903 WILSON BROS. v. NELSON. 183 U. S. 191-216 agreement made at time money was advanced; Folger v. Putnam, 194 Fed. 798, 114 C. C. A. 513, insolvent by failing to discharge attachment five days before expiration of four months expires from date of attachment commits act of bankruptcy; Tilt v. Citizens' Trust Co., 191 Fed. 449, holding bank taking large part of assets of lumber company within four months of bankruptcy of such company had reason to believe lumber company was insolvent and intended preference, and transfer of assets was voidable at suit of bankrupt's trustee; In re Crafts-Riordan Shoe Co., 185 Fed. 935, where prior to bankruptcy creditor obtains lien by attachment, and property is sold under order of court, not to satisfy creditor's claim, but to save expense in keeping property, failure of bankrupt to discharge attachment at least five days before sale is not preference, and did not constitute act of bankruptcy; In re Smith, 176 Fed. 430, mortgage executed by insolvent to creditor to secure debt after verdict in action at law by another creditor, but before entry of judgment, was preference to mortgagee over judgment creditor within Bankruptcy Act; In re Tupper, 163 Fed. 772, insolvent debtor permitting creditor to docket judgment against her in county in which she had equity in real estate, and allowing judgment to remain lien until one day before expiration of four months, committed act of bankruptcy; In re Pollmann, 156 Fed. 222, lien obtained by foreign creditor, unopposed by debtor, within four months of bankruptcy, while bankrupt was solvent, on property of debtor in foreign country by attachment is one permitted in fraud of provisions of bankruptcy act, and creditor is not entitled to prove remainder of claim without surrendering amount received; In re Great Western Mfg. Co., 152 Fed. 128, 81 C. C. A. 341, mortgage of property by insolvent debtor within four months of bankruptcy, which otherwise constitutes voidable preference, is not deprived of that character by fact of its execution pursuant to contract made more than four months before bankruptcy; In re Nusbaum, 152 Fed. 838, failure of insolvent to discharge levy five days before sale is act of bankruptcy, and independent acts of bankruptcy are committed on each succeeding day including day of sale; Wilson v. Mitchell-Woodbury Co., 214 Mass. 517, 102 N. E. 121, shipment of goods by insolvent corporation to creditor two months before bankruptcy in part settlement of indebtedness where creditor believed debtor was insolvent and debtor knew it was giving creditor advantage was preference, whether intended as such or not; McKahn & Bro. v. Bledsoe, 22 Okl. 668, 132 Am. St. Rep. 665, 98 Pac. 922, surety on note of bankrupt receiving preferential payments on account with bankrupt within four months, having paid note, cannot prove claim without surrendering preference. Distinguished in Debus v. Yates, 193 Fed. 432, 435, 437, transfer of lot for fifteen hundred dollars within four months of bankruptcy under prior contract of sale by man whose business aggregated three hundred thousand dollars in year, and who knew of insolvency but expected to pay out until ten days before filing petition, was not preference. Intent to give preference is not inferable from mere inaction (dissenting opinion). Distinguished in White v. Bradley Timber Co., 119 Fed. 990, holding failure of insolvent corporation to cause preference to be vacated by showing claim illegal or by paying same is act of bankruptcy. What adjudications of State court reviewable in Federal Supreme Miscellaneous. Cited in Holt v. Henley, 193 Fed. 1021, 113 C. C. A. 87, to point that an act of Congress may to some extent lawfully affect rights which had their inception before its passage; Tatman v. Humphrey, 184 Mass. 362, 100 Am. St. Rep. 562, 63 L. R. A. 738, 68 N. E. 845, unrecorded chattel mortgage given as preference, transfer dates from acquisition of possession under it. 183 U. S. 216–237, 46 L. Ed. 157, 22 Sup. Ct. 111, NATIONAL FOUNDRY & PIPE WORKS v. ONTARIO WATER SUPPLY CO. Uncertainty in decree may be determined by pleadings. Approved in St. Louis etc. Ry. Co. v. Bellamy, 211 Fed. 178, in suit to enjoin enforcement of rate statute, upon reversal by Supreme Court of decree granting injunction court may retain jurisdiction after dismissal for purpose of enforcing claims of shippers and passengers under injunction bonds, and enjoin such claimants from suing in State courts; Brown v. Fletcher, 182 Fed. 981, 105 C. C. A. 425, decree dismissing suit for want of prosecution, although other grounds were urged and were discussed in opinion of court, is not bar to second suit; Millie Iron Mining Co. v. McKinney, 172 Fed. 46, 96 C. C. A. 156, opinion of Circuit Court made part of record by inclusion in bill of exceptions is admissible in evidence in another case to determine what questions were concluded by judgment; Stratton v. Essex County Park Commission, 145 Fed. 437, decree dismissing bill without leave to institute other suit may be shown by extrinsic evidence, not to have been on merit when pleaded as bar to subsequent suit; United States v. Norfolk & W. Ry. Co., 114 Fed. 686, holding where final judgment has been appealed from and pendency of appeal is pleaded to second mandamus proceeding, opinion and pleadings of original case may be consulted; Gainer v. Jones, 176 Ala. 418, 58 South. 290, decree in suit for specific performance, in so far as it instructs register as to manner of stating account, is interlocutory; State v. Seaboard Air Line Ry. Co., 56 Fla. 681, 47 South. 990, failure of order of commission, imposing penalty on railroad for violation of rule relating to intrastate freight, to show point of destination, is cured by declaration clearly designating such point; dissenting opinion in Wood v. Wood, 134 Ala. 566, 33 South. 349, majority holding decree dismissing foreclosure suit without ground therefor appearing is res adjudicata as to question of indebtedness. 905 CAPITAL CITY DAIRY CO. v. OHIO. 183 U. S. 238-249 Judgment in creditors' suit establishing validity of title is conclusive as to ground of invalidity not presented. Approved in Radford v. Myers, 231 U. S. 730, 58 L. Ed. 456, 34 Sup. Ct. 249, where father assigns one-half interest to claim on contract to his attorney and other half to his son, and son assigns his interest to attorney, order of court in action by action by attorney on claim in which son intervened, upholding assignment of son, is not res judicata as to father's right to one-half assigned by son on theory that attorney held same under trust agreement to pay over balance after discharging indebtedness; Yates v. Utica Bank, 206 U. S. 184, 51 L. Ed. 1016, 27 Sup. Ct. 646, dismissal of action by depositor against directors to recover damages for violation of national bank on theory that right to recover was asset of bank enforceable only by receiver, is not res judicata of right to recover for individual loss as distinct from right of bank. Distinguished in Union Cent. Life Ins. Co. v. Drake, 214 Fed. 547, 131 C. C. A. 82, person subrogated to lien of first mortgagee on tract of land and having second and third mortgages is not estopped by dismissal of suit on third lien, to prosecute other liens to judgment. Decree in suit assailing foreclosure bars redemption suit. Approved in Rew v. Independent School Dist., 125 Iowa, 31, 106 Am. St. Rep. 282, 98 N. W. 803, in action to recover interest on school bonds in State court, decision of Federal court in action between same parties involving same subject is res adjudicata. Right asserted by claimant not involving Federal question will not be reviewed by Supreme Court. Approved in Long v. Shepard, 241 U. S. 652, 60 L. Ed. 1222, 36 Sup. Ct. 722, following rule; Radford v. Myers, 231 U. S. 730, 58 L. Ed. 457, 34 Sup. Ct. 249, whether due effect was given by State court to judgment rendered in Federal Circuit Court presents Federal question. Questions considered by Federal Supreme Court in reviewing judg- What adjudications of State courts reviewable in Federal Supreme 183 U. S. 238-249, 46 L. Ed. 171, 22 Sup. Ct. 120, CAPITAL CITY DAIRY CO. v. OHIO. Statutes relating to sale of oleomargarine are not in conflict with commerce clause of Federal Constitution. Approved in Price v. Illinois, 238 U. S. 452, 59 L. Ed. 1405, 35 Sup. Ct. 892, upholding pure food law of Illinois of 1907 prohibiting sale of food preservatives containing boric acid; Hammond Packing Co. v. Montana, 233 U. S. 333, 58 L. Ed. 987, 34 Sup. Ct. 596, statute of Montana imposing license tax on sale of oleomargarine without taxing sale of butter, is valid; Simpson v. Shepard, 230 U. S. 411, Ann. Cas. 1916A, 18, 48 L. R. A. (N. S.) 1151, 33 Sup. Ct. 729, in absence of congressional action, State may regulate intrastate rates of interstate carriers, although relations between interstate and intrastate rates are hereby disturbed; McCrary v. United States, 195 U. S. 62, 49 L. Ed. 98, 24 Sup. Ct. 769, oleomargarine colored by artificially colored butter is subject to tax under act of August 2, 1886, taxing artificially colored oleomargarine; Logan & Bryan v. Postal Tel. etc. Co., 157 Fed. 583, upholding statute of Arkansas of 1907 prohibiting contracts for sale and future delivery of stocks on margins; Campbell v. Thomasville, 6 Ga. App. 230, 231, 64 S. E. 823, ordinance of Waycross not merely regulating but prohibiting sale of "near beer" is void, but invalid part of Thomasville ordinance is separable; People v. Freeman, 242 Ill. 379, 17 Ann. Cas. 1098, 90 N. E. 368, upholding statute of 1908 permitting use of harmless coloring matter in butter, but not in imitation butter or oleomargarine; State v. Armour Packing Co., 124 Iowa, 329, 100 N. W. 61, prohibiting under Code, §§ 2516, 2517, 2518, manufacture or sale of oleomargarine; People v. Hinshaw, 135 Mich. 381, 97 N. W. 759, prohibiting coloring of vanilla extract by means of coal-tar dye under Pub. Acts 1895, No. 193; People v. Rotter, 131 Mich. 254, 91 N. W. 168, upholding Pub. Acts 1901, No. 22, prohibiting manufacture or sale of colored oleomargarine; St. Louis v. Polinsky, 190 Mo. 523, 2 L. R. A. (N. S.) 152, 89 S. W. 626, upholding right of city to pass ordinance forbidding sale of colored milk or cream; Board of Health v. Schwarz Bros. Co., 84 N. J. L. 502, 87 Atl. 148, statute requiring slaughter-houses to be licensed is not void as interference with foreign commerce, where meat is intended only for export; People v. Von Kampen, 210 N. Y. 385, 104 N. E. 943, upholding statute forbidding manufacturers of imitation butter to add coloring matter to make it resemble butter, and prohibiting person selling substitute butter from selling, giving away or delivering coloring matter therewith; Colvill v. Fox, 51 Mont. 78, 149 Pac. 498, upholding statutes authorizing State inspector of fruit pests to destroy infected fruit; State v. Dannenberg, 151 N. C. 723, 26 L. R. A. (N. S.) 890, 66 S. E. 304, upholding city ordinance imposing license tax on sale of "near beer"; Motlow v. State, 125 Tenn. 582, 145 S. W. 186, upholding act of 1909 prohibiting manufacture or sale of intoxicating liquor, except alcohol of 188 proof for chemical, medical and other specified purposes. Oleomargarine and the right of the States to regulate the manufacture and sale of. Note, 85 Am. St. Rep. 401, 403. Constitutionality of State statutes regulating manufacture or sale of oleomargarine. Note, 2 Ann. Cas. 451. Constitutionality of discriminations in food laws. Note, 34 L. R. A. (N. S.) 651. Fifth amendment is limitation on Federal government, not on States. Approved in Sinclair v. Gunzenhauser, 179 Ind. 110, 98 N. E. 48, holding in action to quiet title to section of land that judgment in foreclosure suit did not deprive defendant of property without due process, on 907 GREENE v. HENKEL. 183 U. S. 249-262 theory that predecessors in interest were not made parties to such foreclosure suit; Barrett v. State, 175 Ind. 116, 93 N. E. 544, upholding law of 1907 regulating width of entries in bituminous mines, and exempting block coal mines from its provisions; Inland Steel Co. v. Yedinak, 172 Ind. 433, 139 Am. St. Rep. 389, 87 N. E. 234, upholding laws regulating employment of minors in manufacturing establishments; Pittsburgh etc. Ry. Co. v. Lightheiser, 168 Ind. 462, 78 N. E. 1041, upholding Employers' Liability Act of 1893 making railroad or other corporation operating within State liable for injuries to employees resulting from negligence of other employees; Spurgeon v. Rhodes, 167 Ind. 11, 78 N. E. 231, upholding statute of 1901 authorizing State board of medical examiners to revoke license of physician guilty of felony or gross immorality, and providing for hearing of charges by board; State v. Buente, 256 Mo. 237, Ann. Cas. 1915D, 879, 165 S. W. 342, upholding act of 1909, permitting conviction of lower offense in higher court where defendant had been bound over for higher offense after dismissal of lesser offense, in lower court. Supreme Court, on error to State court, will not review Federal question not presented in State court. Approved in Huber v. Jennings etc. Syndicate, 201 U. S. 641, 50 L. Ed. 901, 26 Sup. Ct. 759, following rule; Chesapeake etc. Ry. Co. v. McDonald, 214 U. S. 193, 53 L. Ed. 964, 29 Sup. Ct. 546, Federal Supreme Court has no jurisdiction to review decision of State court that appeal from order refusing to remove cause to Federal court, not taken within statutory time, does not bring up order for review; Hulbert v. Chicago, 202 U. S. 281, 50 L. Ed. 1029, 26 Sup. Ct. 617, cannot base writ of error to Supreme Court on mere claim of unconstitutionality of statute unsupported by argument or authority; Harding v. Illinois, 196 U. S. 86, 49 L. Ed. 397, 25 Sup. Ct. 176, Federal question presumably not settled by State court not passed on because of failure to submit authorities. What adjudications of State courts reviewable in Federal Supreme Time and manner of raising and deciding questions in State court 183 U. S. 249–262, 46 L. Ed. 177, 22 Sup. Ct. 218, GREENE v. HENKEL. Court commissioner may determine existence of probable cause. Approved in United States v. Greene, 146 Fed. 796, 797, 799, evidence of witness taken before court commissioner in removal proceeding where accused present is admissible in subsequent trial. It must be presumed that evidence before commissioner, approved by judge, established probable cause. Approved in United States v. Yarborough, 122 Fed. 299, holding commissioner holding preliminary examination for removal to another district should transmit to judge a full statement of proceedings. |