Page:Federal Reporter, 1st Series, Volume 3.djvu/801

 794 FEDERAL REPORTBE. �that there was not sufficient evidence to warrant that court in holding that the judgment and execution gave an unlaw- ful preference to Pischback, and in that opinion I concur; and therefore the decree of the district court will be affirmed. �Note.— bee Farsona y. Caswell, 1 Fbd. Bep, 74. ���Pbckham ». CozzENS, Assignee. �CozzENS, Assignee, v, Peckham. �CozzENS, Assignee v. Smith. �(District Court, D. Rhode Idand. August 20, 1880.) �I. Banketjptcy — FRAtTDUUENT MoRTGAOB — BuKDKN OF Phoof. — In ordcr to defeat the claims of a mortgagee to the proceeds of the mortgaged real estate of a bankrupt mortgagor, the assignee must establish by a preponderance of eridence (1) that the mortgagor was insolvent at the time of the execution and delivery of the mortgage, (2) that the mort- gagee had reasonable cause to believe that such mortgagor was insol- ' vent when he accepted the mortgage, and (3) that such mortgagee knew that said mortgage was made in fraud of the bankrupt law. �In Equity. �William P. Sheffield, for Peckham and Smith. �Samuel R. Honey, for Cozzens, Assignee. �Knowles, D. J. By agreement of councel these causes have been submitted to the court as really one cause, and the court been authorized and requested to consider them as one, althougb in fact, according to the record, each one of them is entitled to be treated as unconnected with any other of the series. That two of them are designated * * * * as cross-bills, is an immaterial fact. Under the arrangement it seems proper here to premise that I deem myself authorized to state the case, and the questions presented at the hearing, and my rulings or findings upon those questions, as briefly as may be consistent with intelligibility and clearness. The par- ties, in submitting these causes, of their own motion, un- checked by the court, have adopted a novel course; and that ����