Page:North Dakota Reports (vol. 48).pdf/863

 correct, unless clearly opposed to the preponderance of the evidence. Richards v. N. P. Ry. Co., 42 N. D. 472, 173 N. W. 778; Stavens v. Nat. Elev. Co., 36 N. D. 9, 161 N. W. 558; McLennan v. Plummer, 34 N. D. 269, 158 N. W. 269.

Upon a review of the entire record we are of the opinion that the findings of the trial court should not be disturbed. The plaintiff is not in a position to complain concerning the failure of the trial court to make findings, upon the allegations of the complaint, that the deposit was made for the purpose of hindering or defrauding creditors. The trial court permitted the plaintiff, at the trial, to amend his complaint so as to state a cause of action: Parts of the pleadings were read into the record at the trial. The plaintiff in open court stated the nature of the action to-be one to recover on an alleged preference. The alleged cause of action, that the transfer was made for hindering and defrauding creditors, was not separately stated as a cause of action. The record aloes not establish evidence to support the same as a separate cause of action. Evidently the trial court regarded such allegations to be in connection with the cause of action for an alleged preference, and not to be a separate cause of action. The findings cover the issues presented upon the evidence.

The judgment is affirmed, with costs.

, J., concurs.

, J. (concurring). This is an action brought by a trustee in bankruptcy to set aside an alleged preferential or fraudulent transfer.

It is alleged in the complaint:

(1) That such transfer was made by the bankrupt while insolvent, and within four months before the filing of the petition in bankruptcy, for the purpose and with the intent to prefer the intervener and enable it to obtain a greater percentage of its debt than any other creditors of the same class.

(2) That such transfer was made “by said Max Schultze with the purpose and intent on his part to hinder, delay, and defraud his creditors, or some of them, in the collection of their just debts, and with the purpose and intent to hinder, delay, defraud, and prevent all of his