Page:North Dakota Reports (vol. 48).pdf/862

 the agreement was executed, nor of facts relative thereto so as to afford reasonable grounds of belief that the deposit would constitute a preference; further, that the preponderance of the evidence does not show that the money deposited was the property of the bankrupt, nor that the bankrupt’s estate was diminished by the deposit. The trial court determined that no preference was created, and that the intervener was entitled to the benefit of such deposit. Judgment was entered accordingly. The plaintiff has appealed from such judgment. The plaintiff demands an entire review and trial de novo of the action. He contends that the trial court erred in finding that the intervener did not possess knowledge of the bankrupt’s insolvency and of such facts relative thereto so as to afford reasonable grounds of belief that the payment of the deposit would create a preference; also in its findings that the evidence does not establish the deposit to be the property of the bankrupt, and that the bankrupt’s estate was not diminished by such deposit; further, that the trial court erred in concluding, upon the evidence, that a preference was not created, and in failing to make findings and conclusions upon the issue presented that the deposit was made for the purpose of cheating. and defrauding the bankrupt’s creditors.

Plaintiff's cause of action is founded upon the provisions of the federal Bankruptcy Act concerning the creation of a preference (7 C. J. 148), and concerning transfers made for the purpose of hindering or defrauding creditors (7 C. J. 170). Such cause of action presents questions of fact for determination by a jury. The plaintiff, in his. prayer for relief, seeks a money judgment against the defendant and intervener. This cause of action sounds in law and not in equity. Accordingly this court, upon appeal from the judgment concerning such cause of action, does not try the action de novo. The so-termed Newman Act, as heretofore existing or as now amended, does not apply. Section 7846, C. L. 1913; chap. 8, Laws 1919; Novak v. Lovin, 33 N. D. 424, 157 N. W. 297; St. A. & Dak. Elev. Co. v. Martineau, 30 N. D. 425, 153 N. W. 416; Barnum v. Land Co., 13 N. D. 359, 100 N. W. 1079; Laffy v. Gordon, 15 N. D. 282, 107 N. W. 969.

The appeal, therefore, is before this court for review upon specifications of error. The findings of the trial court are presumed to be