Page:Federal Reporter, 1st Series, Volume 2.djvu/778

 SOUTHWICK V. WHIPPLE. 171 �Third. That before any report from the register '.Tas made — that is, sometime prior to February 3, 1877 — said Frederic W. Whipple withdrew his deniais aforesaid, and assented to a decree of bankruptcy against him, which was entered on said third of February, 1877. �Fourth. That said Southwiok was duly appointed trustee on the fourteenth of April, 1877. �Fifth. That said Almira Whipple advertised the Burrill- ville property for sale under her mortgage, to be sold at aue- tion on the seventeenth of May, 1877, and the Elmwood estate on the twenty-fourth of May, 1877. �Sixth. That the complainant's bill was filed May 7, 1877, the defendant's answer May 28, 1877, and complainant's replication June 11, 1877. �Of the bill, with its amendments of May 18 and October 18, 1877, it seems sufûeient here to say that it embodies ail essential and usual allegations and charges ; and of the answer, that it admits some of those allegations, denies others, and sets up and avers readiness to prove a certain paroi agree- ment, in view of which it was asserted said mortgages should and must be held unimpeachable by the trustee, even were it conceded or shown that but for this agreement the com- plainant would be entitled to the decree prayed in his bill. And here it seems proper to state that after the testimony, taken by the complainant and the defendant respectively, had been printed, preparatory to a hearing of the cause, the de- fendant prayed leave to file a supplemeutal answer, "setting forth the facts in said cause more precisely, and as explana- tory of his answer already filed in the cause, and for the reasôns set forth in his affidavit filed." This motion the complainant resisted, but the court, by a pro forma ruling, sustained it, and a supplemental answer was filed February 13, 1879. �The charge or charges in the bill as first amended, which the complainant assumed the burden of substantiating, were that on the twenty-seventh of April, 1876, the said Frederic W. Whipple, being insolvent or in contemplation of insolvency, made said conveyance or mortgage, with a view to give a preference to said Almira Whipple, and that said Almira ����