(1) In any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the Supreme Court from the court below for decision. (2) From the final sentences and decrees in prize causes. (3) In cases of conviction of a capital crime. (4) In any case that involves the construction or application of the Constitution of the United States. (5) In any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question. (6) In any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States. Nothing in this act shall affect the jurisdiction of the Supreme Court in cases appealed from the highest court of a State, nor the construction of the statute providing for review of such cases."

Recent cases which have been decided by the Supreme Court on the question of jurisdiction have been brought up under this section of the Evarts Act. When the case of Bardes v. Bank first reached the United States Supreme Court on direct certification from the District Court, it was rejected because no final judgment had at that time been made in the District Court. (See Bardes v. Hawarden Bank, 3 Am. B. R. 680; 175 U. S. 526.) In that case it was held that under section 25d a certificate presenting the question of the jurisdiction of the District Court is subject to the provisions of the 5th section of the Judiciary Act of 1891 in which the appeal upon the question of jurisdiction can only be taken directly to the Supreme Court after final judgment.

It will be seen from an inspection of section 5 of the Act of 1891 that in addition to the question of jurisdiction the Supreme Court may review in bankruptcy proceedings on certificate the cases referred to in subdivisions 4, 5, and 6 above.

Review on Certiorari. Section 25d.-What is referred to in the grant of power to review by certiorari is the general jurisdiction conferred by section 6 of the act of March, 1891 (26 Stat. at L. 826), where it is provided that "in any such case as is hereinbefore made final in the Circuit Court of Appeals "(such cases being other than those mentioned in section 5) "it shall be competent for the Supreme Court to require, by certiorari or otherwise, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as

§ 26.] Appeal to Supreme Court of Territory-Arbitration of Controversies.

if it had been carried by appeal or writ of error to the Supreme Court." The writ of certiorari is a high prerogative writ and will seldom be used. (See Forsyth v. Hammond, 166 U. S. 506.) The following G. O. 36 is to be noted in connection with what has been said on the subject of appeals.

XXXVI. APPEALS.

1. Appeals from a court of bankruptcy to a circuit court of appeals, or to the supreme court of a Territory, shall be allowed by a judge of the court appealed from or of the court appealed to, and shall be regulated, except as otherwise provided in the act, by the rules governing appeals in equity in the courts of the United States.

2. Appeals under the act to the Supreme Court of the United States from a circuit court of appeals, or from the supreme court of a Territory, or from the Supreme Court of the District of Columbia, or from any court of bankruptcy whatever, shall be taken within thirty days after the judgment or decree, and shall be allowed by a judge of the court appealed from, or by a justice of the Supreme Court of the United States.

3. In every case in which either party is entitled by the act to take an appeal to the Supreme Court of the United States, the court from which the appeal lies shall, at or before the time of entering its judgment or decree, make and file a finding of the facts, and its conclusions of law thereon, stated separately; and the record transmitted to the Supreme Court of the United States on such an appeal shall consist only of the pleadings, the judgment or decree, the finding of facts, and the conclusions of law.

Appeal to Supreme Court of Territory.-It has been held by the Oklahoma Supreme Court that an appeal does not lie to the Supreme Court of a territory under section 25 from a judgment allowing or rejecting a claim of less that $500, and that section 246 has no application to territorial courts. (In re Stumpff, [Okl. Sup. Ct.] 4 Am. B. R. 267.)

No Appeal or Right of Revision from Refusal to Confirm a Composition. See In re Adler (103 Fed. 444; 4 Am. B. R. ), cited and commented on under section 12 ante, sub nom. FINALITY OF REFUSAL TO CONFIRM.

SEC. 26. Arbitration of Controversies.-a The trustee may, pursuant to the direction of the court, submit to arbitration any controversy arising in the settlement of the estate.

Arbitration of Controversies- Compromises.

[Ch. IV.

b Three arbitrators shall be chosen by mutual consent, or one by the trustee, one by the other party to the controversy, and the third by the two so chosen, or if they fail to agree in five days after their appointment the court shall appoint the third arbitrator.

c The written finding of the arbitrators, or a majority of them, as to the issues presented, may be filed in court and shall have like force and effect as the verdict of a jury.

Analogous Provisions of Former Acts,

R. S., section 5061; act of 1867, section 14; act of 1841, section 11; act of 1800. section 43.

The provisions of section 26, to the effect that the findings of the arbitrator shall have the force and effect of the verdict of a jury, make such findings reviewable by the court to the same extent that a verdict would be. (See In re McLam, 3 Am. B. R. 245: 97 Fed. 922.) The arbitrators must be chosen in strict accordance with the provisions of the statute. Id. See also G. O. 33 which follows:

XXXIII. ARBITRATION.

Whenever a trustee shall make application to the court for authority to submit a controversy arising in the settlement of a demand against a bankrupt's estate, or for a debt due to it, to the determination of arbitrators, or for authority to compound and settle such controversy by agreement with the other party, the application shall clearly and distinctly set forth the subjectmatter of the controversy, and the reasons why the trustee thinks it proper and most for the interest of the estate that the controversy should be settled by arbitration or otherwise.

Compare section 58 post on notice to creditors of proposed compromise.

SEC. 27. Compromises-a The trustee may, with the approval of the court, compromise any controversy arising in the administration of the estate upon such terms as he may deem for the best interests of the estate.

Analogous Provisions of Former Acts.

R. S. section 5061; act of 1867, section 14; act of 1800, section 43.

S$ 28, 29.] Approval of Court - Designation of Newspapers - Offenses.

Approval of the Court Necessary in Each Case.-Under the analogous provisions of the former act, it was held that this section did not authorize the court to make an order permitting the assignee, with the approval of a committee of creditors duly appointed, to compromise any and all debts that to him seemed best. Each case should be brought before the court by the trustee and the special facts which make it proper to compromise, should be set forth. (In re Dibblee, Fed. Cas. 3,885; 3 Ben. 354.)

And this rule has been practically adopted by the Supreme Court in G. O. 33 quoted under the preceding section (26).

SEC. 28. Designation of Newspapers.-a Courts of bankruptcy shall by order designate a newspaper published within their respective territorial districts, and in the county in which the bankrupt resides or the major part of his property is situated, in which notices required to be published by this act and orders which the court may direct to be published shall be inserted. Any court may in a particular case, for the convenience of parties in interest, designate some additional newspaper in which notices and orders in such case shall be published.

Analogous Provisions of Former Acts.—

As to publication of notices: act of 1867, section II, amended by R. S. section 5019; act of 1841, section 7.

Cross-reference.-As to publication of notice to creditors, of the first meeting, see section 58 (ƒ).

SEC. 29. Offenses.-a A person shall be punished, by imprisonment for a period not to exceed five years, upon conviction of the offense of having knowingly and fraudulently appropriated to his own use, embezzled, spent, or unlawfully transferred any property or secreted or destroyed any document belonging to a bankrupt estate which came into his charge as trustee.

b A person shall be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently (1) concealed while a bankrupt, or

Cross-references

Offenses.

[Ch. IV. after his discharge, from his trustee any of the property belonging to his estate in bankruptcy; or (2) made a false oath or account in, or in relation to, any proceeding in bankruptcy; (3) presented under oath any false claim for proof against the estate of a bankrupt, or used any such claim in composition personally or by agent, proxy, or attorney, or as agent, proxy, or attorney; or (4) received any material amount of property from a bankrupt after the filing of the petition, with intent to defeat this act; or (5) extorted or attempted to extort any money or property from any person as a consideration for acting or forbearing to act in bankruptcy proceedings.

c A person shall be punished by fine, not to exceed five hundred dollars, and forfeit his office, and the same shall thereupon become vacant, upon conviction of the offense of having knowingly (1) acted as a referee in a case in which he is directly or indirectly interested; or (2) purchased, while a referee, directly or indirectly, any property of the estate in bankruptcy of which he is referee; or (3) refused, while a referee or trustee, to permit a reasonable opportunity for the inspection of the accounts relating to the affairs of, and the papers and records of, estates in his charge by parties in interest when directed by the court so to do.

d A person shall not be prosecuted for any offense arising under this act unless the indictment is found or the information is filed in court within one year after the commission of the offense.

Analogous Provisions of Former Acts.

As to offenses of the bankrupt: R. S. section 5132; act of 1867, section 44, As to offenses of officers of the court: R. S. section 5012; act of 1867, section 45.

Cross-references.-The word "document" is defined in section. I (13). As to what courts have jurisdiction to try offenses, compare sections 2 (4) and 23c. "Concealed " is defined in section I (22). As to the effect of the commission of an offense upon an application for a discharge, see section 14b (1).

Offenses. The present act makes not only the bankrupt and the officers of the court punishable for certain offenses, but also makes criminal various acts of third parties, in this latter respect