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party shall have free access to the courts of a discharge by the Federal court of the petijustice, in order to maintain and defend tioner from the custody of the warden are their own rights, without any other condi- wholly without foundation, and the case is tions, restrictions, or taxes than such as are another of the numerous instances in which, imposed upon the natives. They shall, as said by Mr. Chief Justice Fuller, in therefore, be free to employ, in defense of Craemer v. Washington, 168 U. S. 124, 128, their rights, such advocates, solicitors, no 42 L. ed. 407, 408, 18 Sup. Ct. Rep. 1, 2, "aptaries, agents, and factors as they may judge plications for the writ have been made, and proper, in all their trials at law; and such appeals taken from refusals to grant it, citizens or agents shall have free opportun- quite destitute of meritorious grounds, and ity to be present at the decisions and sen- operating only to delay the administration tences of the tribunals in all cases which of justice.” may concern them, and likewise at the tak It is an attempt to substitute a writ of ing of all examinations and evidences which habeas corpus for a writ of error, and to remay be exhibited in the said trials;” sixth, view the proceedings in a criminal case in that the motion for a new trial which he had the state court by such collateral attack filed on May 10 not having been determined, rather than by direct proceedings in error, execution could not lawfully be done upon ---something which this court has repeated him until the decision of that motion, not- ly said ought seldom to be done. See, withstanding which he had reason to appre- among other cases, Baker v. Grice, 169 U. hend that the respondent intended to imme- S. 284, 42 L. ed. 748, 18 Sup. Ct. Rep. 323; diately, upon the determination of the ap: T'insley v. Anderson, 171 U. S. 101, 104, 43 peal to the Supreme Court of the United L. ed. 91, 96, 18 Sup. Ct. Rep. 805, and cases States, cause execution to be done upon him, cited in the opinion; Markuson v. Boucher, which execution would deprive him of his 175 U. S. 184, 44 L. ed. 124, 20 Sup. Ct. Rep. rights under the 14th Amendment and ar- 76; Minnesota v. Brundage, 180 U. S. 499, ticle 23 of the treaty; seventh, that the re- 45 L. ed. 139, 21 Sip. Ct. Rep. 455. spondent derives his authority to hold the Many of the allegations in the petition petitioner in custody solely by virtue of the are general and obscure, and it is not easy provisions of chapter 326 of the Massachu- to determine therefrom in what particular setts Statutes of 1898, and that by them no the petitioner considers the proceedings authority was given to him to retain the against him to be in conflict with the Federcustody of the petitioner after the expira- al Constitution or the treaty with Italy. tion of the week appointed by the court for Some of the matters presented involve the execution of the sentence, except through only the construction of state statutes and the lawful action of the governor in grant- should be determined by the courts of the ing a respite, that no lawful action had been state, whose determination in respect there. taken by the governor in the matter, and to is binding upon this court. It must be that therefore the petitioner was deprived borne in mind that under $ 763 of the Reof his liberty contrary to the 14th Amend vised Statutes the jurisdiction of the Federment; and, eighth, that for the same rea- al court to issue a writ of habeas corpus is son he was deprived of his liberty contrary limited to "the case of any person alleged to the 14th Amendment and the 3d article to be restrained of his liberty in violation of the treaty between the United States and of the Constitution, or of any law or treaty Italy. The 3d article of the treaty between of the United States,” and to cases arising the United States and Italy, referred to in under the laws of nations. this petition, is as follows: “The citizens of each of the high contract

With these considerations in mind we ing parties shall receive, in the states and pass to notice more particularly the matters territories of the other, the most constant set forth in the petition. It is stated that protection and security for their persons the petitioner was sentenced to be put to and property, and shall enjoy in this respect death at a given time; that he was not then the same rights and privileges *as are or put to death on account of a respite granted shall be granted to the natives, on their sub- by the governor, and that such respite was mitting themselves to the conditions im- unlawfully granted. Wherein the unlawfulposed upon the natives."

ness consisted is not stated, and whether it On the presentation of this petition to the were lawful or not is a matter dependent circuit court, that court dismissed the same on the laws of the state, and to be deterfor want of jurisdiction, without prejudice mined by its courts. The Federal Constituto an application to the courts of the state. tion neither grants nor forbids to the govRe Storti, 109 Fed. 807. A certificate of ernor of a state the right to stay the executhis fact was signed by the circuit judge, tion of a sentence. So, also, it is said that and from the order dismissing the petition under the Massachusetts statutes the party an appeal was taken to this court.

convicted has a year in which to file a moMessrs. G. Philip Wardner and W. M. tion for a new trial, and, therefore, no sen. Stockbridge for appellant.

tence can be executed on him until that Messrs. H. M. Knowlton and Arthur W. time. Whether that be so or not is also a DeGoosh for appellees.

question depending on the statutes of the

state, and to be determined by its courts. Mr. Justice Brewer delivered the opin. The state may see fit to postpone the execuion of the court:

tion of a capital sentence for a year, or proThe grounds set forth in this petition for 'vide that it shall be carried into effect more

speedily, and what the state has provided in , was in accordance with law and justice, tho the matter is for its courts to decide. judgment is affirmed, and it is further or.

It is averred that the proceedings in the dered that the mandate issue at once.
Massachusetts courts are in conflict with
the rights secured by the treaty between
Italy and the United States, but the arti-

(183 U. S. 191) cles of the treaty referred to only require WILSON BROTHERS, a Corporation, and equality of treatment and that the same Jacob Kahn, Henry Kahn, Jacob Wohl. rights and privileges be accorded to a citi. bach, Copartners under the Name of zen of Italy that are given to a citizen of Kahn Brothers & Company, and A. W. the United States under like circumstances,

Becker, Harry L. Mayer, Joseph Mayer, and there is nothing in the petition tending and Henry B. Mayer, Copartners under to show a lack of such equality of treat

the Firm Name of Becker, Mayer, & Com. ment. The petition, therefore, is plainly pany, Appts., without merit. But the principal contention of counsel

CASSIUS B. NELSON. is that the petition was dismissed by the circuit court for want of jurisdiction and a Bankruptcy-permitting creditor to obtain certificate thereof given, and that under $

preference. 5 of the act of March 3, 1891 (26 Stat, at L. 827, chap. 517), the only question that we The fallure of an insolvent debtor to alle a vol. can consider is one of jurisdiction, and the untary petition in bankruptcy at least five following cases are referred to: Horner v.

days before a sale of his property under a United štatcs, 143 U. S. 570, 36 L. ed. 266,

judgment entered against him upon an irrevo

cable power of attorney given years before 12 Sup. Ct. Rep. 522; Chappell v. United

constitutes the suffering or permitting of the States, 160 U. S. 499, 40 L. ed. 510, 16 Sup.

creditor to obtain a preference, which Ct. Rep. 397; Press Pub. Co. v. Monroe, 164 amounts to an act of bankruptcy under the U. S. 105, 41 L. ed. 367, 17 Sup. Ct. Rep. bankrupt act of July 1, 1898, chap. 541, $ 3, 40, and Huntington v. Laidley, 176 U. S. though the judgment is entered without the 668, 44 L. ed. 630, 20 Sup. Ct. Rep. 526.

knowledge or consent of the debtor and he is We do not question that rule as applied

unable to prevent its enforcement in any

other way than by Aling his petition in bank. to ordinary suits and actions, but § 761,

ruptcy. Rev. Stat., provides as to habeas corpus cases that "the court, or justice, or judge

(No. 31.) shall proceed in a summary way to determine the facts of the case by hearing the Argued March 20, 1901. Restored to testimony and arguments, and thereupon to Docket with Leave to Submit on Briefs dispose of the party as law and justice re

April 8, 1901. Submitted April 22, 1901. quire." That mandate is applicable to this

Decided December 9, 1901. court, whether it is exercising its original or appellate Proceedings habeas corpus disposed of in a

NA

ON summary way. The interests of both the Seventh Circuit desiring instructions upon

States public and the petitioner require prompt: questions arising in a bankruptcy, case ness; that if he is unlawfully restrained of brought by Wilson Brothers et al. in the his liberty it may be given to him as speed. District Court of the United States for the ily as possible; that if not, all having any, Western District of Wisconsin against thing to do with his restraint be advised Cassius B. Nelson for the purpose of having thereof, and the mind of the public be put him adjudicated a bankrupt. 'Questions an at rest, and also that if further action is to swered in the affirmative. be taken in the matter it may be taken without delay. Especially is this true when the Statement by Mr. Justice Gray: habeas corpus proceedings are had in the

The circuit court of appeals for the courts of a jurisdiction different from that seventh circuit certified to this court the folin pursuance of whose mandate he is de- lowing statement of facts and questions of tained. This matter of promptness is not law: peculiar to these cases in Federal courts, “On February 5, 1885, Cassius B. Nelson but is the general rule which obtains where executed and delivered to Sarah Johnstone ever the common law is in force. It is one his promissory note in writing for the sum of those things which give to such proceed- of $8,960, payable 'five years or before after ings their special value, and is enforced by date, with interest at the rate of 4 per cent statutory provisions, both state and Federal. per annum until paid. To this note was atThe command of the section is “to dispose tached an irrevocable power of attorney, of the party as law and justice require.” duly executed by the said Nelson under his All the freedom of equity procedure is thus hand and seal in the usual form, authorizprescribed; and substantial justice, prompt- ing any attorney of any court of record ing ly administered, is ever the rule in habeas his name to confess judgment thereon after corpus.

maturity of the*note. This note was given * As the petition presented no case entitling for so much money at the time loaned to the petitioner to a*discharge, as the grounds Nelson, and the interest on the note was paid stated therein are absolutely frivolous, and from time to time up to November 1, 1898. as the result reached in the Circuit Court Nelson was a trader, and entered into busi

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ness as such at the city of Madison, Wiscons and to procure thereon an adjudication of sin, soon after the giving of the note, and bankruptcy, or by his failure to pay and discarried on such business until his stock in charge the judgment before the sale under trade was levied upon by the sheriff under such levy, committed an act of bankruptcy, execution, as hereinafter stated. On No within the meaning of g 3a, subd. (3), of the vember 1, 1898, Nelson, as he well knew, was bankrupt act. and had long been insolvent, and thereafter “2. Whether the judgment so entered and continued to be and is now insolvent, his lia- the levy of the execution thereon was a prefbilities largely exceeding his assets. erence "suffered' or 'permitted by the said

“On November 21, 1898, Sarah Johnstone Nelson within the meaning of clause (3) of caused judgment to be duly entered in the $ 3a of the bankrupt law. circuit court of the state of Wisconsin for “3. Whether the failure of Nelson to the county of Dane against said Nelson upon vacate and discharge the preference so obthe note and warrant of attorney aforesaid tained, if it was one, at least five days be. for the sum of $8,975, damages and costs, fore the execution sale, was an act of bank. being the face of the note and $15 costs. ruptcy." Upon that judgment execution was immediately thereafter issued out of the court to Messrs. Harrison Musgrave, J. M. the sheriff of that county, who thereunder Flower, and D. K. Tenney for appellants. and by authority thereof on the same day Messrs. Wm. F. Vilas and R. M. Bash levied upon the stock and goods of Nelson, ford for appellee. and thereafter and on December 15, 1898, sold the same at public auction, and applied Mr. Justice Gray delivered the opinion of the proceeds thereof, to wit, the sum of the court: $4,400, upon and in part payment of the

On February 5, 1885, Nelson, in considjudgment so rendered. This proceeding left eration of so much*money then lent to him* the said Nelson without means to meet any by Sarah Johnstone, executed and delivered other of his obligations. The judgment was to her his promissory note for the sum of 80 entered and the levy made without the $8,960, payable in five years, with interest procurement of Nelson and without his until paid. Attached to that note was an knowledge or consent. Such judgment was irrevocable power of attorney, executed by not subject to attack by Nelson, and could Nelson, in the usual form, authorizing any not have been vacated or discharged by any attorney of a court of record in his name legal proceedings which might have been in; to confess judgment thereon after its maturstituted by him in that behalf; nor could ity. The interest on the note was paid un. the levy under the execution issued upon til November 1, 1898. At that date Nelson, such judgment have been set aside or va as he well knew, was, and long had been, cated by Nelson, except by his filing his and ever since continued to be, insolvent. voluntary petition in bankruptcy prior to On November 21, 1898, Sarah Johnstone the sale, and obtaining an adjudication of caused judgment to be duly entered in a bankruptcy thereunder, or by payment of court of Wisconsin upon the note and the the judgment.

warrant of attorney for the face of the note "On December 10, 1898, creditors of the and costs. Upon that judgment, execution said Nelson, of the requisite number and was issued to the sheriff, who on the same holding debts against him to the requisite day levied on Nelson's goods, and on Decem. amount, filed their petition against the said ber 15, 1898, sold the goods by auction, and Nelson in the district court of the United applied the proceeds thereof in part pay. States for the western district of Wisconsin, ment of the judgment. This proceeding left sitting in bankruptcy, to procure an adju- Nelson without means to meet any other of dication against him as a bankrupt. The his obligations. The judgment was entered act of bankruptcy therein alleged was in and the levy made without the procurement substance that while insolvent he suffered of Nelson and without his knowledge or and permitted the said Sarah Johnstone, consent. The judgment and levy were unone of his creditors, to obtain preference assailable in law, and could not have been upon his property, through legal proceed: vacated or discharged by any legal proceedings, by the entry of the said judgment and ings, except by his voluntary petition in the levy thereunder upon his stock of goods, bankruptcy. On December 10, 1898, a pe and failed to vacate or discharge the prefer- tition in bankruptcy was filed against Nel. ence obtained through such legal proceed. son; and the questions certified present, in ings at least five days before the sale of the various forms, the question whether Nelson property under such judgment and execu- committed an act of bankruptcy within the tion. Upon issue joined, the district court meaning of g 3, cl. 3, of the bankrupt act of ruled that the said Nelson had not, by rea- 1898. son of the premises, committed an act of In considering these questions, strict rebankruptcy, and this ruling is before us for gard must be had to the provisions of that review.

act, which, as this court has already had oco “The questions of law upon which this casion to observe, differ in important recourt desires the advice and instruction of spects from those of the earlier bankrupt the Supreme Court are:

acts. Bardes v. First Nat. Bank, 178 U. S. “1. Whether the said Cassius B. Nelson, 524, 44 L. ed. 1175, 20 Sup. Ct. Rep. 1000; by failure to file his voluntary petition in Bryan v. Bernheimer, 181 U. S. 188, 45 L bankruptcy before the sale under such levy, ed. 814, 21 Sup. Ct. Rep. 557; Wall v. Com,

861.

181 U. S. 244, 45 L. ed. 845, 21 Sup. Ct. Rep. filing of the petition by or against him, 642; Pirie v. Chicago Title & T. Co. 182 Ù. "with a view to give a preference to any S. 438, 45 L. ed. 1171, 21 Sup. Ct. Rep. 906. creditor or person having a claim against

In § 3 of the bankrupt act of July 1, 1898, him, or who is under any liability for him, chap. 541, acts of bankruptcy are defined as procures or suffers any part of his property follows: "Acts of bankruptcy by a person to be attached, sequestered, or seized on shall consist of his having (1) conveyed, execution,” or makes any payment, pledge, transferred, concealed, or removed, or per- or conveyance of any part of his property, mitted to be concealed or removed, any part the person receiving such payment, pledge, of his property with intent to hinder, delay, or conveyance, or to be benefited thereby, or defraud his creditors, or any of them; "or by such attachment,” having reasonable or (2) transferred, while insolvent, any por cause to believe that such person is insol. tion of his property to one or more of his vent and that the same is made in fraud of creditors, with intent to prefer such credit this act, the same should be void and the as. ors over his other creditors; or (3) suffered signee might recover the property. Act of or permitted, while insolvent, any creditor March 2, 1867, chap. 176, § 35, 14 Stat. at to obtain a preference through legal proceed. L. 534; Rev. Stat. § 5128. ings and not having, at least five days be The corresponding provisions of the act fore a sale or final disposition of any prop- of 1898 omit the requisite of the act of 1867, erty affected by such preference, vacated or "with a view to give a preference." discharged such preference; or (4) made a Section 60 of the act of 1898, relating to general assignment for the benefit of his preferred creditors,” begins by providing creditors; or (5) admitted in writing his in- that "a person shall be deemed to have given ability to pay his debts and his willingness a preference, if, being insolvent, he has proto be adjudged a bankrupt on that ground.” cured or suffered a judgment to be entered (30 Stat, at L. 544.)

against himself in favor of any person, or In the first and second of these an intent made a transfer of any of his property, and on the part of the bankrupt, either to hind- the effect of the enforcement of such judg. er, delay, or defraud his creditors, or to ment or transfer will be to enable any one prefer over other creditors, is necessary to of his creditors to obtain a greater percentconstitute the act of bankruptcy. But in age of his debt than any other of such creditthe third, fourth, and fifth no such intentors of the same class." is required.

Section 67, relating to "liens,” provides, The third, which is that in issue in the in subd. c, as follows: "A lien created by, case at bar, is in these words: “(3) suf- or obtained in, or pursuant to, any suit or fered or permitted, while insolvent, any proceeding at law or in equity, including creditor to obtain a preference through legal an attachment upon mesne process, or å proceedings, and not having, at least five judgment by confession, which was begun days before a sale or final disposition of any against a person within four months before property affected by such preference, va- the filing of the petition in bankruptcy by cated or discharged such preference.” or against such person, shall be dissolved by

By the corresponding provision of the the adjudication of such person to be a bankrupt act of 1867, any person who, being bankrupt, if (1) it appears that said lien bankrupt or insolvent, or in contemplation was obtained and permitted while the deof bankruptcy or insolvency, “procures or fendant was insolvent, and that its existence suffers his property to be taken on legal pro- and enforcement will work a preference, or cess, with intent to give a preference to one (2) the party or parties to be benefitedra or more of his creditors,” or with the in- thereby had reasonable cause to believe the tent, by such disposition of his property, to defendant *was insolvent and in contempla. defeat or delay the operation of this act," tion of bankruptcy, or (3) that such lien was deemed to have committed an act of was sought and permitted in fraud of the bankruptcy. Act of March 2, 1867, chap: provisions of this act." 176, § 39, 14 Stat, at L. 536; Rev. Stat. The same section provides, in subd. f, 5021.

“that all levies, judgments, attachments, or The act of 1898 differs from that of 1867 other liens obtained through legal proceedin wholly omitting the clauses, "with intentings against a person who is insolvent, at to give a preference to one or more of his any time within four months prior to the creditors” or “to defeat or delay the opera- filing of a petition in bankruptcy against tion of this act;” and in substituting for the him, shall be deemed null and void, in case words "procures or suffers his property to he is adjudged a bankrupt.” This provision be taken on legal process," the words “suf- evidently includes voluntary, as well as infered or permitted, while insolvent, any voluntary, bankrupts; for the 1st clause of creditor to obtain a preference through the 1st section of the act, defining the mean. legal proceedings," and not having, five days ing of words and phrases used in the act, debefore a sale of the property affected, clares that “a person against whom a pe"vacated or discharged such preference." tition has been filed' shall include a person

* There is a similar difference in the two who has filed a voluntary petition.” statutes in regard to the preferences de Taking together all the provisions of the clared to be avoided.

act of 1898 on this subject, and contrasting The act of 1867 enacted that if any per- them with the provisions of the act of 1867, son, being insolvent, or in contemplation of there can be no doubt of their meaning. insolvency, within four months before the The 3d clause of $ 3, omitting the word

961.

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"procure," and the phrase "intent to give a, the bankrupt creating a "security," which preference," of the former statute, makes it that bankrupt act in express terms declared an act of bankruptcy if the debtor has "suf. void only if made in contemplation of bankfered or permitted, while insolvent, any ruptcy and for the purpose of giving a pref: creditor to obtain a preference through legal erence or priority over general creditors. proceedings," and has not "vacated or dis The careful change in the language of all charged such preference" five days before a the provisions of the bankrupt act of 1898 sale of the property. By $ 60 he is "deemed from those of the former bankrupt acts upon to have given a preference" if, being insol- the subject must have been intended by vent, he has "suffered a judgment to be en- Congress to prevent a debtor from giving a tered against himself in favor of any person, creditor an irrevocable warrant of attorney

and the effect of the enforcement of which would enable him, at any time dur. such judgment ... will be to enable ing the insolvency of the debtor, and within any one of his creditors to obtain a greater four months before a petition in bankruptcy, percentage of his debt" than other creditors. to obtain a judgment and levy the execution By $ 67, subd. c, a lien obtained in any suit, on all the property of the bankrupt, to the "including an attachment upon mesne pro- exclusion of his other creditors. cess, or a judgment by confession,” begun The answer to the second and third ques. within four months before the filing of the tions certified must be that the judgment so petition in bankruptcy, is dissolved by the entered and the levy of the execution thereadjudication in bankruptcy, not only if on were a preference "suffered or permitted" "such lien was sought and permitted in by Nelson, within the meaning of clause 3 fraud of the provisions of this act,” but also of $ 3 of the bankrupt act; and that the if "its existence and enforcement will work failure of Nelson to vacate and discharge, at & preference." And by subd. f of the same least five days before the sale on execution, section "all levies, judgments, attachments, the preference so obtained, was an act of or other liens obtained through legal pro- bankruptcy; and it becomes unnecessary to ceedings against a person who is insolvent," answer the first question. within the four months,*shall be deemed null Second and third questions answered in and void in case he is adjudged a bankrupt. the affirmative.

The act of 1898 makes the result obtained by the creditor, and not the specific intent

Mr. Justice Shiras dissenting: of the debtor, the essential fact.

On February 5, 1885, Cassius B. Nelson In the case at bar, the warrant of attor. made and delivered to Sarah Johnstone his ney to confess judgment was indeed given promissory note for the sum of $8,960, paya. by the debtor nearly thirteen years before. ble in five years, with interest at the rate of But being irrevocable and continuing, in 4 cent per annum until paid. To this note force, the debtor thereby, without any fur- was attached an irrevocable power of attor. ther act of his, “suffered or permitted”, a ney, duly executed by said Nelson under his judgment to be entered against him, with hand and seal in the usual form, authoriz. in four months before the filing of the per ing any attorney of any court of record in tition in bankruptcy, the effect of the en- his name to confess judgment thereon after forcement of which judgment would be to maturity of the note. This note was given enable the creditor to whom it was given for so much money at the time loaned to Nel. to obtain a greater percentage of his debt son. The interest on the note was paid from than other creditors; and the lien obtained time to time up to the 1st day of November, by which, in a proceeding begun within the 1898. four months, would be dissolved by the ad.

On November 21, 1898, Sarah Johnstone judication in bankruptcy, because “its ex. caused judgment to be duly entered in the istence and enforcement will work a prefer- circuit court of the county of Dane, state of ence.” And the debtor did not, within five Wisconsin, against said Nelson upon the days before the sale of the property on exe note and warrant of attorney aforesaid for cution, vacate or discharge such preference, the sum of $8,975. Upon that judgment, or file a petition in bankruptcy. By failing execution was immediately issued out of the to do so, he confessed that he was hopelessly court to the sheriff of that county, who insolvent, and consented to the preference levied upon the stock and goods of Nelson, that he failed to vacate.

and on December 15, 1898, sold the same at The cases on which the appellee relies, of public auction, and applied the proceeds Wilson v. City Bank, 17 Wall. 473, 21 L. thereof, to wit, the sum of $4,400, upon and ed. 723; Clark v. Iselin, 21 Wall. 360, 22 L. in part payment of the judgment so rend. ed. 568; and Tenth Nat. Bank v. Warren, ered. 96 U. S. 539, 24 L. ed. 640, have no applica- * It is admitted that such a judgment note* tion, because they were decided under the was, at the time it was made and delivered act of 1867, which expressly required the under the law of the state of Wisconsin, a debtor to have acted with intent to give a legal and usual form of security for money preference.

loaned. McCaul v. Thayer, 70 Wis. 138, 35 The case of Buckingham v. McLean, 13 N. W. 353; Second Ward Sav. Bank v. How. 150, 14 L. ed. 90, arose under the still Schranck, 97 Wis. 250, 39 L. R. A. 569, 73 earlier bankrupt act of August 19, 1841, N. W. 31, 37. chap. 9, § 2 (5 Stat. at L. 442). And the It is also admitted that the judgment was point there decided was that a power of at- executed and the levy made without the protorney to confess a judgment was an act of 'curement of Nelson and without his knowl.

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