lowed and any rules or regulations which in any wise change, affect, or determine any part or the aggregate of such aforesaid rates." The bill of lading, in a form similar to that approved and recommended by the Interstate Commerce Commission (14 Inters. Com. Rep. 346), contains the following, among other provisions: "It is mutually agreed in consideration of the rate of freight hereinafter named, as to each carrier of all or any of said property over all or any portion of said route to destination and as to each party at any time interested in all or any of said property, that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained, and which are hereby agreed to by the shipper, and by him accepted for himself and his assigns as just and reason able." 314, 321, 44 L.R.A. (N.S.) 257, 33 Sup. Ct. Rep. 148. The limitation of liability by means of such valuation contained in the bill of lading continues although the service of carrying has been completed and the goods are held by the carrier strictly as warehouseman. Cleveland, C. C. & St. L. R. Co. v. Dettlebach, 239 U. S. 588, 60 L. ed. 453, 36 Sup. Ct. Rep. 177. The provisions of the bill of lading govern even where the goods are allowed to remain in the carrier's warehouse after giving receipt therefor and payment of freight. The carrier and the shipper can make no alteration of the terms upon which goods are held under a tariff, until there has been an actual delivery of the goods to the consignee. Southern R. Co. v. Prescott, 240 U. S. 632, 60 L. ed. 836, 36 Sup. Ct. Rep. 469. The reasons are even more persuasive for holding that the terms of a bill of lading govern storage in transit, like that at Buffalo. The contention of the shipper that the letter of November 26, inclosing the circular, created a contract "Value not to exceed $100 per net ton. of warehousing wholly independent of the Limited by written agreement. "The consignor of this property has the option of shipping same at a higher rate without limitation as to value in case of loss or damage from causes which would make the carrier liable, but agrees to the specified valuation named in case of loss or damage from causes which would make the carrier liable, because of the lower rate thereby accorded for transportation." Conditions. "The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a lower value has been agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum price to govern such computation." The release valuation clause in an interstate bill of lading when based upon a difference in freight rates is valid. Adams Exp. Co. v. Croninger, 226 U. S. 491, 509, 57 L. ed. on shipments of copper and copper matte, pig lead and spelter in transit, at Buffalo, for a period not exceeding four months. 2. If held longer than four months, it will be subject to a charge of one-half (}) cent per 100 pounds for each thirty (30) or part thereof so held. 3. Shipments held under this arrangement will be at owner's risk, and will not be accepted for storage unless arrangements are made with the undersigned previous to forwarding from western lake ports. 4. Shipments ordered out of store will contract of carriage, is contrary to fact. The Transit Company's circular states "that free storage is furnished on shipments in transit," and that shipments "will not be accepted for storage unless arrangements are made with the undersigned previous to forwarding from western lake ports." Obviously, free storage in transit was granted only to those who shipped over this "lake and rail" line. The shipper had enjoyed nearly two months' storage when the circular was received in answer to a letter of inquiry. It stated only what was contained in the tariff filed, which every shipper was bound to take notice of. The contention was also made that the judgment below was correct, even if the bill of lading be held to govern the warehousing at Buffalo; because the agreed valuation clause, properly construed, fixes an amount far greater than the actual value for which judgment was rendered. The "released" or agreed valuation is "$100 per net ton." There were 25 tons in this shipment. It is insisted that, as the 25 tons constituted a single lot, $2,500 is recoverable for loss of or damage to the be charged at the through rate in effect at time the shipment originated, to points to which through rates are published by the Western Transit Company. 5. Shipments ordered to points to which no through rates are in effect via the Western Transit Company will be charged at the local rate to and from Buffalo. Issued May 15th, 1908. Edwin T. Douglass, General Manager, Buffalo, N. Y. [Ed. Note.-For other cases, see Insane Persons, Cent. Dig. §§ 35, 36; Dec. Dig. 26.] CONSTITUTIONAL LAW 255-DUE PROCESS OF LAW-NOTICE AND HEARING. 4. Due process of law does not require that notice and an opportunity to be heard be given before a court may accept the resignation of a committee of an adjudged incompetent and appoint another person as whole or to any part of the lot. This con- at the time, under commitment at a private struction does violence to the language used hospital. and is unreasonable. The valuation clause fixes not an arbitrary limit of recovery, but a ratio. In Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 656, 57 L. ed. 683, 689, 33 Sup. Ct. Rep. 391, where the released valuation clause was applied to a shipment consisting of two boxes and a barrel, and one box was lost, this court said the consignor and carrier must have understood the agreed valuation to mean that the package contained "household goods of the average value per hundredweight of $5." The ratio is more naturally applied where the whole shipment is homogeneous. Under this bill of lading the shipper is entitled to! recover not more than $100 a ton for each or any ton damaged or lost. Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion. (242 U. S. 455) his successor. [Ed. Note.-For other cases, see Constitutional Law. Cent. Dig. §§ 736-738, 740-745; Dec. Dig. 255.] INSANE PERSONS 26-JUDGMENT-COL LATERAL ATTACK-ADJUDICATION OF IN- TEE. 5. Orders made by a court of competent jurisdiction adjudging a person to be incompetent, appointing a committee, accepting the latter's resignation, and appointing his successor in proceedings in which the essentials of due process of law were met, may not be collaterally attacked on the ground that they were entered corruptly, irregularly, or inadvertently, or that, because of a change in the condition of the JOHN ARMSTRONG CHALONER, Plff. in adjudged incompetent, a committee was no ERROR TO CIRCUIT COURT OF APPEALS-JURISDICTION-FEDERAL QUESTION-SCOPE OF REVIEW. 1. The contention in a suit between citizens of different states, insisted upon in longer required,—especially in an action which merely seeks damages for the alleged wrongful withholding of his property. [Ed. Note. For other cases, see Insane Persons, Cent. Dig. §§ 35, 36; Dec. Dig. 26.] [No. 121.] both of the lower courts, that certain orders Argued November 16 and 17, 1916. Decided of a state court upon which defendant relied as justifying his custody of plaintiff's property were void as having been entered without due process of law, contrary to the Federal Constitution, gives the Federal Supreme Court jurisdiction to review the whole case by writ of error to a circuit court of appeals. [Ed. Note. For other cases, see Courts, Cent. Dig. 1020; Dec. Dig. 382(5).] CONSTITUTIONAL LAW 255-"DUE PROCESS OF LAW"-NOTICE AND HEARING. January 8, 1917. N ERROR to the United States Circuit to review a judgment which affirmed a judgment of the District Court for the Southern District of New York in favor of defendant in an action in which an adjudged incompetent seeks damages from his committee for withholding his securities and moneys. Affirmed. See same case below, 132 C. C. A. 96, 215 Fed. 867. 2. An order made conformably to N. Y. Code Civ. Proc. §§ 2320 et seq., adjudging a person incompetent, and appointing a committee of his person and estate, is not wantThe facts are stated in the opinion. ing in due process of law where, at each Messrs. Edward F. Colladay, Sidney stage in the proceedings leading up to such order, the alleged incompetent, then under J. Dudley, and Mr. John Armstrong Chalcommitment to a private hospital, was per-oner, in propria persona, for plaintiff in ersonally served with notice and was given an opportunity to be heard. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 736-738, 740-745; Dec. Dig. 255. ror. Mr. Joseph H. Choate, Jr., for defendant in error. Mr. Justice Brandeis delivered the opin For other definitions, see Words and Phrases, This is an action in which the plaintiff seeks damages for withholding his securi3. An adjudication of incompetency, made conformably to N. Y. Code Civ. Proc. ties and moneys. The defendant sets up as §§ 2320 et seq., after notice and an oppor- justification that he received and held the tunity to be heard, is not open to collateral property by virtue of two orders of the suattack because the alleged incompetent was,preme court of New York, appointing him For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes proceedings were held in New York city, where much of plaintiff's property was located. For over two years prior to the entry of the earlier order plaintiff had been an inmate of Bloomingdale, a private hospital near that city. At each stage in the proceeding leading up to the order of June 23, he was personally served there with notice and was given an opportunity to be heard. Thus he had notice of the motion, on May 19, to appoint the commission de lunatico inquirendo; of the inquisition on June 12; and of the motion to confirm the inquisition and for appointment of a com committee of the person and estate of the plaintiff as one "incompetent to manage himself and his affairs." The validity and alleged effect of these orders were denied by plaintiff. The action was brought in 1904 in the circuit court of the United States for the southern district of New York; was transferred to the district court January, 1912, by virtue of Judicial Code, § 290 [36 Stat. at L. 1167, chap. 231, Comp. Stat. 1913, § 1267], and was tried before a jury in that year. A verdict was directed for the defendant at the close of the plaintiff's case; and the judgment entered thereon was affirmed by the circuit court of ap-mittee on June 23. Such notice and opporpeals. The case comes here upon writ of error. The complaint alleges that the plaintiff is a citizen and resident of Virginia and the defendant a citizen and resident of New York; but Federal jurisdiction was not rested solely on diversity of citizenship. The complaint alleged also that the orders of the supreme court of New York upon which defendant relies are void as having been entered without due process of law, in violation of the Federal Constitution. The contention was insisted upon in both the lower courts. This court has, therefore, jurisdiction to review the whole case. Howard v. United States, 184 U. S. 676, 681, 46 L. ed. 754, 757, 22 Sup. Ct. Rep. 543. The orders under which defendant justifies were that of June 23, 1899, adjudging plaintiff incompetent, appointing a committee of his person and estate, and naming one Butler as such; and that of November 19, 1901, appointing defendant as his successor. These orders were made under statutes of New York, the material portions of which are set forth in the margin.1 The | 1 Code Civ. Proc. "2320. Jurisdiction; concurrent jurisdiction. "The jurisdiction of the supreme court extends to the custody of the person, and the care of the property, of a person incompetent to manage himself or his affairs, in consequence of lunacy, idiocy, habitual drunkenness, or imbecility arising from old age or loss of memory and understanding, or other cause. "2322. Committee may be appointed. "The jurisdiction, specified in the last two sections, must be exercised by means of a committee of the person, or a committee of the property, or of a particular portion of the property, of the incompetent person, appointed as prescribed in this title. The committee of the person and the committee of the property may be the same individual, or different individuals, in the discretion of the court. "2323. Application for committee; by whom made. "An application for the appointment of such a committee must be made by petition, tunity to be heard at the inquisition was required by the law of New York, though not expressly recited in the statute; Re Blewitt, 131 N. Y. 541, 30 N. E. 587; Gridley v. College of St. Francis Xavier, 137 N. Y. 327, 33 N. E. 321; Re Fox, 138 App. Div. Plaintiff was 43, 122 N. Y. Supp. 889. physically able to be present at this hearing. But he did not appear, did not send anyone to represent him, nor ask for an adjournment. At the inquisition the commission and the jury, after hearing witnesses, concluded that his attendance was unnecessary, and did not require him to attend. There was evidence that his enforced attendance would be detrimental to his mental health. As the plaintiff had notice and oppor tunity to be heard at each stage of these proceedings, the essential elements of due process of law were fully met, and the court had jurisdiction to enter that order. It is not open to collateral attack, although plaintiff was then under commitment at Bloomingdale. See Simon v. Craft, 182 U. S. 427, 45 L. ed. 1165, 21 Sup. Ct. Rep. 836. which may be presented by any person. Except as provided in the next section, where the application is made to the supreme court, the petition must be presented at a special term held within the judicial district, or to a justice of said court within such judicial district at chambers, where the person alleged to be incompetent resides; or if he is not a resident of the state, or the place of his residence cannot be ascertained, where some of his property is situated, or the state institution is situated of which he is an inmate. "2325. Contents, etc., of petition; proceedings upon presentation thereof. "The petition must be in writing, and verified by the affidavit of the petitioner, or his attorney, to the effect that the matters of fact therein stated are true. It must be accompanied with proof, by affidavit, that the case is one of those specified in this title. It must set forth the names and residences of the husband or wife, if any, and of the next of kin and heirs, of the person The order of November 19, 1901, accepting Butler's resignation as committee and appointing defendant in his place, was made by the court without notice either to the plaintiff or to the other parties to the original proceedings. But this was a mere substitution of one officer of the court for another. No substantial right of the plaintiff was affected. Due process does not require notice and opportunity to be heard in such a proceeding; and the irregularity, if any, was not such as to prevent the court from exercising jurisdiction to determine the matter. to be of sound mind and capable of man- The validity of the orders was assailed and their effect contested also on other grounds. It was contended that plaintiff had been corruptly lured from his home in Virginia to New York in March, 1897, and then illegally committed to Bloomingdale, and that he could not otherwise have been served in New York at all in the 1899 proceedings; that in 1899 plaintiff was a resident of Virginia; that the adjudication of incompetency in 1899 was made on perjured evidence; and that the plaintiff was then of sound mind and competent to manage his affairs. It was also contended that about November 6, 1901, the plaintiff, being a citizen and resident of Albemarle county, Virginia, was adjudged by its county court alleged to be incompetent, as far as the same are known to the petitioner, or can, with reasonable diligence, be ascertained by him; and also the probable value of the property possessed and owned by the alleged incompetent person, and what property has been conveyed during said alleged incompetency and to whom, and its value and what consideration was paid for it, if any, or was agreed to be paid. The court must, unless sufficient reasons for dispensing therewith are set forth, in the petition or accompany-specified therein, to procure a jury; and ing affidavit, require notice of the presentation of the petition to be given to the husband or wife, if any, or to one or more of the relatives of the person alleged to be incompetent, or to an officer specified in the last section. When notice is required, it may be given in any manner, which the court deems proper; and for that purpose, the hearing may be adjourned to a subsequent day, or to another term, at which the petition might have been presented. "2327. Order for commission, or for trial by jury in courts. "Unless an order is made, as prescribed in the last section, if it presumptively appears, to the satisfaction of the court, from the petition and the proofs accompanying it, that the case is one of those specified in this title; and that a committee ought, in the exercise of a sound discretion, to be appointed; the court must make an order, directing, either "1. That a commission issue, as pre 2. That the question of fact, arising upon the competency of the person, with respect to whom the petition prays for the appointment of a committee, be tried by a jury at a trial term of the court. "2328. Contents of commission. "The commission must direct the commissioners to cause the sheriff of a county, that they inquire, by the jury, into the matters set forth in the petition; and also into the value of the real and personal property of the person alleged to be incompetent, and the amount of his income. It may contain such other directions, with respect to the subjects of inquiry, or the manner of executing the commission, as the court directs to be inserted therein. "2330. Jury to be procured; proceedings thereupon. "The commissioners, or a majority of them, must immediately issue a precept to the sheriff, designated in the commission, requiring him to notify, not less than twelve nor more than twenty-four indifferent persons, qualified to serve, and not exempt from serving, as trial jurors in the same court, to appear before the commissioners, at a specified time and place, within the county, to make inquiry, as commanded by the com mission. "2331. Proceedings upon the hearing. complete defense. The evidence offered was | allegations seeking to impress a trust upon properly excluded, and there was no error in directing a verdict for the defendant. Judgment affirmed. (242 U. S. 426) the property of bankrupts whose estate is in course of administration in another district, must be regarded as an attempt to secure priority of payment out of the bankrupts' estate on account of moneys fraudulently obtained by the bankrupts and put into their business. KNAUTH, NACHOD, & KUHNE, Petition- Cent. Dig. 88 410, 413, 415, 416; Dec. Dig. 292.1 [Ed. Note.-For other cases, see Bankruptcy, ers, V. LATHAM & COMPANY et al. (No. 98.) MAX JAFFE et al., Surviving Members of the Firm of Knauth, Nachod, & Kuhne, Appts., V. WILLIAM S. LOVELL, as Custodian, etc., and as Trustee in Bankruptcy of Knight, Yancey, & Company et al. (No. 259.) MAX JAFFE et al., Surviving Members of the Firm of Knauth, Nachod, & Kuhne, Appts., V. MAURICE E. A. WESTPHALEN et al. (No. 260.) BANKRUPTCY 292-CONFLICTING JURIS DICTION-SUIT TO ESTABLISH PRIORITY. The Federal district court may not entertain jurisdiction of a bill or cross bill which, by reason of the inadequacy of the "All the commissioners must attend and preside at the hearing; and they, or a majority of them, have, with respect to the proceedings upon the hearing, all the power and authority of a judge of the court, holding a trial term, subject to the directions contained in the commission. Either of the commissioners may administer the usual oath to the jurors. At least twelve jurors must concur in a finding. If twelve do not concur, the jurors must report their disagreement to the commissioners, who must thereupon discharge them, and issue a new precept to the sheriff, to procure another jury. "2332. Return of inquisition and commission. "The inquisition must be signed by the jurors concurring therein, and by the commissioners, or a majority of them, and annexed to the commission. The commission and inquisition must be returned by the commissioners, and filed with the clerk. “2334. Proceedings upon trial by jury in court. "Where an order is made, directing the trial, by a jury, at a trial term, of the questions of fact, arising upon the competency of the person, with respect to whom the petition prays for the appointment of a committee, the order must state, distinctly and plainly, the questions of fact to be tried; which may be settled as where an order for a similar trial is made in an action. The court may, in that or in a subsequent order, [Nos. 98, 259, and 260.] Submitted November 13, 1916. Decided January 8, 1917. 0% N WRIT of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit to review a decree which affirmed, with a modification, a decree of the District Court of Alabama, dismissing a cross bill in a suit begun by a trustee in bankruptcy to set aside an alleged preferential transfer. Affirmed. Also TWO APPEALS from the District Court Tof the United States for the Northern District of Florida to review decrees dismissing suits to impress a trust upon the property of a bankrupt. Affirmed. See same case below, in No. 98, 135 C. C. A. 419, 219 Fed. 721. The facts are stated in the opinion. direct that notice of the trial be given to such persons, and in such a manner as is deemed proper. The trial must be reviewed in the same manner, with like effect, and, except as otherwise directed in the order, the proceedings thereupon are, in all respects, the same as where questions of fact are tried, pursuant to an order for that purpose. The court may make inquiry by means of a reference or otherwise, as it thinks proper, with respect to any matter, not involved in the questions tried by the jury, the determination of which is necessary in the course of the proceedings. The expenses of the trial, and of such an inquiry, must be paid by the petitioner. Laws 1895, chap. 946. “2339. Committee under control of court; limitation of powers. "A committee, either of the person or of the property, is subject to the direction and control of the court by which he was appointed, with respect to the execution of his duties; and he may be suspended, removed, or allowed to resign, in the discretion of the court. A vacancy created by death, removal, or resignation may be filled by the court. But a committee of the property cannot alien, mortgage, or otherwise dispose of, real property, except to lease it for a term not exceeding five years, without the special direction of the court, obtained upon proceedings taken for that purpose, as prescribed in title seventh of this chapter. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |