Gabriel v. Tonner

GRAY, C.

This is an appeal by defendant from an order denying him a new trial.

The action was brought hy the trustee of a voluntary bankrupt, under the Federal Bankruptcy Law, to recover the value of a stock of goods belonging to the bankrupt which had been seized and sold under execution in a suit begun by said defendant against said bankrupt within four months prior to the filing of the petition in bankruptcy. The ease was tried with a jury.

1. Defendant requested an instruction to the effect that, in order to entitle the plaintiff in this action to recover, it would he necessary for the plaintiff to show that in the action of Tonner

v.

Nicol there was some agreement or arrangement between Tonner and Nicol by which it was understood between them that the said Tonner should he allowed to obtain

[65]

the judgment and levy upon and sell the property of Nicol, without regard to any legal rights said Tonner might have against said Nicol; and that it would not be sufficient to entitle the plaintiff to a judgment, that Nicol merely allowed Tonner to take judgment and levy upon and sell the property when the said Nicol had no legal defense to the action. These requested instructions were refused, and the court instructed the jury substantially in the language of subdivisions

a

and

b

of section 60 of the Federal Bankruptcy Law of 1898 (U. S. Comp. Stats. 1901, p. 3445.) In this we see no error. The subdivisions referred to read as follows:—

“a.

A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. ;