# Duncan v. Landis > Court of Appeals for the Third Circuit · February 7, 1901 · 106 F. 839 URL: https://www.frixlaw.com/law-library/cases/8743265 ## Case - **Full name:** DUNCAN v. LANDIS - **Court:** Court of Appeals for the Third Circuit - **Decided:** February 7, 1901 - **Citations:** 106 F. 839; 45 C.C.A. 666; 1901 U.S. App. LEXIS 3630 - **Precedential status:** Published - **Opinion:** Concurrence by Dadlas - **Judges:** Bradford, Dadlas, Dallas, Gray - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8743265 ## Opinion text DADLAS, Circuit Judge. I concur in the conclusion arrived at in this case, but not in the construction put by the majority of the *861 court upon clause B of section 3 of the bankruptcy act of 1898. The reasons for this dissent may be-briefly stated, and need not be elaborated. I do not think that any special significance should be ascribed to the word “acts,” as it occurs in section 3. 'Wliat was intended, as I believe, was merely to designate what conduct of a person would have the effect of making him a bankrupt. The word ‘‘acts” is certainly sometimes used as an equivalent for the word “behaves,” even where the behavior referred to is not positive, but negative, in character, as where it is said that a man acts unreasonably in not doing something which in reason he ought to do. In the corresponding section of the bankrupt act of 1867 it was unquestionably so used, and I perceive no ground for supposing that in the act of 1898 it was employed in a narrower sense. .By section 39 of the act of 1867 it was provided, among other things, that any person “who has been arrested and held in custody under or by virtue of mesne process, * i:' * and such process is remaining in force and not discharged by payment; * * * or has been actually imprisoned, * shall be deemed to have committed an act of bankruptcy.” Here, then, we find that under the act of 1867 an act of bankruptcy might consist of the debtor’s arrest or imprisonment, which, of course, could not'be his own act, and that, by bis not doing, — -not paying, — the act of bankruptcy constituted by bin arrest would be consummated and established. Hence it appears that congress in the previous statute provided that certain acts, not of the debtor himself, should be deemed to be acts of bankruptcy committed by him; and I therefore cannot agree that, by reason of the association in the present act of the same phrase — “acts of bankruptcy” — with the words “suffered or permitted,” these words must be interpreted to mean connivance, co-operation, or participation, and nothing else besides. Neither can I agree that the words “suffered or permitted” necessarily import positive action. They may do so, it is true; but they also, and I think ordinarily (especially when disjunctively presented), signify passive sufferance or quiescent allowance, — “not to forbid or hinder; to tolerate” (Webster); “to refrain from hindering; allow, permit; tolerate” (Century). But Hiere are considerations which, in my opinion, should have greater weight in the construction of this clause than any nice discrimination of the diverse definitions of particular words. Tin' cases of Wilson v. Bank and 'Clark v. Iselin were decided under the act of 18(57, and, with those decisions and that act'presumably in mind, the act of 1898 was passed, with provisions which, as respects the matter in question, notably differ from those of the act of 18(57. The word “procure,” which was in- that act, and which might well be said to indicate that positive action on the part oí riie debtor was contemplated, was pointedly omitted from the act of 1898; and to the word “suffered” there was added the words “or permitted,” with, as I think, the evident intention of making it clear that procurement would not be necessary, but that mere sufferance or allowance would be enough, to occasion bankruptcy. Moreover, clause 3 of section 3 of the act of 1898 does not include the provisions of the act of 1867 with reference to the debtor’s *862 intent, or anything whatever npon that subject; and this departure, I think, shows that the object in view was not merely to impose bankruptcy upon the debtor because he had given a preference, but was to preclude, where possible, the acquisition of any advantage of one creditor over others. Taken together, I cannot but regard these modifications as significant of a design to prevent the present statute from being construed as the former one had been. It cannot be supposed that such suggestive changes in their otherwise similar terms were made without purpose, and to me it is manifest that the intention in making them was to establish as the law of 1898 — no matter what that of 1867 might have been — that, if an insolvent (regardless of intent or procurement) either suffered or permitted any creditor to obtain a preference, his failure to vacate it within the time limited would be an act of bankruptcy; and this understanding is accordant with the general policy of the act, to which allusion has been made, that no creditor shall be, either by procurement or sufferance, enabled “to obtain a greater percentage of his debt than any other of such creditors of the same class.” Section 60. The decisions of the district courts in other circuits as well as in this one are in harmony with the views I have expressed. Those decisions are, of course, not binding upon us, but they are entitled to much weight; and, in my opinion, the construction which nas heretofore uniformly been given to the clause under eonsidera-don ought not now to be discarded in this jurisdiction. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8743265. Public record. Not legal advice.