, the period of four months, men-
tioned in section 5128, is changed to two months." The
judgments most frequently subjected to the scrutiny author-
ized by these sections are those rendered by confession, or
upon default. When a confession of judgment, or a war-
rant, or other power to confess a judgment, is given more ,
than four months prior to the filing of the bankrupt's peti-
tion, and a judgment is in fact entered by virtue thereof
within the four months, the question then arises whether
the validity of the judgment depends on the date of its
entry, or the date of the warrant or power. The answer
to this question was given by the Supreme Court of the
United States : " In a case where a creditor, holding a con-
fession of judgment perfectly valid when it was given,
s These are sections 35 and 39 of the original Bankrupt Act.






ENFORCEMENT OF JUDGMENTS AGAINST BANKRUPTS.

causes the judgment to be entered of record, how can it
be said the debtor procures the entry at the time it is
made? It is true the judgment is entered in virtue of his
authority, an authority given when the confession was
signed. That may have been years before ; or, if not,
it may have been when the debtor was perfectly solvent.
But no consent is given when the entry is made where the
confession becomes an actual judgment, and when the pref-
erence, if it be a preference, is obtained. The debtor has
nothing to do with the entry. As to that, he is entirely pas-
sive. Ordinarily, he knows nothing of it, and he could not
prevent it if he would. It is impossible, therefore, to main-
tain that such a judgment is obtained when his confession is
placed on record." 9 It follows, therefore, that if the author-
ity to confess the judgment was given more than four months
before the filing of the petition, the judgment can not be
avoided, merely because it was entered within that time. 10
The opinion of the Supreme Court of the United States, in
the case of Clark v. Iselin, just cited, is undoubtedly in an-
tagonism to the views of many of the subordinate judges ;
and some of them are very loath to be governed by it. The
case of August Herpich is a good illustration of what we
have just stated. Herpich, being insolvent, executed cer-
tain warrants of attorney in February, 1876, in considera-
tion of prior indebtedness. A little more than two months
later, judgments were entered on the warrants. Some ten
days later, Herpich became an involuntary bankrupt. Con-
ceding that the giving of the warrants was a fraudulent
preference, the time within which they could be avoided
had expired. The judge nevertheless refused to follow
Clark v. Iselin, and held that the judgment based on the

9 Clark v. Iselin. 21 Wall. 360; 7 Ch. L. X. 18-"): 2 ('cut. L. J. 210; 11
B. R. 337; reversing, 10 Blatch. 204.

io Clark v. Iselin. cited above; Piper v. Baldy, 10 B. R. 517: 31 Leg.
Int. 310; Field v. Baker, 11 B. R. 415; Sleek v. Turner. 10 B. R. 580;
1 A. L. T. 485; 31 Leg. Int. 308; Contra, Zahm v. Fry, 9 B. R. 546; 31
Leg. Int. 107; Hood v. Karper, 5 B. R. 358; 28 Leg. Int. 340; Golson v.
Neihoff, 5 B. R. 56; 2 Biss. 434; In re Terry, 2 Biss. 350.



G ENFORCEMENT OF JUDGMENTS AGAINST BANKRUPTS.

warrants should not be allowed as a valid lien against the
estate of the bankrupt. 11 A confession of judgment, or a
warrant to confess judgment, given to secure a loan
then made, 12 or given by an insolvent to secure a pre-
existing debt, to a person who did not have reasonable
cause to believe the debtor insolvent, is not an unlawful
preference, and a judgment thereon is not void under the
provisions of sections 5021 or 5128 of the Revised Stat-
utes. 13 To avoid any seizure or judgment by the aid of
these sections, it is evident that these five circumstances
must be established : 1st, that the debtor was insolvent, or
contemplating insolvency ; 2d, that while so, he procured or
suffered the seizure or judgment ; 3d, that the procuring or
suffering was within the time specified by the Act ; 4th, that
it was with the view of giving a preference ; and, 5th, that
the person benefited had reasonable cause to believe the
debtor insolvent, and that the latter was acting in fraud of
the Act. 14 When a creditor, knowing his debtor to be insolv-
ent, pursues the latter by the ordinary remedy for the col-
lection of his debt, and the latter, also knowing his own insolv-
ency, makes no defense, and permits judgment to be entered
against himself by default, within four months before the
commencement of proceedings in bankruptcy, all these five
circumstances seem almost necessarily to co-exist. The only
ones which can be absent in such a case are, the view on the
part of the debtor of giving a preference, and the creditor's
knowledge that the debtor is suffering judgment to be en-
tered in fraud of the provisions of the Act. But, as the
debtor is presumed to intend the necessary consequence of
his own act, and as, in such a case, his inaction so uniformly
leads to the obtaining of a preference in favor of the cred-

n In re Herpich, 9 Ch/L. jST. 253.

12 Clark v. Iselin, cited above.

13 Mays v. Fritton, 20 Wall. 414; 11 B. E. 229.

14 Clark v. Iselin, 7 Ch. L. 1ST. 185; 2 Cent. L. J. 210; 11 B. R. 337;
Hoover v. Greenbaum, 61 N. Y. 305; Webb v. Sachs, 9 Ch. L. N". 156;
15 B. R. 168.



ENFORCEMENT OF JUDGMENTS AGAINST BANKRUPTS. 7

itor, and thereby accomplishes the result which the Bank-
rupt Act was intended to avoid, it was, for a considerable
time, almost conceded that a judgment so permitted was
necessarily " suffered " " with a view to give a preference,"
and that the creditor knew it was so suffered ; and that he
could, therefore, derive no benefit from it out of the bank-
rupt's estate. 15 Different views finally prevailed in the Su-
preme Court of the United States. It was there main-
tained that, to render a judgment obnoxious to the Bankrupt
Act, there must exist in the mind of the debtor a positive
purpose or intent to defeat or delay the operation of the
Act, or to accomplish something which the Act treated as
unlawful ; that it would be immoral for him to oppose or
impede his creditor by false or dilatory pleas ; that he was
under no moral or legal obligation to file his petition in
bankruptcy ; and, as the result of these propositions, that
the debtor could not be presumed to have been actuated by
an unlawful purpose, from the fact that he neither perpe-
trated the wrong of defending against a just claim, nor
made an application to the courts of bankruptcy, when he
was under no obligation to make such application. 1 ' 1 In such
cases the intent of the debtor is the turning-point : and what
this intent was, must be determined from the consideration
of all the attending circumstances. 17 While an unlawful in-
tent is not to be inferred from mere "passive non-resistance
to regular judicial proceedings," " undoubtedly very slight
evidence of an affirmative character of the existence 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

is Warren v. D. L. ct W. R. W. Co.. 7 B. R. 451 ; 5 Ch. L. X. 205 ; In re
McGie, 2 Biss. 163; In re Heller, 3 Biss. 153; Wilson v. Brinkman, 2 B.
R. 468; Buchanan v. Smith, 16 Wall. 277; 5 Ch. L. N. 277.

16 Wilson v. City Bank, 17 Wall. 489; 6 Ch. L. N. 149; 9 B. R. 97; Brit-
ton v. Payen. 9 B. R. 445; Partridge v. Dearborn, 9 B. R. 474; Ilenkel-
man v. Smith. 12 B. R. 121 ; 42 Md. 164; Loueheim r. Henszey, 77 Penn.
St. 305.

"Little v. Alexander, 21 Wall. 500; 7 Ch. L. N. 339; 12 B. R. 134.



8 ENFORCEMENT OF JUDGMENTS AGAINST BANKRUPTS.

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." 18 When a judgment is sought to be em-
ployed to secure a preference forbidden by the Bankrupt
Act, the usual and most convenient method of thwarting
this purpose, and of litigating the issues necessarily in-
volved, is by filing a bill in equity on behalf of the as-
signee. 19

Sec. 4. Validity of Judgments Entered after the Filing
of the Petition in Bankruptcy. — Actions pending in state
courts do not abate by virtue of proceedings in bankruptcy
by or against either of the litigants. 20 Section 5047 21 pro-


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