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

Hartwell Cabell, for plaintiff in error.

F. H. Goff, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and LANNING, District Judge.

LANNING, District Judge. In the oral argument of this case counsel for the defendant in error made two objections to the record, One of them is that this court is without jurisdiction to consider the assignments of error because it appears that the bill of exceptions was signed after the expiration of the term in which judgment was entered; the other is that the bill is fatally defective because it contains such fragmentary excerpts from the testimony and charge that their relation to the issues in the case cannot be ascertained. Counsel for the plaintiff in error, evidently surprised by the objections, thereupon requested permission to apply to the court at a later day for such relief as they might think the facts of the case would warrant. Since the argument, counsel for the plaintiff in error have submitted to us affidavits in explanation of the delay in signing the bill of exceptions. It appears by them that, after the rendition of the verdict, a motion for a new trial was argued; that the court decided on April 18, 1906, that unless the defendant in error would consent to a reduction of the verdict to the sum of $10,000 a new trial would be allowed; that the defendant in error did so consent; that on May 2, 1906, judgment for $10,000 was entered against the plaintiff in error; that promptly thereafter counsel for plaintiff in error applied to the trial judge, and also to the clerk of the court, for the transcript of the testimony and the exhibits in the case, but that they could not be found; that search for them was repeatedly made by counsel for the plaintiff in error between May 2, 1906, and August 20, 1906, on which latter date they were found in the office of the trial judge; that the bill of exceptions was then prepared, and the judge's signature thereto obtained on August 25, 1906; that, while the transcript and exhibits were missing, one of the counsel for the plaintiff in error repeatedly communicated with one of the counsel for the defendant in error concerning the missing papers, and his intention to prepare a bill of exceptions and specifications of error as soon as they should be found; that the counsel for the defendant in error stated that the delay was not causing him any inconvenience; and that because of these facts no agreement was thought of, and no formal order was entered for the extension of time for the preparation of the bill of exceptions or the specifications of error.

Assuming the statements in the affidavits to be free from mistakes, they wholly relieve the counsel for the plaintiff in error from responsibility for the delay, and the objection of the defendant in error that this court is without jurisdiction to review the case for the mere reason that the bill of exceptions was not signed in the same term in which the judgment was entered ought not, if the rules of practice will prevent it, to prevail. The general rule of practice on the subject

is that for which the defendant in error contends. Muller v. Ehlers, 91 U. S. 249, 23 L. Ed. 319; Morse v. Anderson, 150 U. S. 156, 14 Sup. Ct. 43, 37 L. Ed. 1037; Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195. Where, however, extraordinary circumstances excuse the signing of a bill of exceptions within the term in which judgment is entered, an exception to the general rule exists. This was recognized in Jones v. Grover & Baker Sewing Machine Co., 131 U. S. Append., p. cl, 24 L. Ed. 925; Michigan Insurance Bank v. Eldred, 143 U. S. 298, 12 Sup. Ct. 450, 36 L. Ed. 162; Scaife v. Western North Carolina Land Co., 87 Fed. 308, 30 C. C. A. 661; Western Dredging & Improvement Co. v. Heldmaier, 116 Fed. 179,

53 C. C. A. 625.

On the facts as presented in the affidavits, we think this case comes well within the exception to the general rule. But we ought not to decide so important à question on affidavits which the opposing party has had no opportunity to answer. Indeed, we think that, unless possibly in a very rare case, the decision of such a question should be based solely on the facts certified by the trial judge. The ex parte affidavits now before us might be sufficient ground on which to ask for a writ of certiorari from this court to the trial judge asking him to certify the facts which induced him to sign the bill of exceptions after the expiration of the term in which the judgment was entered, if a certiorari were necessary. But it is not. The trial judge has already certified the facts by annexing to the bill of exceptions a statement in which he says that "the court is satisfied that the delay in presenting said bill of exceptions and filing the specifications of error was due to the exhibits in the case having been mislaid by some officer of the court."

The objection that this. court is without jurisdiction to consider the bill of exceptions is therefore overruled.

Error is assigned on each exception. On looking into the bill of exceptions we find it to be so defective that we cannot intelligently pass upon any of the questions concerning which our opinion is desired. The only items of the bill relied on by the plaintiff in error are those which embrace letters and excerpts from the testimony, without anything to show their relation to the case or the issues involved. Accompanying the record of the case are over 500 pages of what purports to be testimony and exhibits. Although this printed matter was referred to on the oral arguments and in the briefs of counsel, it is nowhere mentioned in the bill of exceptions, and therefore it does not constitute a part of the bill. On a writ of error we can consider only the record of the case and the bill of exceptions. A bill of exceptions may, by appropriate reference to the testimony, incorporate any part, or in a proper case the whole, of the testimony; but unless it be so incorporated it cannot be considered by an appellate tribunal, for the reason that everything embodied in a bill of exceptions must be certified by the trial judge's signature. In Jones v. Buckell, 104 U. S. 554, 26 L. Ed. 841, it was said:

"Copies of deeds and a stipulation in respect to evidence are found in the transcript, but they are nowhere referred to in the bill of exceptions, and it is not even stated in the record that they were used at the trial. As long ago

as Dunlop v. Munroe, 7 Cranch, 242, 270, 3 L. Ed. 329, it was said by this court that each bill of exceptions must be considered as presenting a distinct and substantive case; and it is on the evidence stated in itself alone that the court is to decide.' Of course, evidence may be included in a bill of exceptions by appropriate reference to other parts of the record, and if that had been done here it might have been enough."

The application now made by counsel for the plaintiff in error is that they be permitted to file in this court an amended bill of exceptions, provided they can obtain the signature of the trial judge thereto. If such permission be granted, the case must lie over and be reargued at the next term. We think the permission cannot be given. The exception to the general rule, which allows a trial judge to sign a bill of exceptions after the expiration of the term in which judgment is entered, is, as above stated, limited to extraordinary cases. In substance, the present application is that this court shall allow a second bill of exceptions to be filed, not only long after the expiration of the term of the court in which judgment was entered, but after a writ of error has brought the record into this court, and even after argument of the errors assigned on the first bill of exceptions. To permit such a practice is to stretch the exception to the general rule far beyond what is authorized by the precedents. In Michigan Insurance Bank v. Eldred, supra, it was said:

"The duty of seasonably drawing up and tendering a bill of exceptions, stating distinctly the rulings complained of and the exceptions taken to them, belongs to the excepting party, and not to the court; the trial court has only to consider whether the bill tendered by the party is in due time, in legal form, and conformable to the truth, and the duty of the court of error is limited to determining the validity of exceptions duly tendered and allowed. Any fault or omission in framing or tendering a bill of exceptions, being the act of the party and not of the court, cannot be amended at a subsequent term, as a misprision of the clerk in recording inaccurately or omitting to record an order of the court might be."

The case of Stimson v. West Chester Railroad Co., 3 How. 553, 11 L. Ed. 722, is not an authority for allowing an amendment of the bill of exceptions in such a case as the one now before us. There, a suggestion of diminution in the record was made before the case was brought on for argument on the errors assigned. The application was for a certiorari to bring up a portion of the charge not included in the bill of exceptions, for the purpose of perfecting the record. The court said:

"If the portion of the charge, in relation to which the diminution is suggested, was in fact embraced in the exception, and the omission of it is a clerical error, then, upon producing here a copy of the exception properly certified, the plaintiff in error will be entitled to a certiorari in order to supply the defect."

But here we have no certified exceptions save those contained in the bill now before us. There is nothing upon which a certiorari, or an attempt to obtain an amended bill, can be allowed. Furthermore, an application for leave to obtain and file an amended bill comes too late if not made before the case is reached for argument.

The result is that the judgment of the Circuit Court must be affirined, with costs.

GOMILA v. WILCOMBE et al.

(Circuit Court of Appeals, Fifth Circuit. February 12, 1907.)

No. 1,591.

BANKRUPTCY-PREFERENCE-CONVEYANCE TO WIFE UNDER LOUISIANA CODE. Under the provision of Civ. Code La. art. 2446, that a transfer of property by a husband to his wife is valid where "it has a legitimate cause, as the replacing of her dotal or other effects alienated," and the state decisions which protect such transfers as against the husband's creditors, even though he may be insolvent, such a transfer of realty by an insolvent within four months prior to his bankruptcy, if made in good faith and of property not exceeding in value the dotal property of the wife, does not constitute a preference voidable under Bankr. Act 1898, § 60b, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445).

Appeal from the District Court of the United States for the Eastern District of Louisiana.

This is an appeal from the District Court for the Eastern District of Louisiana. The question involved arose in the bankruptcy case of John E. Wilcombe, bankrupt. Wilcombe was adjudicated a bankrupt on the 8th day of September, 1905. On the 16th day of August preceding, he transferred to his wife certain real estate in the parish of Tangipahoa, La., which it is unnecessary to describe. The consideration for the transfer was $3.000. Joseph II. Gomila, having been selected as trustee for the estate of Wilcombe, filed a petition to set aside this transfer by the husband to the wife on the ground that the transfer was voidable under the bankruptcy act, being made within four months of the adjudication, and that the property should be returned to the common fund of the bankrupt's estate. The case was heard by the referee, who filed an interesting opinion, which, after full discussion of the question, concluded as follows:

"The state of Louisiana gives to the wife a lien and privilege on the property of her husband for the protection of her paraphernal and dotal rights. This lien and privilege can be enforced against third parties by recordation under act No. 95, p. 114, of 1869 of the General Assembly of Louisiana, or by actual transfer. The indebtedness of the husband to the wife can be satisfied under the provisions of article 2446 of the Civil Code. These provisions of the state law have at all times existed in protection of the wife's rights, and cannot be construed as a preference such as is contemplated by the federal statute, section 60a of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]). Therefore no preference such as there contemplated exists, and by agreement no fraud is to be drawn from this transaction, and for these reasons, in the face of the jurisprudence and of the statutes of the state of Louisiana, I am of the opinion that the trustee cannot invoke the federal statute and attack the transfer recognized and approved of in every respect by the laws of Louisiana."

The referee then directs that the rule taken by the proceeding against the bankrupt and his wife be dismissed. This decision of the referee was taken before the District Judge for review, and was approved and confirmed. Thereupon an appeal was taken by the trustee to this court.

The errors assigned, so far as material to this case, are, "First. The court erred in holding that a transfer of real estate by the bankrupt to his wife, in satisfaction of her dotal claims, one month before his adjudication in bankruptcy, was such a preference as, by the laws of the state of Louisiana, could not be set aside by a syndic or trustee representing all the creditors. Second. The court erred in holding that a transfer of real estate by the bankrupt to his wife, within four months of his adjudication in bankruptcy, in satisfaction of her paraphernal rights, is not a preference within the meaning of sections 60 and 60b of the federal bankrupt laws, and in refusing to declare such transfer null upon the suit of the trustee."

Thomas D. Flynn, for appellant.

Wm. W. Westerfield, for appellees.

Before MCCORMICK and SHELBY, Circuit Judges, and NEWMAN, District Judge.

After stating the case as above, the opinion of the court was delivered by NEWMAN, District Judge.

The interesting question presented by the record in this case is whether a dation en paiement made by husband to wife in Louisiana, and executed and delivered within four months of the subsequent voluntary bankruptcy of the husband, should be set aside as a preference under sections 60a and 60b of the bankruptcy act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]). In the course of the proceedings in the case before the referee by written agreement between the parties, all questions of simulation and fraud in connection with the transfer were abandoned, and it was agreed that the real estate transferred, after paying certain mortgages, was not worth more than the amount expressed in the dation en paiement, and that this amount was due the wife by the husband. The amount named was inherited by the wife during marriage from a deceased uncle, and had been loaned by her to the husband, so that the transaction was bona fide and for a full consideration. Should such a transfer be disturbed by the bankruptcy court under section 60 of the bankruptcy act?

Counsel for the trustee claims that such a transfer, even in the courts of Louisiana, while not subject to attack by a single creditor, will be set aside at the instance of a syndic representing all the creditors, under the state insolvency law. Reliance for this position is placed on the case of Lefebvre v. De Montilly, 1 La. Ann. 42. That case, standing alone, might afford some support to this contention, but in a number of subsequent cases the Supreme Court of Louisiana have expressed the opposite view from that sought to be drawn by counsel for the trustee from that case, and have stated that the De Montilly Case was decided in favor of the syndic because of the failure to show the reality and good faith of the transaction.

In Judice v. Neda, 8 La. Ann. 484, the court said, referring to the De Montilly Case:

"The sale made to the wife in that case was set aside because she had not brought herself within the letter or spirit of the proviso of the twenty-fourth section of that act by showing the reality and good faith of the transaction."

In Lehman, Abraham & Co. v. Levy, 30 La. Ann. 745, the Supreme Court in the opinion (page 750) uses this language:

"The dation en paiement purports to have been made in consideration, and In satisfaction in part, of that judgment. The judgment might be without effect as to creditors it certainly does not conclude them; but the dation en paiement might be valid, because its validity would not depend on the judg ment, but on the reality of the claims on which the judgment purports to have been rendered. The Revised Civil Code (article 2446) specially authorizes the transfer of property by the husband to the wife, 'even though not separated, when it has a legitimate cause, as the replacing of her dotal or other effects alienated.' Rabassa v. Casteen, 5 La. Ann. 493. The embarrassment of the husband is the sole ground on which the wife is authorized to demand a