113 F. 138 (E.D.N.C. 1902), In re Carver

Citation:113 F. 138
Party Name:In re CARVER et al.
Case Date:February 07, 1902
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 138

113 F. 138 (E.D.N.C. 1902)

In re CARVER et al.

United States District Court, E.D. North Carolina.

February 7, 1902

Jno. H. Cook, assignee, in pro per.

B. F. McLean and Patterson & McCormick, for trustee.

PURNELL, District Judge.

The following are certified as the findings of fact by the referee:

'That on the 27th day of February, 1901, the bankrupts executed a deed of assignment for the benefit of creditors. That the assignee, John H. Cook, disbursed the funds which came into his hands as set out in the statement attached, more than four months prior to the institution of the bankruptcy proceedings. That, at the time of the assignment to him by bankrupts, and at the time of the disbursements, John H. Cook, assignee, was a member of the firm of Cook & Morrison. That since the institution of these bankruptcy proceedings, to wit, last November, 1901, the said firm has been dissolved. At request of attorneys for creditors, I find, as a fact, that the check for $62.48, given by John H. Cook to B. F. McLean, trustee, was drawn by the said Cook upon his personal account in the Bank of Laurinburg. That John H. Cook stated in open court that the answer of bankrupts set forth the facts relied upon as the defense by him in the present status of the case.'

No exceptions being filed, the findings of fact are conclusive. Equity rule 83; Railroad Co. v. Gordon, 151 U.S. 285, 14 Sup.Ct. 343, 38 L.Ed. 164; In re Covington (D.C.) 110 F. 143. The court will not look through a voluminous record to find other facts. On the hearing, out of an abundance of caution, this part of the record was read over to counsel, and, there being no omission suggested, it must be conceded these are all the facts.

Then in the report is added:

'As conclusions of law the referee holds: That the assignee for the benefit of creditors is not an adverse claimant as to the trustee in bankruptcy, so far as property in his hands, or which has been improperly paid out by him, is concerned, and that the four months' time limit has no application to the question presented. In the opinion of the referee the cost of administering this estate by J. H. Cook, assignee, is excessive, and with a proper administration the assignee would still have funds on hand. That the trustee should proceed in the proper tribunal to call the assignee to account. The referee is of the opinion that the trustee...

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