130 F. 631 | N.D. Iowa | 1904
A creditors’ petition was filed against the bankrupt January 14, 1904, and he was adjudged bankrupt thereon
As to the item of $176.43, it is plain that the bank is entitled to have this amount applied as an offset upon its note against the bankrupt, in the absence of collusion between them, and to have the balance of the note allowed as a claim against the bankrupt estate, under the recent decision of the Supreme Court in New York National Bank v. Massey, 192 U. S. 138, 24 Sup. Ct. 199, 48 L. Ed. 380, providing it has not otherwise received a preference which, under section 57g of the bankruptcy act as amended (Act Feb. 5, 1903, c. 487, 32 Stat. 799 [U. S. Comp. St. Supp. 1903, p. 415]), will prevent the allowance of such claim.
As to item of $180, the findings of the referee do not show how this was paid. If this amount was also on deposit with the bank, and was applied by it at that date (November 25, 1903) upon its note against the bankrupt, this of itself would not constitute a preference. If it was a payment made by the bankrupt from funds other than what he had on deposit in the bank, or by his check upon funds so on deposit, then whether or not it would be a preference would depend upon the circumstances of such payment. As the referee has made no finding in regard to this, and the testimony is not before the court (if there was any upon this point), the order of the referee rejecting the claim will be reversed, and the matter referred back to him, with directions to take the testimony and ascertain the facts in regard to this payment of $180, if issue was made in regard thereto. If it be found to be a preference' actually made within four months prior to the filing of the petition in bankruptcy, when the bankrupt was insolvent, that the bank then had reasonable cause to believe that the bankrupt was insolvent, and that it was intended by such payment to give it a preference, then the claim of the bank should not be allowed, unless it shall surrender such preference. Bankr. Act, § 57g, as amended. If it shall be found not to be a preference, or that the
It is ordered accordingly.