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purchased from a stranger which they suspected to have been smuggled, and that at his request the transaction was not entered on their books, but was shown in a small book kept by them. Such book was not produced and their testimony was wholly uncorroborated. Held, that their testimony was not credible, and that the evidence justified a finding that they had concealed the money, and an order requiring them to pay it over to their trustee. Petition for the Revision of Proceedings of the District Court of the United States for the Southern District of New York.

The following is the opinion of Holt, District Judge, in the court below:

This is a certificate to review an order of the referee, denying a motion that the bankrupts turn over certain money to the trustee. The bankrupts were jewelers and diamond brokers at New York. They had been in busiof about $20,000 a year. During the year from January, 1902, to Decemness for about eight years before the bankruptcy. They did a business at first ber, 1902, the sales aggregated $72,115. During the seven months from January, 1903, to the end of July, 1903, they aggregated $79,601. On August 4, 1903, an involuntary petition was filed and an adjudication in bankruptcy thereafter had. The schedules show liabilities of about $90,000 and nominal assets of about $18,000, from which about $10,000 has been realized. The liabilities shown in the schedules were contracted during the 15 months prior to the filing of the petition. No adequate explanation is given of this large deficiency, and all the circumstances of the case show, in my opinion, that the bankrupts, during the last six months that they continued in business,

contemplated a fraudulent bankruptcy. During the period between July 11 and July 20, 1903, the bankrupts drew from the bank cash on checks aggregating $18,200, as follows: July 10th, $3,000; July 11th, $2,000; July 11th, $2,000; July 13th, $2,200; July 13th, $6,000; July 20th, $3,000. On the day after the last check was drawn, Merker, one of the bankrupts, went to Europe, and about a week after Weinreb, the other bankrupt, having heard that proceedings in bankruptcy were contemplated, also left for Europe. After jurisdiction had been obtained by publication of the subpoena, and an adjudication in bankruptcy had, they returned and were examined. On their first examination, when asked as to what had been done with this $18,200 drawn in cash, each of them refused to answer, on the ground that the answer would tend to incriminate and degrade him. Several months later they applied for a discharge, and one of the specifications of objection to discharge was that they had refused to answer material questions. Thereupon the bankrupts appeared before the referee and offered to answer the questions which they had previously refused to answer, and they thereupon testified, in substance, as follows: That Merker, when in Paris, in May or June, 1902, was introduced to a man named Freundlich, by a diamond broker. He does not remember the name of the broker. He does not know the residence, business address or first name of Freundlich. Freundlich told Merker that he would like to do business with him. Merker said that he would buy if the goods were right and reasonable. Freundlich said that he would send a man to him in New York with the goods, and in the package he would find a memorandum of prices. Freundlich said that he sold goods only for cash, that he didn't want any note or receipt, and didn't want his name entered in the bankrupts' books. Merker explained that they were not able to pay cash, and Freundlich thereupon agreed to sell on eight months' credit. Thereafter, in the fall of 1902, a man came to the bankrupts' office. He said that his name was Jackson. The bankrupts did not know where he lived, or where his place of business was, or what his first name was. He brought some diamonds, and said that he represented Mr. Freundlich. The diamonds had inclosed with them a memorandum stating their weight and value. The memorandum had no billhead. The bankrupts purchased the diamonds on eight months' credit. They gave no receipt, note,

or writing of any kind for them. They made no entry of them in their regular books, but say they made an entry in a little book like a bank book, which the receiver did not find and which has never been produced. At the expiration of the eight months, which happened to be during the latter part of July, immediately before the bankruptcy, Jackson appeared at the office and asked to be paid. He objected to checks and wanted cash, and thereupon both bankrupts drew the checks in question and went to the bank and drew the cash and gave it to Jackson. Jackson gave them no receipt or paper of any kind. One of the bankrupts admitted that he suspected that these goods had been smuggled, and their claim is substan. tially that that fact was the explanation of the circumstances under which these goods were bought and paid for.

This story is extremely improbable. Of course, smuggled goods may be purchased, and, if purchased, the acts of the parties engaged in such a business are frequently stealthy and furtive. But if that is the explanation of the circumstances of this purchase, it is not enough for the bankrupts to simply say so. Their story, if true, could be corroborated in various ways. But it is entirely uncorroborated. It is precisely the kind of story which bankrupts would tell, who had been engaged in the diamond business, and had been planning a fraudulent bankruptcy, and had drawn $18,000 in cash just before their bankruptcy, for the purpose of concealing it from their creditors. I cannot avoid the conclusion that their story is an entire fabrication, and that the bankrupts have this money concealed from their creditors, and that they should be ordered to pay it to the trustee.

There is, besides the sum of $18,200 which they drew out in cash, a deficiency of assets amounting to about $60,000. The only explanation of the disappearance of this large amount given by the bankrupts is that losses arose from bad judgment in buying and then selling at a sacrifice to pay pressing debts. They assert that at the end of each year they found they had lost money. This explanation is very unsatisfactory, but perhaps it is not impossible. I strongly suspect that the bankrupts have a large part of this deficiency hidden somewhere; but I think, upon the whole, that the proof that they have it is not sufficient to justify an order that they pay it over. An order may be entered directing them to pay to the trustee $18,200.

Joseph Fried, for petitioners.
Joseph Rosenzweig, for respondent.
Before LACOMBE and COXE, Circuit Judges.

PER CURIAM. Court.

Order affirmed on the opinion of the District

KELL V. TRENCHARD et al.

(Circuit Court of Appeals, Fourth Circuit. July 11, 1906.)

No. 660.

1. COURTS-CIRCUIT COURT OF APPEALS-CONSTRUCTION OF DECREE.

Where the Circuit Court of Appeals entered a decree directing that the costs in the trial court and on appeal should be borne equally be tween plaintiff and defendants, and a controversy subsequently arose in carrying out the decree concerning the expenditures to be divided, the Circuit Court of Appeals had jurisdiction to construe its decree on a subsequent appeal from the judgment rendered, though only presenting a question of costs.

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2. COSTS-DIVISION_EQUITY_DISCRETION.

In federal courts of equity the giving or withholding costs or the apportionment and division thereof is within the discretion of the court, which is to be exercised, not arbitrarily, but with reference to the general principles of equity and the special circumstances of each case.

[Ed. Note.—For cases in point, see vol. 13, Cent. Dig. Costs, § 21.] 3. SAME-APPORTIONMENT EXPENSES OF RECEIVERSHIP.

After continued litigation both parties were in part successful, defendant finally securing a decree for $19,000 and interest for five years against plaintiff. An appeal was taken, on which the appellate court directed that the costs in both the trial court and on appeal should be borne equally between plaintiffs and defendant. Held, that the costs referred to were ordinary costs, incident to the litigation, and did not include the expenses of a receivership.

Appeal from the Circuit Court of the United States for the Eastern District of North Carolina.

This is the second appeal from the United States Circuit Court for the Eastern District of North Carolina, at Raleigh, in the equity cause therein depending wherein W. B. Trenchard and others were plaintiffs and F. Kell was defendant, the original appeal taken by the defendant in the court below having been decided by this court on the 9th day of November, 1905 (142 Fed. 116); the present appeal by the same appellant, the defendant in the court below, being from the decree of the latter court entered on the 2d day of January, 1906, after the receipt of the mandate of this court respecting the costs in said cause.

F. H. Busbee (H. H. Little, on the brief), for appellant.

James H. Shepherd (W. H. Day, Peebles & Harris, Gay & Midyett, Shepherd & Shepherd, on the briefs), for appellees.

Before GOFF and PRITCHARD, Circuit Judges, and WADDILL, District Judge.

WADDILL, District Judge. The sole question presented by this appeal arises upon the taxation of costs by the lower court in carrying out the decree and mandate of this court in the former appeal; the opinion and judgment of this court prescribing that the costs of the cause in both this and the lower court should be borne equally between the appellant and the appellees. In the taxation of costs pursuant to this direction, the lower court by the decree appealed from included the allowance to the receiver as a part of the costs properly to be divided, and which action forms the basis of this appeal.

The appellees insist that the action of the lower court complained of is not subject to review by this court, as it relates purely to a matter of costs, which is a matter within the discretion of that court, and not subject to review on appeal. In the view taken by this court, that question is not a very material or practical one, since the appeal in this case relates to the construction to be given to a judgment and decree of this court; and for that reason the same should be subject to the review and action of this court, as it can manifestly best determine what was meant and intended by its own decree. A general discussion and citation of authorities on the subject of the right of appeal in cases affecting costs will be found in Re Michigan Central R. R. Co.,

124 Fed. 727, 733, 59 C. C. A. 643, a decision of the Circuit Court of Appeals of the Sixth Circuit. In the federal practice in equity the giving or withholding costs or the apportionment and division thereof is a matter within the discretion of the court; such discretion, however, to be exercised, not arbitrarily, but with reference to the general principles of equity and special circumstances of each case. 2 Bates, Fed. Eq. Proc. $S 842, 844; Primrose v. Fenno (C. C.) 113 Fed. 375; Electric Co. v. Scott (C. C.) 101 Fed. 524, 11 Cyc. 36.

In decreeing the division of costs in this court and the court below was meant only the ordinary taxable costs of the litigation, and not such charges and expenses as the costs of the receivership and payments and allowances to receivers; those being costs properly appertaining to the receivership, and chargeable against the property in the receiver's hands. Ferguson v. Dent (C. C.) 46 Fed. 88; Elk Horn Oil & Gas Co. v. Foster, 99 Fed. 495, 39 C C. A. 615. This case was a long and bitter controversy, in which both parties were in part successful, and it seemed to the court to be one eminently calling for apportionment of the costs between them in the manner indicated. The appellant, however, secured a decree for $19,000 and interest for some five years against the appellees, which would ordinarily carry with it a decree for the full costs of the litigation; but the court did not give the latter decree as to costs, but determined that the ordinary costs incident to the litigation in this and the lower court should be divided between the parties. This was, at least, all that the appellees could have asked, and to visit upon the appellant in addition one-half of the receivership costs would seem to be clearly inequitable.

It follows from what has been said that the decree of the lower court, in so far as it decrees as a part of the costs to be borne by the appellant the receivership costs in question, is erroneous, and should be reversed, and this cause remanded to the lower court, to be proceeded therein in accordance with the views herein expressed.

Reversed.

ILLINOIS CENT. R. CO. V. DAVIES.

(Circuit Court of Appeals, Eighth Circuit May 9, 1906.)

No. 2,333.

APPEAL-REVIEW-EXCESSIVE DAMAGES.

An assignment that the verdict awarded excessive damages through passion and prejudice could not be reviewed on appeal to the Circuit Court of Appeals, such question being within the exclusive jurisdiction of the trial court, determinable on a motion for a new trial.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 3944.]

In Error to the Circuit Court of the United States for the District of Minnesota.

James D. Armstrong, for plaintiff in error.
F. D. Larrabee, for defendant in error.
Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS, Circuit Judge. This was an action for a malicious assault upon Davies by one of the agents of the railroad company while engaged in the discharge of his duties as such agent. A verdict and judgment rendered in favor of the plaintiff for $975 is sought to be reversed by this writ of error. The jury was so fully instructed on all questions of law, including those relating to the measure of damages, that no fault is found therewith. The only error assigned and urged for our consideration is that the jury, through prejudice or passion, awarded excessive damages. This, under the Constitution and law as interpreted in the following cases, we have no power to consider or determine. Parsons v. Bedford, 3 Pet. 443, 447, 7 L. Ed. 732; Railroad Company v. Fraloff, 100 U. S. 24, 31, 25 L. Ed. 531; New York, Lake Erie & Western Railroad Co. v. Winter, Adm'r, 143 U. S. 60, 75, 12 Sup. Ct. 356, 36 L. Ed. 71; Lincoln v. Power, 151 U. S. 436, 438, 14 Sup. Ct. 387, 38 L. Ed. 224; Shauer v. Alterton, 151 U. S. 607, 626, 14 Sup. Ct. 442, 38 L. Ed. 286; Homestake Mining Co. v. Fullerton, 16 C. C. A. 545, 69 Fed. 923, 931.

It is the duty of the trial court on a motion for a new trial to set aside a verdict in case of such misconduct, prejudice, or mistake on the part of the jury as unduly affects the award of damages. Such action being the only remedy available to a suitor complaining of excessive damages, the trial court should exercise its exclusive power conscientiously and fearlessly.

The learned trial judge, with full knowledge of all the facts and circumstances attending the trial, and in the light of all the evidence in the case, overruled the motion for a new trial. The defendant's remedy was thereby exhausted. The judgment is accordingly affirmed.

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