The bankrupt, whose discharge is opposed, was a bank cashier and clerk in New York City. The evidence in respect to his purchase and sale of oil paintings, does not, in my opinion, constitute him a merchant within the meaning of the bankrupt act. The objection to the discharge upon the ground, that, being a merchant, he failed to keep proper books of account, cannot therefore be sustained.

The objections founded upon the preferences alleged to have been made in contemplation of bankruptcy, must likewise fail for want of sufficient proof that they were so made. The payments complained of were made some two years prior to the filing of the petition. The bankrupt testifies that when they were made he had no intention of going into bankruptcy, and the circumstances attending the payments as disclosed by him, while they show an actual insolvency at the-time, do not necessarily compel the inference that any act of bankruptcy or resort to proceedings in bankruptcy, was then contemplated. “To infer a design to give a preference to a favored creditor, and in the immediate expectation of bankruptcy from the mere fact of insolvency, is by no means a certain inference. The evidence must go-further and establish as a fact the design to give the preference, a fact too important to be left upon conjecture.” Jones v. Howland, 8 Metc. [Mass.] 385.

*471The unexpected increase oí the bankrupt's liability in August, 1S7C, caused by the entry of a judgment ior deficiency of over ten thousand dollars by one of the creditors new opposing the discharge, with the attendant circumstances, affords a reason for going into bankruptcy which did not exist at the time of the payments under consideration, and the bankrupt testifies that this was the circumstance that led him for the first time to contemplate proceedings in bankruptcy.

Upon the evidence before me 1 am therefore unable to hold it proved that the payments referred to in the specifications were made in contemplation of bankruptcy. The objections to the discharge must therefore be overruled.