NATIONAL BANK
v.
WARREN.

*540 Mr. A.J. Vanderpoel for the appellant.

Mr. Austen G. Fox. contra.

MR. JUSTICE HUNT, after stating the case, delivered the opinion of the court.

This action goes upon the theory that the mere non-resistance of a debtor to judicial proceedings against him, when the debt is due and there is no valid defence to it, is the suffering *541 and giving a preference under the Bankrupt Act. This theory is expressly repudiated in the case of Wilson v. City Bank, 17 Wall. 473. It is also held in that case that the facts that the debtor does not himself file the petition in bankruptcy under such circumstances, and that the creditor was aware of the insolvency of the debtor, do not avoid the judgment 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 payment of the debt. Their only effort was to obtain delay, apparently in the hope of relief from the embarrassments which finally overwhelmed them.

The decree of the Circuit Court must be reversed, and that of the District Court, dismissing the bill with costs, affirmed; and it is

So ordered.