Page:Federal Reporter, 1st Series, Volume 9.djvu/278

EROWN V. THE JEFFEHSON COUNTY NAT. BANK. 263 �fend it or go into voluntary bankruptcy, nor otherwise make any effort to prevent the judgment or the levy. �In order to see whether there is any legal distinction between the f acts in that case and those in the present case it is important to see under what circumstanees, in cases since Wilson v. City Bank, the supreme court has held cases of executions on judgment to be valid or invalid preferences. �In Little v. Alexander,'2i\ Wall. 500; the bahkrupt gave a note to his son for an old debt and interest, and for a new sum then first loaned, the debtOr then being known to be insolvent, under such circumstancee- that, under a recent statute, the crediter' could obtain a judgment on the note at an earlier time than he could have obtained a judg- ment for the old debt without the note. It was held that the pur- pose of the transaction was to give the son a judgment before other creditors on old debts. It was contended that because the debtor had no defence, and made none, the case was within Wilson v. City Bank, but the court eaid : �" ifo caref ul reader of that case can fail to see that if the debtor there had done anything before suit which would have secured the bank a judgment with priority of lien, with Intent to do so, the judgment of this cowci would have been different from what it was." �This implies that an overt act in aid of the judgment is necessary, and that the existence of a wish, unaccompanied by any such overt act, is not equivalent to the statutory intent. �In Nat. Bank v. Warren, 96 U. S. 639, it was contended for the crediter that the case was identical with Wilson v. City Bank, while the assignees in banlu-uptey contended the contrary. The court said : "This action goes upon the theory that the mere non-resist- ance of a debtor to judicial proceedings against him when the debt is due, and there is no valid defence to it, is the suffering and giving a preference under the bankrupt act. This theory is expressly re- pudiated in the case of Wilson v. City Bank, 17 Wall. 473. It io also held in that case that the facts that the debtor does not himself file the petition in bankruptcy under such circumstanees, and that the cred- iter was aware of the insolvency of the debtor, do not avoid the judg- ment and execution. In the present case there is not proven a single fact or circumstance tending to show a concurrence or aid on the part of the debtors in obtaining the judgment or securing the pay- ment of the debt." The meaning of this is that there must be acta in concurrence or in aid — acts which promote or secure the judgment or the levy to a tangible degree or extent — which would not have ex- ��� �