Jacobs

(after stating the facts as above). The record discloses a careful analysis and review of the facts by the learned judge of the District Court. His findings were made upon evidence which he characterizes in his opinion as “clear and convincing,” and which satisfied him beyond all reasonable doubt that when the petition in bankruptcy was filed and at the time of his decision the bankrupts were in possession and control of the merchandise described in the order.

Petitioners’ principal point is that the court erred, in finding that the bankrupts had a present possession and a present ability to surrender and deliver to the trustee. The contention is that such a finding is not material or proper, and that the question of present ability becomes material only in a contempt proceeding arising after failure to obey the order to deliver. Petitioners urge the importance of the point because, in Power v. Fuhrman, 220 Fed. 787 , 136 C. C. A. 393 , which was a contempt proceeding, this court held that a judgment of the District Court, not appealed from, which ordered the bankrupt to turn over, and which was based upon a finding that there was a present ability to perform, established that at…