Platt v. Preston.

which the citation is returnable, extend the time for filing the transcript from the District Court.

(Before BLATCHFORD, J., Southern District of New York, June 20th, 1881.)

BLATCHFORD, J. The decree below was entered October 7th, 1880. Under § 4,981, an appeal was claimed by the plaintiff and due notice given to the clerk and the defendant's solicitor October 15th. On the same day a citation returnable on the first Monday of April, 1881, was signed by the District Judge and served on the defendant's solicitor, a bond on appeal being also filed and approved and the appeal allowed. On the 25th of October, a petition of appeal was filed by the plaintiff in this Court, in due form, and a copy thereof was on the same day served on the defendant's solicitor. No transcript of the record from the District Court having been filed in this Court by May 24th, the defendants move to dismiss the appeal. The transcript was prepared in the District Court clerk's office by the 18th of March, but the fees therefor were not paid. As an excuse the counsel for the plaintiff deposes that he was not intentionally guilty of laches, but delayed filing the transcript because he believed the case could not be heard before next October. He states that he is now ready to file the transcript and prays to be allowed to do so.

It is provided, by § 4,982, that the appeal shall be "entered at the term of the Circuit Court which shall be held within the District next after the expiration of ten days from the time of claiming the same." A term of the Circuit Court began October 18th. If the filing of the petition of appeal was the entry of the appeal, then the appeal was entered in time, and this Court has jurisdiction of it. Perhaps the citation ought to have been made returnable at the term commencing the last Monday of February, but, that is of no importance now. The defendants permitted that term to pass and waited until now in the April term before making this motion.

I think the filing of the petition of appeal was an entry

Sherman v. The Windsor Manufacturing Company.

of the appeal, within § 4,982. It is still the April term and still in time to file the transcript at the term to which the citation was returnable. The plaintiff ought to be allowed to file the transcript now and 10 days will be given for that purpose. An order may be entered granting the motion to dismiss unless that shall be done.

B. F. Tracy, for the motion.

A. Blumenstiel, opposed.

CARLOS S. SHERMAN AND BENJAMIN F. ADAMS

vs.

THE WINDSOR MANUFACTURING COMPANY AND EBENEZER G. LAMSON. IN EQUITY.

"of Castleton,

A bill in equity filed in the State Court described the plaintiffs as in the County of Rutland, in the State of Vermont." One of the defendants, in his petition for the removal of the cause into this Court, stated that he was a citizen of Massachusetts, but said nothing as to the citizenship of the plaintiffs. Nothing else appeared in the case on the subject: Held, that there was no sufficient averment of citizenship to give this Court jurisdiction and that the suit must be remanded to the State Court.

(Before WHEELER, J., Vermont, June 21st, 1881.)

WHEELER, J. This cause was commenced in the State Court. In the orators' bill, they are described as of Castleton, in the County of Rutland, in the State of Vermont. The cause was removed into this Court on petition of the defendant Lamson, in which he avers himself to be a citizen of Massachusetts, and the cause to be one which can be fully determined as between him and the orators without the

Brown v. The Jefferson County National Bank.

presence of the other defendant, but nothing as to the citizenship of the orators. There is nothing in the case on that subject further than that description in the bill. That is not a sufficient averment of citizenship to sustain the jurisdiction of this Court, as has been held from the earliest times. (Abercrombie v. Dupuis, 1 Cranch, 341; Wood v. Wagnon, 2 Cranch, 9.) The orators have moved to remand for this cause among others. On this ground the motion is granted and the cause is remanded to the State Court.

Aldace F. Walker, for the plaintiffs.

Jessie B. Phelps, for the defendant.

JOHN G. BROWN, AS ASSIGNEE, &c.

vs.

THE JEFFERSON COUNTY NATIONAL BANK. IN EQUITY.

The mere existence of a desire on the part of a debtor, however strong such desire, that a particular creditor may succeed by suit, judgment, execution and levy, in obtaining a preference over other creditors, so that such preference may be maintained even as against proceedings in bankruptcy, which may be subsequently commenced, is not sufficient to establish that the debtor procured or suffered his property to be taken on legal process, with intent to prefer such creditor, if the proceedings of the creditor were the usual proceedings in a suit, unaided by any act of the debtor, either by facilitating the proceedings as to time or method, or by obstructing other creditors who otherwise would obtain priority.

The case of Wilson v. City Bank, (17 Wallace, 473,) explained.

The effect of § 12 of the amendatory bankruptcy Act of June 22d, 1874, (18 U. S.

Stat. at Large, 180,) is to eliminate the word "suffer" from § 39 of the bank. ruptcy Act of March 2d, 1867, (14 Id., 536,) and from § 5,021 of the Revised Statutes, and from § 5,128 of the Revised Statutes.

Brown v. The Jefferson County National Bank,

The facts in this case held to make out a case of the procuring, by a debtor, of the taking of his property on execution.

What was said by the debtor and by his attorneys, held to be competent evi

dence to affect the creditor, on the question as to the procuring by the debtor. Facts stated showing that the creditor had reasonable cause to believe that the debtor was insolvent.

The creditor held chargeable with the knowledge of what his attorney acquired a knowledge of while his employment by the creditor was in force, although such knowledge was acquired from the debtor after the creditor's suit was brought, and while the attorney was acting as legal adviser of the debtor, in regard to his pecuniary troubles, the debtor knowing that such legal adviser was the attorney for the creditor in the suit, but the creditor not knowing till after the levy that his attorney was acting as legal adviser of the debtor.

The effect of the concert of action between the attorney and the debtor was to intentionally delay the institution of proceedings in bankruptcy until the judgment could be obtained and the levy made.

The declarations of the debtor and of the attorney held to be competent evidence, as against the creditor, to show their intent, such declarations being made while the intent was being effectuated.

Other questions of evidence considered.

(Before BLATCHFORD, J., Northern District of New York, June 21st, 1881.)

BLATCHFORD, J. The District Judge, in his decision in this case, says that "this is, evidently, a case where the bankrupts, in contemplation of insolvency, desired to secure their endorsers and the defendant, and, through the advice of their attorneys, concluded to do it by means of judgments and executions;" and that "the attorneys employed to bring actions and obtain judgments were the bankrupts' attorneys." The mere existence of a desire on the part of a debtor, however strong such desire, that a particular creditor may succeed by suit, judgment, execution and levy, in obtaining a preference over other creditors, so that such preference may be maintained even as against proceedings in bankruptcy which may be subsequently commenced, is not sufficient to establish that the debtor procured or suffered his property to be taken. on legal process, with intent to prefer such creditor, if the proceedings of the creditor were the usual proceedings in a suit, unaided by any act of the debtor, either by facilitating the proceedings as to time or method, or by obstructing other

Brown v. The Jefferson County National Bank.

creditors who otherwise would obtain priority. This doctrine was firmly established by Wilson v. City Bank, (17 Wallace, 473,) and other cases which succeeded it. The absence of the inhibited intent on the part of the debtor leaves the creditor's levy to stand, even though the creditor had reasonable cause to believe, when the property was taken, that the debtor was insolvent, and then knew that a preference was being secured, as against other creditors. There is nothing in Wilson v. City Bank, or in any other case, which sanctions the view, that the mere existence of a desire, on the part of the debtor, that the creditor may secure and maintain the preference, although concurrent with the not interposing any hindrance to the suit and the levy, is a procuring or suffering of the levy, with the forbidden intent. In that case, the debtors were insolvent when the suit was brought, and the creditor then had reasonable cause to believe they were insolvent, and knew that they had committed an act of bankruptcy. The case of Wilson v. City Bank arose under the Act of March 2d, 1867, (14 U. S. Stat. at Large, 534, 536.) The 39th section used the words, "procure or suffer his property to be taken on legal process, with intent to give a preference," &c. The 35th section used the words, "with a view to give a preference to any creditor

* * *

* * *

procures any part of his property to be seized on execution." The Court said, that, as both of these sections had the common purpose of making such preferences void, and both of them made the illegality to depend on the intent with which the act was done by the bankrupt, and the knowledge had by the other party of the bankrupt's insolvent condition, and, as both of them described substantially the same acts of payment, transfer or seizure of property so declared void, it was very strongly to be inferred, that the act of suffering the debtor's property to be taken on legal process, in § 39, is precisely the same as procuring it to be attached or seized on execution, in § 35. The Court also noted the fact, that the word "procure " and the word "suffer" were both of them used in § 39. In the Revised Statutes, § 5,021 contained a re-enactment of the