Joseph McKenna

“ Granting that such situation may be produced, is it anything after all but putting the creditor to an election of comparative and debatable courses where some loss must occur, whichever be taken? Business life has many such examples, and a law which has that consequence in seeking equality among creditors is certainly not absurd in even the loosest and most inconsiderate meanings of the word. ”

“ A time limit is entirely independent of the belief of the creditor or of the belief which may be attributed to him,-entirely independent of his right to a greater proportion of the bankrupt's property than other creditors. ”

“ The consequence of the construction of the circuit court of appeals is said to be that it will 'harass and embarrass the business of the country,' and the specification is that any payment to a creditor may become a preference and the alternative forced upon him of giving it up or losing the right to prove his claim or claims against his debtor's estate. ”

“ Counsel, having full control of the imaginary situation, makes them ignorant of the debtor's affairs, and therefore unwilling to risk a division with A and B. That it is possible for such ignorance and doubt to exist may be conceded, but it does not occur to us how either can reasonably continue for the time debts may be proved against the estate under the disclosures required of the bankrupt by the statute, and the information obtained by the trustee of the estate in its administration. ”

“ Subdivision a of § 60 is as follows:
'Preferred Creditors.-a. A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.' [30 Stat. at L. 544, chap. 541.] ”

“ It does not follow that because the terms of a section are defined elsewhere, or the consequences of its provisions are expressed elsewhere, that it becomes a nullity, or that it is defective. Not that we may not 'travel outside,' to use counsel's expression, of any section, if it be necessary to travel outside. We may travel outside for some things, not necessarily for all things. The argument is, you must travel outside of subdivision a for a time within which the preference must have been given, and four months are selected in analogy to subdivision b and of § 3 b. ”

“ It is there provided that "transfer' shall include the sale and every other and different mode of disposing of or parting with property or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security.' It seems necessarily to mean that a transfer of property includes the giving or conveying anything of value,-anything which has debt-paying or debt-securing power. ”

“ Suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt whose estate is being administered by such trustee might have brought or prosecuted them if proceedings in bankruptcy had not been instituted, unless by consent of the proposed defendant. ”

“ It ascribes a penal character to § 57 g, and regards the requirement of the surrender of the preference as a condition of proving debts as a punishment, and not a provision to secure equality among creditors. On this we have sufficiently commented. The other weakness in the argument is that it exaggerates the difference between the definitions of insolvency, and overlooks an advantage to the creditor in the definition contained in the act of 1898. Inability to pay debts in the ordinary course of business usually accompanies an insufficiency of assets. ”

“ Where they are clear and involve no absurdity, they are its only expositors. it is not contended that the provisions which we are considering are not clearly expressed and adequate to convey a definite meaning. It is true, it is urged that the word 'preference' imports the conscious participation of the creditor and debtor in the same intent. We cannot concur in that view, and we are brought to the consequences of the construction which we have put upon § 60. ”

“ It will be observed that payments in money are not expressly mentioned. Transfers of property are, and one of the contentions of appellants is that by 'transfers of property' payments in money are not intended. ”