In re Nelson

• Decision Date: 11 January 1899
• Docket Number: 3.
• Citation: 98 F. 76
• Parties: In re NELSON.
• Court: U.S. District Court — Western District of Wisconsin

98 F. 76

In re NELSON.

No. 3.

United States District Court, W.D. Wisconsin.

January 11, 1899

D. K Tenney and Erdahl & Swanson, for petitioning creditors.

Wm. F Vilas and R. M. Bashford, for respondent.

BUNN District Judge.

I think the petition in this case must be dismissed unless the petitioners be allowed to amend their petition so as to conform to the law and the forms of procedure provided by the supreme court.

1. I am of opinion that the allegation that Nelson, on the 1st day of November, 1898, suffered and permitted, while insolvent, one Mrs. Johnston, a creditor, to obtain a preference through legal proceedings by entry of judgment on a note dated 5th February, 1885, payable in five years after date, in the sum of $8,960, upon a warrant of attorney, is insufficient. He had a right to give a note, with warrant of attorney, so long before the bankruptcy law was passed, and, having given it upon good consideration, it was not in his power to prevent the entry of a judgment against him. What was not in his power to prevent he can hardly be said to have suffered or procured. To make the entry of judgment as act of bankruptcy there should be some fault on his part by way of procuring or suffering the act to be done. This case comes squarely within the decisions of the supreme court in Wilson v. Bank, 17 Wall. 473, 21 L.Ed. 723, and Bank v. Warren, 96 U.S. 539, 24 L.Ed. 640.

2. The allegation that Nelson had, within four months last past transferred, while insolvent, large amounts and values of his property to one or more of his creditors, with an intent to prefer said creditors over his other creditors, is quite insufficient as an allegation of fact. The specific fact relied upon should be alleged with time, place, person, and circumstances, as in any other allegation of fraud in a pleading either in law or equity. There is no allegation of fact here that the creditor can meet. He is not apprised of what it is intended to prove against him. The allegations should be allegations of fact, made with reasonable and sufficient certainty. The rule is well laid down by Judge Blodgett in Re Butterfield, 5 Biss. 120, Fed.Cas.No. 2,247; Black, Bankr. 108; In re Rathbone, 1 N.B.R. 50, 65, Fed. Cas. No. 11,580; In re Beardsley, 1 N.B.R. 52, Fed.Cas.No. 1,183; In re Marvson, 1 N.B.R. 115, Fed.Cas.No. 9,318; Ex parte Potts, 19 Fed.Cas. 1199 (No. 11,344); In re Randall, 20 Fed.Cas. 222 (No. 11,551). There is no analogy between a petition in involuntary bankruptcy and the affidavit to obtain an attachment,...