Page:Federal Reporter, 1st Series, Volume 9.djvu/609

594 FEDBBAL BEPOaTIER. �bdncus' rupius." In order, therefore, to show that the debtor contem- plated bankruptcy, it is not uecessary to prove that, at the time of the transfer, there was in hia œind an actual intention of becoming a bankrupt. If his pecuniary condition or act committed was such that he could not reasonably avoid becoming a bankrupt, the law considera him aa aoting in contemplation of bankruptcy. The ques- tion, then, is : What was the pecuniary condition of the bankrupt on the eighteenth of April, 1873, when the gift was made to his father ? The burden of proof ia on the opposing crediter. It is bis duty to make it clear that the bankrupt waa so much involved that he was in insolvent circumstances, and that bankruptcy was imminent. Has he dohe so ? The bankrupt was two or three times under examina- tion as a witness, and, speaking of the state of his affairs at the time of the assignment of the poliey to his father, he says : �"At that time I considered I Was good flnancially; I considered myself worth from six to ten thousand dollars after the payment of all my debts. At that time my property consisted of my store-house, stock ia trade, books of account, notes, etc." �Although he gave other testimony on the subject, which excites sus- picion and tends to a different conclusion, I am not willing to say that he has positively contradicted it. His f ailure the next year can be traced to other causes, for he began in the winter of 1873-4 to speculate in minerai lands and stocks, and hia operations seemed to have been financially disastrous. In enumerating his debts during the month of April, 1873, he says that he was liable to the Domestic Sewing Machine Company, on account of the transactions of his brother, in $7,000 or $8,000. But he must have been relieved sub- sequently from the payment of the larger part of this sum, as he elsewhere states that his net loss on account of his brother was not more than from $2,000 to $4,000. In short, the, proof does not sat- isfy me that he was insolvent when the transfer or gift waa made, and hence I am relieved from considering whether a gift under such circumstances — so long a time before the bankruptcy proceedings began- — is one of the grounds for withholding a discharge under the ninth clause of section 5110 of the bankrupt act. �A discharge will be granted. ��� �