Page:Federal Reporter, 1st Series, Volume 3.djvu/804

 PECKHAM V. COZZENS. IQf �2. Did the said mortgagees, respectively, have reasonatlo cause to believe said E. Truman Peckman to be insolveut when they aceepted their deeds ? �An affirmative apswer to this question cannot be given, in view of the evidence — rather the absence of evidence — even tending, in any appreciable degree, to justify such an answer. What might bave been elieited from some of the witnesses under a searching examination, or cross-examination, we are lef t to imagine ; but as their testimohy, given upon written interrogatories, is presented to the court, any other than a negative answer to the question would involve a charge of wilful false swearing against more than one of the witnessea and parties litigant. �3. Did said mortgagees know that said mortgages were made in fraad of the bankrupt law ? �Upon the point here presented no ruling or finding is re- quired. My finding upon the first two questions, as above stated, being in favor of the mortgagees, a ruling upon this third question becomes unnecessary. Still, as the point was raised, and fuUy discussed at the bar, and has been duly con- sidered. I will here add that upon this point, also, my find- ing is in favor of the mortgagees. �And here, before closing, I will add, as not irrelevant, that I find no sufficient ground for the claim of the mortgagees, ' one or both, that their mortgages were made and reoeived in virtue of a valid paroi agreement of a date three or more months prior to the twenty-second of January, 1878 ; and therefore, as to that point, my finding is in favor of the as- signee. �The resuit is that the court adjudges that the assignee fails to establish his claim to retain the said proceeds, as against the claim of the said mortgagees; that no party recover costs ; that unless within — days the parties can agree upon the amount justly due said mortgagees, it be referred to a master to inquire, ascertain, and report as to said amounts ; and that proper decrees, in conformity with this opinion, be prepared and entered in the several causes above euumerated. ����