law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants." That is to say, they take jurisdiction of such cases either originally or upon removal, where the matter in dispute exceeds, exclusive of interest and cost, the sum or value of $2,000, and which arise under the Constitution or laws of the United States, or treaties made under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there is a controversy between citizens of different States, or a controversy between citizens of a State and foreign States, citizens or subjects, or, irrespective of the value of the matter in dispute, where there is a controversy between citizens of the same State claiming lands under grants of different States.2

§ 494. Review by Circuit Courts of Appeals.— The Circuit Courts of Appeals and the Supreme Courts of the Territories are invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the "courts of bankruptcy from which they have appellate jurisdiction in other cases."1 "Appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the Circuit Court of Appeals of the United States, and to the Supreme Court of the Territories, in the following cases, to wit: (1) from a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judgment granting or denying a discharge; and (3) from a judgment allowing or rejecting a debt or claim of five hundred dollars or over. Such appeal shall be taken within ten days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation, as the case may be."2 "The several Circuit

§ 493. 130 St. at L. 544, 552, § 23. 225 St. at L. 433; supra, §§ 15-23. Where an adverse claimant recovered judgment in a Circuit Court, which had jurisdiction by reason of citizenship, against a trustee in bankruptcy for the possession of specific property, and it then was shown for

the first time that the trustee had sold part of the property pending the suit, it was held that the Circuit Court should order the trustee to pay the proceeds to the plaintiff, and that it was error to remit him to an application to the District Court. J. B. McFarlan Carriage Co. v. Solanas

Courts of Appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved." "Appeals from a court of bankruptcy to a Circuit Court of Appeals, or to the Supreme Court of a Territory, shall be allowed by a judge of the court appealed from or of the court appealed to, and shall be regulated, except as otherwise provided in the act, by the rules governing appeals in equity in the courts of the United States."

It seems that Circuit Courts of Appeals may review the decisions of the District Courts in bankruptcy in three ways: by writ of error, by appeal, and by summary supervision. It has been held that an adjudication in bankruptcy which is tried by a jury is reviewed by writ of error. An order directing the payment of a counsel fee to an attorney for petitioning creditors, or for a lienor,' is an order allowing a claim and is appealable to the Circuit Court of Appeals. It has been held that an order refusing confirmation of a composition is appealable to the Circuit Court of Appeals as an order denying a discharge.3 An appeal is the only method in which a review may be obtained of the facts as well as the law. It has been held that the appellate court, upon an appeal from an order allow

ing or disallowing a claim, may determine the extent of the claimant's lien and of his priority of payment.1o

It has been held that no appeal will lie from an order enjoining the prosecution of a suit of replevin and referring the plaintiff's claim to a referee," nor. from an order requiring a bankrupt to indorse a license,12 nor from an order directing a trustee to return property to an adverse claimant," or granting or denying a motion that an adverse claimant deliver property to a trustee.1 It seems that all such orders and a ruling upon the examination of a witness 15 can only be immediately reviewed by a Circuit Court of Appeals upon a petition for a supervision; and not then when a question of fact is involved, and there is no clear abuse of discretion." It seems that a petition for revision will only lie in cases where there can be no appeal.18 A similar supervisory jurisdiction was vested by the act of 1867 in the Circuit Courts,19 and the decisions thereupon may be consulted with profit. A party may file a petition for a review concurrently with an appeal, and the Circuit Court of Appeals may determine the matters thus brought before it in either or both proceedings as it may deem appropriate. It has been held that under special circumstances an appeal upon which all of the parties have appeared may be treated as a petition for a review. The Circuit Court of Appeals for the Eighth

21

10 Courier-Journal Job Pr. Co. v. Schaefer-Meyer Br. Co. (C. C. A.), 101 Fed. R. 699; Cunningham v. German Ins. Bank (C. C. A.), 103 Fed. R. 932. Contra, In re Worcester County (C. C. A.), 102 Fed. R. 808, which holds that so much of the order as allows the item must be reviewed by appeal, and so much as determines the right of the claimant to priority must be reviewed by petition.

11 In re Russell, 101 Fed. R. 228, 248. 12 Fisher v. Cushman (C. C. A.), 105 Fed. R. 860.

13 In re Whitener (C. C. A.), 105 Fed. R. 180. Cf. In re Seebold (C. C. A.), 105 Fed. R. 910.

14 In re Abraham (C. C. A.), 93 Fed. R. 767; In re Seebold (C. C. A.), 105 Fed. R. 910.

15 In re Horgan (C. C. A.), 98 Fed. R. 414.

20

16 In re Whitener (C. C. A.), 105 Fed. R. 180; In re Rosser (C. C. A.), 101 Fed. R. 562; Courier-Journal Job Pr. Co. Co. v. Schaefer-Meyer Br. Co. (C. C. A.), 101 Fed. R. 699. Such was held to be the finding that a creditor did not have reasonable ground to believe that his debtor was insolvent when he obtained security. In re Eggert (C. C. A.), 102 Fed. R. 735.

17 In re Horgan (C. C. A.), 98 Fed. R. 414.

18 In re Eggert (C. C. A.), 102 Fed. R. 735.

19 U. S. R. S., § 4986.

20 In re Worcester County (C. C. A.), 102 Fed. R. 808; Fisher v. Cushman (C. C. A.), 103 Fed. R. 860.

21 In re Abrahams (C. C. A.), 93 Fed. R. 767.

courts of the Indian Territory sitting as courts of bankruptcy." The phrase "within their jurisdiction," in the grant of supervisory power to the Circuit Court of Appeals, means within their territorial jurisdiction; and they may upon a petition for Circuit has no supervisory jurisdiction over the United States a review reverse an order of a District Court in bankruptcy when an objection to the jurisdiction was made below, if that was not the only objection, and the court did not ground its decision upon a want of jurisdiction.23

24

An appeal from an adjudication of involuntary bankruptcy may be taken by contesting creditors. An appeal from the allowance of a claim may be taken by the trustee,25 and if he refuses, to take it by an objecting creditor, although it is the safer practice for the creditor to obtain permission to appeal in the name of the trustee." The trustee must be made a party to an appeal by a claimant from an order disallowing his claim, even if no contest was made by the trustee below; 28 but it has been held that persons who were not parties to the record, to whom allowances have been made for fees and disbursements at the petition of the trustee, need not be made parties to an appeal from the order for such allowances.29

Appeals to the Circuit Courts of Appeals from judgments which refuse to adjudge the defendant a bankrupt, which grant or deny a discharge, and which allow or reject a claim, must be taken within ten days from the time the judgment has been rendered.30 Appeals in these courts in other cases must be taken within six months after the entry of the judgment or order sought to be reviewed." It has been held that a peti

22 In re Blair (C. C. A.), 106 Fed. R. 101 Fed. R. 486. In re Roche (C. C. 662. A.), 101 Fed. R. 956, holds that any creditor may appeal in his own name. 28 Ex parte Mead, 109 U. S. 230; Mead v. Platt, 17 Fed. R. 509. 29 In re Utt (C. C. A.), 105 Fed. R. 754.

23 In re Seebold (C. C. A.), 105 U. S. 910; Bryan v. Bernheimer, 181 U. S. 188.

24 In re Meyer (C. C. A.), 98 Fed. R. 976.

25 In re Curtis (C. C. A.), 100 Fed. R. 784; Chatfield v. O'Dwyer (C. C. A.), 101 Fed. R. 797.

26 McDaniel v. Stroud (C. C. A.), 106 Fed. R. 486; Chatfield v. O'Dwyer (C. C. A.), 101 Fed. R. 797.

27 Chatfield v. O'Dwyer (C. C. A.),

30 30 St. at L. 544, 553, § 25; Norcross v. Nave & McCord Merc. Co. (C. C. A.), 101 Fed. R. 796.

31 26 St. at L. 829, § 11; Boonville Nat. Bank v. Blakey (C. C. A), 107 Fed. R. 891; infra, § 506.

tion for a revision may and must be filed within six months from the ruling, order or decree of which complaint is made." The appeal is not taken until the order allowing the same is filed in the clerk's office of the District Court.33 It has been held that filing the bond within that time is insufficient when there was a formal written appeal. Where the trustee had without culpable neglect failed to take an appeal in time, the court granted him a rehearing in order to allow him to appeal.35

An assignment of errors must be filed or else there may be an affirmance without a consideration of the merits of the appeal.36 Evidence taken before the referee which was not submitted to the judge should not be included in the transcript." "Trustees shall not be required to give bond when they take appeals or sue out writs of error." 38 The practice upon an appeal in bankruptcy is otherwise similar to that upon an appeal in equity, which is hereinafter explained."

39

The original petition for a revision should be filed in the Circuit Court of Appeals and not in the District Court." It must clearly state the questions of law involved so as to present a distinct issue, and be accompanied by enough of the record to show the manner in which the question arose.42 It is the safer practice to procure the allowance of such a petition, as if it were an appeal, ex parte by a judge of the District Court or of the Circuit Court of Appeals, and reasonable notice of the filing and hearing should be given to the adverse parties."

32 In re Worcester County (C. C. A.), 102 Fed. R. 808; Sleete v. Buel (C. C. A.), 104 Fed. R. 968; In re N. Y. Economical Pr. Co. (C. C. A.), 106 Fed. R. 839; In re Beck, 31 Fed. R. 554.

33 Norcross v. Nave & McCord Merc. Co. (C. C. A.), 101 Fed. R. 796; infra, § 506.

34 Ibid.

35 In re Wright, 96 Fed. R. 820. But see Judson v. Courier Co., 25 Fed. R. 705.

36 In re Dunning (C. C. A.), 94 Fed. R. 709; Lloyd v. Chapman (C. C. A.), 93 Fed. R. 599; infra, § 507.

37 Cunningham v. German Ins. Bank (C. C. A.), 103 Fed. R. 932. 38 30 St. at L. 544, 554, § 25. 39 G. O. xxxvi.

40 Infra, ch. xxxviii.

41 In re Williams (C. C. A.), 105 Fed. R. 906.

42 Courier-Journal Job Pr. Co. v. Schaefer-Meyer Br. Co. (C. C. A.), 101 Fed. R. 699; In re Baker (C. C. A.), 104 Fed. R. 287; In re Richards (C. C. A.), 96 Fed. R. 935.

43 In re Abraham (C. C. A.), 93 Fed. R. 767.