April 8, 1913, May 23, 1913, and October 17, 1913. The trustee in reply always expressed the purpose of taking early action to close the estate; but the demands of the trustee's own business were pleaded as an excuse for delay. It seems unnecessary to cite authorities for the proposition that one who assumes such a position of trust should be responsible for any losses arising from his want of care and diligence; the criterion in such cases being the care and diligence exercised by prudent persons in the management of their own affairs. See Hill v. Evans, 114 Mo. App. 715, 91 S. W. 1022, 1024. The case of In re M. D. Monsarrat, a bankrupt, 3 U. S. Dist. Ct. Haw. 641, indicates the disposition of this court in cases of such neglect, and would authorize the surcharging of a negligent trustee in such a case as the present. It may also be noted in this connection, that the statute under which the trustee derived his authority, provides that trustees "shall reduce to money the property of the estate and close up

the estate as expeditiously as is compatible with the best interests of the parties at interest." Act, sec. 47 (a) (2). See Remington, Bankruptcy, secs. 23, 908. Here, the trustee had already taken over five years to dispose of the interest in lands by exchange for this stock, so that the delay has really been since early in 1902 instead of since the above date of 1907.

It is due to the trustee to state that his good faith has never been questioned. In fact his neglect has injured himself more than any one else, as he is a creditor having an allowed claim of $2,761.75 out of a total aggregate of $5,602.88 of claims allowed. His loss of vouchers in the San Francisco fire of 1906 embarrassed him somewhat, but he lost no data which prevented the sale of this stock. It may be noted that there are data in the files of court and the marshal's office accounting for almost all of the payments which these vouchers represent; the other payments aggregated only about $40 and would be reasonably ac

counted for by the course and requirements of the administration. As to the former items: the person giving the receipt for the largest item was the trustee himself, secured creditor, who in these accounts makes further and sufficient acknowledgment; and in the case of the one other large item, the court has been assured that the secured creditor, since deceased, who is alleged to have given the receipt, actually received the money. As this assurance was given by an officer of this court, attorney for the creditor, and husband of one of the creditor's heirs, having an intimate knowledge of the creditor's estate, the court feels safe in relying upon the trustee's accounts in this particular. Furthermore, the latter secured creditor received payment through the sale of corporation stock of the bankrupt, held by himself as collateral, the details of which sale the court has ascertained from the purchaser and from others having knowledge,-all as shown by correspondence on file herein.

It will accordingly be ordered that the trustee's accounts to March, 1914, be approved, except that for the loss aforesaid, hereby found to have been due to the negligence of the trustee, the trustee be surcharged the difference between the 75 cents per share received from the sale of the fifty-five shares of Olaa stock, and the highest fair average market price of $7 aforesaid. Inasmuch as the estate will be eventually liable to the trustee for commissions of $60.66 already earned, he may deposit in bank to the credit of the estate the amount of the surcharge, $343.75, less this amount of $60.66.

The case will, as above suggested, be now referred to the referee at Hilo, for further disposition.

Reported, 32 Am. B. R. 344.

IN THE MATTER OF SHOHICHI HOSHIDA, AN ALLEGED BANKRUPT.

June 20, 1914.

Bankruptcy-Service by publication; prerequisites:

The proper

basis for service by publication under Bankruptcy Act, sec. 18, 30 Stat. 551, am. 32 Stat. 798, is an affidavit showing that personal service of process upon the respondent is impracticable, because he is absent from the jurisdiction and cannot be found. The marshal's return of non est inventus is also desirable practice; but whether essential, not involved.

In Bankruptcy: Motion for service by publication.

Carl S. Carlsmith for petitioners.

CLEMONS, J. The marshal having made a return of inability to find the respondent after due and diligent search, the question arises as to the proper foundation for an order of publication of notice to the respondent to appear and answer this petition in involuntary bankruptcy.

Is the return of non est inventus alone sufficient? It is, according to the dictum of Judge Gresham in Forsyth v. Pierson, 9 Fed. 801, 803, that "the marshal's return to a subpoena, that one or more of the defendants cannot be found within the district would, no doubt, authorize the court to enter such an order."

But, for the reasons suggested by Judge Dillon in Bronson v. Keokuk, 2 Dill., 498, 4 Fed. Cas. 220, No. 1,928, we prefer the thorough-going practice therein pursued, of having "the complainant, or his attorney or agent, most conversant with the facts, make a showing on oath as to the residence of absent defendants." It is to be noted that the provision of the act of June 1, 1872, 17 Stat. 198, sec. 13, there involved, for service of the warning order "upon the absent defendant, if practicable, wherever found,"

Bronson v. Keokuk, supra, 221, is continued in the new statute now in force, Judicial Code, sec. 57, superseding the act of March 3, 1875, 18 Stat. 472, sec. 8. In any event, the basis of Judge Dillon's ruling, shown in the following excerpt from his decision, would apply to the statute now in force:

"If practicable, says the statute, personal service of the order must be made upon the absent defendant, wherever found; and it is only in cases where such personal service is not practicable, that the statute contemplates that the court shall direct a publication of the order. How is the court to know whether it is practicable to make personal service? This may be ascertained by requiring the complainant, or his attorney or agent, most conversant with the facts, to make a showing on oath as to the residence of absent defendants. If from this it appears that such defendant resides in another district, service upon him may be directed to be made by the marshal of that district; and perhaps, in such a case, the court might make a special order directing or authorizing service by some other officer. If, from the showing, it appears to the satisfaction of the court that the residence of the absent defendant is not known to the complainant, or his agent or attorneys, and cannot, by reasonable diligence, be ascertained (and on this subject the affidavit should state facts, and not mere conclusions), personal service of the order may as well be said not to be practicable, and then the court may direct the order to appear and plead to be published in such manner as it shall deem most likely to give the desired notice." See, also Collier, Bankruptcy, 9th ed., 420.

As to other details of practice in service by publication, see In re McDonald, ante, p. 221, 30 Am. B. R. 120.

The desired order will issue upon the petitioner's compliance with the practice hereinabove approved.

Reported, 32 Am. B. R. 451.

Criminal Law-Practice; application of Territorial statutes to United States District Court: A statute in force in the Hawaiian Islands at the time of their annexation to the United States and continued in force in the Territorial courts, providing that the successive disagreement of two juries in a criminal case shall operate as an acquittal, does not govern the United States District Court for the Territory. of Hawaii.

i

Criminal Law: Motion for discharge of defendant.

1

Jeff McCarn, U. S. District Attorney, and J. W. Thomp son, Assistant U.S. Attorney, for the United States.

E. A. Douthitt and L. M. Straus (J. L. Coke with them) for defendant.

1

CLEMONS, J. The jury having disagreed in two successive trials of the defendant on an indictment for adultery, his counsel move for his discharge on the ground of the applicability of section 2822 of the Revised Laws of Hawaii of 1905, providing in part as follows:

"The successive disagreement of two juries impaneled to try the cause, shall operate as an acquittal of the accused, and the court shall order his discharge from custody."

The defendant contends that this rule of Territorial law. in force in Hawaii since 1876 (S. L. 1876, c. 40, s. 3), is made applicable to the Federal court by section 83 of the Organic Act (31 Stat. c. 339, p. 157), which provides that "the laws of Hawaii relative to the judicial department, including civil and criminal procedure, except as amended by this act, are continued in force."

This contention overlooks the obvious fact that section 83 contemplates the "judicial department" of the Territory and not that of the United States,-not only as indi