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he stoutly resisted, and from which he could And in the 5th edition of the same work, not escape, is not such a surrender as the page 420, it is said: statute contemplates. To hold that it was “What is a surrender.-Here the doctrines would be against the spirit of the statute, declared under the law of 1867 seem at which is to discourage preferences. Such a least somewhat applicable. The phrasing of holding would manifestly encourage them, that statute undoubtedly colored some of for if the transaction should be upheld the the decisions under it. But, under wellcreditor would profit; if overthrown, he recognized principles of law, a surrender would lose nothing, and stand upon an equal that is compulsory is not a surrender. The footing with those over whom he had at- element of fraud is usually present, but may tempted to secure an illegal advantage, and be lacking; the test is Was the act a volunwhom he has, by litigation, delayed in the tary one? Each case turns on its own facts, collection of their claims."
and there is some conflict, but the weight of The question, under the act of 1898, came decision under the present law supports this
view." before the United States district court for the northern district of Iowa, in the case
The only case decided under the act of of Re Keller, 109 Fed. 118, 6 Am. Bankr. taining a contrary view, is Re Richard, 94
1898, which has come to my attention susRep. 334, where the subject is discussed by Fed. 633, 2 Am. Bankr. Rep. 506, in which Judge Shiras. Suinming up the matter, the it was decided that, notwithstanding the learned judge said:
preference was set aside after a fruitless "It would certainly be wholly inequitable fight with the trustee, the creditor might to hold that a creditor who has received
prove his claim. a preference from an insolvent debtor can re
We are cited to Streeter V. Jefferson fuse to account therefor, and, after causing County Nat. Bank, 147 U. S. 36, 37 L. ed. the other creditors the delay, cost, and ex: 68, 13 Sup. Ct. Rep. 236, as sustaining the pense of litigation, after being defeated contrary view of the meaning of the term therein, can still prove up his claim, and "surrender” as used in this act. The case take an equal share in the proceeds of the
was under the act of 1867. But in that estate after depleting the same in the man
case the contest was over a stock of goods, ner stated. Contesting the claim of the and the creditor—the bank— had consented trustee, and paying back the preference in through its attorneys to the appointment of obedience to the process of the court, is not a special receiver, who was ordered to sell a surrender, within the meaning of clause the goods and pay the proceeds into court. g of g 57. Therefore there is this difference of this feature of the case Mr. Justice between a preferred creditor who surrenders Shiras, who delivered the opinion of the the preference, and a preferred creditor from court, said (p. 45, L. ed. p. 71, Sup. Ct. whom the preference is recovered by the Rep. p. 238): trustee: The former, having voluntarily sur
"To sustain the contention that the bank rendered the preference received, is entitled did not surrender its preference, it is urged to prove up his entire claim, and share with that the bank did not at once, on demand the other creditors. The latter, having re- of the assignee, turn over the goods levied fused to surrender, cannot prove the claim on, but litigated the matter with the assignee or share in the estate.”
in both the district and the circuit courts, To the same effect is Re Owings, 109 Fed. and that the proceeds of the executions were 623, and in Re Greth, 112 Fed. 978, 7 Am. not relinquished until final judgment was Bankr. Rep. 598, the cases are reviewed and entered against the bank. the same conclusion reached.
"It was the opinion of the state court In Collier on Bankruptcy, 3d edition, that, as the sheriff, having custody of the page 319, that author says:
goods seized on execution, was, with the con“The question what constitutes a sur sent of the bank's attorneys, appointed render has received much discussion. It is special receiver, and was ordered to sell the admitted by all that if the assignee is com- goods and pay the proceeds into court to pelled to bring an action to invalidate a await the result of the litigation between transfer, and if he recovers and enters up the bank and the assignee in bankruptcy, judgment, no subsequent payment of that and that as the proceeds were finally turned judgment by the preferred creditor, and no over to the assignee, and thus became subsubsequent compliance by him with its ject to distribution as bankruptcy assets, terms can be considered a surrender. By his the transaction amounted to a surrender judgment the trustee has 'recovered the under $ 5084. In so holding we think the property. In legal effect the transferee no state court was right." longer has anything to surrender."
We are also cited to the meaning of the word "surrender" as given in the Standard up to the bankrupt's estate, it is, in our Dictionary:
view, too late to "surrender." “1. To yield possession of to another upon I think the construction here given comcompulsion or demand, or under pressure of ports with the purposes and carries into efa superior force; give up, especially to an fect the design of the act as expressed by its enemy in warfare; as to surrender an army terms.
terms. It is true that in the present case, or a fort."
after resisting the attack upon the $2,000 This definition is given in support of the mortgage in the court of common pleas, and contention that a surrender may sometimes when the judgment had gone against the be made involuntarily. This is doubtless bank, it did not appeal, and its counsel in true, and obviously the term may have dif- the circuit court disclaimed intention to ferent meanings when used in different connections. It may be that an army may sur
insist upon the preference of the $2,000 render a fort after a most vigorous contest, mortgage, but even then refused consent while there is still the choice between fur- | to a decree against the mortgage; and in our ther resistance and yielding the fortress to opinion the time of election was before an enemy; but the most liberal meaning of judgment in the court of original jurisdicthe term could hardly describe as a sur- tion wherein the mortgage was contested render the occupation which a victorious and defeated. It is unnecessary to consider army has gained of a fort after it has whether an election to surrender the prefejected the enemy from its walls and is se- erence can be made after issue joined and curely intrenched therein without leave of before judgment. In this case a trial was those who have been forcibly driven out.
had upon the merits. The judgment renThe bankrupt law contemplates that a se- dered was vacated by the appeal, and in the cured creditor who holds a security void-appellate court, notwithstanding the qualiable under the law, and which he should fied disclaimer of counsel for the bank, a put into the common fund as a condition of final judgment was rendered against the the right to participate with other unse- mortgage. cured creditors in the division of the estate,
These considerations lead to the conclumust make his choice while he has yet some- sion that the first and second questions thing to give for the privilege of being taken should be answered in the negative. from the class of those who have a security The importance of the ruling just made which may be taken from them, and placed is shown in its application, not only to the in a class, always favored in the bankrupt act of 1898 as it originally stood, but to the law, who shall share in the equal distribu- act as it now stands since the amendment tion of the bankrupt's estate, freed from of February 5, 1903, which only requires a fraudulent conveyances and voidable pref- surrender of preferences when the same are erences.
in violation of subdivision b of $ 60, or void The complete answer to the argument that or voidable under $ 67, subdivision e. The one who has received a preference which he reasoning of the majority of the court permust give up before proof as a general cred- mits the holder of a preference, no matter itor has the right to try out with the trus- how fraudulent, to contest with the trustee tee the question of the validity of the pref-when his preference is attacked, and, when erence, and then surrender, is that when the convicted of fraud and an intention to defeat judgment of the law has taken the prefer the purposes of the law, to "surrender” that ence from him he has nothing left to sur-which the law has declared he cannot hold, render, and if then so disposed the creditor and prove his debt as a general creditor. cannot surrender a thing which has been To permit this seems to me to defeat the wrested from him by the strong hand of the purpose of the act, and to encourage the law.
very thing the surrender clause was intended In this case the Ohio statutes, when read to promote,-a prompt and inexpensive diswith the bankrupt law, distinctly avoid pref- tribution of the estate. The fraudulent erences, and the trustee, by bringing the ac-transferee, although he has lost his suit, has tion, diminished the estate and delayed its taken no risk, and may still prove his claim distribution. The creditor, before the liti- on an equality with unpreferred creditors gation had his election as to the course he over whom he has sought an illegal advan. would pursue. While he had something to tage. I cannot agree with this construction, surrender he might give it up, prevent costs, and therefore dissent from the judgment delay, and litigation, and aid the speedy and reasoning of the majority of the court. and equal distribution of the bankrupt's I am permitted to state that Mr. Justice estate. After two judgments against him, Harlan, Mr. Justice Brewer, and Mr. Jusand when he had absolutely nothing to give tice Brown concur in this dissent.
(197 U. S. 419) FREDERIC W. LINCOLN, Henry W. Pea- from the plaintiffs in error and appellants
body, John R. Bradlee, and Charles D. upon merchandise shipped by them from Barry, Trading as Copartners under the New York to Manila, and landed at the latFirm Name and Style of Henry W. Pea- ter port between April 11, 1899, the date body & Company, Plffs. in Err.,
when the ratifications of the treaty with V.
Spain [30 Stat. at L. 1754] were exchanged, UNITED STATES. (No. 149.)
and October 25, 1901. The duties were levied
under an order of the President dated July WARNER, BARNES, & COMPANY, Lim-12, 1898. The case of Peabody & Company ited, Appt.,
was decided on demurrer to the answer of
the United States, which set up that during v. UNITED STATES. (No. 466.)
the time mentioned there existed an armed
insurrection in the Philippine Islands, of Duties-on imports to Manila-scope of
such size as to call for military operations President's order-ratification.
by the United States; that, although Manila
was in our possession, it was held only by 1. The existence of an armed insurrection of force of arms as a part of hostile territory,
the natives in the Philippine Islands after and that the President's order was a lawful the ratification of the treaty of peace with exercise of the war power of the United Spain did not justify the exaction of duties States. The district court overruled the deon imports from the United States into Manila after that date, under an order of the murrer and dismissed the suit. (Not reported.) President issued during the Spanish-American The case of Warner, Barnes, & Company war, that “on the occupation of any forts was decided on a finding of facts by the and places in the Philippine Islands by the court of claims, and that court also disforces of the United States” the duties shall missed the petition. Ct. Cl. — These be levied and collected “as a military con- facts mainly concern the magnitude of the
tribution." 2. The collection of duties on imports to Ma. insurrection, and need not be stated. nila, which was not authorized by the Presi
It will be observed that the President's dent's order of July 12, 1898, after the rati- order relied upon was an order issued during fication of the treaty of peace with Spain, the war with Spain, nine months before the was not ratified by the act of July 1, 1902, treaty of peace was made. It was a measure § 2 (32 Stat. at L 691, 692, chap. 1369), taken with reference to that war alone, and ratifying such order and the action of the Federal authorities taken in accordance with not with reference to the insurrection of the its provisions.
native inhabitants of the Philippines, which
did not happen until much later. Aguinal[Nos. 149, 466.]
do declared hostilities on February 4, 1899.
The natural view would be that the order ex. Argued March 3, 1905. Decided April 3, pired by its own terms when the war with 1905.
Spain was at an end. The order directs that
"upon the occupation of any forts and places N ERROR to the District Court of the in the Philippine Islands by the forces of
United States for the Southern District the United States” the duties shall be levied of New York to review a judgment dismiss- and collected "as a military contribution.” ing a suit to recover duties exacted on im. Of course, this was not a power in blank for ports from New York to Manila after the any military occasion which might turn up ratification of the treaty of peace with in the future. It was a regulation for and Spain. Reversed. Also an
during an existing war, referred to as A
PPEAL from the Court of Claims to re- definitely as if it had been named. See
view the dismissal of a petition which Dooley v. United States, 182 U. S. 222, 234, sought to recover other duties exacted un-235, 45 L. ed. 1074, 1082, 1083, 21 Sup. Ct. der similar circumstances. Reversed.
Rep. 762. The facts are stated in the opinion.
However this may be, we are of opinion Messrs. Paul Fuller, Frederic R. Cou-that the cases before us are governed by the dert, Jr., and Henry M. Ward for plain- decision in Fourteen Diamond Rings v. tiffs in error and appellant.
United States (The Diamond Rings) 183 U. Messrs. Hilary A. Herbert and Benjamins. 176, 180, 181, 46 L. ed. 138, 142, 143, 22 Micou for certain claimants having interests Sup. Ct. Rep. 59. In that case it was desimilar to those of appellant in No. 466. cided that after the title passed to the
Solicitor General Hoyt for the United United States there was nothing in the States.
Philippine insurrection of sufficient gravity
to give to the islands the character of forMr. Justice Holmes delivered the opin- eign countries within the meaning of a ion of the court:
tariff act. That means that there was no These are suits to recover duties exacted ' such "firm possession” by an organized hos•U. S. Comp. St. Supp. 1903, p. 242.
tile power as made Castine a foreign port in De Lima v. Bidwell, 182 U. S. 1, 199, 200, the war of 1812. United States v. Rice, 4 45 L. ed. 1041, 1057, 1058, 21 Sup. Ct. Rep. Wheat. 246, 254, 4 L. ed. 562, 564. What-743. ever sway the Philippine government may Judgments reversed. have had in Luzon, we suppose that probably at any time the United States could have
(197 U. S. 442) sent a column of a few thousand men to any point on the island, as was stated by the H. HACKFELD & COMPANY, Limited, Secretary of War in his report in 1899, and
Petitioner, as the United States was willing that the court of claims should find. In the language
UNITED STATES. of the above-mentioned decision: "If those in insurrection against Spain continued in Agreed case-stipulation of ultimate factinsurrection against the United States, the immigration-shipowner's duty to detain legal title and possession of the latter re- and dcport immigrants. mained unaffected.”
Apart from the question of the duration 1. A stipulation of the parties that the escape of the President's order, it plainly was an
of immigrants who had been received on
board a steamship for deportation to the port order intended to deal with imports from from whence they came could not have been foreign countries only and Philippine ports reasonably anticipated by the master or ofnot in the actual military control of the ficers, and did not occur by reason of any United States. But even had it been in
negligence or want of proper care upon their tended to have a wider scope, we do not
part, is as binding on the courts as the spe
cific evidentiary facts set out in such stipuperceive any ground on which it could have
lation. been extended to imports from the United 2. Shipowners who have wrongfully brought States to Manila,-a port which was con- aliens into the United States, and have retinuously in the possession as well as owner
ceived them back on board the vessel for deship of the United States from the time of
portation, are not made absolute insurers of
the return of the immigrants to the port from the treaty with Spain. Manila was not like
whence they came, by the act of March 3, Nashville during the Civil War, a part of a 1891, § 10 (26 Stat. at L. 1084, chap. 551, state recognized as belligerent and as having U. S. Comp. Stat. 1901, p. 1299), punishing impressed a hostile status upon its entire
as a misdemeanor the "neglect” to detain territory. Hamilton v. Dillin, 21 Wall. 73,
the persons so received, or to return them to
that port; but nothing more is required than 94-96, 22 L. ed. 528, 533, 534. The fact that
a faithful and careful effort to carry out the there was an insurrection of natives not duty so imposed.* recognized as belligerents in another part of the island, or even just outside its walls,
[No. 164.] did not give the President power to impose duties on imports from a country no longer Argued March 6, 1905. Decided April 3, foreign. See Dooley v. United States, 182
1905. U. S. 222, 234, 45 L. ed. 1074, 1082, 21 Sup. Ct. Rep. 762.
N WRIT of Certiorari to the United We see no sufficient ground for saying States Circuit Court of Appeals for the that the collection of these duties has been Ninth Circuit to review a judgment which ratified by Congress. The only act needing affirmed a conviction in the District Court mention is that of July 1, 1902 (chap. 1369, for the District of Hawaii of a neglect to re$ 2, 32 Stat. at L. 691, 692).1 That act turn to the port from whence they came cerratifies the action of the President "hereto- tain immigrants unlawfully brought into fore taken by virtue of the authority vested the United States. Reversed and remanded in him as Commander-in-Chief of the Army to the District Court, with instructions to and Navy, as set forth in his order of July discharge the petitioner. 12th, 1898,” etc., together with the subse- See same case below, 60 C. C. A. 428, 125 quent amendments to that order. “And the Fed. 596. actions of the authorities of the government of the Philippine Islands, taken in accord- Statement by Mr. Justice Day: ance with the provisions of said order and This case is here on writ of certiorari to subsequent amendments, are hereby ap- the circuit court of appeals for the ninth proved.” Without considering how far the circuit, to review a judgment of that court first part of the section extends, the ap- affirming a judgment of the district court proval of the action of the authorities is for the district of Hawaii, in which the confined to those which were in accordance petitioner, Hackfeld & Company, was adwith the provision of the order, which, as judged guilty of a violation of § 10 of the we already have intimated, the collec- act of March 3, 1891 (26 Stat. at L. 1084, tion of these duties was not. See, further, 'chap. 551, U. S. Comp. Stat. 1901, p. 1299), 1 U. S. Comp. St. Supp. 1903, p. 242.
*Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Aliens, § 114.
and to pay a fine of $600, for neglecting to | upon these stipulated facts a writ of error return to the port from whence they came, was taken to the circuit court of appeals Yokohama, Japan, two certain Japanese im- for the ninth circuit. In that court, without migrants unlawfully in the United States, passing upon the question whether the statin violation of the act of Congress. The ute justified conviction without proof of conviction was upon information filed and negligence, it was held that the judgment trial had to the court, a jury having been of conviction should be affirmed because the waived, and upon a stipulated finding of facts recited left room for the inference that facts, agreed upon by the attorney for the the petitioner was found guilty of negliUnited States and the petitioner. After gence in putting the Japanese in the room statements as to the corporate character of without taking the necessary precautions the defendant company, and that it was the against escape through the portholes. The agent of the steamship Korea, a vessel ply- stipulation that the escape did not occur by ing between the state of California and the reason of negligence or lack of proper care Empire of Japan, it is stipulated that the on the part of the officers of the vessel it vessel brought into the port of San Fran- was held did not bind the court, nor precisco, in the United States, two certain vent it from placing upon the facts stipuJapanese immigrants from Yokohama, Ja- lated the construction which, in its judgpan, on October 28, 1902; that on the follow- ment, they should properly receive. 60 C. ing day, October 29, 1902, the said Japanese C. A. 428, 125 Fed. 596. were denied admission into the United States by the board of special inquiry at
Mr. Maxwell Evarts for petitioner. the port of San Francisco, and the said Assistant Attorney General Robb for reboard, being duly appointed and authorized spondent. in the premises, ordered the deportation of the said Japanese immigrants. That on the
Mr. Justice Day, after making the fore7th day of November, 1902, the said Japa- going statement, delivered the opinion of nese were received on board the vessel Korea the court: for transportation to Japan. The stipula
The circuit court of appeals disposed of tion then recites the following facts:
this case upon the view that the judgment “That on the 12th day of November, A. D. of conviction would have been warranted 1902, the said steamship Korea did arrive upon the evidentiary facts stipulated, and at the port of Honolulu, in the district and that the stipulation, in so far as it stated territory of Hawaii; that at the time of the that the escape of the immigrants could not arrival of said steamship Korea at said port have been reasonably anticipated by the of Honolulu the said immigrants were still master or officers of the steamship, and did on board of said vessel; that said Japanese not occur by reason of any negligence or immigrants, together with certain deported want of proper care upon their part, was Chinese, were placed in a room on board the statement of a mere conclusion not bindsaid vessel and locked up by the steerage ing upon the court, and would not prevent it steward of said vessel; at 12 o'clock mid from rendering an independent judgment night of said 12th day of November, A. D. upon the facts stated. We cannot take this 1902, said Japanese were still on board said view of the case. It may be conceded that vessel in said room; that between that time where the facts are all stated the court and 5 o'clock on the morning of the 13th cannot be concluded by a stipulation of the day of November, A. D. 1902, said Japanese parties as to the legal conclusions to be had effected their escape; that the only drawn therefrom, but we know no rule of method of egress was through portholes, public policy which will prevent the United which were nearly 25 feet above the water; States attorney from stipulating with the dethat this method of escape could not have fendant in a case of this character as to the been reasonably anticipated by the master, ultimate facts in the controversy. It is to or officers, or agents of said steamship be presumed that such an officer will do his Korea; that said escape did not occur by duty to the government, and not stipulate vis major, or inevitable accident; and that away the rights of the prosecution. The said escape did not occur by reason of any question of negligence in a given case is not negligence or lack of proper care on the part usually reduced to one of law, and, as is of the officers of the vessel or said defend the case here, its presence or absence is the ant.
ultimate question to be decided between the “That the said defendant made search for parties. Ordinarily, the issue of negligence said escaped immigrants, but up to the pres is one of fact to be determined by the jury. ent time have not apprehended the said im- This proposition has been so often adjudimigrants, and said immigrants have not cated in this court that it is only necessary been returned to Japan.”
to refer to the cases in passing. It has been From the conviction in the lower court' held that, where there is no reasonable doubt