further prosecution for the same offense. We think that the indictment met these requirements.

Causing the described circular to be delivered by mail in furtherance of the alleged scheme to defraud is the gist of the offense sought to be charged. This was fully covered by the plain terms of the indictment; the averments showing such conduct of the accused as made him guilty of the criminal offense sought to be charged. Salinger v. Loisel, 265 U. S. 224, 44 S. Ct. 519, 68 L. Ed. 989; Fisher v. United States (C. C. A.) 2 F.(2d) 843; Moffatt v. United States, supra. The most that can be said against the indictment's charge that the accused caused the described circular to be delivered by mail is that it does not definitely and specifically state how he accomplished that result. An objection to the indictment on the ground that it should have contained a more specific statement of the particular mode in which the accused caused the described circular to be delivered by mail cannot properly prevail, unless it appears from the record that the substantial rights of the accused were prejudiced by the failure of the indictment to contain such statement. U. S. R. S. § 1025 (Comp. St. § 1691); Connors v. United States, 158 U. S. 408, 15 S. Ct. 951, 39 L. Ed. 1033; Armour Packing Co. v. United States, 209 U. S. 56, 84, 28 S. Ct. 428, 52 L. Ed. 681. Instead of the record showing that substantial rights of the accused were prejudiced by the omission from the indictment of such statement, we think it shows the contrary. Upon the overruling of the motion to quash, the court required the prosecution to furnish a bill of particulars as to the method by which the accused caused the delivery by mail of the circular described in the indictment. Thereupon the government's counsel made an announcement to the effect that the allegation as to the accused causing said circular to be delivered by mail would be supported by evidence that said circular was de posited, or caused to be deposited, by the accused in the United States mail at Memphis, Tenn., or the vicinity thereof, in an envelope addressed to V. G. Simmons, Shreveport, La., with proper amount of postage thereon, and that the circular was delivered to the addressee by the post office at Shreveport; and the evidence adduced was in accordance with that announcement. As above indicated, the allegations of the indictment itself were such as to cause the accused to anticipate that he would have to meet such evidence. The maintenance of the charge was not dependent

on the evidence adduced, showing exactly when, where, and how the described circular was mailed. It is apparent from the record that there was no substantial basis for a claim that the accused was taken by surprise by the kind of evidence with which he was confronted at the trial, or that he did not have a sufficient opportunity to prepare his defense. We conclude that the court did not err in overruling the objections to the indictment. [4] Evidence adduced tended to prove the following: V. G. Simmons, who lives at Shreveport, advertised for a bird dog in a publication which circulates among breeders, sellers, and buyers of such animals. Shortly thereafter he received, through the post office at Shreveport, the circular mentioned in the indictment; that circular being in a postpaid envelope addressed to him at Shreveport. There followed a correspondence between Simmons and a person who called himself Lon Kilpatrick, and gave as his address the one stated in the indictment. That correspondence resulted in the purchase by Simmons of a bitch for $100, for which amount a check, payable to the order of Lon Kilpatriek, was sent, and Simmons received a bitch by express. The check was paid after it was indorsed in the names Lon Kilpatrick and T. E. McLendon. Both those indorsements were made by the accused. He was the person who sent to Simmons letters purporting to be from Lon Kilpatrick, and who shipped the bitch to Simmons. The bitch was not as represented by the seller. She was not well bred, was not subject to registration, was not trained or skilled in hunting, and was worthless as a bird dog. The accused objected to testimony to the effect that the crate in which the bitch came by express had on it a tag containing the following: "From T. E. McLendon, Germantown, Tenn." That objection was overruled, and the testimony was admitted. The accused's counsel brought out testimony to the effect that the express company's receipt, which Simmons got when he paid the express charges on the dog he received, showed that the shipper of the dog was T. E. McLendon, Germantown, Tenn. The above-mentioned testimony, which was objected to, was cumulative evidence of a fact which was shown by uncontroverted testimony elicited by the accused's counsel. This being so, the conclusion is warranted that the accused was not prejudiced by the admission of the testimony which was objected to as above stated. [5] A requested instruction that the jury find in favor of the accused was properly re

Question whether assignor of note secured by mortgage or mortgagee's trustee in bankruptcy was entitled to lien on property on

which prior mortgage was being foreclosed in state court held within jurisdiction of court of bankruptcy.

5. Judgment 829 (3)-Assignee of mortgage, delaying appeal in foreclosure suit until adverse decision in bankruptcy court as to validity of assignment, held bound (Code Civ. Proc. S. C. 1922, § 646, subsec. 3, and sections 640, 650).

Where state court in foreclosure suit ordered fund held pending determination in bankruptcy court of validity of bankrupt's assignment of mortgage, assignee could not delay appeal until adverse determination by bankruptcy court, and was bound by such determination, and estopped from reopening matter because of subsequent decision by state Supreme Court on appeal that foreclosure de

cree was res judicata, even though appeal was timely under Code Civ. Proc. S. C. 1922, § 646, subsec. 3, and sections 640, 650.

6. Estoppel ~63.

Trustee in bankruptcy held not estopped by appearance in foreclosure suit in state court from further questioning validity of assignment of mortgage by bankrupt in federal court.

Appeal from the District Court of the United States for the Eastern District of South Carolina, at Charleston; Henry A. Middleton Smith, Judge.

On rehearing. Judgment affirmed.
For former opinion, see 3 F. (2d) 252.

WADDILL, Circuit Judge. This was one of two causes in which, on the 20th of December, 1924, we handed down an opinion reported in 3 F. (2d) 252. Shortly thereafter, Miss Bailey, the appellant and the losing party therein, by her petition for rehearing, brought to our attention for the first time, a decision of the Supreme Court of South Carolina, hereinafter fully discussed, and made shortly after the announcement of our own. In view of the conflict thereby revealed, we granted a rehearing, which has been had. The question at issue is as to the title of Miss Bailey to a bond and mortgage assigned to her by her father, C. T. Bailey, subsequently adjudicated a bankrupt.

Some time prior to his bankruptcy, he was the owner of valuable real estate in Columbia, S. C. He had given a mortgage upon it to W. J. Keenan and C. M. Asbill, and had subsequently conveyed the equity of redemption to Messrs. Luther, Bradford, and Coleman, taking from them a mortgage for part of the purchase money. One of their notes so secured was transferred by Bailey to his daughter. It, or more accurately its proceeds, are the subject-matter of the controversy with which we are now concerned.

On the 3d of September, 1921, a petition to have Bailey adjudicated a bankrupt was duly filed. Three days later, the United States District Judge for the Eastern District of South Carolina enjoined Bailey, his daughter, the appellant herein, and Bailey's wife, from conveying, disposing of, or in any wise incumbering certain real estate in Georgia and in or near Columbia, S. C., theretofore conveyed by Bailey. On the 2d of November, he was duly adjudicated a bankrupt. On the day before this adjudication, but almost two months after the filing of the petition in involuntary bankruptcy and the issuKeenan and Asbill, the holders of the first ance of the injunction referred to, Messrs. mortgage upon the Columbia property, already mentioned, filed in the state court their bill for its foreclosure, and on the 18th of November followed it up with an amended bill, by which they added Miss Bailey and O. C. Blackmon, Jr., the trustee, as defendants to Bailey and others who were the re

spondents named in the original bill. Before the end of the month, service of process was had upon all three. They all answered; the bankrupt's trustee contenting himself with saying that he had neither knowledge nor information sufficient to form a belief as to the allegations of the complaint other than those which set forth Bailey's adjudication and his appointment as trustee. Miss Bailey's answer set up the assignment to her of the bond in dispute and prayed judgment for it out of the proceeds of sale. The state court referred the case to a master, to take testimony and to report. This was an wholly uncontested proceeding. In it the bankrupt testified that he was solvent at the time he had made his assignment to his daughter. On the 4th of February, 1922, the master reported that the assignment was valid and recommended judgment in favor of Miss Bailey for the amount of the bond. This recommendation was on the 15th of February, confirmed by the court in a decree to which all the parties, including the trustee in bankruptcy, consented, and in which an attorney's fee of $200 was allowed counsel representing Miss Bailey. The decree directed the sale of the mortgaged premises and the distribution of the proceeds among the parties interested, including Miss Bailey and her counsel, in accordance with their relative priorities as they had been ascertained by the master. The sale was made in the succeeding month of March and in due course was confirmed. The purchase money was paid and on the 16th of May, the master filed his report of sales and disbursements, in which he showed that there was coming to Miss Bailey $2,217.86, in which was included the $200 allowed her lawyers. On the same day Miss Bailey filed a petition, setting forth that she had become of age, and asking that the money should be paid to her in her own right. In accordance with his report, the master drew his check in her favor for the amount awarded her by the decree, and apparently sent it to her, but, in consequence of what is presently to be stated, he stopped payment upon it before it was actually cashed by her, and, so far as we are advised, it has never been paid.

On the 11th of May, that is, five days before the master had filed the report last mentioned, the trustee in bankruptcy had duly instituted this plenary suit in the United States District Court for the Eastern District of South Carolina. In it he sought to have set aside the assignment from the bankrupt to his daughter. On the 17th of that month, the trustee through his counsel served upon the master a copy of his bill in the United States 14 F. (2d)-2

court, and requested him not to pay the money to Miss Bailey until the controversy was determined. In consequence of this notice, the master on the same day stopped the payment of the check as before mentioned. On the 18th, he reported the matter to the court. On the 19th the trustee in bankruptcy filed a verified petition in the state court, setting forth, among other things, that the bankrupt was examined before the referee in January, 1922, that it was then for the first time ascertained that he had assigned the bond and mortgage to his daughter, that, when the trustee subsequently filed his formal answer in the foreclosure case, he did not realize that it concerned this bond and mortgage, and overlooked the facts in regard to the validity of their assignment, which he averred was voluntary and fraudulent, and that on the 11th of May, he had begun an action in the federal court to have it set aside. He petitioned the court to impound the funds payable to Miss Bailey until the validity of the assignment to her could be inquired into, or, in the alternative, that the case should be reopened and he be permitted to attack its validity in the main cause in the state court. On the 2d of June, Miss Bailey, in the United States court demurred, on jurisdictional and other grounds, to the bill there pending, and also filed therein her answer upon the merits.

On the 17th of June the state court entered a decree in which it was stated "that the matters now attempted to be raised and the issues to be presented in the suit in bankruptcy court between O. C. Blackmon, Jr., trustee in bankruptcy, and Dorothy Bailey, both of whom are defendants in this action, were not before this court in this case, and could not have been decided in the decree rendered in this case. Under the principles recognized in Farrar v. Haselden, 9 Rich. Eq. (S. C.) 331, the funds in the hands of said master, heretofore adjudged in this action to be paid to said guardian, should be held by the master pending the determination of the question whether or not said trustee in bankruptcy is entitled to said fund on the grounds stated in his bill of complaint in the suit brought," by him in the United States court as a court of bankruptcy, "and until that question is determined in that court." Eleven days later, on June 28th, Miss Bailey gave notice of her intention to appeal from this order, but for some twenty months thereafter, did nothing to perfect it. During that time the action instituted by the bankrupt trustee in the United States District Court was regularly and earnestly prosecuted and as vigorously defended; Miss Bailey there

appearing and taking an active part in the controversy without, so far as the record discloses, doing anything to advise the federal court that she proposed to go on with her state appeal. All questions of law and fact were fought out in the case, with the result that the court, on the 12th of December, 1923, entered a decree in which, upon abundant and indeed conclusive evidence, it found that the bankrupt's assignment of the bond and mortgage which purported to be dated the 15th of May, 1920, had been fraudulently antedated and in fact had not been executed and delivered until January, 1921; that it was an attempted voluntary donation from the bankrupt to his daughter at a time when he was insolvent, with the intent and for the purpose of hindering, delaying, and defrauding his creditors; that the assignment was therefore invalid, null, and void, as against then existing creditors, some of whom were still unpaid; and that the plea on behalf of Miss Bailey that the creditors are now estopped from claiming that she is not the true, bona fide holder of the bond and mortgage under the judgment heretofore mentioned in the state court was clearly not good. On the 16th of January, 1924, Miss Bailey appealed from such decree to this court. On the 19th of February, 1924, the gentlemen to whom the state court's decree of February, 1922, had allowed an attorney fee, asked that the master be directed to pay it. On the 7th of March, 1924, the court refused their request, on the ground that the application for payment should be made to the United States court. An appeal to the Supreme Court of the state was taken from this order and perfected both from it and the previous decree of June 17, 1922, so that Miss Bailey had, at the same time, pending appeals to this court from the decree of the District Court for the Eastern District of South Carolina and an appeal to the Supreme Court of South Carolina from the decree of its circuit court.

It was in the latter proceeding that the highest court of South Carolina, on December 31, 1924, eleven days after this court's decision on the merits affirming the decree of the District Court, handed down the opinion which led us to grant the present rehearing. 135 S. E. —.

It holds that the question as to whether Miss Bailey or the trustee in bankruptcy had the better claim upon the proceeds of the bond and mortgage should have been and was properly and finally determined in her favor by the consent decree of February 15, 1922. That such decree was entered upon the admissions of the trustee, and not as a result

of any judicial inquiry into the circumstances under which she acquired apparent title, did not in its view militate against its conclusiveness. It thought that the petition of the trustee in bankruptcy, presented to the state court on the 19th of May, 1922, showed that when, on February 15th, he consented to the state court's decree, he must have had knowledge or notice of the facts upon which he subsequently based his attack upon the assignment, and consequently was not entitled to ask that such decree be set aside. On the other hand, the United States District Court for the Eastern District of South Carolina, as a result of minute and painstaking inquiry into the facts, reached what we have already said was the inescapable conclusion that her father's conveyance of the bond and mortgage to her was fraudulent and void, and that their proceeds belonged to his creditors and should go to their representative, the trustee in bankruptcy, for distribution among them.

It thus becomes apparent that the United States District Court in the state of South Carolina and the Supreme Court of that state have taken directly opposite views as to the proper disposition of the proceeds of the sale of the land applicable to the payment of the mortgage bond in question. This condition is regrettable, as manifestly each court has taken what it believed to be the correct view with the facts as understood by them, and we approach the subject of endeavoring to pass upon the difference of opinions with our brethren with much hesitancy. We feel particularly that every effort should be made to prevent an apparent jurisdictional conflict between a federal court and a state court of such prominence and well-recognized ability as the Supreme Court of South Carolina. In meeting this question, we cannot fail to be impressed with the fact that, under the decision in the United States District Court, the question of invalidity of the assignment by the bankrupt to his daughter upon full hearing, on proceedings instituted for the purpose, with all the parties before it and the evidence fully adduced, the assignment was held to be voluntary and void, and made at a time when the bankrupt was insolvent, and with the intent of hindering, delaying, and defrauding his creditors, and set the same aside, decreeing that the money arising from the assigned bond should be paid to the bankrupt's trustee; whereas, under the decision of the Supreme Court of South Carolina, rendered long since the proceeding had in the United States District Court, in a consent proceeding, and in which the validity of the

assignment was not directly questioned, the effect of that court's decree will be to pay to the holder by gift of the mortgage note, the bankrupt's daughter, and not to the bankrupt's creditors, the amount of the bond assigned.

The assignments of error relate largely to the findings of fact by the District Court of the United States; that is to say, in its holding the assignment in favor of the appellant, Miss Bailey, as fraudulent and void, made without valid consideration and to hinder, delay, and defraud creditors, and that the same was antedated with the purpose of misleading, as affecting the insolvency of the defendant. Appellants insist that the subjectmatter of the appeal was res adjudicata, and that appellee was estopped from questioning the exclusive jurisdiction of the state court with respect to the litigation in question. These assignments are largely determinable by the viewpoint from which the two courts, state and federal, shall consider the subject of their jurisdiction; that is, whether under the circumstances they shall be treated as having concurrent jurisdiction with respect to the subject-matter involved, or whether the jurisdiction of the bankruptcy court should be deemed exclusive of that of the state court.

[1] In the early stages of the bankruptcy law, prior to the amendments of 1903 and 1910, just what the status of the two courts was, and whether they were not entirely controlled by rules of comity, were subjects of much consideration. Bardes v. Bank, 178 U. S. 524, 20 S. Ct. 1000, 44 L. Ed. 1175; Metcalf v. Barker, 187 U. S. 165, 23 S. Ct. 67, 47 L. Ed. 122; Pickens v. Roy, 187 U. S. 177, 23 S. Ct. 78, 47 L. Ed. 128. Since the rendition of these decisions, however, and the amendments to the Bankruptcy Act, especially that of 1903, the position of the bankruptcy court seems to have been definitely settled, in this, that, while the rules with respect to comity between the courts shall be respected where the same can be done without violence to the rights of the bankrupt estate and its creditors, nevertheless the jurisdiction of the bankruptcy court in the administration of the affairs of insolvents, under the Constitution and laws of the United States, is exclusive of all other courts. In a decision of the Supreme Court of the United States (In re Watts, etc., 190 U. S. 1, 23 S. Ct. 718, 47 L. Ed. 933), rendered almost immediately following the amended Bankruptcy Act of February 5, 1903, an important and leading case, the question of the exclusive jurisdiction of the bankruptcy court and the control of the

66

estates of bankrupts was recognized as above stated, and, at page 27 (23 S. Ct. 724), Chief Justice Fuller, speaking for the court, said: The bankruptcy law is paramount, and the jurisdiction of the federal courts in bankruptcy, when properly invoked, in the administration of the affairs of insolvent persons and corporations, is essentially exclusive. Necessarily when like proceedings in the state courts are determined by the commencement of proceedings in bankruptcy, care has to be taken to avoid collision in respect of property in possession of the state courts. Such cases are not cases of adverse possession, or of possession in enforcement of pre-existing liens, or in aid of the bankruptcy proceedings. The general rule as between courts of concurrent jurisdiction is that property already in possession of the receiver of one court cannot rightfully be taken from him without the court's consent, by the receiver of another court appointed in a subsequent suit, but that rule can have only a qualified application where winding up proceedings are superseded by those in bankruptcy as to which the jurisdiction is not concurrent."

In this case, however, the court recognized that, in cases involving the disposition of assets in the hands of state courts after bankruptcy, comity would suggest the bringing to the attention of the state courts the action of the federal court and a request for delivery of the assets. See, also, Whitney v. Wenman, 198 U. S. 539, 552, 25 S. Ct. 778, 49 L. Ed. 1157; Bryan v. Bernheimer, 181 U. S. 188, 21 S. Ct. 557, 45 L. Ed. 814; Mueller v. Nugent, 184 U. S. 1, 22 S. Ct. 269, 46 L. Ed. 405. In a later case (United States Fidelity Co. v. Bray, 225 U. S. 205, 32 S. Ct. 620, 56 L. Ed. 1055), an appeal from this court, the position of the court in the Watts Case, supra, is amplified and more distinctly stated at page 218 (32 S. Ct. 625) as follows:

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These matters are rightly subjects for proceedings in bankruptcy, and therefore fall within the exclusive jurisdiction of the court of bankruptcy. A distinct purpose of the Bankruptcy Act is to subject the administration of the estates of bankrupts to the control of tribunals clothed with authority and charged with the duty of proceeding to final settlement and distribution' in a summary way, as are the courts of bankruptcy. Creditors are entitled to have this authority exercised, and justly may complain when, as here, an important part of the administration is sought to be effected through the slower and less appropriate processes of a plenary suit in equity in another court, in