OIL WELL SUPPLY CO. v. HALL et al., 128 F. 875

SIMONTON, Circuit Judge (after stating the facts as above). It is very clear that the case below was not submitted to the jury under the provisions of the nineteenth .section of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 551 [U. S. Comp. St. 1901, p. 3429]). The respondents did not demand a jury. Indeed, the record states that a jury was waived. But the District Judge, of his-own motion, and for his own satisfaction, desired the aid of a jury in passing upon the question whether

an act of bankruptcy had been committed, as charged in the petition. It is always within the discretion of a judge to seek the aid of a jury in solving a question of fact. In the court of chancery the chancellor can do this, either by ordering an issue out of chancery to be tried in the law court, or by impaneling a jury himself in his own court, and submitting the question to them himself. Wilson v. Riddle, 123 U. S. 615, 8 Sup. Ct. 255, 31 L. Ed. 280; Idaho, etc., Co. v. Bradley, 132 U. S. 509, 10. Sup. Ct. 177, 33 D. Ed. 433.

In all such cases the verdict of the jury is advisory — not binding on the court, which must for itself determine the issues. This was the course pursued here. The judge presented the issue to the jury, but he afterwards adopted their conclusion, and gave effect to it by his own decree. This he need not have done if the jury trial had been had under the nineteenth

section of the bankruptcy act. In carrying out his purpose to .seek the aid of a jury, he used a jury in the court over which he was about to-preside, and which best suited his convenience — the jury in the Circuit Court at Parkersburg. As the verdict of the jury was sought by himself to aid his conclusion, he could select any jury, especially as the jurors in the District and Circuit Courts of the United States-can be used in either court. As the jury was called by himself to his aid, it would seem that he had the right to formulate the issue upon which he desired them to pass.

Therefore, when he chose the issue presented in the original answer, and withdrew the issue presented in the amended answer, he. was within his discretion. Especially was this the case when .the amended answer was unsatisfactory to him, because it did not admit any act of bankruptcy antecedent to the filing of the petition and annexed conditions which he would not allow. Beside this, if he had uséd the amended answer in determining the issue, there would have been no controversy; this amended answer admitting the affirmative of the issue.

The petitioning creditors were not surprised at this action of the judge, nor were they taken at a disadvantage. They did not move for a continuance on either of these 'grounds, but they presented their witnesses, went to trial, and the witnesses were all examined. Exceptions were taken during the-course oí llie trial, wliich were afterwards argued. The cause had all the formalities and safeguards of regular trial. When it was ended, a motion for a new trial was entered. The judge then took the matter under advisement, and made his own judgment.

It would seem that full examination was made, and substantial justice was effected. The petitioners had every opportunity of making out their ca.se. Its merits were passed upon by the court after he had had the aid of the jury. Lancaster v. Collins, 115 U. S. 222, 6 Sup. Ct. 33, 29 L. Ed. 373; Deery v. Cray, 5 Wall. 575, 18 L. Ed. 653. In Allis v. Insurance Co., 97 U. S. 144, 24 L.

Ed. 1008, the court says, “When it can be seen that no harm resulted to appellant, this court will not reverse a decree on account of an immaterial departure from technical. rules of proceeding.” It is true that there were infor-malities — perhaps it should be said disregard of forms — but they do not appear to us to be reversible errors. The judgment of the court below is affirmed.