Page:Federal Reporter, 1st Series, Volume 5.djvu/190

178 FEDERAL REPORTER. �and fixtures as well under the levy of ail these executions as under the levy of the defendants' attachments. These execu- tions, prier in time to those of the defendants, were in the aggregate for $2,116.24. Under one or moreof these earlier executions the sheriff had given the six days' notice of the sale of the property required by the lawsof New York, and on ihe seventeenth day of November, the same day on which the «reditors' petition for the adjudication of the bankrupts was filed, the sheriff sold the property at auction, Thegross pro- ceeds of the sale were $2,263.61. His fees and charges were $481.62, leaving $1,781.99 to be applied upon the execu- tions. Under the laws of New York, the defendants, by rea- 8on of their earlier attachment, were entitled to payment in preference to the creditors who had the earlier judgments and executions; and these defendants have received from the sheriff the whole net proceeds of sale, Wright & Co. being paid in fuU, and Townsend & Co.in part only. The evidence is clear that at the time of the giving of the.offersto allow judgment by the defendants they were insolvent, and well known by the defendants to be so. The defendants, had, indeed, previously been conferred with by other creditors in respect to a proposed general assignment by the bankrupts for the equal benefit of ail their creditors, which appears to have fallen through only because these defendants, though wiUing -to release their attachments for the purpose, de- manded, as a condition thereof, payment of the expanses of their suits, which none of the other parties were found will- ing to pay. This very proposition to make a general assign- ment is satisfactory proof of the contemplation of bankruptcy, and the facts admit of no conclusion exoept that the bank- rupts' situation as understood by the defendants, was such as to render the seizure Of the property under the defend- ants' executions a preference, if it was within the meaning of the bankrupt act, procured to be made by the bankrupts, and made with intent to give and reçoive a preference. It is admitted by the plaintiff that mere non-reaistance on the part of the debtor to the prosecution, and euforcement of legal remedies by the creditors upon an unquestionable claim, is not ����