Page:Federal Reporter, 1st Series, Volume 8.djvu/278

264 PEDBBAL EKPOBTER. �mainly of goods sold to him by the objecting creditors npon a long credit in the winter of 1878, were sold, and the proceeds, $5,074.77, applied on said judgment; that the btankrupt was not indebted to his brother Henry in any sum whatever; and that the judgment and execution were fraudulent and collusive, and for the purpose of pre- ■venting the property seized from coming to the hands of the assignee and being distributed among his creditors. �In behalf of the bankrupt it is claimed that such a transaction is within subdivision 3 of section 5110, and therefore subject to the four months' limitation therein prescribed. The particular time of the seizure on execution is not stated in the specifications, and fchough it sufficiently appears that it must have been within six months of the adjudication, it is not stated to have been within four months; and I assume that it was not. If the objectors intended to rely on subdivision 3, they were bound to state the seizure to have been within the time limited by that' subdivision. Not having done sb, the specifications cannot be sustained under subdivision 3. �For the creditors, however, it is claimed that the case falls under subdivision 9 of section 5110, as an "indirect" transfer, made in con- templation of bankruptcy, for the purpose of preventing the property from coming into the hands of the assignee. I have not been re- ferred to any case deciding the precise point here presented. �Whatever the actual facts may be, the statements in the specifica- tions must, for the purposes of this hearing, be taken as true. The facts stated constitute of themselves an act of bankruptcy, and show a collusive judgment and execution sale upon a fictitious claim, for the purpose of preventing the property from coming to the hands of the assignee. �In the Shick Case, 2 Ben. 5, this court held that a similar fictitious judgment and sale on execution "were in substance and effect, within the provisions of section 39, (section 5021,) a transfer of the property of the debtor, made by him." And this was held although section 39 did not expressly embrace indirect transfers. Subdivision 9 of sec- tion 5110 expressly includes "indirect" as well as direct transfers; and I cannot doubt that, by the use of that word, it was intended to include every device of the bankrupt by which the same purpose and effect are accomplished as by a direct transfer. �It is scarcely credible that in declaring the effect of seizures upon execution procured by the bankrupt, as in subdivision 3, the statute could have intended to refer to fraudulent and fictitious judgments and executions, which, as respects creditors, have uone of the merits ��� �