An agreed statement of facts on which a judgment is rendered will be
treated on appeal as the equivalent of a special finding as to the ultimate
facts stated therein, but as to the inferences to be drawn from facts stated
which are merely evidentiary the general finding is conclusive.
-Wilson v. Merchants' Loan & Trust Co. of Chicago, Ill., 98 Fed.
688
.39 C. C. A. 231
Where the record on appeal fails to show that it contains all the evi-
dence, the presumption is that there was evidence which justified the
court in refusing to direct a verdict.
-Sternenberg v. Mailhos, 99 Fed. 43.....
Where the trial of an action at law is had before a referee, with instruc-
tions to report the testimony, with findings of fact, to the court, and the
court subsequently makes the findings of fact its own, and renders judg-
ment thereon, the only question which can be reviewed on a writ of error is
whether the facts found sustain the judgment.
-Hudson River Pulp & Paper Co. v. H. H. Warner & Co., 99 Fed.
187 ...
...39 C. C. A. 452
The law of a foreign country being required to be proved as a fact in
the courts of this country, a finding by a referee as to such law is a finding
of fact, not subject to review as a question of law.
-Hudson River Pulp & Paper Co. v. H. H. Warner & Co., 99 Fed.
.....39 C. C. A. 452
Where an action at law in the circuit court is, by written stipulation of
the parties, tried to the court without a jury, a finding of fact made by the
court, if there is any evidence to sustain it, is conclusive on the circuit
court of appeals.
-Kunkel v. Brown, 99 Fed. 593.....
8. Determination and disposition of cause.
A plaintiff was erroneously required to elect, before trial, between two
counts of his petition, which stated the same cause of action in different
forms to meet the proof, and on his election a judgment of dismissal was
entered as to the abandoned count. A trial on the remaining count re-
sulted in a judgment for defendant. Held, it appearing that there was no
error in the trial, that the judgment on the count so tried would be af-
firmed, but that plaintiff was entitled to a reversal, and a trial on the
count dismissed.
-Great Western Coal Co. v. Chicago G. W. Ry. Co., 98 Fed. 274......
39 C. C. A. 79
When a decree is reversed, and the mandate does not direct the entry of
any particular decree, but only that further proceedings be had, not incon-
sistent with the opinion of the appellate court, the effect is to put the case
in the same position in the court below as if no decree had ever been en-
tered; and the court has the same authority to permit amendments of the
pleadings to enlarge the issues, and admit further proofs, as it had before
the entry of the decree.
-Hawkins v. Cleveland, C., C. & St. L. Ry. Co., 99 Fed. 322.....
39 C. C. A. 538
Where a mandate sent down by a circuit court of appeals on reversal
of a decree is in customary form, commanding "that such further proceed-
ings be had in said cause as are not inconsistent with the opinion of this
court," a motion to modify the mandate is, in effect, one to modify the opin-
ion, which cannot be entertained after the time allowed for a petition for re-
hearing, or, at furthest, after the term, when such time expires before
the close of the term. In case of dispute over the interpretation or appli-
cation of the opinion, the remedy is by mandamus or by a second appeal.
-Hawkins v. Cleveland, C., C. & St. L. Ry. Co., 99 Fed. 322.
Where a mandate from the circuit court of appeals to the circuit court
directs the latter to vacate an order ratifying a sale by a receiver on the
ground that the court was without jurisdiction in the suit, and directs
that the purchase price in the registry of the court be repaid to the pur-
chaser, the circuit court has jurisdiction to entertain a petition of inter-
vention by the sureties of the receiver, who paid such money into the
court registry upon the embezzlement by the receiver of the original pay-
ment, and to direct instead that the money be returned to them on the
ground that, since the appointment of the receiver was void, they were
not liable on the bond.
-Baltimore Building & Loan Ass'n v. Alderson, 99 Fed. 489.....
Of receiver, see "Receivers," § 1.
Of salvage compensation, see "Salvage," § 1.
See "Appeal and Error," § 6.
ASSIGNMENTS FOR BENEFIT OF CREDITORS.
§ 1. Rights and remedies of creditors.
In the absence of statutory provision, the participation by a creditor in
the benefits of a general assignment by his debtor, conditioned that those
accepting its benefits shall release their claims in full, does not operate as
a discharge of the unpaid part of the debt, there being no consideration
therefor.
-Manhattan Life Ins. Co. v. Hennessy, 99 Fed. 64. .39 C. C. A. 625
In an action in assumpsit based on a written contract which was not
required to be under seal, the authority of the agent who signed the de-
fendant's name to such contract need not be shown to have been under
seal, although he affixed a seal to the signature of his principal.
-Nichols v. Haines, 98 Fed. 692..
§ 1. Liabilities on bonds or undertakings.
The validity of a forthcoming bond is not affected by an indorsement
by the sheriff on the writ of attachment reciting that on the giving of
such bond he "released the levy," the purpose and effect of the bond it-
self being to continue his legal custody of the property.
-Smith v. Packard, 98 Fed. 793....
In an action on a forthcoming bond given in attachment proceedings,
which under the statute is joint and several, where all of the obligors
were joined as defendants, but a dismissal was entered before trial as to
all but one, the case stands as though originally brought against such
defendant alone, and proof of the execution of the bond by the other obli-
gors is not required.
-Smith v. Packard, 98 Fed. 793......
Where, in an action by attachment against a partnership, one of the
defendants signs his partner's name to a forthcoming bond, the latter
cannot, after having voluntarily received its benefits, deny that his signa-
ture to the bond was authorized.
-Smith v. Packard, 98 Fed. 793...
In an action on a forthcoming bond given in attachment proceedings,
it was not available error to exclude evidence on behalf of the defendants
to show the diminished value of the property since the giving of the bond;
no offer being made to show that the depreciation was not caused by any
act or negligence of the principals in the bond, who had its custody.
-Smith v. Packard, 98 Fed. 793.....
A recital in a forthcoming bond that the value of the property "does not
exceed" a sum named, while conclusive against the assertion of a larger
value, establishes no particular value.
-Smith v. Packard, 98 Fed. 793.....
Under the attachment law of Illinois, the fact that a forthcoming bond
is taken after the return day of the writ, or that it is not returned into
court by the sheriff on the first day of the term at which the writ is re-
turnable, as directed by the statute, does not affect its character as a
statutory bond.
§ 1. Petition, adjudication, warrant, and custody of property.
Under Bankr. Act 1898, § 5, a partnership is a "person" or entity which
may be adjudged bankrupt upon its voluntary petition, or in involuntary
proceedings, if it has committed an act of bankruptcy, irrespective of any
adjudication of the individual partners as bankrupts; and the adjudication
of the firm will subject the separate estates of the partners, as well as
the firm property, to administration in bankruptcy.
-In re Meyer, 98 Fed. 976.......
Upon a petition in involuntary bankruptcy against a firm and its mem-
bers, no adjudication can be made against a partner who has not commit-
ted, or participated in committing, any of the acts specified in the statute
as acts of bankruptcy.
-In re Meyer, 98 Fed. 976.......
Where an act of bankruptcy has been committed by an insolvent firm,
as such, it may be adjudged bankrupt on the petition of its creditors, al-
though some of the partners have not committed, nor participated in com-
mitting, any act upon which they, as individuals, could be adjudged bank-
rupt.
-In re Meyer, 98 Fed. 976......
Under Bankr. Act 1898, § 3a, cl. 4, providing that it shall be an act of
bankruptcy if a person shall have “made a general assignment for the bene-
fit of his creditors," such an assignment is an act of bankruptcy, although
made without preferences, without actually intending to defraud creditors,
and without insolvency.
-In re Meyer, 98 Fed. 976......
An assignment by a partnership for the benefit of its creditors, purport-
ing to transfer all the property of the firm, is a "general assignment,"
such as to constitute an act of bankruptcy by the firm, and on which the
firm may be adjudged bankrupt, although, considered as an assignment by
the individual partners, it would be but partial, by reason of not including
their separate property.
-In re Meyer, 98 Fed. 976......
Upon a petition in involuntary bankruptcy against a firm, alleging, as
an act of bankruptcy, the making of an assignment for the benefit of its
creditors, which purports to transfer all the property of the firm, though
it was executed by one partner only, the question of the validity of the as-
signment as to the partners not joining is immaterial; for the language of
the bankruptcy act applies to any instrument which is or purports to be a
general assignment, without distinguishing between valid and invalid in-
struments.
-In re Meyer, 98 Fed. 976......
Where the liquidating partner of an insolvent firm makes a general as-
signment of the firm's property for the benefit of its creditors, it is an act
of bankruptcy, upon which such partner, as an individual, may be adjudged
bankrupt.
-In re Meyer, 98 Fed. 976......
..............39 C. C. A. 368
Where a corporation, under the provisions of a state statute, files in a
state court its voluntary application for dissolution, and for the appoint-
ment of a receiver to wind up its affairs and distribute its assets, on the
ground of its insolvency, and procures the appointment of a receiver there-
on, such application is not "a general assignment for the benefit of its
creditors," within the meaning of Bankr. Act 1898, § 3a. cl. 4, providing
that such an assignment shall constitute an act of bankruptcy.
-In re Empire Metallic Bedstead Co., 98 Fed. 981...39 C. C. A. 372
Such a proceeding cannot be held to be an act of bankruptcy on the
ground that it produces results equivalent to those brought about by a gen-
eral assignment for creditors; for the acts of bankruptcy enumerated and
classified by the statute cannot be enlarged by construction so as to in-
clude transactions similar or analogous to, but not identical with, those
specified.
-In re Empire Metallic Bedstead Co., 98 Fed. 981...39 C. C. A. 372
Payment of a debt in money is a transfer of property, within the pur-
view of Bankr. Act 1898, § 60a, providing that a debtor shall be deemed
to have given a preference if, being insolvent, he has made a transfer of
any of his property, and the effect of the enforcement of such transfer
will be to enable one of his creditors to obtain a greater percentage of his
debt than other creditors of the same class.
-In re Ft. Wayne Electric Corp., 99 Fed. 400; Columbus Electric Co
v. Worden, Id....
...39 C. C. A. 582
§ 2. Assignment, administration, and distribution of bankrupt's es-
tate.
Under Bankr. Act 1898, § 57g, providing that the claims of creditors of a
bankrupt who have received preferences shall not be allowed unless they
surrender their preferences, a creditor who has actually received a prefer-
ence, by a partial payment of his debt, within four months before the
bankruptcy of the debtor, cannot have his claim allowed against the estate
of the bankrupt without surrendering the preference; and this, notwith-
standing the fact that he received the payment innocently, and that he
had no knowledge or cause to believe that the debtor was insolvent or
that a preference was intended.
-In re Ft. Wayne Electric Corp., 99 Fed. 400; Columbus Electric Co.
v. Worden, Id.....
...39 C. C. A. 582
§ 3. Rights, remedies, and discharge of bankrupt.
The provisions of the bankruptcy act authorizing the examination of
third persons as witnesses in bankruptcy proceedings, and requiring them
to produce books and documents when called for, are intended to enable
creditors to find grounds of opposition to the bankrupt's discharge, if any
exist, and to enable the trustee to discover assets of the estate which may
be applied to the payment of the bankrupt's debts.
-In re Horgan, 98 Fed. 414.....
4. Appeal and revision of proceedings.
In the examination of third persons as witnesses in bankruptcy proceed-
ings, and the scrutiny of their books and papers, the bankruptcy court
should see to it that the examination is confined to the legitimate objects
of such an investigation, viz. the discovery of assets of the bankrupt, or
of grounds of opposition to his discharge. But in this matter it is vested
with a wide discretion, and its action will not be interfered with by the
appellate court unless such discretion has been manifestly abused.
-In re Horgan, 98 Fed. 414....
Two partners, after failing in business as architects and builders, or-
ganized a corporation for the prosecution of the same business, composed
of themselves, their wives, and one other. The wives held substantially
all the stock, but contributed no value therefor; practically the only capital
being the professional reputation and personal services of the husbands.
The latter were the officers and directors of the corporation, and managed
its business, and drew all the money earned. The partnership, as such,
being adjudged bankrupt on their voluntary petition, and the trustee and
creditors claiming the right to examine the books of the corporation, the
district court ordered one of the bankrupts to produce the books in his
custody as the president of the corporation, and submit them for such ex-
amination, and fined him for his refusal to comply. Held, that such order
was within the authority of the bankruptcy court, and was a reasonable
exercise of its judicial discretion, and would not be reversed on appeal.
..39 C. C. A. 118
-In re Horgan, 98 Fed. 414....
Where the act of bankruptcy charged in an involuntary petition against
a partnership is the transfer of its property to an assignee for the benefit
of its creditors, such assignee is entitled to appear and contest the petition,
and, having been permitted to intervene and be heard, he has a right to
appeal from the decree of the district court adjudging the firm bankrupt.
-In re Meyer, 98 Fed. 976......
....39 C. C. A. 368
Creditors who appear in opposition to a petition in involuntary bank-
ruptcy against their debtor, and contest the adjudication thereon, as au-
thorized by the bankruptcy act, have a right to appeal from a decree of
the district court making the adjudication.
-In re Meyer, 98 Fed. 976.....
A judgment of the district court, adjudicating a person a bankrupt i
involuntary proceedings against him, can be reviewed by the circuit court
of appeals only on an appeal taken by the respondent within 10 days after
the judgment appealed from, as prescribed by Bankr. Act 1898, § 25a, and
not on an original petition for review of the decision of the district court,
under section 24b.
-In re Good, 99 Fed. 389...
Bankr. Act 1898, § 24b, giving to the circuit courts of appeals jurisdic-
tion to "superintend and revise in matter of law the proceedings of the
several inferior courts of bankruptcy,” on petition filed by any party ag-
grieved, applies only to some action taken or order made in the course of
a proceeding in bankruptcy. Such a petition will not lie to obtain a review
of an alleged error of the district court in entertaining jurisdiction of a
bill in equity brought by a trustee in bankruptcy against a stranger, a
citizen of the same state, to set aside an alleged fraudulent conveyance
of property to him by the bankrupt.
-In re Jacobs, 99 Fed. 539.
From a final decree rendered by the district court in such a case an
appeal may be taken to the circuit court of appeals in the ordinary way,
bringing up for review every question decided in the case, or the question
of the jurisdiction of the district court may be certified by that court to
the supreme court of the United States.
-In re Jacobs, 99 Fed. 539..
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