Vol. I, p. 336, sec. 1. [First ed.,

1916 Supp., p. 7.]

Authority of President to direct purchase of stock and bonds of privately owned railroad. The President had plenary authority to direct the Secretary of the Interior to execute a contract for the purchase of all the certificates of stock and all the first mortgage bonds issued by the Alaska Northern Railway Co., such purchase being, in effect, an acquisition of said railroad line within the meaning of this Act. (1915) 31 Op. Atty.-Gen. 597.

Action against United States for malicious prosecution. A suit for malicious prosecution may not be maintained against a railroad which has been purchased by the United States under the provisions of this Act, for the United States cannot be sued for a tort, nor can a judgment creditor in such an action interfere with its property by seizing it on execution. Ballaine v. Alaska Northern R. Co., (C. C. A. 9th Cir. 1919) 259 Fed. 183, 170 C. C. A. 251, 8 A. L. R. 990.

1918 Supp., p. 51, sec. 1. [Intoxi

cating liquors, etc.]

Seizure of liquors en route from Alaska to California. In Northern Commercial Co. v. Brenneman, (C. C. A. 9th Cir. 1919) 259

Fed. 514, 171 C. C. A. 10, intoxicating liquors en route from Alaska to California after January 1, 1918, but which were still in Alaska, were held to be liable to seizure by government officers under the provisions of this Act. The court said:

"As has been shown, by its first section it is expressly declared, among other things, that on and after the 1st day of January, 1918, it shall be unlawful for any person, company, or corporation, his, its, or their agents, etc., to have in his, its, or their possession in Alaska any intoxicating liquor, or to transport or otherwise dispose of the same, except under conditions not here applicable, and by section 14 that it shall be unlawful for any person to ship, transport, deliver, receive, or have in his possession any such liquor (with certain exceptions also inapplicable to the present case), with the further provision in section 23 that no property right of any kind shall exist in alcoholic liquors or beverages illegally received, possessed, or stored, as provided in and by that act, and that in all such cases such liquors are forfeited to the United States and subject to seizure and destruction.

"In view of those clear and unmistakable provisions of the statute, we are unable to sustain the contention of the appellant that the court was in error in sustaining the demurrer to the complaint."

Vol. I, p. 364, sec. 4067. [First

ed., vol. I, p. 435.]

Ex

Review on habeas corpus. The authority of the President under this section to promulgate regulations by proclamation or public act is plenary and not reviewable, but where no hearing is provided for after the arrest of a person alleged to be an alien enemy, the question whether he is such may be reviewed on habeas corpus. p. Gilroy, (S. D. N. Y. 1919) 257 Fed. 110. Burden of proof. A person arrested under this section as an alien has the burden of showing that he is under illegal restraint, and, on habeas corpus, he must satisfy the court that he is not a native, citizen, denizen, or subject of the hostile nation or govcrnment. Ex p. Risse, (S. D. N. Y. 1919) 257 Fed. 102; Ex p. Gilroy, (S. D. N. Y. 1919) 257 Fed. 110.

Decision of draft board regarding citizenship as binding on reviewing court. The decision of a local board under the Selective Service Law (see vol. IX, p. 1136) that a registrant is an American citizen, is an adjudication binding on the court on a review of the action of the executive authorities under this section in so far as the same facts

are before it as were before the local board. Ex p. Gilroy, (S. D. N. Y. 1919) 257 Fed. 110, wherein it was said:

"With all the facts, therefore, before the local and district boards, those responsible bodies decided, in effect, upon the assumption of Alexander's citizenship, that there was nothing which he had done to forfeit that citizenship. We, therefore, have the unusual situation of a man being inducted into the army because he is a citizen of the United States, serving therein so as to gain an honorable discharge, and then being ar rested and detained because he is an alien enemy, and one of the grounds for detention being that he had so acted in his relation to a foreign enemy government as to lose his American citizenship, and that ground having been definitely rejected by the executive authorities charged by statute, inter alia. with the duty of determining this very point.

"Whether the determination of the local and district boards is in the first place an adjudication, and, secondly, a binding adjudication, is a novel question. Under section 4067, the executive is empowered to apprehend and detain alien enemies. Under the Selective Service Law the executive, in raising an army from civil life, is empowered

to appoint boards, who must determine, among other things, whether a person is or is not an alien enemy.

"In so far as concerns the relation of the United States to an individual as to citizenship status for war purposes, I am of opinion that the decision of the local board, affirmed by the district board, is an adjudication. In so far as the same facts are before the local board as are before the court on a

review of the action of the executive authori ties under section 4067, I am of opinion that the adjudication is binding. Of course, there are no parties, but the determination is the same in both cases, and, although by different agencies of the executive, it is upon the same question; i. e., whether a person has shown that he is not an alien enemy subject or citizen."

Vol. I, p. 377, sec. 1. [First ed.,

1909 Supp., p. 43.]

Connecting carrier.- In U. S. v. Cleveland, etc., R. Co., (N. D. Ohio 1920) 262 Fed. 775, it appeared that the defendant as to three shipments merely permitted a section of its track to be used, and in two cases merely switched the shipment over its line from the New York Central Railroad Company's line to the Union Stockyards, with which the New York Central had a contract to feed, water, and rest cattle in compliance with this law. In holding that such facts constituted a good defense to a prosecution for a violation of this section, the court said: "The defendant, as well as the Stockyards Company, was an agency availed of by the New York Central Railroad Company to comply with the law. Its lines did not form any part of the line of road over which the cattle were to be conveyed from one state to another. If the failure of the Stockyards Company to perform the labor of unloading the stock with due promptness is a matter of importance, this failure must be imputed, not to the defendant, but to the New York Central, whose agency it was, and on which the duty rests to comply with the law."

Violation of Act as negligence.- Violation of the Act is evidence of negligence in an action by the shipper for damages to a shipment of mules and horses which ate off each other's manes and tails in transit, being kept forty hours without food. Hines v. Morgan, (Ark. 1920) 218 S. W. 672.

tion of the feed as it placed in the cars for the cattle instead of in the rest pens. Pennsylvania R. Co. v. Swift, (C. C. A. 3d Cir. 1919) 258 Fed. 289, 169 C. C. A. 305. Regarding the nature of the duty imposed by this section, the court said:

"The law gives the owner and shipper of cattle the option of performing the statutory duty of feeding his cattle in transit, but if he does not assume that statutory duty the act compels the railroad to perform it. Manifestly, the statute does not contemplate a divided, dual duty, but a single, unitary one, which the owner primarily has the right to perform; or, if he does not assume the duty, the railroad must. To hold the duty was a divisible one would result, not only in neglect of the cattle, but in the absence of that governmental inspection of the cattle in transit which safeguards them from unnecessary suffering. From this it follows that if the duty is a unitary one, if the shipper does not assume that duty in its entirety, and if it is cast on the railroad, the shipper cannot hamper the railroad with conditions, or by any voluntary part performance on its part add to or detract from the railroad's obligation to perform the statutory duty in its entirety. Now, the statute compels the railroad, after a transit of 28 hours, to unload the cattle in a humane manner, into properly equipped pens for rest, water, and feeding, for at least five consecutive hours,' and that the animals so unloaded shall be properly fed and watered during such rest.' In carrying out that statutory requirement, the railroad has provided at Pittsburgh, at the terminus of a run which is approximately 28 hours from the great cattle shipping point of Chicago, suitable pens, with facilities for rest, water, and feed. The government has its inspectors at Pittsburgh, to see that the provisions of the law are complied with, and, as we have noted, the unquestioned fact is that a 250-pound feed given at Pittsburgh would comply with the statute and fit the cattle for the next long-hour run of the journey east. The railroad having thus provided water, food, and rest facilities at Pittsburgh, and the proper amount of food for the cattle at that point being 250 pounds, and the cattle owner not

having exercised his primary right of assuming the duty in its entirety, it inevitably follows, in our judgment, that no voluntary act of the shipper in partially feeding, without governmental inspection, the cattle at other times and places can lessen the duty of the railroad to provide proper food at the rest pens at the end of the 28-hour transit. It follows, therefore, that when Swift & Co., who had volunteered to place 150 pounds of food in the cars before the cattle started from

Chicago, sought to prevent the railroad from furnishing more than 100 pounds of food to the cattle at the end of the 28-hour run in Pittsburgh, this was an unwarranted effort to prevent the railroad from performing its full statutory unitary duty at Pittsburgh.”

Effect of statute on contracts limiting liability of carrier. To the same effect as the original annotation see New York Cent. R. Co. v. Sturtevant, etc., Beef, etc., Co., (Mass. 1920) 127 N. E. 509.

Vol. I, p. 418, sec. 1624. [First

ed., vol. I, p. 418.]

Discharge from naval service as preventing trial by court-martial.-A person discharged from the naval service before proceedings are instituted against him for violations of the Articles for the Government of the Navy, excepting Article 14, cannot thereafter be brought to trial before a court-martial for such violations, though committed while he was in the service. (1919) 31 Op. Atty.-Gen. 521.

Vol. I, p. 423, art. 8, par. thirteenth.

[First ed., vol. I, p. 463.]

Receiving gold, silver or jewels as creating contract obligation. The mere exercise by the commanding officer of a naval vessel of his discretion under this article to receive

cre

gold, silver or jewels on board for the protection of private rights, does not ate a contract obligation on the part of the United States, enforceable in the court of claims, to preserve and return the deposit when demanded; nor will such contract be implied from the provision of the Navy Regu lations, sec. 1020, which but comprehensively recognizes that compensation due for services rendered as the result of the exercise of the discretion of the officer to permit the articles in question to be taken on board should be applied, not for the benefit of the United States in virtue of any contract relation with the subject, but for the benefit of the officers and men designated in the proportions stated in the regulations. Cartas t. U. S., (1919) 250 U. S. 545, 40 S. Ct. 42, 64 U. S. (L. ed.) —, affirming (1913) 48 Ct. Cl. 161.

Vol. 1, p. 492, sec. 1020. [First

ed., vol. I, p. 523.]

Discretion of the court.- The remission of the penalty of a forfeited recognizance is under the provisions of this section within the discretion of the trial judge. Hence, where defendants in a criminal prosecution fail to appear when called for trial, and the government is subjected to considerable expense by their failure, a finding by the trial judge that public justice required that the penalty of the forfeiture be enforced is within his discretion and will not be disturbed by an appellate court on a writ of error. U. S. v. Fidelity, etc., Co., (C. C. A.

3d Cir. 1919) 258 Fed. 444, 169 C. C. A. 460.

Wilful default.- In U. S. t. Jacobson, (E. D. Pa. 1919) 257 Fed. 760, it appeared that the defendant was indicted for the of fense of keeping a house of ill fame within one of the military districts; that she was financed in such undertaking by unknown parties, who provided her bail on her arrest, and that she failed to appear for trial, thereby causing the United States considerable expense. It was held that under the evidence her default must be regarded as wilful and that the forfeiture of the bail would not be remitted under this section.

Vol. I, p. 504. Supp., p. 464.]

[First ed., 1912

Suspension of state insolvency laws — In general. To same effect as original annotation, see In re Brinn, (N. D. Ga. 1919) 262 Fed. 527.

What state laws are superseded.- "A statute in order to be such an insolvency law as is suspended by the federal Bankruptcy Law must provide for the discharge of the debtor." Greene v. Rice, (1919) 32 Idaho 504, 186 Pac. 249, holding further that an act is not an insolvency law because it contains a provision that in case of an attachment "any creditor of the defendant, who, within sixty days after the first posting and publication of such notice shall commence and prosecute to final judgment his action for his claim against the defendant, shall share pro rata with the attaching creditor in the proceeds of defendant's property where there is not sufficient to pay all judgments in full against him."

Raising question. The contention that a state insolvency law is superseded by the federal Bankruptcy Act cannot be raised for the first time on a motion for a rehearing in the appellate court. Driver v. Carey, (Årk. 1920) 220 S. W. 667.

Vol. I, p. 511, sec. 1a (15). [First

ed., 1912 Supp., p. 465.]

Inability to meet obligations.-A debtor is insolvent when the aggregate of his property shall not, at a fair valuation, be sufficient in amount to pay his debts (3 R. C. L. p. 275, § 98), and not when he is unable to meet his obligations as they mature in the ordinary course of business. Schuette v. Swank, (1920) 265 Pa. St. 576, 109 Atl. 531.

Evidence of facts constituting insolvency. -"Direct and detailed evidence of the facts constituting insolvency is not essential. Owing to its nature, insolvency is not always susceptible of direct proof. It may, and in many cases must, be proved by the proof of other facts, from which the ultimate fact of insolvency may be presumed or inferred." Rosenberg v. Semple, (C. C. A. 3rd Cir. 1919) 257 Fed. 72, 168 C. C. A. 284.

Vol. I, p. 515, sec. 1a (23). [First

ed., 1912 Supp., p. 515.]

Who are secured creditors.- Creditors who have furnished materials to a bankrupt and who have served attested accounts on the owners, have recorded their claims, and are also protected by surety bonds under the provisions of state statutes, are secured creditors within the meaning of this section. In re Ferrand, (E. D. La. 1920) 263 Fed. 908.

Vol. I, p. 516, sec. 2. [First ed.,

1912 Supp., p. 469.]

Right to exercise original jurisdiction.— To same effect as original annotation, see In re Vadner, (D. C. Nev. 1918) 259 Fed. 614, holding that the jurisdiction of the bankruptcy court is exclusive but that it does not extend to all suits, at law or in equity, affecting a bankrupt's estate.

Equitable jurisdiction. To same effect as original annotation, see Martin v. Oliver, (C. C. A. 8th Cir. 1919) 260 Fed. 89, 171 C. C. A. 125; In re De Ray, (C. C. A. 6th Cir. 1919) 260 Fed. 732, 171 C. C. A. 470, holding that a bankruptcy court has jurisdiction to set aside an allowance for services and expenses of an attorney of a trustee, when it satisfactorily appears that the allowance was procured through fraud.

Under amendment of 1910.-A bill in equity by a trustee in bankruptcy to recover property conveyed in fraud of the Bankruptcy Act may be entertained by the district court, and since the amendment of the Bankruptcy Act by the Act of June 25, 1910 (1 Fed. Stat. Ann. (2d ed.) 504, note) the bankruptcy court has jurisdiction of a suit to recover a preference regardless of the amount involved or the citizenship of the parties. Gooch v. Stone, (C. C. A. 6th Cir. 1919) 257 Fed. 631, 168 C. C. A. 581.

The equity rules of the Supreme Court are not rules of court affecting the administrative work of bankruptcy. In re Hughes, (C. C. A. 2d Cir. 1919) 262 Fed. 500.

Election of directors of corporation to choose bankruptcy, instead of state, court for winding up of affairs. The fact that the directors of a corporation choose a bankruptcy court in which to wind up its affairs in preference to having a state court appoint a receiver for it, is not a fraud, and does not warrant the bankruptcy court in refusing jurisdiction. In re Dressler Producing Corp., (C. C. A. 2d Cir. 1919) 262 Fed. 257.

Vol. I, p. 521, sec. 2 (2). [First

ed., 1912 Supp., p. 472.]

Jurisdiction of court. Where a creditor submits his claims to the bankruptcy court and consents to a determination of their validity by the court, he is bound by its decision, and if ordered to repay money paid to him on the claims, he must do so. Commercial Security Co. v. Holcombe, (C. C. A. 5th Cir. 1920) 262 Fed. 657.

Vol. I, p. 522, sec. 2 (3). [First ed.,

1912 Supp., p. 472.]

Receiver's powers and duties in generalRight to property consigned to bankrupt.—

66

A receiver in bankruptcy has the right to take property consigned to the bankrupt from a carrier on its arrival at its destination, and such taking ends the right of stoppage in transitu by the consignor. In re Arctic Stores, (D. C. N. J. 1919) 258 Fed. 688, wherein it was said: During the time intervening between the adjudication and the qualification of the appointed trustee, the title, while nominally in the name of the bankrupt, was in custodia legis, awaiting administration. The receiver from his appointment was not only the proper person, but the only person, until the appointment and qualification of the trustee, who could legally take possession of this pulp and the other property of the bankrupt. He might properly be held to be the legal successor in interest of the buyer,' within the meaning of the New Jersey Uniform Sale of Goods Act, sec. 70, and whose taking property from a carrier ends the transit under section 58 of that act. However, and regardless whether that be so, the receiver's conduct in thus taking the pulp must be treated as in the due administration of the bankruptcy law and on behalf of the trustee to be appointed.

Upon such appointment the trustee's right to the possession of such pulp would relate back to the time the receiver took it over.

"To accept petitioner's contention that there was no one between the time of adjudication and the qualification of the trus tee to do any act either on behalf of the bankrupt, who by the adjudication was shorn of all power to do anything in respect to the property but recently subject to its dominion, or of the trustee, who could not be appointed for at least 11 days, and might not be for several months, after the adjudication, is to hold that there is a hiatus in the administration of bankruptcy estates during which certain creditors might secure a preference over other creditors, a bare statement of which is sufficient to reject such contention.

"That the receiver in bankruptcy has the right to take property from a carrier on its arrival at its destination, and that such taking ends the right of stoppage in transitu, has been held by the following cases: In re Allen (D. C. M. D. Pa.) 178 Fed. 879, 24 Am. Bankr. Rep. 574; In re White (D. C. M. D. Pa.) 205 Fed. 393, 29 Am. Bankr. Rep. 358. This was also the view of District Judge Chatfield in Re Darlington Co. (D. C. E. D. N. Y.) 163 Fed. 3S5, 20 Am. Bankr. Rep. 800. In this connection see also Conyers v. Ennis, 6 Fed. Cas. No. 3,149, and Millard v. Webster, 54 Conn. 415, 8 Atl. 470.

"From the foregoing it follows that whether the right of stoppage in transitu be held to have ended on the arrival of the car at its billed destination, or upon the removal of its contents by the receiver, the petitioner's claim that it is exclusively entitled to the proceeds of the sale of the pulp must

be denied, as its notice to stop delivery was not given until after the last of these two acts had taken place."

Vacation of order appointing receiver on application of state receiver.- Where directors of a corporation, notwithstanding the issuance of an injunction by a state court enjoining them from exercising any of the privileges and franchises of the corporation and appointing a receiver, file a voluntary petition in bankruptcy in behalf of the corporation, and the referee in bankruptcy also appoints a receiver, and it is represented that the appointment of the federal receiver is contrary to the general practice of the federal courts in the district of his appointment, the receiver appointed by the state court will be directed to apply to the judges of the federal court to vacate the order appointing the receiver, and will be directed until such application can be made to retain control of the assets. Cavagnaro v. Indian Tire, etc., Co., (1919) 90 N. J. Eq. 532, 107 Atl. 643.

Vol. I, p. 529, sec. 2 (7). [First ed.,

1912 Supp., p. 476.]

Recovery of concealed property after bankrupt's discharge.- Where a bankrupt's estate is closed without a final meeting of his creditors on ten days' notice as required by sections 55f and 58 of the Bankruptcy Act, such closing is void and the estate remains open. Accordingly, where after the bankrupt's discharge it is discovered that he has concealed assets from his trustee, the latter may recover them, although because of lapse of time the court has no longer power to revoke the discharge and criminal prosecution against the bankrupt for such concealment is barred. In re Levy, (E. D. Pa. 1919) 261 Fed. 432, wherein the court said:

"The question whether the trustee should have leave to file an amended petition before the referee depends upon whether, the estate never having been technically closed, the referee, after the bankrupt's discharge, has ju risdiction in a summary proceeding to make an order upon the bankrupt or upon the Standard Jobbing Company to pay over the sums in their possession or control belonging to the bankrupt estate, for it would be of no avail otherwise to proceed further.

"It must be determined therefore whether the discharge of the bankrupt has any other effect than that included within the definition of section 1, or that declared by section 17 of the Bankruptcy Act. The definition in section 1 (12) is:

"Discharge' shall mean the release of a bankrupt from all of his debts which are provable in bankruptcy, except such as are excepted by this act.'

"Section 17, as amended March 2, 1917 (39 Stat. L. 999, c. 1) provides that a discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as are therein mentioned. Nowhere in the Bankruptcy Act is there any express