Opinion
No. 3001.
May 25, 1935.
Appeal from the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge.
Suit by the Salem Trust Company in possession of Arthur Guy, Commissioner of Banks of Massachusetts, against the Federal National Bank and another. From a decree dismissing the bill ( 11 F. Supp. 105), plaintiff appeals.
Affirmed.
The suit was in equity to set aside a transfer of certain notes, mortgages and other securities given as collateral to secure a note, which transaction allegedly resulted in a preference.
The merits of the controversy were heard by Judge Lowell, who died before any decision had been handed down, and the parties agreed to resubmit the case upon the transcript of testimony, exhibits, and briefs of counsel.
Alfred P. Lowell, of Boston, Mass. (Burnham, Bingham, Pillsbury, Dana Gould, of Boston, Mass., on the brief), for appellant.
John C. Coughlin and John VdeP. Phelan, both of Boston, Mass. (Parkman, Robbins, Coughlin Hannan, of Boston, Mass., on the brief), for appellees.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
The evidence rejected by Judge Lowell but considered by Judge Brewster in reaching some of the conclusions in the fifth paragraph of his findings of fact was competent and properly considered. He was at liberty to disregard the ruling of Judge Lowell and consider the evidence, and, this being a suit in equity, we should have done so had he done otherwise.
Whether the officers of the national bank knew or did not know the trust company was insolvent was immaterial to a proper disposition of the case. Cosmopolitan Trust Co. v. S.L. Agoos Tanning Co., 245 Mass. 69, 139 N.E. 806; Banca Italiana Di Sconto v. Bailey, 260 Mass. 151, 157 N.E. 40; Banfield v. Whipple, 14 Allen (Mass.) 13. It was not error to fail to determine the fact.
We think the decree of the District Court should be affirmed for the reasons stated in Judge Brewster's opinion.
The decree of the District Court is affirmed.