exceptions only out of the enacting clause, and those who set up any such exceptions must establish same as being within the words, as well as within the reason thereof." McRae vs. Holcomb, 46 Ark. 306.

Keeping in mind the rules of construction, and the functions of a proviso, to contend that section 8 was intended to cover the general subject of interest, and to that extent repeal chapter 109, Mansfield's Digest, would be unwarranted by any of the well known rules of interpretation, of statutes, as well as violative of the rules of grammar. "Provided," as we find it in section 8, is used in its conjunctive sense, and means "on condition" or "with the understanding," and has relation to the terms upon which the banks and trust companies mentioned in the preceding part of the section are authorized to transact business in the Indian Territory. Nix vs. Gilmer, 5 Okla. 740, is a case precisely in point on the question we are now discussing. It is provided by paragraph 3, section 4510, Wilson's statutes of Oklahoma, that husband or wife shall be incompetent to testify for or againts each other. It was claimed by counsel in the Nix case, supra, that this portion of the act was repealed by section 29, chapter 41, laws of 1895, and that the husband or wife of a party to a civil action, was a competent witness for such party. The part of the act it was claimed repealed the former act reads as follows:

"Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all cases be witnesses for each other, and shall be subject to cross examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other, except on a trial of an offense committed by one against the other."

Mr. Justice Keaton, speaking for the court, says:

"While the provision just quoted seems to be quite general in its application, yet, as it is contained in the chapter on criminal procedure and does not purport to repeal or amend said section 335 of the civil code, we

hold that it does not necessarily do so by implication, but applies solely to criminal actions."

It seems clear, from reason as well as authority, that no other conclusion can be reached than that the 8 per cent rate of interest prescribed by the proviso to section 8 of the Act of Congress, 1901 entitled: "An Act to put in force in the Indian Territory certain provision of laws of Arkansas relating to corporations, and to make said provisions applicable to said territory," is restricted to banks or trust companies organized under the laws of Arkansas or any other state authorized by section 8 to transact business in the Indian Territory; and said proviso does not provide a general interest law for the Indian Territory or repeal or modify chapter 109, Mansfield's Digest.

We are not called upon to hold that Congress intended to hide a general law of such far reaching consequence to the business world, in an abscure proviso, unless such intention is clearly apparent from the whole act, and in this case it is not, but, on the contrary, all the rules formulated to guide the judgment of courts in the interpretation of statutes lead us to a contrary conclusion.

The power of Congress to thus discriminate against foreign corporations is undoubted, but that question is not in this case. It is our duty now to construe section 8 and chapter 109 according to the well settled rules of interpretation and if possible give them the effect they were intended by Congress to have. The construction above adopted harmonizes section 8 with the balance of the Act of which it is a part, and with chapter 109, Mansfield's Digest. It also avoids the forfeiture of the contract which argues in its favor to the conscience of the court: "Forfeitures are not favored in the law, Courts always incline against them." Marshall vs. Vicksburg, 15 Wall. 146.

"When either of two constructions can be given to a statute, and one of them involves a forfeiture, the other is to be preferred." Farmers' Etc. Nat, Bk. vs. Dearing, 91 U. S. 35. Counsel for appellants state in their brief that their case is based entirely upon the theory that

section 8 of the Act of Congress changed the maximum rate of interest that can be contracted for from 10 per cent per annum, to 8 per cent per annum, but left the penalty for usury the same as provided by section 4732, Mansfield's Digest, with the exception that maximum rate to work a forfeiture should be 8 per cent per annum instead of ten per cent per annum. They admit that if their contention is not true, that the transaction was valid and the case should be affirmed. As we cannot agree with learned counsel on this proposition of law, and as appellee expresses no dissatisfaction with the judgment rendered, it follows that the judgment of the court below must be affirmed.

Dunn and Turner, J. J., concurring; Williams, C. J. and Hayes, J. concurring in the conclusion reached but not in all the reasoning.

LATEST BANKRUPTCY CASES.

Corporations-Extension of Receivership in Bankruptcy to Corporate Assets Controlled by PartnershipIn the case of In re Ruger, Kapner & Altmark, 19 Am. B R. 622, it appeared that 99 per cent. of the stock of a manufacturing corporation was owned by a partnership and the remainder of the stock was held by relatives of one of the partners, who, as officers and directors of the corporation, maintained its business fhr tne benefit of the partnership. It was held that the corporation was a mere adjunct to the firm, and upon its adjudication a receivership in the bandruptcy proceedings would be extended to the property in possession of the corporation as a part of the assets of the partnership.

CONTEMPT-Disobedience of Order to Produce Books, etc.-Habeas Corpus.

Where an order for the examination of a bankrupt under the provisions of section 21a of the Bankruptcy Act contains a clause ordering him to produce thereon all books and other memoranda used by him in the conduct of his

business and he admits that he kept various books in his business which he did not produce and after he does not. purge his contempt, it has been held in Matter of Alper, 19 Am. B. R. 612, that the court has jurisdiction to make an order to punish him as for contempt and commit him to jail, and that an application for his discharge on habeas corpus will be denied.

ATTACHMENT-Sheriff Delivered Property to Claimant after notice of Bankruptcy Proceedings-Order for Return of Property.

In the case of Matter of Lufty, 19 Am. B. R. 614, it appeared that attachments were levied on property of a debtor, which, was taken possession of by a sheriff, and thereafter a sheriff's jury found the property to belong to a third party, and the first attaching creditor withdrew his attachment, and meanwhile a petition in bankruptcy had been filed against the debtor, and both the claimant and the sheriff had notice thereof prior to the delivery of the property to the claimant. It was held that such delivery was in derogation of the bankruptcy pro. ceedings, and that the bankruptcy court would order the goods, or their value, to be returned to the receiver in bankruptcy.

JURISDICTION CONCURRENT-Two district JudgesAppointment of Referee by One-Other Judge Absent from District. Where there are two district judges, each having equal and concurrent authority, In re Steale, 19 Am. B. R. 671, holds that one of them, while the other is absent from the district, has authority to make a valid and binding appointment of a referee in bankruptcy without the concurrence of the other judge; but the absent judge, upon returning to the district while the judge who appointed the referee is holding court therein, may not lawfully set aside the appointment without notice to and without the concurrence of the other judge. An order made by the absent judge upon his return to the district for the sole purpose of removing the referee is without warrant of law and will be set aside as having been improvidently granted.

PLEDGE-Deposit of Securities with Stockbroker.The Supreme Court of the United States has very recently held, in the case of Thomas vs. Taggart, 19 Am. B. R. 710, that, where a customer of a firm of stockbrokers, upon opening an account or in the course of dealings for speculative purposes, deposits securities under an agree ment that they shall not be sold except to meet marginal requirements on account of losses, the transaction constitutes merely a pledge of the securities, and where the brokers hypothecate them to obtain a loan to themselves, the customer is entitled to recover the securities, or their proceeds, from the trustee in bankruptcy of the brokers.

NOTEWORTHY CRIMINAL CASES.

People vs. Cain.

(Court of Criminal Appeals of California.)

1. Larceny.-The California Penal Code, section 484, defines larceny as the felonious stealing, etc., of personal property of another. Held, that the phrase "personal property of another," as so used, means property in the possession of another who is entitled, as bailee or otherwise to retain possession for some benefit or profit to himself to the exclusion of all others, and not absolute ownership as defined by the Civil Code, sec. 679; so that the taking of a heifer by the general owner thereof from the possession of an agister entitled to hold the same under a lien for pasturage, with the intent to deprive the latter thereof, constituted larceny.

2. Construction of Instruction as a Whole.

An instruction in a criminal case must be read in connection with other portions of the charge; it being unnecessary in dealing with each particular phase of the case for the court to repeat all the conditions and limitations which are to be gathered from the entire charge.

3. Circumstantial Evidence.-Where the court charged that the law presumes every man innocent until his guilt is established to a moral certainty, and beyond all reasonable doubt, and that such presumption attaches