J. M. ROBINSON & CO., Plffs. in Err., v.

JOHN C. BELT et al.

(See S. C. Reporter’s ed. 41-50.)

Courts — state laws as rules of decision — assignments for the benefit of creditors — release as condition of preference — ap¬ peal — objection not raised below.

fit of creditors which requires a release by

Note. — As to state laws as rules of decision in Federal courts — see notes to Wilson v. Perrin, 11 C. C. A. 71 ; Hill v. Hite, 29 C. C. A. 553 ; and Griffin v. Overman Wheel Co. 9 C. C. A.

As to when United States Supreme Court, follows decisions of state courts — see notes to Forepaugh v. Delaware, L. & W. R. Co. (Pa.) 5 L. R. A. 508 ; United States efc rel. Butz v. Muscatine, 19 L. ed. U. S. 490 ; and Elmendorf v. Taylor, 6 L. ed. U. S. 290.

On the necessity of raising objections in the lower courts — see notes to O'Neill v. New York, O. & W. R. Co. (N. Y.) 5 L. R. A. 591; State v. Hope (Mo.) 8 L. R. A. 608; and Phelps v. Mayer, 14 L. ed. U. S. 643.

187 U. S. U. S., Book 47.

creditors as a condition of preference is de¬ terminable by the state law as interpreted by its highest courts.

to respect the decisions of the supreme court of Arkansas interpreting laws of that state which were adopted and extended over the Indian territory by the act of Congress of May 2, 1890.

although requiring a release by creditors as a condition of preference, must be deemed valid in the Indian territory, in view of the decisions of the courts of Arkansas uphold¬ ing such assignments under the statutes of that state concerning assignments for the benefit of creditors and the statute of frauds, which were adopted and extended over the Indian territory by the act of Congress of May 2, 1890 (26 Stat. at L. 94, § 31).

ment for the benefit of creditors for want of acceptance, and to the form of the judgment, cannot be raised for the first time in the Supreme Court of the United States.

[No. 46.]

Argued May 2, 1902. Decided October 27,

IN ERROR to the United States Circuit Court of Appeals for the Eighth Circuit to review a judgment affirming a judgment of the Court of Appeals of the Indian Ter¬ ritory which had affirmed the judgment of the United States Court for the Northern District of that Territory sustaining an in¬ terplea by an assignee for the benefit of creditors to recover property attached by a creditor of his assignor. Affirmed.

See same case below, 40 C. C. A. 664, 100 Fed. 718.

Statement by Mr. Justice Brown:

This was a writ of error to a judgment of the circuit court of appeals for the eighth circuit affirming a judgment of the court of appeals of the Indian territory, which lat¬ ter court affirmed the judgment of the United States court for the northern dis¬ trict of such territory, sustaining an inter¬ plea by one King to recover the value of certain property attached and sold by Rob¬ inson & Co., which had been conveyed to King as assignee by a deed of assignment made by his codefendant Belt.

The facts of the case are substantially as follows: One John C. Belt, a resident of Arkansas, who was engaged in business in the Indian territory, on December 29,

1891, made an assignment for the benefit of his creditors to King, as assignee.

On the following day “J. M. Robinson &

Co.,” plaintiffs in error, brought suit against Belt in the United States court in that territory, sued out an attachment, and levied upon the property assigned. Belt failed to plead, and judgment by default was taken against him, and the attachment sustained.

On May 31, 1892, defendant in error King filed an interplea, “setting out his deed

of assignment, and claiming the property as his bv virtue of such deed. After so doing

5 ¥ 65

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Supreme Court of the United States.

Oct. Term,

he entered into a stipulation with other at¬ taching creditors, of whom there were a large number, whereby it was agreed that this interplea should be considered as filed in every suit, and, virtually, that the result of the interpleader proceedings in the suit of ,J. M. Robinson & Co. should control all other suits. The property was, after its attachment, sold under order of court, pur¬ suant to statutes governing such proceed¬ ings, and at such sale realized the sum of $7,900.

A demurrer to the interplea was filed and sustained by the court, from which order King sued out a writ of error from the United States court of appeals. He gave no supersedeas bond, however, and the fund was, by order of the court, distributed pro rata to the attaching creditors according to their priorities. The court of appeals re¬ versed the judgment on the demurrer, and on September 19, 1895, Robinson & Co. filed their answer to the interplea, denying that King was owner by virtue of the deed of as¬ signment, and alleged the same to be fraud¬ ulent and void; denied that King filed a complete inventory; denied that certain personal property described in the deed of assignment was the property of the wife of Belt, and admitted that the property de¬ scribed in the deed was seized under the at¬ tachment.

The trial on the interplea was had before a jury, and resulted in a verdict in favor of the interpleader, which found the at¬ tached property to be the property of King, as assignee. A judgment was thereupon entered in his favor, which was subsequent¬ ly affirmed, first, by the court of appeals for the Indian territory, and then by the circuit court of appeals for the eighth cir¬ cuit. Whereupon a writ of error was sued out by Robinson & Co. from this court.

Mr. David Goldsmith argued the cause and filed a brief for plaintiffs in error:

Courts have vigorously assailed the in¬ solvent debtor’s right to exact a release in an assignment for the benefit of his credit¬ ors, and have declared assignments of that character fraudulent and void.

WaJceman v. Grover, 4 Paige, 23, 11 Wend. 187, 25 Am. Dec. 624 ; Hubbard v. Mc- Naughton, 43 Mich. 220, 38 Am. Rep. 176, 5 N. W. 293; Miller v. Conklin, 17 Ga. 430, 63 Am. Dec. 248 ; Ingraham v. Wheeler, 6 Conn. 277 ; Duggan v. Bliss, 4 Colo. 226, 34 Am. Rep. 80 ; Brown v. Knox, 6 Mo. 302 ; Conkling v. Carson, 11 Ill. 503; Howell v. Dixon, 21 Fla. 413; Sperry v. Galloher, 77 Iowa, 107, 41 N. W. 586; Atkinson v. Jordan, 5 Ohio, 293, 24 Am. Dec. 281 ; Wilde v. Rawlings, 1 Head, 34; Ware v. Wanless, 2 Wyo. 144; Hafner v. Irwin, 23 N. C. (1 Ired. L.) 490.

Courts which, in deference to prevailing practices and conditions, had sustained as¬ signments of this character, afterwards rec¬ ognized the fallacy of their ruling, and re¬ gretted their inability, under the doctrine of stare decisis, to change it.

Ashurst v. Man-tin, 9 Port. (Ala.) 572; 06

Livingston v. Bell, 3 Watts, 201 ; Phippen v. Durham, 8 Gratt. 464; Bump, Fraud. Conv. 4th ed. § 420, p. 437.

If courts did not undo the ruling which was opposed to their better judgment, they nevertheless limited and qualified it by hold¬ ing that the condition for a release was per¬ missible only in a general, and not in a partial, assignment.

Thomas v. Jenks, 5 Rawle, 221; Green v. Trieber, 3 Md. 11; Gadsden v. Carson, 9 Rich. Eq. 252, 70 Am. Dec. 207; Gordon v. Cannon, 18 Gr^tt. 387 ; Rankin v. Lodor, 21 Ala. 380; Nightingale v. Harris, 6 R. 1=

And some cases even went to the extent of holding that the conditional assignment was invalid, unless it appeared upon its face to be a conveyance of all the property of the assignor.

Barnitz v. Rice, 14 Md. 24, 74 Am. Dec.

The legislatures in Maine' New Hamp¬ shire, Pennsylvania, Vermont, and Alabama undid what the courts had not the courage to undo.

Pearson v. Crosby, 23 Me. 261 ; Hurd v. Silsby, 10 N. H. 108, 34 Am. Dee. 142; Perry Ins. & T. Co. v. Foster, 58 Ala. 502, 29 Am. Rep. 779; Burrill, Assignm. Cth ed. §§ 159, 161.

The provision is obnoxious because it en¬ ables the debtor “ to operate upon the fears of his creditors and coerce them into his own terms.”

Grover v. Wakeman, 11 Wend. 200, 25 Am. Dec. 624.

No insolvent debtor has the right to pre¬ scribe terms to his creditors, to say to these, “ Take up these crumbs on my own terms, or have nothing.”

Ingraham v. Wheeler, 6 Conn. 283.

The requirement is repugnant to our moral sense, as well as to legal principle and authority.

Bump, Fraud. Conv. 4tli ed. § 415, p. 434.

The decisions of the supreme' court of Ar¬ kansas do not in any way depend upon any statute local or peculiar to Arkansas.

The utmost that can be claimed is that the invalidity of the requirement for a re¬ lease in an assignment for the benefit of creditors rests upon the statute of fraudu¬ lent conveyances known as 13 Eliz. chap. 5 (Burrill, Assignm. 6th ed. §§ 11, 295; Bump, Fraud. Conv. 4th ed. § 12; 14 Am. & Eng. Enc. Law, 2d ed. p. 222) ; and that this statute, together with the common law, became operative in the Indian territory through the adoption of chapter 20, Mans¬ field’s Digest of the Statutes of Arkansas, by Congress in the act of May 2, 1890.

The adoption of a statute does not carry with it the construction received in the state from which it is taken, if such con¬ struction is at variance with that which the same statute has, prior to its adoption, re¬ ceived in other jurisdictions.

Coulam v. Doull, 133 U. S. 216, 33 L. ed. 596, 10 Sup. Ct. Rep. 253; Whitney v. Fox, 166 U. S. 637, 41 L. ed. 1145, 17 ^ Sup. Ct. Rep. 713.

187 TJ. S.

Robinson & Co. v. Belt.

44-46

The statute of 13 Eliz. is merely declar¬ atory of the common law, which in itself denounces and avoids conveyances made with the intent to defraud, hinder, or delay cred¬ itors.

Wait, Fraud. Conv. § 16, p. 36; Burrill, Assignm. 6th ed. § 11, p. 20; Bump, Fraud. Conv. 4th ed. § 12; 2 Bigelow, Fr. p. 24; 14 Am. & Eng. Enc. Law, 2d ed. pp. 222,

The Federal courts are free to exercise and follow their own judgment in the ad¬ ministration of the common law, even when exercising their functions in the states, and when their judgment leads them to conclu¬ sions in conflict with the rulings of the courts of the state in which they are sitting.

Chicago v. Robbins, 2 Black, 418, 17 L. ed. 298 ; Myrick v. Michigan C. R. Co. 107 U. S. 102, 27 L. ed. 325, 1 Sup. Ot. Rep. 425 : Baltimore & 0. R. Co. v. Baugh, 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep.

No counsel for defendants in error.

Mr. Justice Brown delivered the opin¬ ion of the court:

ing creditors of John C. Belt, and one King, his voluntary assignee for the benefit of creditors.

The record is in an unsatisfactory condi¬ tion. It is impossible to tell whether the plaintiffs are a corporation or a partner¬ ship; and, if the latter, who constitute the firm, or against what individuals the judg¬ ment of the court was rendered. Although the only right of the plaintiffs to contest the assignment of Belt to King arises from the levy of an attachment upon the assigned property, neither the writ of attachment nor the return of the marshal of the levy thereunder appears in the record or testi¬ mony. Nor does the record contain a copy of the complaint, in which these proceed¬ ings were probably averred. The only pleadings before us are the interplea of King, filed in the action (which appears to have been brought against Belt alone), set¬ ting up the assignment, and the answer of the plaintiffs thereto, denying the owner¬ ship of King and averring the fraudulent character of the assignment. But as the interplea of King alleges that on December 31, 1891, and just after he had completed an inventory of the property so assigned, plaintiffs caused a writ of attachment to be levied upon a portion of the property, we may treat this as a sufficient admission of plaintiffs’ title to justify us in passing upon the question of the validity of the assign¬ ment, upon which the case largely depends.

plaintiffs chiefly upon the ground that it contains a provision that the preferred creditors shall accept their dividends “in full satisfaction and discharge of their re¬ spective claims, . . . and execute and

deliver to said John C. Belt a legal release therefor.” This provision has been the sub¬ ject of discussion in England and in most of 187 U. S.

the states, and in a large number of cases has been held to avoid the assignment, upon the ground that the debtor has no right to compel his creditors to accept his terms or lose their preference. In England a clause of a somewhat similar nature was held to be void under the statute of Elizabeth as an attempt to hinder, delay, or defeat credit¬ ors (Spencer v. Slater, L. R. 4 Q. B. Div.

13), though the applicability of that case to this particular provision admits of some doubt.

*The fact that it enables the debtor to ex- [45- tort a settlement by playing upon the fears or apprehensions of his creditors is thought by the courts of many of the states to be sufficient to justify them in setting aside the assignment; and, where such pro¬ vision has been sustained, it has usually been in deference to authority, rather than upon conviction of its propriety or wisdom.

The question was discussed at considerable length by Mr. Justice Story in Halsey v. Fairbanks, 4 Mason, 206, 227, Fed. Cas. No. 5,964, and the validity of the clause sus¬ tained, largely in deference to the case of King v. Watson, 3 Price, 6, where, as he states, the very exception was taken by counsel, and the assignment held good by the court of exchequer. King v. Watson, however, has but a remote bearing, and seems to have been pro ta-nto overruled by the case of Spencer v. Slater, above cited.

Mr. Justice Story finally remarks that if the question were entirely new, and many estates had not passed upon the faith of such assignments, the strong inclination of his mind would be against their validity.

“As it is,” said he, “I yield with reluctance to what seems the tone of authority in fa¬ vor of them.” Somewhat similar doubt is expressed by Mr. Chief Justice Taney in White v. Winn, a memorandum of which is found in 8 Gill, 499. The question was also incidentally considered by this court in Se¬ curity Trust Co. v. Dodd, 173 U. S. 624,

633, 43 L. ed. 835, 839, 19 Sup. Ct. Rep 545, but the case went off' upon another point.

This court has never directly passed up¬ on the validity of this provision, but, wher¬ ever it has been called in question, it has been treated as determinable by the local law of the state from which the question arose. Thus, in Brashear v. West, 7 Pet.

608, 8 L. ed. 801, the clause was upheld solely upon the ground that the courts of Pennsylvania had sustained its validity.

The assignment in that case was in trust to pay and discharge the debts due from the assignor, first, to certain preferred cred¬ itors, and afterwards to creditors generally, provided that no creditor should be entitled to receive a dividend, who should not, with¬ in ninety days, execute a full and complete release of all claims and demands upon the assignor. Mr. Chief Justice Marshall, after summarizing the arguments for and against the validity of this provision, did not com¬ mit the court to the expression of *an opin-[46J ion, but held that “the construction which the courts of that state [Pennsylvania] have

67

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Supreme Court of the United States.

Oct. Term,

put on the Pennsylvania statute of frauds must be received in the courts of the United States,” and decided the case upon the au¬ thority of Lippincott v. Barker, 2 Binn. 174, 4 Am. Dec. 433, in which this question arose, and was decided, after an elaborate argument, in favor of the deed. He also re¬ marked that the question had been decided the same way in Pearpoint v. Graham, 4 Wash. C. C. 232, Fed. Cas. No. 10,877. In that case Mr. Justice Washington thought that an assignment in trust for the benefit of such creditors as should release their debts was founded upon a good and valua¬ ble consideration, and was valid, the only inquiry being whether it was bona fide. The assignment was supported in favor of such of the creditors as executed a release of their demands within sixty days after the date of the instrument, that being the time limit provided for such acceptance. Neither in Lippmcott v. Barker nor in Pearpoint v. Graham were there any pre¬ ferred creditors, but the assignments were in trust for all the creditors who should, within sixty days in one case, and four months in the other, execute a release of their demands. In several subsequent cases the rule laid down in Brashear v. West has been adopted, and the principle fully estab¬ lished that the construction and effect of a state statute regulating assignments for the benefit of creditors is one upon which the decisions of the highest courts of the state are a controlling authority in the Federal courts. They are treated as estab¬ lishing a rule of property applicable with¬ in their several jurisdictions. Sumner v. Hicks, 2 Black, 532, 17 L. ed. 355; Jaffray v. McGchee, 107 U. S. 361, 27 L. ed. 495, 2 Sup. Ct. Rep. 367; Peters v. Bain, 133 U. S. 670, 686, 33 L. ed. 696, 702, 10 Sup. Ct. Rep. 354; Randolph v. Quidnick Go. 135 U. S. 457, sub nom. Jencks v. Quidnick Go. 34 L. ed. 200, 10 Sup. Ct. Rep. 655; Union Rat. Bank v. Bank of Kansas City, 136 U. S. 223, 235, 34 L. ed. 341, 345, 10 Sup. Ct. Rep. 1013; South Branch Lumber Go. v. Ott, 142 U. S. 622, 627, 35 L. ed. 1136, 1138, 12 Sup. Ct. Rep. 318.

The same rule has been held to be appli¬ cable to decisions of state courts constru¬ ing the statute of frauds. Allen v. Massey, 17 Wall. 351, 21 L. ed. 542; Lloyd v. Pul¬ ton, 91 U. S. 479, 485, 23 L. ed. 363, 365.

Whatever might be our own views with regard to the validity of a release by cred¬ itors as a condition of preference under an assignment, the question is one which, upon 47] the authorities *above cited, must be held to be determinable by the state law as in¬ terpreted by the supreme court of such state.

While the case under consideration arose in the Indian territory, the law applicable thereto is determined by the laws of Ar¬ kansas, which were adopted and extended over the Indian territory by the act of Con¬ gress approved May 2, 1890 (26 Stat. at L. 94, § 31), which declares that certain gen- 68

eral laws of Arkansas, “which are not lo¬ cally inapplicable, or in cohflict with this act, or with any law of Congress relating to the subjects specially mentioned in this section, are hereby extended over and put in force in the Indian territory,” among which laws are enumerated assignments for the benefit of creditors and the statute of frauds. In adopting this law with respect to assignments, the courts of the Indian territory are also bound to respect the deci¬ sions of the supreme court of Arkansas in¬ terpreting that law.

In more than one case we have had occa¬ sion to hold that, if a foreign statute be adopted in this country, the decisions of foreign courts in the construction of such statute should be considered as incorporated into it. Thus, in Pennock v. Dialogue, 2 Pet. 1, 7 L. ed. 327, it was said by Mr. Justice Story (p. 18, L. ed. p. 333) : “It is doubtless true, as has been suggested at the bar, that where English statutes, such, for instance, as the statute of frauds and the statute of limitations, have been adopted into our own legislation, the known and set¬ tled construction of those statutes by courts of law has been considered as si¬ lently incorporated into the acts, or has been received with all the weight of author¬ ity.” In speaking of our patent act, which was largely taken from the English statute of monopolies, he says (p. 20, L. ed. p.

334) : “The words of our statute are not identical with those of the statute of James, but it can scarcely admit of doubt that they must have been within the con¬ templation of those by whom it was framed, as well as the construction which had been put upon them by Lord Coke.” In Cath- cart v. Robinson, 5 Pet. 264, 8 L. ed. 120,

Mr. Chief Justice Marshall said (p. 280,

L. ed. p. 126) : “By adopting them [Brit¬ ish statutes], they become our own as en¬ tirely as if they had been enacted by the legislature of the state. The received con¬ struction in England at the time they are admitted to operate in "this country, indeed

to the time of our separation from the British Empire, may very properly be con¬ sidered as accompanying the statutes them¬ selves, and forming an integral part of them. But however we may respect sub¬ sequent decisions, — and certainly they are entitled to great respect, — we do not admit their absolute authority.” See also Kirk¬ patrick v. Gibson, 2 Brock. 388, Fed. Cas.

No. 7,848. The same rule has been applied in the state courts in the construction of statutes adopted from other states. Com. v. Hartnett, 3 Gray, 450; Tyler v. Tyler, 19

Marqueze v. Caldwell, 48 Miss. 23; State v. Robey, 8 Nev. 312; The Devonshire, 8 Sawy.

209, 13 Fed. 39.

As the Arkansas statutes concerning as¬ signments for the benefit of creditors and the statute of frauds were extended and put in force in the Indian territory by the act of Congress above cited, it becomes mate-

187 U. S.

1902,

Robinson & Co. v. Belt.

48-50

rial to consider the decisions of the su¬ preme court of that state with reference to the validity of the provision of an assign¬ ment exacting a release by creditors of all their demands against the assignor as a con¬ dition of preference. The subject was first considered in Clayton v. Johnson, 36 Ark. 406, 424, 38 Am. Rep. 40, in which an as¬ signment for the benefit of creditors with¬ out preferences was held to be valid, not¬ withstanding a proviso that no creditor provided for should participate in the as¬ sets “unless he accepts the same in full of his claim.” The question is most elabo rately considered in that case, and a dis¬ tinction taken between a conveyance of the whole, and the conveyance of a part only, of the debtor’s property upon condition of releasing the residue. The latter was thought to be fraudulent, and pernicious in its tendencies. In McReynolds v. Dedrnan, 47 Ark. 347, 1 S. W. 552, it was held that, although an assignor might make preferen¬ ces and exact releases from creditors who assented to the assignment, if he reserved to himself, to the exclusion of nonassenting creditors, the surplus that remained, the deed was fraudulent upon its face. The difficulty with that assignment was that, in case the creditors refused to execute the releases, the residue, instead of being de¬ voted to the payment of the assignor’s cred¬ itors, was to revert to the assignor himself. This case is wholly consistent with that of

Clayton v. Johnson. In the ‘subsequent case, however, of Collier v. Davis, 47 Ark. 367, 58 Am. Rep. 758, 1 S. W. 684, Clayton y. Johnson was formally overruled, and an assignment which provided that no creditor should participate unless he should accept his share in full satisfaction of .his claim, and gave no direction for the application of the surplus after satisfying assenting cred¬ itors, was held void upon its face. It may be noted that the personnel of the court had changed since Clayton v. Johnson was de¬ cided. In the subsequent case of Wolf v. Gray, 53 Ark. 75, 13 S. W. 512, decided a few weeks before the act of Congress of 1890, notwithstanding the former overrul¬ ing of Clayton v. Johnson in Collier v. Davis, it is said that its authority upon the stipulation for a release was not impaired, except as modified by the cases before cited. It follows, said the court, that “the law is established here, in accord with much au¬ thority elsewhere, that a stipulation for a release in a general assignment, which is made only as a condition of preference, does not invalidate the instrument.” The as¬ signment in that case preferred one cred¬ itor, and provided for payment to all other creditors who should execute releases of the residue of their debts. This case was fol¬ lowed by King v. Hargadine-McKittrick Dry Goods Co. 60 Ark. 1, 28 S. W. 514, where the very assignment in question in this case was held to be valid, notwith¬ standing the provision for a release by creditors as a condition of preference. 187 U. S.

Without determining the validity of such a provision at common law, we are of opinion that the courts of the Indian territory did not err in applying the settled construction of the law of Arkansas to the assignment in this case, and in holding the provision for a release of creditors to be valid.

signment upon the ground that there was no evidence of its acceptance by any of the creditors, or their assent thereto ; and the position is taken that, while the creditors may be presumed to accept an assignment made for their benefit, such acceptance will not be presumed where the assignment is subject to the condition that the creditors consent to a release and discharge of their claims against the estate. Error is also charged in the rendition of the judgment against persons who were not parties ‘to

the immediate case, but who had stipulated other cases into this case for a like judg¬ ment; and also in the fact tnat a personal judgment rendered against the plaintiffs in error for the value of the goods in contro¬ versy was not contemplated or allowed by the statute under which the proceedings were had.

It is a sufficient answer to these objections to say that neither of them appears to have been called to the attention of the courts below. They do not seem to have been raised at the time the judgment was en¬ tered. It does not appear that any assign¬ ments of error were filed in the court of appeals for the Indian territox-y, but the opinion states that plaintiffs relied upon four objections to the assignment, as show¬ ing upon its face that it was fraudulent in law. No objection seems to have been raised in that court to the form of the judg¬ ment. In the assignments of error in the United States court of appeals for the eighth circuit no such question is raised, and none alluded to in the opinion. Such objections could not be raised for the first time in this court. Insurance Co. v. Mor- decai, 22 How. Ill, 117, 16 L. ed. 329, 331; First Nat. Bank v. Kentucky, 9 Wall. 353,

19 L. ed. 701; Wheeler v. Sedgwick, 94 U.

S. 1, 24 L. ed. 31; Wilson v. McNamee, 102 Q. S. 572, 26 L. ed. 234; Edwards v. Elli¬ ott, 21 Wall. 532, 22 L. ed. 487; Clark v. Fredericks, 105 U. S. 4, sub nom. Davis v. Fredericks, 26 L. ed. 938.

While it is the duty of this court to re¬ view the action of subordinate courts, jus¬ tice to those courts requires that their al¬ leged errors should be called directly to their attention, and that their action should not be reversed upon questions which the astuteness of counsel in this court has evolved from the record. It is not the prov¬ ince of this court to retry these cases de novo.

The judgment of the Court of Appeals is affirmed.

Mr. Justice Shiras and Mr. Justice White concurred in the result.

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Supreme Court of the United States.

Oct. Term,