7. Findings of District Court without jury not reexaminable in appellate
court.

As §§ 566, 649 and 700, Rev. Stat., do not make any provisions for
such a case, the trial of a case in the District Court of the United
States without a jury is in the nature of a submission to an ar-
bitrator, and the court's determination of issues of fact and ques-
tions of law supposed to arise on its special findings is not a judicial
determination, and, therefore, not subject to reexamination in an
appellate court. Campbell v. United States, 99.

8. Findings by District Court without jury; scope of consideration by
Circuit Court of Appeals.

In such a case the Circuit Court of Appeals has no power to consider
the sufficiency of facts found to support the judgment, but is
limited to a consideration of such questions of law as are presented
by the record proper independently of the special finding; and,
in the absence of any such independent questions, must affirm.
Ib.

1. Naval officer acting as aid to admiral; rank and pay to which entitled.
An officer of the Navy serving as aid to the Admiral under the provi-
sions of the acts of March 2 and 3, 1899, cc. 378 and 421, 30 Stat.
995, 1024, 1045, is not entitled under the assimilating provisions
of § 13 of the Navy Personnel Act of March 3, 1899, c. 413, 30
Stat. 1007, to the higher rank and pay provided under § 1019,
Rev. Stat., for aids to the General of the Army, irrespective of the
actual rank held by such naval officer during his period of service
as such aid. Wood v. United States, 132.

2. Same.

By the proviso to § 1094, Rev. Stat. which became effective prior to
1888, the office of General of the Army created by § 1096, and the
rank and incidents thereto ceased, and were revived by the act of
June 1, 1888, 25 Stat. 165, c. 338, only for the period of the life of

General Sheridan, and again ceased on his death, since which time
there is no officer of the Army to which pay of aids to the Admiral
of the Navy can be assimilated under § 13 of the Navy Personnel
Act of 1899. Ib.

3. Same; power to correct incongruity in statute.

An incongruity resulting from an omission in an act of Congress does
not justify the courts exercising legislative power to create an
office or pay therefor, and so held that the fact that the pay of all
other naval officers, including aids to Rear Admirals, is assimilated
to that of corresponding officers of the Army except aids to the
Admiral is a matter that must be corrected, if it is to be corrected,
by Congress and not by the courts. Ib.

4. Navy; acting assistant surgeons; pay to which entitled.

Under § 13 of the Navy Personnel Act of March 3, 1899, 30 Stat. 1007,
c. 413, and the acts of June 7, 1900, 31 Stat. 697, c. 859, March 2,
1907, 34 Stat. 1167, c. 2511, and May 13, 1908, 35 Stat. 127,
c. 166, the pay of acting assistant surgeons was enhanced and
assimilated to that of assistant surgeons in the Army, and did
not remain fixed as regulated by § 1556, Rev. Stat. Plummer v.
United States, 137.

5. Navy; acting assistant surgeons; pay of; presumption as to intent of
Congress.

Where an act of Congress, such as the Navy Personnel Act of 1899,

provides for a standard by which to determine rank and pay of
officers, it will not be presumed that Congress intended to create
an inequality of compensation while leaving unmodified equality
of rank and duty, and so held as to the provisions for pay of
assistant surgeons and acting assistant surgeons in the Navy. Ib.

6. Longevity pay; how computed.

Longevity pay of officers of the Army and Navy under the act of

May 13, 1908, 35 Stat. 127, c. 166, is computed on the sum of the
base pay and not the base pay and previous increases thereof. Ib.

7. Longevity pay; how computed; construction of words "current yearly
pay."

Congress having by the act of June 30, 1882, 22 Stat. 118, c. 254, ex-
pressly provided that the current yearly pay on which longevity
pay of officers of the Army and Navy is to be computed is base
pay, and not base pay and increases, so as to overcome the con-
structions given to the words "current yearly pay" by this court

in United States v. Tyler, 105 U. S. 44, those words will be con-
strued in the same manner when used in the subsequent act of
May 13, 1908, 35 Stat. 125, c. 166, and not as construed in United
States v. Tyler. Ib.

ASSUMPTION OF RISK.

See NEGLIGENCE, 1.

BAIL.

See CONTRACTS, 3.

BANKRUPTCY.

1. Act of 1898 and prior acts differentiated.

The Bankruptcy Act of 1898 was not an affirmation of the act of 1797
or of Rev. Stat., §§ 3467, 3468, 3469, and the change of provisions
in regard to priority indicates a change of purpose in that respect.
Guarantee Co. v. Title Guaranty Co., 152.

2. Priority of debts due United States; statutes in pari materia.
The Bankruptcy Act of 1867 and the act of March 3, 1797, 1 Stat. 515,
c. 20, now §§ 3467, 3468, 3469, Rev. Stat., by both of which all
debts due the United States are given priority over all claims,
were in pari materia, and the Bankruptcy Act of 1867 affirmed the
act of 1797. (Lewis v. United States, 92 U. S. 618.) Ib.

3. Preferred claims; labor claims as.

Under a beneficent policy, which favors those working for their daily
bread and does not seriously affect the sovereign, Congress, in
enacting the Bankruptcy Law of 1898, preferred labor claims and
gave them priority over all other claims except taxes, and the
courts must assume a change of purpose in the change of order.
Ib.

4. Priority of claims; right of one subrogated to claim of Government.
In this case held that even if a surety company which had paid the
debt of the principal to the Government was subrogated to the
claim of the Government and was entitled to whatever priority
the Government was entitled to, under the Bankruptcy Act of
1898, the claim not being for taxes but a mere debt was not en-
titled to priority in distribution of the bankrupt's assets over
claims for labor preferred by the act. Ib.

5. Law governing effect of unrecorded chattel mortgage.

Under § 67a of the Bankruptcy Act of 1898, the effect to be given to
VOL. CCXXIV-44

an unrecorded chattel mortgage must be determined by the re-
cording law of the State. Holt v. Crucible Steel Co., 262.

6. Trustee; right of holder of unrecorded mortgage, under Kentucky statute,
as against creditors represented by.

The Circuit Court of Appeals having held that under the decisions of
the highest court of the State bearing on the question, the term
"creditors" as used in § 496, Kentucky Statutes, 1903, does not
include subsequent creditors without notice who have not se-
cured a lien on the property prior to the recording thereof, and
this court not being able to say that such construction is wrong,
held that the title of the holder of an unrecorded chattel mortgage
on property in Kentucky is valid and effective as against the trus-
tee in bankruptcy as to the creditors who became such after the
mortgage was given and who had not fastened any lien on the
property prior to the proceeding in bankruptcy. Ib.

7. Appeals; rulings of Circuit Court of Appeals reviewable here.
A ruling of the Circuit Court of Appeals that the petitioning creditors
held provable claims is not a judgment allowing or rejecting a
claim within the meaning of § 25b of the Bankruptcy Act of
1898, and cannot under § 25a and subparagraph 1 be reviewed
by this court. Calnan Co. v. Doherty, 145.

8. Appeals; when appeal from Circuit Court of Appeals dismissed.
Where the prerequisites for an appeal to this court specified in subpar-
agraph 1 of § 25b of the Bankruptcy Act do not exist, and the
Circuit Court of Appeals does not make the findings of fact and
conclusions of law required by clause 3 of General Order 36, the
appeal must be dismissed. (Chapman v. Bowen, 207 U. S. 89.) Ib.

9. Appeals from Circuit Court of Appeals; application of § 6 of Judiciary
Act of 1891.
Appellate jurisdiction over a ruling of the Circuit Court of Appeals
in a bankruptcy matter may not be exercised by this court by
virtue of § 6 of the Judiciary Act of March 3, 1891, c. 517. (Tefft
v. Munsuri, 222 U. S. 114.) Ib.

10. Appeals to Circuit Court of Appeals; controversies appealable.
Controversies arising in bankruptcy proceedings, as distinguished from
bankruptcy proceedings, are appealable to the Circuit Court of
Appeals under the Court of Appeals Act of March 3, 1891. Mat-
ter of Loving, 183.

11. Appeals to Circuit Court of Appeals; law governing.

A claim asserted against a bankrupt's estate not only for the amount
thereof but for a lien therefor on the assets of the estate is a bank-
ruptcy proceeding, and not a controversy arising from the bank-
ruptcy proceeding, and an appeal by the trustee from the order
allowing the claim and lien is under § 25a to the Circuit Court of
Appeals. Ib.

12. Appeal to Circuit Court of Appeals under § 25a; effect on right of
petition under § 24b.

One who is entitled under § 25a to an appeal to the Circuit Court of
Appeals, is not also entitled to a review in the Circuit Court of
Appeals by petition under § 24b. Ib.

13. Review under § 24b and § 25; scope of.

Under § 24b, questions of law only are taken to the Circuit Court of
Appeals, while under § 25 controversies of fact as well as of law
are taken to that court, with findings of fact to be made therein
if the case is to be taken to this court. In re Mueller, 135 Fed.
Rep. 711, approved. Ib.

BANKS.

See NATIONAL BANKS.

BONDS.

1. Surety; conditions; breach; pleading in action on.

While liability under a surety bond for honesty of an employé would
be defeated if the loss was due to neglect of the employer to take
the precautions required by the bond, the condition is subsequent
and not precedent, and there is no occasion for an averment in
respect thereto; it is a matter of defense that must come from the
other side, upon whom the onus rests. Title Guaranty Co. v.
Nichols, 346.

2. Surety; conditions; breach; question for jury.

Where the evidence, as in this case, shows that examinations were
made, it is for the jury to determine whether reasonable diligence
had been used in making them. Ib.

3. Surety; conditions; effect of compliance as warranty.

The certificate of correctness of employé's accounts on obtaining re-
newals of surety bond for his honesty held in this case not to be a
warranty but a certificate that his books had been examined and
found correct.

Ib.