Page:Federal Reporter, 1st Series, Volume 8.djvu/279

IN BB PITTS. 265 �or attributes of honafide executions, but are merely a collusive device for the fraudulent transfer of the debtor's property. The seizrtres referred to by that subdivision are, in my opinion, seizures upon hona fide judgments and executions, which necessarily imply a h&mftde crediter, who would by such seizure obtain a preference in the pay- ment of a bonafde debt. A penalty for giving a preference to a legal debt through a seizure on executiou'is all that was intended by that subdivision. But where there is otill deeper fraud, and the judgnient and execution are colorable only, and are merely a means of effeeting a fraudulent transfer of the debtor's property, the case must, I thin'k, be dealt with under subdivision 9, according to its intrinsic charactei:, as an indirect transfer of property, and not according to its mere form as an ordinary seizure on execution. �This view is confirmed by section 5.128 and section 5129, which designate the cases in which aets of the bankrupt are void as against the assignee, and the different periods oi limitation for the two classes of cases there referred to. Section 5128, which, like subdivision 3 <a section 5110, embraces seizures upon execution and the/Mir liabnths' limitation, is expressly restricted to cases wHere a •preffSfence ii in- tended to "a creditor or person having a claim." But by section 5129, in cases of other transfers, which do not have even the partial merit of preferring a creditor, but are designed to prevent the' debt- or's property from going either to creditor or assignee, the period of limitation is extended to six months. , The fair inference is that sec- tion 5128, and subdivision 3 of section 5110, in imposing the same period of limitation, intend to refer to seizures on execution of a similar character, viz.: uponfeoraa^de executions only, intended to prefer honafide claims. Hubbard v. The AUain Works, 7 Blatchf.' 284. �Such a transaction as is charged in these specifications would not fall under section 5128, because not done "with a view to give a preference to any creditor." That was not the intention of this transaction, nor was there any bona fide debt or honafide creditor. The case would plainly fall under section 5129, according to its'real and substantial character and intent, as a fraudulent transfer and diversion of the debtor's property. Hubbard v. AUain, 7 Blatchf. 284. Subdivision 9 of section 5110, in regard to such transfers) uises the same language as section 5129 ; and if the transaction, as respects the rights of the assignee, falls within section 5129, and within the limitation of six months there specified, consistency in construction requires that it should also be held to fall within the same language of subdivision 9 of section 5110, as respects the rights of the bank- ��� �