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224 U.S.

Opinion of the Court.

controversies arising in bankruptcy proceedings, as distinguished from bankruptcy proceedings, were appealable to the Circuit Court of Appeals under the Court of Appeals Act of March 3, 1891 (26 Stat. 826, c. 517); that where a claim alleged to be secured by a lien upon the bankrupt's estate, was filed against a bankrupt for allowance, an appeal was given under $ 25a to the Circuit Court of Appeals, as from a judgment allowing or rejecting a claim of $500 or over, and that from any final decision of the Circuit Court of Appeals allowing or rejecting a claim coming within $ 25b a further appeal was given to this court. Under the decision of this court in that case there can be no doubt that the bank in this case instituted a proceeding in bankruptcy, which was appealable under $ 25a to the Circuit Court of Appeals. The fact that after the adjudication of the claim the trustee made no objection to its allowance as a valid claim, but intended only to contest its validity as a lien upon the bankrupt's estate, made no difference as to the appellate character of the controversy. A bankruptcy proceeding was instituted as to the claim and its alleged lien, as distinguished from a controversy arising in a bankruptcy proceeding, and the appeal was under $ 25a to the Circuit Court of Appeals. Coder v. Arts, supra.

The question now propounded is: Was the trustee also entitled to a review in the Circuit Court of Appeals under $ 24b by petition for review? Under that section authority, either interlocutory or final, is given to the Circuit Court of Appeals to superintend and revise in matters of law the proceedings of the inferior courts of bankruptcy within their jurisdiction. We think this subdivision was not intended to give an additional remedy to those whose rights could be protected by an appeal under § 25 of the act. That section provides a short method by which rejected claims can be promptly reviewed by appeal in the Circuit Court of Appeals, and, in certain cases, in

Opinion of the Court.

224 U.S.

this court. The proceeding under $ 24b, permitting a review of questions of law arising in bankruptcy proceedings, was not intended as a substitute for the right of appeal under $ 25. Coder v. Arts, supra, p. 233. Under $ 24b a question of law only is taken to the Circuit Court of Appeals; under the appeal section controversies of fact as well are taken to that court, with findings of fact to be made therein if the case is appealable to this court. We do not think it was intended to give to persons who could avail themselves of the remedy by appeal under g 25 a review by petition under 8 24b. The object of 8 24b is rather to give a review as to matters of law, where facts are not in controversy, of orders of courts of bankruptcy in the ordinary administration of the bankrupt's estate.

In our judgment the rule was well stated in In re Mueller, 135 Fed. Rep. 711, by Mr. Justice Lurton, then Circuit Judge (p. 715):

“The 'proceedings' reviewable (under section 24b] are those administrative orders and decrees in the ordinary course of a bankruptcy between the filing of the petition and the final settlement of the estate, which are not made specially appealable under $ 25a. This would include questions between the bankrupt and his creditors of an administrative character, and exclude such matters as are appealable under $ 24a."

We answer the question certified in the negative.

224 U.S.

Opinion of the Court.




No. 214. Argued March 14, 1912.-Decided April 1, 1912.

While in an action for malicious prosecution the burden of proving

malice and want of probable cause is on the plaintiff, Wheeler v. Nesbit, 24 How. 544, as the motives and circumstances are best known to the defendant, plaintiff is only required to adduce such proof as is affirmatively under his control, and which he can fairly

be expected to be able to produce. In this case held that plaintiff did not produce all the testimony within

her control and did not sustain the burden even to that extent. In a suit for malicious prosecution, in the absence of plaintiff adducing

facts properly expected to be under her control, the question of probable cause in a clear case is one for the court and, in this case,

was properly taken from the jury. 34 App. D. C. 242, affirmed.

The facts are stated in the opinion.

Mr. Wilton J. Lambert for plaintiff in error.

Mr. Henry E. Davis, with whom Mr. William A. Gordon and Mr. J. Holdsworth Gordon were on the brief, for defendant in error.

MR. JUSTICE Day delivered the opinion of the court.

The plaintiff in error brought suit in the Supreme Court of the District of Columbia against the defendant to recover damages for malicious prosecution. Judgment was entered in favor of the defendant and upon appeal to the Court of Appeals of the District of Columbia this judg

Opinion of the Court.

224 U. 8.

ment was affirmed. 34 App. D. C. 242. The case was then brought to this court upon proceedings in error.

The facts as to the prosecution are, in substance: That the plaintiff, being the keeper of a boarding house in the city of Washington on or about the twenty-sixth day of December, 1907, and occupying certain premises known as 717 Eighth Street northwest, and one Mary Levy were named as defendants in a proceeding commenced by Selfridge in the police court of the District of Columbia, in which he swore out a search warrant for certain of his property, namely, twelve curtains, of the value of $300, which, he averred, had, within two hundred days last past, by some person or persons unknown, been stolen, taken and carried away out of his possession, and which, he had probable cause to suspect and did suspect, were concealed in the premises of plaintiff and Mary Levy on Eighth Street; that under authority of the search warrant certain officers, accompanied by the defendant, proceeded to search the premises, but did not find the goods in question, and that, upon return of that fact being made, the proceedings against the plaintiff and Mrs. Levy were nolled and the case thus ended.

At the trial of the case in the Supreme Court the plaintiff introduced testimony as to the prosecution and the circumstances under which the search was made, and also testimony tending to show her good reputation for honesty and integrity, and the injury to her health and occupation. At the conclusion of the plaintiff's proof the court instructed the jury to return a verdict for the defendant, upon the ground that the plaintiff had failed to make a prima facie showing of want of probable cause, and judgment was entered accordingly.

The question involved, therefore, is: Was there sufficient proof of the want of probable cause to carry the case to the jury?

The testimony shows that when the defendant and

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officers executing the search warrant visited the house of Miss Brown, the plaintiff, search was made of the premises and also of the trunks of the plantiff and of Mrs. Levy, who, it seems, was at the time stopping with Miss Brown. As we have said, the officers found nothing.

The charge upon which the search warrant was issued did not accuse either Miss Brown or Mrs. Levy of stealing or wrongfully taking the property from the defendant, but stated that such property was thus appropriated by some person unknown, within two hundred days before the warrant was sworn out, and the belief of the defendant was alleged that the property was concealed within the premises of the persons named.

There was testimony in the record tending to show that Miss Brown had not taken the property mentioned or other property from the house of the defendant; that she was in his employ for a number of years and was trusted with monetary transactions and otherwise treated as worthy of his confidence. The plaintiff testified in her own behalf, and Mrs. Levy was called as a witness in support of her case.

The plaintiff did not show that with her knowledge or consent the alleged stolen property was not in her house or upon the premises within the time named in the search warrant. Mrs. Levy, evidently not an unwilling witness, did not testify that she had never taken the goods, or that, so far as she knew, they were never upon the premises of the plaintiff.

It is settled law that in an action of this kind the burden of proving malice and the want of probable cause is upon the plaintiff. This has been the recognized law of this court and was distinctly stated in the case of Wheeler v. Nesbitt, 24 How. 544, often cited in cases of this character, where Mr. Justice Clifford, speaking for the court, said (p. 551):

“The plaintiff must show that the defendant acted from

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