Hubbard v. Allaire Works

BLATCHFORD, District Judge

(after stating the facts as above). The question involved in this case is, whether the plaintiffs can recover, in view of the fact that the property in question was not seized on execution within four months before the filing of the petition in bankruptcy against *777the bankrupts, although it was so seized within six months before such filing. My attention has not been called to any adjudication in which the point appears to have challenged attention. The case of Graham v. Stark [Case No. 5,676], is, in its facts, an authority in favor of the plaintiffs. The preference to the creditor, in that case, was given within six months before the filing of the petition in bankruptcy, although not within four months, and the preference was set aside on proceedings taken by the assignee in bankruptcy. But the point as to the four months’ limitation is not adverted to by the court in its decision, nor does it appear that it was taken by counsel.

X have always regarded it as clear that sections 35 and 39 of the bankruptcy act must be construed together and made to harmonize, and effect be given to evfery provision in each of them. In this view, and on a consideration of the entire statute, I do not think that an assignee is entitled to any greater rights in respect to recovering back money or other property under the 39th section than he is entitled to under the 35th. Under the 35th section, some effect must be given to the four months’ limitation therein prescribed. The second branch of that section, which concerns the six months’ limitation, does, in terms, include the ' transaction in question in this case; and, if there were no such provision in the statute as that found in the first branch of the 35th section, the plaintiffs’ right to judgment on the plea, would be clear. But the two branches of the 35th section must be construed together, and a scope of operation given to each of them, if possible. If the second branch, with its six months’ limitation, is to be held to cover every case, as well that of a preference to .a creditor, as all other cases, the first branch is useless, and might as well have been omitted. But the first branch, which is the partial clause, precedes the second branch, which is the general clause. The first branch provides for the case of a transaction done with a view to give a preference to a creditor or person having a claim against •a debtor, or who is under any liability for him. In such case, if the transaction takes place within four months before the filing of the petition in bankruptcy, and the other circumstances specified exist, the transaction is made void. The second branch must be held to be intended to provide for any disposition of property that is not provided for by the first branch, that is, for any disposition that does not give sucn a preference as the first branch provides for. But, whenever a case falls within the first branch, it must, although it may also be in terms within the second branch, be tested as to its validity and as to the limitation of time prescribed, exclusively by the provisions of the first branch.

It results, from these views, that the plea must be allowed, and the bill be dismissed, with costs.