Page:Harvard Law Review Volume 9.djvu/180

152 152 HARVARD LAW REVIEW. admit the accused to bail. Held, (r) the Supreme Court had no power to make the above rule, because the common law gives no right to admit to bail after conviction and sentence ; no United States statute gives the right ; nor does the power to make necessary rules for the orderly conduct of the business of the court give the right. (2) Under this rule Mr, Justice White of the Supreme Court, not being a justice of the circuit where the case was tried, could not make a valid order admitting de- fendant to bail pending the case on writ of error. United States v. Hudsoji, 65 Fed. Rep. 68. Although bail will not ordinarily be allowed after conviction, yet it seems to be well settled that, in the absence of statute denying bail to a prisoner after conviction and sentence and pending appeal, the admission to bail is purely discretionary with the court, and may be allowed, i Bishop's Criminal Procedure, § 253, and cases cited. The decision on the second point would seem to be a sound interpretation of the Supreme Court rule. But both points were reversed in the following case. Bail after Conviction Pending Appeal— Power of Justice of Supreme Court. — The defendant in preceding case petitioned for a writ of mandamus to the district judge to compel him to admit petitioner to bail. Held,^ (i) bail maybe taken after conviction pending appeal, by order of the proper court, judge, or justice. (2) The order of Mr. Justice White admitting defendant to bail subject to the ap- proval of the District Judge, was valid, since "any justice of this court, having power ... to allow the writ of error . . . has the authority ... to order the plaintiff in error to be admitted to bail." Mandamus granted to compel district judge to act and to exercise his discretion with regard to admitting petitioner to bail, not to con- trol his discretion. Hudson v. Parker^ 15 Sup. Ct. Rep. 450 (Brewer and Brown, JJ., dissenting). The decision on the first point is unexceptionable. See references cited under preceding case. The second point is more doubtful. As a general rule, any court having appellate jurisdiction may take bail. But as Mr. Justice Brewer says, in his dissenting opinion, the Supreme Court, by naming in the rule certain judicial officers as the ones to admit to bail, has, on the principle expressio unhis exdusio alterius, de- clared that it has named all who are to exercise that authority. Bankruptcy — Petitioning Creditor — Power to go behind a Judg- ment OBTAINED BY COMPROMISE. — A bankruptcy petition was presented to a registrar founded on a judgment obtained by compromise. The registrar found the compromise unfair though not fraudulent, and refused the petition. On appeal to the Court of Appeal, it was held, by Lord Esher and Lopes, L. J., that the court could go behind the judgment and determine whether it was fair; that this was necessary to protect the debtor as well as the other creditors, who would be deprived of their right to get hold of the property if the debtor were put into bankruptcy; that as the fairness of the compromise could be looked into after the debtor was put into bankruptcy, it should be used to protect the other creditors. Rigby, L. J., dissented on the ground that, historically considered, bankruptcy courts had the power to reject a judgment debt only in cases where there was no consideration (which a later Bank- ruptcy Act had changed) and on ground of fraud. In re Hawkinsy Ex parte Troup [1895], I Q- B- 404. The dissenting Lord Justice is undoubtedly correct in his treatment of the cases historically; but the principle enunciated in those cases carries us as far as the majority of the court have gone in this case. See remarks of James, L. J., Ex parte Kibble, 10 Ch. App. p. 373, at p. 376; also of Lord Esher in Ex parte Lennox, 16 Q. B. D. 315, at 321, 322. The principle seems to be that, "having regard to the serious consequences to the debtor [and to other creditors] of allowing a bankruptcy notice to proceed, . . . if the debtor at the hearing . . . can satisfy the court that the judgment was obtained . . . under circumstances that make it inequitable thatit should be enforced against him, the court would have power to set the notice aside." Robson's Law of Bankruptcy, 7th ed. p. 190. See also Williams' Law of Bankruptcy, 6th ed. § 37, pp. 113-114. The result of the majority seems an admirable one to reach, and comes within the principle of the previous cases. Bills and Notes — Banker's Lien — Discharge of Surety.-- A bank dis- counted and held a note, and at the maturity thereof, held on general deposit for the maker a sum sufficient to pay the note. It permitted this sum to be checked out. Held, that a surety on the note was thereby discharged. Pursifull v. Pineville Banking Co.'s Assignee, 30 S. W. Rep. 203 (Ky.). See Notes. Carriers — Warranty of Seaworthiness. — Held, that a carrier is liable for losses incurred on a shipment of cattle through shrinkage or fall in market value,