
    WARE v. WUNDER BREWING CO. OF SAN FRANCISCO et al.
    (Circuit Court of Appeals, Ninth Circuit.
    February 3, 1908.)
    No. 1,434.
    Appeal and Eekob — Review—Findings of Fact.
    An appellate court on a writ of error cannot weigh the evidence, but must take the facts as found by the court .below, unless there is a total want of evidence to sustain the findings.
    [Ed. Note. — -B'or cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-39G9.]
    In Error to the District Court of the United States for the Northern District of California.
    C. N. Riggins and R. H. Cross, for plaintiff in error.
    Fabius T. Finch, for defendants in error.
    Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.
   ROSS, Circuit Judge.

This action was brought by the trustee of the estate of the bankrupt to set aside an alleged preference. The case is brought here by writ of error.

We cannot agree with the counsel for the plaintiff in error that there was a total want of evidence to support the findings of the trial court. Such being the case, it is well settled that the appellate court cannot weigh the evidence, but must take the facts as found by the court below. Stanley v. Supervisors, 121 U. S. 547, 7 Sup. Ct. 1234, 30 L. Ed. 1000; Pacific Postal Telegraph C. Co. v. Fleischner, 66 Fed. 902, 14 C. C. A. 166.

The judgment is affirmed.  