Borland v. Phillips

3 F. Cas. 909, 2 Dill. 383

• Court: U.S. Circuit Court for the District of Kansas
• Decided: July 1, 1873
• Status: Published

Opinion

DILLON, Circuit Judge.

If the defendants paid over the proceeds of the draft in good faith, not knowing or having reasonable cause to believe that bankrupts intended to make therewith fraudulent preferences or payments, I still think, as was decided at the trial, that they are not liable to the assignee. Such is the principle on which Darby v. Lucas [Case No. 3,573] was decided, and that case has recently been affirmed by the United States supreme court. A motion is made by the plaintiffs for a new trial on the ground of newly-discovered evidence to show that this payment was not made in good faith, but with knowledge that the bankrupts intended to make a fraudulent preference to Mrs. Bailey. Her affidavit is produced, which, unexplained, tends strongly to throw doubts upon the defendants’ bona fides. But the circumstances mentioned in her affidavit are fully explained by the affidavits of the defendants; and. taking the facts stated in both affidavits together, and assuming that the same facts would be testified to on the new trial, should one be granted, the result would be the same as before. Motion denied.