Page:Federal Reporter, 1st Series, Volume 5.djvu/929

 IN RE WAGGONBB. 917 �iect of the conflict of opinion among the judges on the con- struction of the act of June 22, 1874, e. 390, § 9, (18 St. 180,) requiring that the assets should be equal to 30 per centum of the debts proved to entitle the bankrupt to a discharge, and concluded to foUow those cases, ruling that it was to the gross value we must look and not to the sujn actually paid the cred- itors. Upon further investigation in this case I àm content with that ruling. In re Kahley, 6 N. B. E. 189 ; In re Thomp' son, 2 Biss. 481 ; In re Borden, 5 N. B. R. 128; In re Lincoln, 7 N. B. E. 334; In re Wilson, 2 Hughes, 229; Ira re Fnederick, 3 N. B. E. 465; In re Wehb, là. 720; In re Graham, 5 N. B. E. 155 ; In re Van Riper, 6 N. B. R. 573 ; In re Vintan, 7 N. B. E. 138; Bump, Bankruptcy, (lOth Ed.) 723, 724. �I hold, therefore, that the deposit for costs must be esti- mated as part of the assets. If there be any surplus after paying costs it goes to the creditors, and I can see no reason for leaving it out of the calculations. But it does not foUow, because we look to the gross assets in comparing them with debts, that we are to try the question of their value by the loose opinions of the bankrupt's friands and witnesses. The opinions of -witnesses as to values are at ail times yery unsat- isfactory, even when given under the most careful examina- tion, and not to be compared to the evidence furnished by actual resulta. It would be very disastrous to this section of the act of congress to establish the practice that notwith- standing the results of a fair sale the bankrupt can be dis- charged by showing upon affidavit, or by such depositions as we have here, that in the opinion of the affiants the property was worth more. �I do not know what facts controlled the judgment of my learned predecessor in the case mentioned by the register, but some of the cases above cited seem to countenance the practice adopted in this case, while others are clearly £|,gainst it. My own judgment is tha,t the actual results must be taken as conclueive on the question of value in ail cases where there has been a fair sale, and that we cannot gô upOn any speculation of complaisant witnesses as to values, nor into a trial of strength as to numbers willing to swear on the one ����