Page:Federal Reporter, 1st Series, Volume 8.djvu/441

JUDSONvu. THE COURIER CO. 427 �In Metcalf v. Officer, 3 Fkd. Eep. 640, 643, it is said that the prin- cipal circumstance proving defendant's knowledge that a fraud on the act was intended was that "he knew that there were other creditorS who would be deprived of their right to an equal distribution of the proceeds of the bankrupt's estate." I am satisfied that the defendant, in entering into the arrangement complained of, had no knowledge or suspicion, and is not legally chargeable with knowledge, of any other creditors of Queen, (if any there are,) except those who took part in and bound themselves by it, and those whose claims were paid in the performance of it ; that consequently no known fraud upon the act can be asoribed to the defendant, and that the transfer is theref ore not void under section 5128, as claimed. Guernsey v. Miller, 80 N. Y. 181. If this case were to turn upon the simple fact of there being other creditors of Queen, instead of upon the defendant's aet- ual oc constructive knowledge of it, I should still hesitate, upon the evidence in this case, to give judgment in favor of the.plaintiff. The proofs were all taken out of court, and the only evidence I have found as to the existence of any other creditors is inferential merely from the following testiuiony of Queen, a witness for the plaintiff, who says: "I think I was indebted $160,000 or $170,000 when I gave the mortgage and bill of sale. My bankruptcy schedules will tell." These schedules were not offered in evidence, while such of the proceedings in bankruptcy as the plaintifi's counsel chose to put in evidence show but one creditor, viz., Deniger himself, who alone proved his debt, and chose the assignee, whose name appeara also as counsel upon the written agreement of October 9th between How and Queen ; and although other creditors not parties to the agreement, if there were any such, inight doubtless have corne in subsequpntly and proved their claims, yet none have done so, so far as the evidence shows, though more than three years have elapsed since the proceed- ings in bankruptcy were commenced. �The action appears, therefore, to be practically for the benefit of Deniger, who by his agreement and its covenants would be pre- cluded from questioning directly the transaction complained of. In re Williams, 14 N. B. R. 132, 136, Fed. Cas. No. 17,706, and cases cited. �The statement to Mr. McCune that the circus debts speiiified, and those to How, Calvin, and Cole, were "all that he owed in the world," was not denied by Queen ; and if the existence of other creditors were a material and controlling fact, despite McCune's want of knowledge of it, the mere loose testimony of Queen that he thinks his debts were $160,000 or $170,000, qualified by a reference to his schedules, which ��� �