Page:Federal Reporter, 1st Series, Volume 8.djvu/438

424 PEDBBAL REPORTES. �ment, an agreement was entered into, dated October 24, 1878, whereby the defendant agreed to release his attachment, and Deni- ger agreed to take and provide for the show property, and to sell the same, and pay 50 per cent, of the defendant's claim withiu 90 days, or else after that time reorganize the show and pay defendant the same amount in cash or good bankable paper, and as security for such agreement he transferred the property to the defendant. �After further communication with How, Deniger informed defend- ant of his inability to carry ont this contract, and thereupon a new arrangement was made October 27, 1878, when the varions transfers were executed under whioh the defendant claims, and which the plain- tiff now seeks to set aside. By this arrangement Calvin and his associates transferred to the defendant all their interest under the chattel mortgage, and surrendered to it the six notes of Queen wbich were secured by it. Deniger and Queen executed to the defendant a bill of sale of all the circus and menagerie property, and a tripartite agreement was entered into between Deniger, Calvin, and his asso- ciates and the defendant whereby the defendant was to pay the wages owing to the employes, remove the property to Louisville for winter quarters, pay all the expenses of removing and keeping the property over winter, and permit Deniger to repurchase the property within 90 days, upon repayment of defendant's advances for these purposes, and 50 per cent, upon its claim against Queen, and upon payment to Calvin and his associates of $7,550, and interest upon their claims; and in default thereof the defendant was to sell the property, and from its proceeds repay such advances and 50 per cent, of its own claims against Queen, $7,550 of the claims of Calvin and his asso- ciates next, and the balance, if any, to Deniger. �Under this transf er and agreement the defendant paid the wages of the employes of the circus, amounting to $3,309.95, removed the menagerie to Louisville, as agreed, and there maintained it, at an expense of $6,107.39, until in default of repurchase by Deniger, as pro- vided by the agreement, it sold the property on February 25, 1878, for about $20,000, from which, after deducting its advances, itrealized 50 per cent, upon its own claims against Queen, and accounted for the balance, a few hundred dollars only, to Calvin and his associates, according to agreement. So far as this agreement provided for the advances of money for the preservation of the property, no objection was made to it. But the plaintiff claims that this transaction was void as against the assignee in bankruptcy, under section 5128 of the Kevised Statutes, as involving an unlawful. preference of the defend- ��� �