what of right and according to the law and custom of the United States ought to be done.

Witness, the Honorable MELVILLE W. FULLER, Chief Justice of the Supreme Court of the United States, this 27th day of July, in the year of our Lord one thousand eight hundred and ninety-one, and of the Independence of the United States the one hundred and sixteenth.

APPELLATE FORM VI.-WRIT OF ERROR TO STATE COURT.

UNITED STATES OF AMERICA, SS.

The President of the United States of America, to the Honorable the Judges of the Supreme Judicial Court of the Commonwealth of Massachusetts, GREETING:

Because in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said Supreme Judicial Court of the Commonwealth of Massachusetts before you, or some of you, being the highest court of law or equity of the said State in which a decision could be had in the said suit between John Doe and Richard Roe, wherein it was drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision was against their validity; or wherein was drawn in question the validity of a statute of, or an authority exercised under, said State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favor of their validity or wherein was drawn in question the construction of a clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision was against the title, right, privilege, or exemption specially set up or claimed under such clause of the said Constitution, treaty, statute, or commission; a manifest error hath happened to the great damage of the said Richard Roe, as by his complaint appears. We being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at Washington, on the day of next, in the said Supreme Court, to be then and there held, that the record

and proceedings aforesaid being inspected, the said Supreme Court may cause further to be done therein to correct that error, what of right, and according to the laws and customs of the United States, should be done.

Witness the Honorable Melville W. Fuller, Chief Justice of the said Supreme Court, the 18th day of December, in the year of our Lord one thousand eight hundred and eighty-nine.

Allowed by

JAMES HALL MCKENNEY,

Clerk of the Supreme Court of the United States.

HORACE GRAY, Justice.

APPELLATE FORM VII.-CITATION ON WRIT OF ERROR.

UNITED STATES OF AMERICA, SS.

To Dominick Amato, GREETING:

You are hereby cited and admonished to be and appear at a Supreme Court of the United States, at Washington, within thirty days from the date hereof, pursuant to a writ of error, filed in the Clerk's office of the United States Circuit Court of Appeals for the Second Circuit, wherein the Northern Pacific Railroad Company is plaintiff in error, and you are defendant in error, to show cause, if any there be, why the judgment rendered against the said plaintiff in error, as in the said writ of error mentioned, should not be corrected, and why speedy justice should not be done to the parties in that behalf.

Witness, the Honorable SAMUEL BLATCHFORD, Associate Justice of the Supreme Court of the United States, this twentieth (20th) day of February, in the year of our Lord one thousand eight hundred and ninetytwo.

Associate Justice of the Supreme Court of the United States.

APPELLATE FORM VIII.-PETITION FOR WRIT OF ERROR TO STATE COURT.

[Frank v. Vollkommer, 205 U. S. 521.]

To the Honorable Melville Weston Fuller, Chief Justice of the United States; and to the Honorable Rufus W. Peckham, Associate Justice of the Supreme Court of the United States; and to the other Justices of said Honorable Courts and to the Honorable the Supreme Court of the United States:

The petition of Solon L. Frank and Samuel Frank, who reside in the City, County and State of New York, respectfully shows:

I. Heretofore and on or about the 20th day of December, 1902, an action was commenced in the Supreme Court of the State of New York for

the County of Kings by Joseph Vollkommer, Jr., as Trustee in Bankruptcy of the estate of Jacob Vogt, bankrupt, plaintiff against your petitioners Solon L. Frank and Samuel Frank, doing business as S. L. & S. Frank, and one Jacob Vogt, as defendants. The complaint in said action alleged: That on or about July 10th, 1902, said Jacob Vogt was duly adjudged an involuntary bankrupt in the United States District Court for the Eastern District of New York; that on November 12th, 1902, plaintiff was duly appointed trustee in bankruptcy of said bankrupt, and that he duly qualified as such on November 21st, 1902; that on April 16th, 1902, said Vogt delivered to your petitioners, the defendants Frank, a certain chattel mortgage on certain of the goods and chattels owned by said Vogt, to secure the payment of the sum of $8,500; that at the time of making said alleged mortgagee, said Vogt was insolvent; that said mortgage was intended to create an unlawful preference; that said mortgage was void for usury; and that said mortgage was fraudulent for the reason that it was made for an amount greatly in excess of the indebtedness owing from said Vogt to said Franks; and was intended to injure the other creditors of said Vogt. Said complaint further alleged that on June 30th, 1902, one Arthur T. Stoutenberg was appointed by the Judge of the said United States Dis trict Court, Receiver of the property of said bankrupt; that by agreement between said Franks and the petitioning creditors of said Vogt in bankruptcy, an order was made, a copy of which order was annexed to said complaint, which order directed as follows: "It is ordered, that the said temporary Receiver be and he hereby is authorized and directed to sell at public auction on Thursday, July 3rd, at 11 A. M., in the forenoon of that day, at the Auction-mart of the Fiss, Doerr & Carroll's Horse Company, on the north side of 24th Street, between Third and Lexington Avenues in the Borough of Manhattan, City of New York, and on such other and further days as the receiver may designate, notice of the time and place of this sale to be published on the 3rd day of July, in the New York Herald, a newspaper published in the County of New York, the entire plant known as Jacob Vogt's Suburban Delivery, consisting of the personal property before described, belonging to the said alleged bankrupt, free from any and all liens of any kind and nature thereon, and it is further ordered, that the expenses of said sale be deducted from the moneys derived therefrom, and it is further ordered, that said temporary Receiver be and he hereby is authorized and directed, within five days from the date of said sale to deposit in the People's Trust Company of Brooklyn, as a special fund, there to await the further order of the Court, upon due notice to all creditors who have or may hereafter appear, the proceeds resulting from the sale of said property, after the deduction of the expenses of said sale, and that the lien, if any, of the said alleged chattel mortgage of the said S. L. & S. Frank, be transferred to and attached to said special fund or deposit in lieu of, and to the same extent that it attached to the said property herein before directed to be sold. It is further ordered, that the temporary Receiver be and he hereby is authorized and directed to deposit the balance of the proceeds of said sale as part of the general fund of the

estate of the alleged bankrupt." Said order was entered by the consent of the attorneys for the petitioning creditors and for the attorneys of your petitioners. Said sale took place and the net proceeds thereof were duly deposited in said Trust Company in pursuance of said order subject to the further order of said District Court of the United States.

Said Complaint prayed that the said chattel mortgage be declared null and void and be cancelled; and that the said fund, which was deposited as aforesaid under the order of said District Court of the United States in bankruptcy be declared free of the lien or incumbrance of said chattel mortgage, and free from any lien or claim by your petitioners under said mortgage or otherwise.

II. Your petitioners duly answered said complaint. The said bankrupt made a default. Subsequently, the issues raised by said pleadings came on for trial on June 16, 1903, before Mr. Justice Marean of said Supreme Court of the State of New York at a special term thereof, held in the County of Kings. Upon said trial, your petitioners moved to dismiss the complaint in said action for several reasons, amongst other reasons, specifying the following: That the said Supreme Court of the State of New York had no jurisdiction because said suit was brought to determine the title to property in the possession of said District Court of the United States. Said motion to dismiss was denied and your petitioners duly excepted to the denial of said motion. Subsequently, judgment was entered in said action, which judgment provided as follows: "It is ordered, ad judged and decreed that the chattel mortgage executed and delivered by Jacob Vogt of the Borough of Brooklyn, County of Kings, to the above named defendants Solon L. Frank and Samuel Frank of the City and State of New York, April 16, 1902, to secure the sum of $8,500 with legal interest and filed in the office of the register of the County of Kings, April 18, 1902, as No. 11,230 be, and the same hereby is anulled and declared void and of no effect. That said register upon receiving a certified copy of this judgment cancel the said chattel mortgage of record and that the said chattel mortgage be and the same is hereby adjudged and declared to be no lien upon the moneys, viz., $5,481.47 deposited on July 9, 1902, by Arthur T. Stoutenburgh in the Peoples' Trust Company of Brooklyn, N. Y., under an order of the District Court of the United States for the Eastern District of New York, made July 2, 1902."

III. Thereupon, your petitioners duly excepted to said judgment and to the decision upon which the same was rendered and they duly appealed from said judgment to the Appellate Division of the Supreme Court of the State of New York for the second department. Said appeal duly came on for argument before said Appellate Division and your petitioners through their counsel duly argued that said judgment should be reversed, and that said complaint should be dismissed for the reason that the District Court of the United States for the Eastern District of New York, sitting in bankruptcy, had the exclusive right to determine the title to said. fund deposited as aforesaid in pursuance to an order of said court; and for the further reason that your petitioners had a contractual right under

said order to have all questions concerning the right to said fund determined in said District Court of the United States, sitting in bankruptcy; and your petitioners then in said Appellate Court and previously in said court of first instance insisted that they had a title, right, privilege and immunity under the Constitution and Statutes of the United States, which relieved them from the jurisdiction of said State Court in said action; and which entitled them to have all questions concerning the title to said fund determined by the said District Court of the United States, sitting in bankruptcy.

IV. Thereafter on or about October 11, 1905, an order was entered in the office of the Clerk of said Appellate Division, which order affirmed said judgment. On the same day, a certified copy of said order together with the original papers on said appeal were entered in the office of the Clerk of the County of Kings in the State of New York. Subsequently, on October 23, 1905, a judgment for the costs taxed upon said appeal was thereupon entered in the office of the Clerk of the County of Kings, which judgment directed as follows: "Ordered and adjudged that plaintiff recover of said defendants. Solon L. Frank and Samuel Frank, doing busi ness as S. L. & S. Frank, the sum of $149.50; and that said plaintiff have execution therefor." Said decision of said Appellate Division was unanimous.

V. The constitution and laws of the State of New York provide as set forth in section 191 of the Code of Civil Procedure, that no appeal shall be taken to the Court of Appeals of said 'State from a judgment of affirm ance in an action to set aside a judgment, sale, transfer, conveyance, assignment or written instrument as in fraud of the rights of creditors, when the decision of the Appellate Division of the Supreme Court is unanimous, unless such Appellate Division shall certify that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals, or unless in case of its refusal to so certify, an appeal is allowed by a judge of the Court of Appeals. The decision of the Justice of said Supreme Court upon which said judgment was entered expressly stated as follows: "The grounds upon which the issues have been decided are as follows: Said mortgage was made with the intent and purpose of said Vogt and said defendants Frank to hinder, defeat, defraud and delay said Vogt's creditors." Upon the trial of said action, no evidence of usury was offered; and the contention that said chattel mortgage was void under the bankruptcy law as a preference was not raised by the plaintiff, whose only contention upon the trial was that said chattel mortgage was void as a fraud upon the rights of the creditors of said Vogt. Subsequently to said order of affirmance by said Appellate Division, your petitioners duly applied to said Appellate Division and requested said Appellate Division to certify that in its opinion, a question of law was involved in said case which ought to be reviewed by the Court of Appeals, and requested said Appellate Division to allow an appeal from said judgment to said Court of Appeals; but said Appellate Division refused to make such certification and refused to allow such appeal. Thereupon your petitioners duly applied