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of the bankrupts, directed them to pay the note in order that he would be benefited, and, when the payment was made, he had reasonable cause to believe that it was intended thereby to give him a preference over other creditors. The trustee sued Andrews to recover the preference. The Supreme Court of Rhode Island held that the declaration which exhibited the foregoing facts was sufficient to entitle the trustee to recover. The case is like the one at bar in all substantial particulars.
It is contended that no one but a creditor can receive a preference, and that an indorser or surety is not a creditor. But is it true that an indorser or surety is not a creditor within the meaning of the bankruptcy act? The contrary was held in Swarts v. Siegel, 117 Fed. 13, 54 C. C. A. 399. Siegel & Bro. were accommodation indorsers upon the notes of the bankrupts given to a bank. Within the four months before the bankruptcy proceedings, and when insolvent, the bankrupts made partial payments on the notes. After the adjudication and selection of a trustee, Siegel & Bro., having paid to the bank the balance due on the notes, presented claim for allowance. We held that their claim should not be allowed until they had surrendered the preference received by the bank, one of the grounds being that their relation as sureties to the bankrupts constituted them creditors. It was said:
“An indorser, an accommodation maker, or a surety on the obligation of a bankrupt is a creditor under the act of 1898, and a payment on such an obligation by the principal debtor while insolvent to the innocent holder of the contract within four months before the filing of the petition for adjudication in bankruptcy will constitute a preference which will debar the indorser, accommodation maker, or surety from the allowance of any claim in his favor against the estate of the bankrupt unless the amount so paid is first returned to that estate.”
It is almost an imperceptible step in advance of this decision, but a logical and reasonable one, to say that where the surety is the president of the bankrupt, and with knowledge of its insolvency directs the payment to the holder of the obligation with intent to relieve himself from liability and to secure an advantage over other creditors, a preference arises which may be recovered from him by the trustee.
The judgment is affirmed.
(156 Fed. 662.)
SCIILOSS v. A. STRELLOW & Co. et al.
An issue as to the insolvency of an alleged bankrupt involves as elements the questions of the amount of his indebtedness and the fair valuation of his property, both of which he is entitled to have determined by a jury; and the court cannot make a preliminary finding as to the validity and amount of the claims of certain creditors which will be conclusive on the jury upon the trial of such issue. In Error to the District Court of the United States for the Middle District of Pennsylvania.
For opinion below, see 149 Fed. 907.
DALLAS, Circuit Judge. On March 9, 1906, a petition was filed wherein it was prayed that Henry P. Schloss might be adjudged a bankrupt. He answered that he had not committed the act of bankruptcy alleged, that he was not insolvent, and that he was not indebted to the petitioners; and he demanded a trial by jury. On August 7, 1906, the petitioners moved the court "to limit the issue, after setting down the case for hearing before a jury, for the determination of the insolvency of the alleged bankrupt, and the act of bankruptcy alleged in said petition"; and, on the same day, this motion was granted. Subsequently a decree was entered, as follows:
“Now, September 29, 1906, the above case having been put at issue by petition and answer filed, and the case having been heard by the court on the question whether or not the petitioning creditors in this case were the creditors of Henry P. Schloss, the alleged bankrupt, it is now ordered, adjudged, and decreed by this court that the said Henry P. Schloss is indebted to, and purchased goods, wares, and merchandise from, the said petitioning creditors, to wit, A. Strellow, William A. Leggett & Co., Williamson Bros., and the Honesdale Shoe Company, to the amounts set forth in the petition filed in this case."
After the making of this decree, several persons, firms, and corporations united in a petition wherein it was stated that they were creditors of the alleged bankrupt in the respective amounts therein specified, but that he denied that he was indebted to them, and intended “to set up said defense on the trial of said case”; and they prayed to be permitted to intervene, in order that they might "make a proper presentation of their respective claims.” This petition was followed by answer and replication, and thereupon there was a decree as follows:
"Now, January 30, A. D. 1907, on the issue raised by the petition of Harris & Brody, Cohen & Lange, J. A. Scriven & Co., Fuld Bros., Julius Franklin, Hirsch Bros. Co., John N. Hines & Co., Samuel Greenstein, Ascher & Abramson, A. Kraner & Co., J. R. Palmenberg & Sons, Wright & Wright, S. W. Korn Sons & Co., Emil Messner, Modern Cloak & Suit Co., S. Steinfeld & Co., Empire Frame & Art Co., Sulla & Kurtz, I. Brozen, Zins & Rossner, and Revealon Freres, requesting that as creditors of the alleged bankrupt they be admitted as additional petitioners, and the answer of the respondent denying that they are creditors, the court, after due hearing, sustains the petition, adjudging that the petitioners are creditors of the bankrupt, and that they are entitled to come in as prayed."
On February 28, 1907, there was a jury trial as to both insolvency and the act of bankruptcy; but the assignment of errors concerns only the issue as to insolvency, and the single point presented by the several specifications is whether, for the trial of that issue, the orders of September 29, 1906, and of January 30, 1907, had conclusively determined the validity and amount of the claims of the petitioners, original and intervening. The case was tried and decided upon the theory that they had, and in this we think there was error. The precise question, as defined by the bankruptcy act (Act July 1, 1898, c. 544, cl. 15, 30 Stat. 544 (U. S. Comp. St. 1901, p. 3420]), was whether the property of Schloss would, "at a fair valuation, be sufficient in amount to pay his debts," and for the solution of that question it was quite as needful to ascertain the amount of his debts as the value of his property. These elements were both inherent in “the question of his insolvency.” There was no separate issue as to his indebtedness. That was matter of evidential fact, and the plaintiff in error was entitled to a finding of the jury upon it, notwithstanding its supposed predetermination by the court.
The judgment is reversed, and a new trial is directed.
(156 Fed. 664.)
ANDREW et al. . GLOBE ELEVATOR CO. et al.
A preliminary injunction, restraining the enforcement of a state grain inspection law in respect to interstate shipments pending a final hearing as to its constitutionality, held not improvidently granted upon the facts shown, and sustained, without consideration of the case on its merits.
[Ed. Note.For cases in point, see Cent. Dig. vol. 27, Injunction, $8 305, 306.]
Appeal from the Circuit Court of the United States for the Western District of Wisconsin.
For opinion below, see 144 Fed. 871.
PER CURIAM. This is an appeal from an interlocutory order, which restrains, pending the final hearing, the appellants from interfering with the business of the appellees under color of a Wisconsin statute, which the appellees claim, on the state of facts averred by them, violates their rights under the commerce clause of the federal Constitution. The appellants have not satisfied us that the order staying the hands of appellants, pending a final hearing, was entered inprovidently. We do not at this time consider any of the questions which go to the ultimate merits of the case, which were pressed upon our attention at this hearing.
The order appealed from is affirmed.
(156 Fed. 721.)
NURNBERGER V. UNITED STATES.
(Circuit Court of Appeals, Eighth Circuit. October 28, 1907.)
1. PERJURY-INDICTMENT FOR SUBORNATION-SUFFICIENCY.
An indictment for subornation of perjury in procuiring another to make a false oath or affidavit before the receiver of a land office to secure an entry of land, which avers that such oath or altidavit was made in support of “a certain application in writing to enter under the homestead laws of the United States, subject to entry at said land office," certain land described, is sufficient after verdict as showing that the land described was at the time public land of the United States subject to homestead entry at such land office.
(Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Perjury, $ 95.] 2. INDICTMENT_OBJECTIONS TO SUFFICIENCY_How TAKEN.
Objections to the sufficiency of an indictment cannot be raised by objecting to the introduction of any evidence thereunder.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and
Information, $ 462.] 3. PERJURY-HOMESTEAD ENTRY-FALSE OATH TO SUPPORT.
To support an indictment for subornation of perjury based on the alleged procurement of the making of a false affidavit or oath before the receiver or register of a land office in support of an application to enter land under the homestead law, it is not essential that the affidavit should
have been subscribed as well as sworn to before such officer. 4. SAME-TRIAL-EVIDENCE.
On the trial of such an indictment, the tract book kept by the register of the land office is admissible in evidence to establish the fact that the lands to which the application related were public lands subject to homestead entry at such office, and it is competent for the register as a witness to explain the meaning of abbreviations used therein.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Perjury, $8 113,
114.] 5. CRIMINAL LAW-EVIDENCE-DEPARTMENT REGULATIONS.
A general regulation promulgated by the General Land Office respecting homestead entries of public land, for the government of the officers of local land offices, pursuant to authority given by Rev. St. $ 2478 (U. S. Comp. St. 1901, p. 1586], becomes a part of the body of public laws of which the courts take judicial notice, and, where such a regulation was pertinent to the issue as to the criminal intent of a defendant charged with a criminal offense under the land laws as corroborating his testimony as to his understanding of the requirement of the law, by showing, that such understanding was in accordance with that of the Land Department until after the alleged offense, he was entitled to have such regulation placed before the jury as a matter of evidence, and its exclusion was error.
[Ed. Note.For cases in point, see Cent. Dig. vol. 14, Criminal Law, 8 706.
Judicial notice of public laws and regulations, see note to 44 C. C.
A. 4.] 6. SAME - APPEAL – REVIEW - DISCRETION OF COURT - PERMITTING LEADING
While the permitting of leading questions is a matter resting in the sound discretion of the trial court, allowing a district attorney in a criminal case to ask questions of his own witnesses, who are not unwilling or unfriendly, wbich are leading and in a form to suggest the answer desired and call for a mere conclusion of the witness, is an abuse of discretion, and is prejudicial error.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, s
3064.] 7. PERJURY-TRIAL FOR SUBORNATION-EVIDENCE.
On the trial of a defendant charged with subornation of perjury in procuring homestead entrymen to make the required oath that the entry was not made for the benefit of any other person, when in fact they had agreed to convey the land to defendant for a stipulated price as soon as they obtained title, it was error to refuse to permit defendant to testify that he made no such agreements, but that the agreements actually made, as he understood them, left the conveyance optional with the other parties or to other facts, which tended to show that his act was not willful nor corrupt, as required by the statute to constitute the crime charged.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Perjury, $ 115.] 8. SAME-INSTRUCTIONS.
Instructions, given on the trial of a defendant charged with subornation of perjury in procuring homestead entrymen to make false oaths, held erroneous and misleading, in that they authorized the jury to convict in case they found that any statement made by affiants in their affidavits was false and was intentionally sworn to, when there was evidence tending to show that some of the recitals in the affidavits respecting the intention to reside on and improve the land as affiants understood the law were not applicable to their entries, and that their act in swearing to the same was not therefore willful and corrupt, as required by Rev. St. § 2291, as amended by Act March 3, 1877, c. 122, $ 2, 19 Stat. 404 [U. S. Comp. St. 1901, p. 1391), to constitute the crime of perjury.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Perjury, $ 135.] Hook, Circuit Judge, dissenting.
In Error to the District Court of the United States for the District of North Dakota.
Charles E. Wolfe and W. S. Lauder, for plaintiff in error.
B. D. Townsend, Asst. U. S. Atty. (Patrick H. Rourke, U. S. Atty., on the brief).
Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.
PHILIPS, District Judge. The plaintiff in error (hereinafter for convenience designated the defendant) was a Union soldier who served through the Civil War, and at the time of the indictment and trial he was 67 or 68 years old. After the War he lived at Bowling Green, in the state of Ohio. In 1879 he moved to Richland county, N. D., where he acquired lands from the government under the homestead, timber culture, and pre-emption laws. In 1900 he visited Ward county, N. D., where one of his sons had located in business. There was a large amount of public land in that vicinity where Minot, the local land office, is located. In the spring of 1900 he went to Bowling Green, Ohio, to visit his wife, who had been there some months on account of sickness. While there he met a number of his former comrades of the army, and they discussed the subject of locating homesteads in said Ward county. He obtained a power of attorney from a number of these soldiers to make entries for the under the homestead laws. Being advised that such powers of attorney were not permissible for