Dowse v. Hammond

PER CURIAM. The essential facts in this case are clearly stated in the opinion of the learned judge of the District Court, and his conclusions, as well as the method of reasoning by which he reached them, are entirely satisfactory to us. They need to be supplemented on only a single point, being that to which relates the first of the rulings which, according to his opinion, he was requested to make. The record does not show that the notes made by the bankrupt and his wife, described in the ruling as given to the creditor in question before the proof referred to therein was made, were received in discharge of any existing notes. Inasmuch as the notes originally held by the creditor, in accordance with the practice under the then existing bankruptcy statutes, must have been produced when the proof was made, the presumption is that the creditor retained them undischarged, and received those signed by the bankrupt and his wife merely as collateral thereto. Under those circumstances, it is so clear that the refusal of the district judge to give the ruling was correct that we need not elaborate in reference thereto.- The mixed condition in regard to the claims which are now in issue, which condition is fully explained in the opinion of the learned judge of the District Court, arose entirely from the methods of the creditor. Under the circumstances it was reasonably incumbent on the assignees, who are now the appellants, to bring the facts to the attention of the court — both to the District Court and to the appellate tribunal. In this respect this proceeding is quite analogous to those by trustees under a will, or other persons occupying trust relations, to obtain the instructions of the court with reference to any doubtful subject-matter coming within the scope of their duties; and they ought not to be charged with costs in favor of the creditor whose method of proceeding brought about the condition which requires investigation. Therefore we allow no costs on this appeal. The decree of the District Court is affirmed, and neither party will recover any costs on appeal.