[1] The Iowa statute (Code 1924, § 10015) declares that no mortgage of personal property shall be valid against existing creditors or subsequent purchasers without notice, unless executed and acknowledged like a conveyance of real estate, and duly recorded, etc. As to what constitutes legal acknowledgment and recording in Iowa, see sections 2925, 2926, 2942, 2948, 2959, Code of 1897. These sections are construed in Reynolds v. Kingsbury, 15 Iowa, 238; Brinton v. Seevers, 12 Iowa, 389. In Bank v. Snodgrass, 182 Iowa, 1387, 166 N. W. 681, the Supreme Court of Iowa held the statutory requirements were mandatory, and that, before a chattel mortgage could be held to have given constructive notice, the recording acts must have been strictly complied with; that the burden of proving actual notice of an instrument not legally recorded is upon the holder. Martin v. Lesan, 129 Iowa, 573, 105 N. W. 996.

[2] The transfer of the property in question sought to be made by the chattel mortgage was incomplete until perfected by a proper acknowledgment and recordation of the instrument. In Re Caslon Press (C. C. A.) 229 F. 133, it is said: "Recording an unacknowledged or an improperly acknowledged chattel mortgage concededly gives no constructive notice, and therefore does not better the position of the mortgagee as against the subsequent lienor in Illinois. A further act by the grantor itself, the acknowledgment, is a prerequisite to the grantee's power to secure an effectual recording of the conveyance, such as will protect it under some circumstances against subsequent lienors, including, since the 1910 amendment of section 47a (2), the trustee in bankruptcy." And Groner v. Babcock Printing Press Co. (C. C. A.) 267 F. 822, holds that the trustee in bankruptcy is entitled to rights of a subsequent lien holder, as against an improperly recorded obligation.

[3] The specific question before us is whether, under section 47a of the Bankruptcy Act, as amended in 1910, the trustee acquired, as to the property in question, the rights of a creditor levying upon property coming into the control of the bankruptcy court at the time the peition was filed, and, generally, just what additional rights this amendment gives the trustee. This estate was in custodia legis from the date the petition was filed, and the title of the trustee, and his rights and remedies, related back to, and are determined as of, that date. Fairbanks Steam Shovel Co. v. Wills, 240 U. S. 642, 36 S. Ct. 466, 60 L. Ed. 841; Bailey,

Trustee, v. Baker Ice Mach. Co., 239 U. S. 268, at 276, 36 S. Ct. 50, 60 L. Ed. 275.

The amendment provides, in effect, that the trustee shall have the same title to the property of the bankrupt in the custody of the court that a creditor holding a lien by legal or equitable proceedings levied against the property would have under a state law, and, as to property not in the custody of the court, the trustee should stand in the position of a judgment creditor holding an execution duly returned unsatisfied.

It must be conceded that there is a respectable amount of authority holding that the trustee under the amendment of 1910 cannot attack or defend against a voidable chattel mortgage, unless there be in fact a creditor holding a fixed lien on the chattels at the time of filing the petition. In re Lausman (D. C.) 183 F. 647; In re Flatland (C. C. A.) 196 F. 310; Collier on Bankruptcy (12th Ed.) 728. Otherwise, that the amendment does not increase the trustee's rights beyond the point of standing in the shoes of the bankrupt.

[4] Appellant places great reliance upon Smith-Flynn Commission Co., 292 F. 465 (this circuit), which, as stated, gives the amendment a somewhat limited effect. That case, however, arose in another state, involved a question of a pledge, not a chattel mortgage, and specifically held that under the state law recording was not essential to its validity. Judge Kenyon in his discussion states that a trustee may now question any lien or pledge that any lien creditor might challenge had there been no bankruptcy. Nor does Carey v. Donohue, Trustee, 240 U. S. 430, 36 S. Ct. 386, 60 L. Ed. 726, L. R. A. 1917A, 295, purport to pass upon the question at bar; it likewise holding that the conveyance in question did not require recording in order to give it validity. American Laundry Mach. Co. v. Everybody's Laundry, 185 Iowa, 760, 171 N. W. 161, relied upon by the appellant, dealt with a conditional sales contract, which was properly acknowledged and recorded. There is some language in the opinion that might give comfort to appellant, but it was not necessary to a decision of the case. The provisions of the federal Bankruptcy Act are paramount to any state statute, and state courts follow the decisions of the federal courts dealing with questions arising under that law. Brenan v. Dahlstrom Metallic Door Co., 189 App. Div. 685, 178 N. Y. S. 846. Likewise in Martin, Trustee, v. Commercial Nat. Bank of Macon, Ga., 245 U. S. 513, 38 S. Ct. 176, 62 L. Ed. 441, we find that the state law and decisions recog

nized unrecorded chattel mortgages as valid between the parties, and merely postponed them to liens created while they remain unrecorded.

The intention of the Bankruptcy Act prior to 1910 was that the trustee should take the estate precisely where he found it, with no additional rights, excepting, of course, the specific right to set aside preferences and liens acquired within the four-month period. York Mfg. Co. v. Cassell, 201 U. S. 344, 26 S. Ct. 481, 50 L. Ed. 782. But, as pointed out in Smith-Flynn Commission Co, supra, and the Congressional Record, 61st Congress, 2d Session, 2275-2277, the amendment under discussion was designed to supersede that decision.

The courts at first failed to give full effect to the intention of Congress. If its operation is restricted to cases in which a creditor has in fact acquired a lien, etc., by legal or equitable proceedings, practically no change results, because under section 67c (Comp St. § 9651) the trustee already had such a lien, if created within four months. The better view would seem to be that the amendment was designed to reach those cases in which no creditor had acquired such a lien, and to give the trustee for the benefit of the estate, the potential rights of creditors with such liens. The language is broad and allinclusive, and would seem to refer to such "rights, remedies and powers" as a creditor holding a lien would have under the law of the particular state, rather than to the "rights, remedies and powers" of a creditor who has actually fastened a lien upon the bankrupt's property. In other words, the amendment arms the trustee with process to the same extent that any judgment creditor would have according to the law of the particular state, and he is not necessarily concluded by an instrument or agreement which might have been good against the bankrupt had bankruptcy not intervened. Scandinavian-American Bank v. Sabin (C. C. A.) 227 F. 579; Meier & Frank Co. v. Sabin (C. C. A.) 214 F. 231; Senft v. Lewis (C. C. A.) 239 F. 116; In re Sullivan Co. (C. C. A.) 254 F. 660; In re Geiver (D. C.) 193 F. 128; White v. Pac. S. W. Trust Co. (D. C.) 9 F. (2d) 650; Mergenthaler Linotype Co. v.

Hull (C. C. A.) 239 F. 26; In re Pittsburg Big Muddy Coal Co. (C. C. A.) 215 F. 703. In the latter case Judge Baker expressly rejected the contention that the trustee under the amendment of 1910, cannot defend against a voidable chattel mortgage, unless there be, in fact, a creditor holding a lien, saying:

"The plain and natural reading of the words gives the trustee the same right to attack or resist secret liens that judgment creditors would have had if bankruptcy had not intervened, no matter whether there are or are not any such creditors when the petition in bankruptcy is filed. If the amendment were to be construed so as to limit the power of the trustee to cases in which there are lien creditors, virtually nothing would be added to the original act"-citing a wealth of authorities.

"The mortgage, having never been properly acknowledged or recorded, was invalid as against the trustee in bankruptcy." Fairbanks Shovel Co. v. Wills, supra.

This is consistent with section 67a of the act (Comp. St. § 9651), declaring that claims which for want of record or other reasons would not have been valid liens as against the creditors of the bankrupt shall not be liens against his estate.

A late authority in this circuit is Burroughs Adding Mach. Co. v. Bogdon, 9 F. (2d) 54. In that case the bankrupt came into possession of an adding machine by virtue of an instrument which this court held to be a conditional sales contract, and because it was not filed for record at the time the bankruptcy petition was filed and possession retained by the seller, as required by the laws of Colorado, it was declared void as against the trustee.

A comparison of the discussion of this amendment in Collier on Bankruptcy (12th Ed., 1921) pp. 728, 729, with Gilbert's Collier (1927) p. 691, shows the trend of the late authorities, and that the rights of the trustee in respect to property against which a lien is asserted, are derived from the amendment and not from any creditor of the estate. See, also, Remington on Bankruptcy, § 1567.

The decree of the lower court is affirmed.

DAY V. UNITED STATES. (Circuit Court of Appeals, Seventh Circuit. April 5, 1927.)

No. 3831.

1. Monopolies 24 (2)-Information for violating injunction against other parties held to sufficiently charge defendant was acting in concert with original defendants.

Information for violating injunction in strike of street railway employees, involved in case against other defendants, held to sufficiently allege that defendant was in active concert and participating with parties to original injunction suit, though he was not a party there

to.

2. Monopolies 24 (2)—Injunction held binding on party acting in concert and participating with parties to injunction suit (Clayton Act, § 19 [Comp. St. § 1243c]).

Under Clayton Act, § 19 (Comp. St. 8 1243c), injunction is binding on person who was not a party to injunction suit, under evidence showing that he was acting in concert and participating with parties to suit.

In Error to the District Court of the United States for the Indianapolis Division of the District of Indiana.

Edgar Day was convicted of violating an injunction, and he brings error. Affirmed.

Wm. C. Bachelder, of Indianapolis, Ind., for plaintiff in error.

Albert Ward, of Indianapolis, Ind., for the United States.

Before EVANS, PAGE, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge. The plaintiff in error was charged, in an information filed by the district attorney, with violating the injunction involved in the Case of Armstrong and Parker (No. 3832, decided March 30, 1927) 18 F. (2d) 371. In addition to restraining Armstrong and Parker, and those acting in concert with them, from soliciting and persuading the railway company's employees to break their contracts with it and go upon strike, the order enjoined them and each of them, their officers, agents, employees, and attorneys, and "all persons acting in combination or conspiring with them, or either of them, or for or in the interests of said defendants, or any of them, and every person having knowledge of the existence of this order," from committing certain threatened acts of violence and intimidation calculated to promote the strike.

The information charged that plaintiff in error and three other persons conspired to violate the injunction, and committed overt acts in violation of it, and set out the par

ticular acts of violence and intimidation alleged to have been committed by them-acts which the injunction in terms forbade. The three other defendants pleaded guilty. Plaintiff in error pleaded not guilty. A jury was called, the evidence heard, and a verdict of guilty as charged was returned. The court thereupon entered the judgment complained of. There are several assignments of error, but they present for review only two rulings of the court: (a) The overruling of the demurrer to the information; and (b) the refusal of the court to instruct the jury to return a verdict for the plaintiff in error.

The ground of demurrer was that the information did not charge that plaintiff in error was a party to the suit, or that he was acting in concert or participating with the parties thereto. The motion to direct a verdict was upon the ground that the evidence was not sufficient to sustain a finding of guilty, and the insistence is that he was not shown to be a party to the suit or to have acted in concert or participated with them, and, further, that the evidence was not sufficient to show his guilty connection with the acts of violence shown to have been committed. Plaintiff in error was not a party to the suit, but there is no question that he had actual notice of the injunction. The question upon the demurrer therefore is: Was he alleged to be in active concert or participating with the parties to the suit? And upon the motion to direct a verdict, the main question is: Was the evidence before the jury sufficient to warrant a finding to this effect?

[1] (a) There was filed with the information, and attached to and made a part of it by proper averments, the injunction order of the court and the affidavit of one Russell Bane, setting forth facts constituting clear violations of the order. Taking the information as a whole, it sufficiently charges that the defendants to the suit were promoting a strike among the employees of the street railway company; that they, and all persons acting in combination or conspiring with them, or for or in the interest of them or either of them, were enjoined from doing certain things calculated to further the strike; that plaintiff in error, and his codefendants had committed acts which appear to be and could only be acts in the aid of and in the interest of those promoting the strike. They were the acts of associates and confederates in such cases, and the averment that they did them, under the circumstances alleged, can receive no other construction than that in so doing they were in active concert and

ern District of Ohio for conspiring to violate a law of the United States, namely, the National Prohibition Act (Comp. St. § 101384 et seq.). Desiring his removal to Ohio, the government instituted proceedings in Philadelphia before a United States Commissioner, and at the hearing offered a certified copy of the indictment in proof of probable cause and produced a witness who identified the appellant as one of the defendants against whom he had testified before the grand jury. On cross-examination counsel for the appellant sought to bring out the substance and source of the evidence the witness had given the grand jury but was prevented by an adverse ruling of the Commissioner. The appellant, in an effort to overcome the probable cause thus established, testified that he was innocent of the crime charged against him and produced evidence of his good reputation. The Commissioner entered an order of arrest and removal and the appellant at once presented a petition for a writ of habeas corpus to a judge of the District Court of the United States for the Eastern District of Pennsylvania, alleging that his commitment to and detention by the marshal was unlawful and praying that he be discharged from custody. The learned judge dismissed the petition and this appeal followed.

[1-4] The facts in this case raise no new question of law. Judges in this circuit have reviewed the law of the statute. United States v. Beiner (D. C.) 275 F. 704; United States ex rel. Tassell v. Mathues (C. C. A.) 11 F.(2d) 53; and the Supreme Court in Tinsley v. Treat, 205 U. S. 20, 27 S. Ct. 430, 51 L. Ed. 689, reviewed the law as stated in previous decisions; and in Hughes v. Gault, 271 U. S. 142, 46 S. Ct. 459, 70 L. Ed. 875, it discussed and restated the law of the Tinsley Case. This is the latest authoritative pronouncement on the subject and we think it rules the case at bar in all its aspects. The law of that case and of other cases there approved, in so far as pertinent to this one, is substantially as follows:

One accused of crime by indictment in a distant district, though liable to trial whereever indicted, cannot be arbitrarily and summarily removed from the district of his residence, but is entitled to a preliminary hearing. Such preliminary hearing is not a preliminary trial. It is had before a committing magistrate, who may be a judge, com missioner, mayor of a city, or justice of the peace, and it is only such as will bring out the probable cause of the charge and make

certain the identity of the defendant. These are the two things that must be established before the accused can be lawfully removed. In such a hearing the function of the magistrate is not ministerial but is judicial in the limited sense indicated. He must pass on the question of identity-an issue purely of fact and also on that of probable cause. The indictment is itself evidence that there was probable cause for finding it. Of this, however, the indictment is not conclusive. Tinsley v. Treat, 205 U. S. 20, 32, 27 S. Ct. 430, 51 L. Ed. 689; its evidential effect is only prima facie. Hence the accused may attack it as not charging a crime and therefore as not showing probable cause.

We have not been persuaded the indictment in this case is faulty in that respect. But the accused may further rebut the government's prima facie case by evidence, the exact nature of which in any given instance we, of course, do not undertake to prescribe. In the case at bar, however, the appellant's main attack on the government's prima facie case was by his own evidence denying his guilt and the evidence of others proving his good reputation. His denial of guilt was nothing more than a plea of not guilty and evidence of reputation did not aid it. The question whether he is guilty still remains and that question is triable not by a magistrate at a preliminary hearing but only by a jury at final trial. Collins v. Loisel, 259 U. S. 309, 314, 315, 42 S. Ct. 469, 66 L. Ed. 956; Hughes v. Gault, supra. A preliminary hearing is afforded the accused to ascertain the probable cause of the charge made against him as justification for an order for his arrest and removal, not to determine his guilt or innocence, and the law intends that "if probable cause is shown on the government's side [the magistrate] is not to set it aside because on the other evidence he believes the defendant innocent." Hughes v. Gault, supra. In other words, the only issue before the magistrate (after that of identity) is probable cause; the rest is for a jury. This, we understand, is the construction which the Supreme Court has given R. S. § 1014, in Hughes v. Gault, supra, where, as here, the accused denied his guilt and resisted removal on that evidence as rebutting the probable cause implicit in an indictment validly charging a crime.

The order denying the petition for writ of habeas corpus and remanding the relator to the custody of the United States Marshal for removal to the Eastern Division of the Northern District of Ohio is affirmed.