graph alone, it seems rather a limitation of its scope. But the bankrupt act must be construed as a whole and as establishing a complete system. It seems to be the intent of the act to clothe the district court with power to settle all controversies depending on bankruptcy proceedings,' but to preserve to the state courts the jurisdiction which they would have had if proceedings had not been taken. The trustee will still have to resort to those courts to collect all debts owing to the bankrupt, and will have to sue there on any rights of action which the bankrupt may have had.2

The interpretation above advocated is in accordance with the principles of statutory construction that an exception should not be so construed as to destroy a power granted before. There can be no doubt that after an act of bankruptcy has been committed and a petition filed the district court has power over the bankrupt and the creditors who claim part of the estate. If the broad construction of § 23 b be adopted, the result would be that the trustee would have to bring all suits in the state courts. This would bring about the anomalous condition of the district court dealing with the bankrupt and his creditors, and the state court dealing with his estate.* Such a result would defeat the operation of the bankrupt act. An interpretation of the statute which will defeat its operation is certainly not a reasonable one.

JURISDICTION OF

§ 487. Act of 1898. SEC. 24. APPELLATE COURTS.-a. The Supreme Court of the United States, the circuit courts of appeals of the United States, and the supreme courts of the Territories, in vacation in chambers and during their respective terms, as now or as they may be hereafter held, are hereby invested with appellate jurisdiction

1 See Carpenter v. O'Connor, 16 Ohio Circ. Ct. 526.

2 Re Brooks, 91 Fed. Rep. 508. 3 Carter v. Hobbs, 92 Fed. Rep. 594; 1N B. N. 191, and cases cited.

4 Lea. v. West, 91 Fed. Rep. 237.

See Ex parte Christy, 3 How. 292; Mitchell v. Great Works Mfg. Co., 2 Story, 648, Fed. Cas. No. 9662; Re Fellerath, 1 N. B. N. 292.

of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The Supreme Court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States and from the supreme court of the District of Columbia.

b. The several circuit courts of appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved.

The appellate jurisdiction under § 24 is of all controversies arising in bankruptcy proceedings. This is contrasted with the provisions of § 25, where appeals from bankruptcy proceedings alone are regulated. It is clearly indicated by § 23 that controversies arising in bankruptcy are distinguished from bankruptcy proceedings themselves. By § 24 the appellate jurisdiction of United States courts over controversies is left the same as before the act, while special provisions are introduced by 25 for the consideration of appeals in bankruptcy proceedings.

"Courts of bankruptcy" usually means only district courts,1 but in paragraph a of § 24 it seems to be used as including the circuit courts also, as they have jurisdiction over controversies arising out of bankruptcy proceedings. There is no reason to suppose that an appeal was to be allowed from the district courts only.

United States courts depends.
There is an appeal or writ of

The appellate jurisdiction of on the act of March 3, 1891.2 error from the circuit or district courts direct to the Supreme Court (a) in a case where the jurisdiction of the court is in

1 Act of 1898, § 1 (8).

established the circuit courts of appeal;

2 26 Stats. 826. This is the act which it is often called the Evarts Act.

issue, (b) from a final decree in a prize case, (c) from a conviction of a capital crime,1 (d) in any case which involves the construction or application of the Constitution of the United States, (e) in any case where the constitutionality of a law of the United States or the validity of a treaty is drawn in question, or (f) in any case where the constitution or law of a state is claimed to be in contravention of the Constitution of the United States. A controversy in bankruptcy might arise under the first or under any one of the last three provisions. Under the first provision the Supreme Court can pass only on the question of jurisdiction, but in the other instances it can pass on the whole case.5 It must appear by the record that the attention of the lower court was directed to the question on which the appeal is taken.

The sixth section of the Evarts Act provides for an appeal or writ of error from the circuit or district court to the circuit court of appeals in all cases except those just mentioned." The decision of the circuit court of appeals is final in all cases of diversity of citizenship, in cases arising under patent laws, revenue laws and criminal law and in admiralty. In all these cases the circuit court of appeals may certify any question of law to the Supreme Court or that court may bring up the case by a writ of certiorari. In all cases which are not made final in the circuit court of appeals there can be an appeal to the Supreme Court if the matter in controversy exceeds one thousand dollars besides costs.9

1 Act of March 3, 1891, as amended Muse v. Arlington Hotel Co., 168 U. S. by Act of January 20, 1897, 29 Stats. 492.

430.

7 Curtis, Jurisdiction U. S. Courts,

2 Walla Walla v. Walla Walla Wa- 2d ed. 74. ter Co., 172 U. S. 1.

3 Curtis, Jurisdiction of U. S. Courts, 2d ed. 67 and 68; Penn. Ins. Co. v. Austin, 168 U. S. 685.

4 Building and Loan Association v. Price, 169 U. S. 45.

6 Curtis, Jurisdiction of U. S. Courts, 2d ed. 69; Horner v. United States, 143 U. S. 570; Carey v. Houston & Texas Ry., 150 U. S. 170.

8 Press Pub. Co. v. Monroe, 164 U. S. 105; Ex parte Jones, 164 U. S. 691; Colorado Mining Co. v. Turck, 150 U. S. 138; Rouse v. Letcher, 156 U. S. 47; Gregory v. Van Ee, 160 U. S. 643; Carey v. Houston & Texas Ry., 161 U. S. 115; Rouse v. Hornsby, 161 U. S. 588; Sonnentheil v. Moerlein Brewing Co., 172 U. S. 401.

9 Curtis, Jurisdiction U. S. Courts,

6 Cornell v. Green, 163 U. S. 75; 2d ed. 74, 75.

In cases in which the jurisdiction of the district or circuit court is in issue, the defeated party may appeal to the Supreme Court on the question of jurisdiction or to the circuit court of appeals on the merits.' He will have to choose which course he will take and will be bound by his election.' But in a case which involves the construction of the Constitution of the United States, if an appeal be taken to the circuit court of appeals, the right to take the case to the Supreme Court will not thereby be waived.2

The circuit court of appeals can certify to the Supreme Court only questions of law and can not ask for a decision on the whole record or on a mixed question of law and fact.4 The Supreme Court discourages certification of questions. The writ of certiorari is not often granted by the Supreme Court, and then only in cases of great importance, but there have been several instances of a successful application for this form of remedy in recent cases."

There is an appeal or writ of error to the Supreme Court in cases not made final in the circuit court of appeals where there is one thousand dollars involved. It has been held that it need not appear on the pleadings that the required amount is in controversy but this fact may be proved by affidavit. right cases are appealable under this section.9

Copy

Section 7 of the act of March 3, 1891, as amended by act of February 18, 1895,10 gives an appeal to the circuit court of appeals when the district or circuit court in a hearing in

1 Robinson v. Caldwell, 165 U. S. 359; Benjamin v. New Orleans, 169 U. S. 161.

2 Pullman Car Co. v. Central Transportation Co., 171 U. S. 138.

3 Graver v. Faurot, 162 U. S. 435; Warner v. New Orleans, 167 U. S. 467; Cross v. Evans, 167 U. S. 60.

4 United States v. Union Pacific R. R., 168 U. S. 505; McHenry v. Alford, 168 U. S. 651.

5 Curtis, Jurisdiction U. S. Courts, 2d ed. 76; Foster Fed. Pract. 2d ed. § 476, p. 976.

6 Curtis, Jurisdiction U. S. Courts, 2d ed. 77; Forsyth v. Hammond, 166 U. S. 506.

7 Re Chetwood, Petitioner, 165 U. S. 443; Panama R. R. Co. v. Napier Shipping Co., 166 U. S. 280; Forsyth v. Hammond, 166 U. S. 506; Smith v. Vulcan Works, 165 U. S. 518; Re Lennon, 166 U. S. 548; Hubbard v. Tod, 171 U. S. 474.

8 United States v. Freight Assoc., 166 U. S. 290.

9 Press Pub. Co. v Monroe, 164 U. S. 105, semble.

10 28 Stats. 666.

equity grants or refuses an interlocutory injunction. It has been held that no appeal would lie when a receiver was appointed unless an injunction were issued also.1 But there would probably be no appeal to the circuit court of appeals if the district court issued an injunction in a bankruptcy case, because such a proceeding is not a hearing in equity.

Under the act of March, 1891, as amended in 1897, there is a writ of error to the circuit court of appeals in all criminal cases except when a capital offence has been committed. This will apply to prosecutions for the commission of offences in bankruptcy.

Appeals to the circuit court of appeals shall be allowed by a judge of the court appealed from or a judge of the court appealed to. Appeals to the Supreme Court must be taken within thirty days and shall be allowed by a judge of the court appealed from or by a justice of the Supreme Court. In the latter case the lower court makes a finding of facts and a finding of law, and the record consists only of these findings and the pleadings with the judgment or decree. The appellant or plaintiff in error must file a bond to prosecute his appeal or writ of error. This is true in cases taken up from state courts as well as federal courts.7 Under the present act no appeal bond is required of a trustee in proceedings in federal courts. 8

A great many suits will be brought by trustees in state courts under the provisions of this act. It is important therefore to consider when there can be a review of such cases by the Supreme Court of the United States. Revised Statutes § 709 gives the Supreme Court power to re-examine on writ of error a final judgment or decree of the highest court of a state when the validity of a treaty or a statute of, or authority exercised under, the United States is questioned and the decision is against its validity. Also when a statute of, or authority exercised under, a state is upheld, though it is contended that

1 Highland Ave. R. R. v. Columbia Equipment Co., 168 U. S. 27. See Re Tampa R. R., 168 U. S. 583.

2 Acts of 1897, c. 68, 29 Stats. 492. 8 Rule XXXVI. 1.

4 Rule XXXVI. 2.

$ Rule XXXVI. 3.

Foster, Fed. Pract. 2d ed. § 486.

7 Ib. § 477.

8 Act of 1898, § 25 c.