case of Counselman vs. Hitchcock, 142 U. S., 547, which seemed to announce a somewhat broader doctrine in favor of the constitutional guaranty than does the Harris case. A conspiracy to conceal assets must include the bankrupt in the conspiracy in order to be against the law. Nemcof vs. U. S., 202 Federal, 911; U. S. vs. Rhodes, 212 Federal, 513.

§383. Failure to Pay over Money. From the power of a court of equity, administering the Bankrupt Statute, to require the bankrupt to pay over money or other property shown clearly to be in his possession, or go to jail for contempt, has arisen what may be termed another criminal feature of the law. One of the earliest cases under this power of the statute is in re Purvine, 96 Federal, 192, wherein a commitment to the Dallas County Jail, by District Judge Meek, of the bankrupt for failure to pay over certain funds shown to be in the possession of the bankrupt, was affirmed by the Circuit Court of Appeals for the Fifth Circuit. In that opinion, the Court says:

"If the court of bankruptcy is powerless in this respect, persons, by becoming bankrupts, obtain an immunity not allowable in any other court of equal dignity, either Federal or State, in this country."

A similar jurisdiction was invoked under the Act of 1867.

In in re Mize et al, 172 Federal, 945, District Judge Grubb maintains the same power, and cites a number of similar decisions, and holds:

"The courts have been very careful not to permit contempt proceedings to be converted into a means of coercing payment of debts from funds other than assets wrongfully withheld by the bankrupt, and for this reason, have required the clearest evidence that the bankrupt had the assets in his possession, and the present ability to turn them over to the trustee, as directed by the order."

See also Clay vs. Waters, 178 Federal, 385, and in re Marks, 176 Federal, 1018, where it was held that a bankrupt should not be committed for contempt for a failure to comply with an order requiring him to turn over money to his trustee, alleged to have been withheld, where the Court is convinced that the bankrupt is without physical ability to comply; citing also 171 Federal 281.

§ 384. The Act of June 30, 1906, 34 Stat. L., 768, is what is known as the Pure Food Act. This statute contains thirteen sections, the first two of which create criminal offenses. The third provides for rules and regulations by the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor. The fourth provides for certain chemical examinations, hearings, etc. The fifth provides for legal proceedings by the District Attorney. The sixth defines drugs and food. The seventh defines adulterations, etc. The eighth defines misbranding, etc. The ninth relates to a guaranty by the manufacturer. The tenth fixes a method for seizure of original packages. The eleventh provides for an examination of imported foods and drugs. And the twelfth includes the insular possessions, and defines "person."

§ 385. Criminal Sections.-The first two sections are, therefore, of interest to us here. The first section provides that it shall be unlawful for any person to manufacture, within any Territory, or the District of Columbia, any article of food, or drugs, which is adulterated or misbranded, within the meaning of the Act, and fixes a penalty of a fine not to exceed five hundred dollars, or one year's imprisonment, or both such fine and imprisonment. The second section is

more comprehensive, because it applies to all interstate commerce, and reads as follows:

"Sec. 2. That the introduction into any State or Territory or the District of Columbia from any other State or Territory, or the District of Columbia, or from any foreign country, or shipment to any foreign country of any article of food or drugs which is adulterated or misbranded, within the meaning of this Act, is hereby prohibited; and any person who shall ship or deliver for shipment from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia, or to a foreign country; or who shall receive in any State or Territory or the District of Columbia from any other State or Territory or the District of Columbia, or foreign country, and having so received, shall deliver, in original unbroken packages, for pay or otherwise, or offer to deliver to any other person, any such article so adultered or misbranded within the meaning of this Act, or any person who shall sell or offer for sale in the District of Columbia or the Territories of the United States any such adulterated or misbranded foods or drugs, or export or offer to export the same to any foreign country, shall be guilty of a misdemeanor, and for such offense be fined not exceeding two hundred dollars for the first offense, and upon conviction for each subsequent offense not exceeding three hundred dollars or be imprisoned not exceeding one year, or both, in the discretion of the court: Provided, That no article shall be deemed misbranded or adulterated within the provisions of this Act when intended for export to any foreign country and prepared or packed according to the specifications or directions of the foreign purchaser when no substance is used in the preparation or packing thereof in conflict with the laws of the foreign country to which said article is intended to be shipped; but if said article shall be in fact sold or offered for sale for domestic use or consumption, then this proviso shall not exempt said article from the operation of any of the other provisions of this Act."

§ 385a. Amendment Allowing Variations.-The Act of March 3, 1913, allows for variations in weight, measure and amount in small packages.

The breaking of Government seals on interstate shipments under this statute relates to all persons. U. S. vs. Lewis, U. S. Supreme Court, Oct. Term, 1914.

§ 3856. Criminal Practice Under.-It is not a precedent to prosecution that a hearing be had by the Department of Agriculture. U. S. vs. Morgan, 222 U. S., 274. The Secretary of Agriculture, after an investigation of an alleged

violation, should certify to the District Attorney in whose district prosecution for the offense should be had. U. S. vs. Hopkins, 199 Federal, 649.

While the statute provides that proceedings for the seizure of goods under the same shall be by libel and conform as near as may be to proceedings in admiralty, such proceeding does not include appellate proceedings, since the action of the District Court on a libel can only be reviewed as at common-law by writ of error and not by appeal. Four Hundred, etc., vs. U. S., 226 U. S., 173, reversing U. S. vs. Four Hundred, etc., 193 Federal, 589. A writ of error may not be prosecuted when the only question involved is the costs of the original proceeding. Charles vs. U. S., 183 Federal, 566. The prosecution may be by information for the first offense. U. S. vs. Wells, 186 Federal, 248.

Since the crime denounced by the statute is the shipping or delivering for shipment rather than the introduction, though of course the shipment must be interstate, the venue for the prosecution is at the point of shipment or offering for shipment rather than at the point of introduction. U. S. vs. Hopkins, 199 Federal, 649, and a corporation cannot compel the Government to bring its action in the district in which the corporation is a resident. U. S. vs. Hopkins, 199 Federal, 649. The preliminary examination provided for in the law is not necessary before criminal prosecution, nor is it necessary to allege in the indictment that there was a preliminary examination. U. S. vs. Morgan, 222 U. S., page 274; Schraubstadter vs. U. S., 199 Federal, 568.

§ 386. Decisions. In in re Wilson, 168 Federal, 566, District Judge Brown held that syrup, 10 per cent of which is made from maple sugar and 90 per cent from white sugar, put up in bottles having thereon labels containing the name "Gold Leaf Syrup," with a trade-mark consisting of a gold leaf in the form of a maple leaf, and stalks of sugar cane, and the words "composed of maple and white sugar" in plain and distinct letters, with the name of the maker, cannot be said to be misbranded, so that its shipment in interstate commerce constitutes a misdemeanor under this Act.

There seems to have been some trend toward including within the spirit of the statute such articles of food and drugs as may claim more, in an advertising way, than can actually

be done; but the purpose of the statute was to rid the streams of commerce of deleterious and poisonous food and drugs. That is the spirit of the statute, the evil that prompted its passage; and a construction of the statute that would run from the market food and drugs that may be advertised in a high-sounding way, but which are not in any sense injurious to the health of the people, would be unjustified. There is a distinction between the enforcement of law and the abuse of law.

Under the authority of the United States vs. Maufield, 177 Federal, 765, the officers of a corporation which manufactured a food product, shipped by its manager in interstate commerce, and which was adulterated or misbranded, are subject to prosecution under the Act, where they employed the manager and authorized him to operate the plant and sell the product without restriction, and the previous course of business had been to ship on orders to other states.

That case also determined that the provision of the Act, Section 9, that no dealer shall be prosecuted thereunder for shipping in interstate commerce any adulterated or misbranded article of food or drugs, when he can establish a guaranty signed by the manufacturer, that such article is not adulterated or misbranded, is not available to a dealer only when such guaranty relates to the identical article shipped by him, and affords no defense to him where it relates only to a constituent used by him in manufacturing the articles shipped.

In United States vs. 779 Cases of Molasses, the Circuit Court of Appeals for the Eighth Circuit, in 174 Federal, 325, held that an article of food put up and sold in cases bearing labels describing the contents as a particular brand of molasses, but plainly stating, in three separate places, that the product is a compound of molasses and corn syrup, and also containing all the other information required by the Act and the regulations thereunder, and which article is in fact a compound of molasses and commercial glucose, is not adulterated or misbranded, within the meaning of the Act, it being shown that it contains nothing deleterious to health.

To the same effect is United States vs. Boeckmann, 176 Federal, 382, where it was held that a food product, labeled "Compound; pure comb and strained honey and corn syrup," is not misbranded, within the meaning of this Act, merely