179 trary authorities under the former law.178 This amendment is not retroactive, and a claim for such wages filed in a bankruptcy proceeding instituted before said amendment is not entitled to priority." A traveling salesman, as commonly understood, may be defined as a man who travels about the country soliciting orders for goods, which orders are sent to his employer for approval. This is the primary service for which he is employed, and it measures the full extent of his responsibility.180 The fact that a claimant, in addition to pro less manual labor. Matter of Continental Paint Co. (D. C., N. Y.), 34 Am. B. R. 282, 220 Fed. 189. On the other hand, it has been held that the superintendent of an automobile shop, who does the same kind of work as the men under him and is subject to the control and direction of the general manager, is a workman, even though he has authority to hire and discharge the men in his department. Blessing v. Blanchard (C. C. A., 9th Cir.), 35 Am. B. R. 135, 213 Fed. 35. Teamster. If the claim is for services of teamster with wagon and team, he may have priority only for his personal services. Matter of Winton Lumber & Mfg. Co. (Ref., Ky.), 17 Am. B. R. 117. In Pennsylvania, the earnings of horses and teams, not being preferred under the State law, are not preferred under section 64-b(5) of the bankruptcy act, and it being impossible to individuate claimant's earnings and the earnings of his team, no portion of the claim will be allowed. Spruks v. Lackawanna Dairy Co. (D. C., Pa.), 26 Am. B. R. 554, 189 Fed. 287. 178. In re Scanlon (D. C., Ky.), 3 Am. B. R. 202, 97 Fed. 26; In re Greenewald (D. C., Pa.), 3 Am. B. R. 696, 90 Fed. 705. 179. In re Photo Engraving Co. (D. C., N. Y.), 19 Am. B. R. 94, 155 Fed. 684. 180. Traveling salesman definition.— In re New England Thread Co. (C. C. A., 1st Cir.), 20 Am. B. R. 47, 158 Fed. 788, affg. 18 Am. B. R. 840, 154 Fed. 742. In this case the court said: "He is not employed or authorized to fix prices. He cannot pass upon the credit or standing of customers. He does not collect accounts. He is not responsible for the quality, condition, or delivery of the goods. He makes no personal contracts, and he has no other interest in the sales than his compensation for those which are approved his employer. But, while the field of service and responsibility of traveling salesmen is limited, the agreements which they make with their employers vary greatly in such details as the form of compensation, the extent of territory, and in many other particulars. A traveling salesman may be paid a fixed sum per day, week or month, or a yearly salary, or a commission on the amount of goods sold, or both a fixed sum in the form of wages or salary, and, in addition thereto, a commission on the amount of goods sold when the sales exceed a certain amount. The territory as signed to him may be confined to a single city or State, or it may cover many cities or States. Commonly, the employer pays the salesman's expenses, but sometimes, especially if he works for a commission, he pays his own expenses. Sometimes the employer has a list of customers, and the salesman receives a commission upon all orders sent in by those customers. Sometimes he is allotted a certain territory, and he receives a commission upon all sales which are sent in from that territory. In some cases the employer may direct the routes he is to travel, and in other cases the salesman chooses his own curing orders for the bankrupt's goods, supervised their being placed in position, does not take him from the classification of a salesman, his principal business being to procure orders.181 Likewise, the fact that a traveling salesman had charge of a local office, does not deprive him of priority, where his office management was merely incidental to his work as salesman.182 A corporation or partnership engaged in selling merchandise for manufacturers, is not a traveling or city salesman within the meaning of this section.183 VII. DEBTS ENTITLED TO PRIORITY UNDER UNITED STATES OR STATE LAWS a. In general.- Subdivision 5 requires the payment of "debts owing to any person who by the laws of the States or the United States is entitled to priority." Here the practitioner should again bear in mind the rule as to liens, previously stated.184 If the State law gives a lien and it continues after bankruptcy, the priority exists routes. Sometimes the salesman sends the orders directly to his employer, and sometimes the customers themselves send in the orders to the employer. We do not think any of these details takes a man out of the category of traveling salesman." See also In re Fink (D. C., Pa.), 20 Am. B. R. 897, 163 Fed. 135. Salesman for another concern selling on commissions.- Where a traveling man for another concern, having an agreement with a bankrupt company whereby he was to receive 15 per cent. on monuments sold by him to be paid him when the monument was set up and paid for, makes an agreement for the sale of a monument about ten months before the bankruptcy proceeding, but the monument is not delivered and paid for until the month prior to the bankruptcy proceedings, he is a traveling salesman. In re National Marble & Granite Co. (D. C., Ga.), 31 Am. B. R. 80, 206 Fed. 185. 181. In re Roebuck Weather Strip & Wire Screen Co. (D. C., N. Y.), 24 Am. B. R. 532, 180 Fed. 497. In this case a claim was filed against the estate of a bankrupt under a contract between the bankrupt and the claimant by which it was agreed that the claimant should solicit orders for weather strips, superintend the plac ing of the same by workmen whom the claimant should select, subject to the approval of the bankrupt, and that bankrupt should pay the wages of the workmen, furnish the material, and out of the price should retain the cost of labor and material and an additional amount of 15 per cent of the price, turning the balance over to the claimant as his compensation. Claimant claimed priority for compensation due pursuant to said contract under subdivision 4. It was held that the claimant was a wage-earner and not a principal with the bankrupt in its business and that the claim should be allowed priority to the extent of $300. 182. Matter of Gay (D. C., Mass.), 33 Am. B. R. 898, 188 Fed. 392. 183. Matter of Herzenstein Bros. (Ref., N. Y.), 35 Am. B. R. 656; Matter of Kominers (D. C., N. Y.), 40 Am. B. R. 431, 252 Fed. 183. 184. See discussion under this section, ante, subtitle "Priorities versus Liens." 185 in effect though not in name; the property becomes charged with the lien, and § 64, strictly speaking, does not apply." In this connection, too, § 67 on liens avoided by the adjudication should be consulted. b. Debts due United States.186-These are entitled to priority of payment. This follows from § 3466 of the Revised Statutes,187 though the words are somewhat general. It even seems that the United States need not prove its debt,188 and that the doctrine of laches does not apply, any more than to any other sovereign.189 Hence, § 3467, which makes the trustee personally liable, if, with notice, he fails to pay a debt due the United States.190 Being a debt, the order of payment is next after "wages due workmen, clerks or servants, which have been earned within three months before the date of the commencement of proceedings." 191 Freight charges accruing during the federal control of railroads are debts due the United States and entitled to priority over general creditors.192 The United States Shipping Board Emergency Fleet Corporation is not such an agent of the 185. Matter of North Star Ice & Coal Co. (D. C., Tenn.), 42 Am. B. R. 76, 252 Fed. 301. 186. See also Am. B. R. Dig., § 876. 187. U. S. v. Fisher, 2 Cranch 358; Lewis v. U. S., 92 U. S. 618, 23 L. Ed. 513; In re Rosey, Fed. Cas. 12,066; U. S. v. Griswold, 8 Fed. 496. Matter of Tidewater Coal Exchange (C. .C. A., 2d Cir.), 48 Am. B. R. 385, 280 Fed. 648. See also Matter of Bologh (D. .C., N. Y.), 25 Am. B. R. 726, 729, 185 Fed. 825. A surety on a contract between a bankrupt and the United States, who has paid the United States the full amount contracted by it to be paid in case of default by the bankrupt, is entitled to equal priority with a claim of the United States against the bankrupt for additional damages arising out of the violation of the same contract. United States v. National Surety Co. (C. C. A., 8th Cir.), 44 Am. B. R. 525, 262 Fed. 62. 188. U. S. v. Murphy, 15 Fed. 589; In re Huddell, 47 Fed. 206; Lewis v. U. S., 92 U. S. 618, 23 L. Ed. 513. Proof of debt is not required where the debt is due the United States. Section 64-b (5) is in pari materia with U. S. Rev. Stats., §§ 3466 and 3467, and adds nothing to the rights given by those sections nor takes anything away. In re Stoever (D. C., Pa.), 11 Am. B. R. 345, 127 Fed. 394. 189. Cooke v. U. S. 91 U. S. 389, 23 L. Ed. 237; Hart v. U. S., 95 U. S. 316, 24 L. Ed. 479. It is a long and firmly established rule that the sovereign is not bound by a statute of limitations in which it is not named. and the provision of the bankrupt act requiring a claim to be proved within a year is a plain limitation on the creditor's remedy. In re Stoever (D. C., Pa.), 11 Am. B. R. 345, 349, 127 Fed. 394. 190. U. S. v. Barnes, 31 Fed. 705. 191. Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 224 U. S. 152, 27 Am. B. R. 873, 56 L. Ed. 706, 32 Sup. Ct. 457, revg. 23 Am. B. R. 340, 174 Fed. 385, which reversed 22 Am. B. R. 851. 192. Matter of Hebner Oil Co. (C. C. A., 7th Cir.), 45 Am. B. R. 380, 264 Fed. 667. 193 United States that a debt due to it from the bankrupt is in fact and in law a debt due to the United States so as to entitle it to priority." c. Priority under State law.194. (I) IN GENERAL. - It must be remembered that this subdivision has no application where the State statute gives priority to a class already given priority by the bankruptcy law; the bankrupt act not only controls the State law in case of absolute conflict, but by its express regulation of these priorities excludes the State law altogether.195 Thus if a State statute gives a lien for wages or services, and the persons entitled to the lien fall within the clause as to priority of claims therefor, the extent of the lien is limited by the provisions of the bankruptcy act.196 Subject to these exceptions, if the State law gives the priority, the same must be recognized in the bankruptcy proceedings.197 Where a priority is sought under a State statute it must be determined under the laws 193. United States Shipping Board Emergency Fleet Corporation v. Wood (U. S. Sup. Ct.), 48 Am. B. R. 249, 42 Sup. Ct. 386, 66 L. Ed. (Adv. Sheets) 456, affg. 48 Am. B. R. 110, 274 Fed. 893, sub nom. Matter of Eastern Shore Shipbuilding Corp. 194. See also Am. B. R. Dig., §§ 874-881. 195. In re Rouse (D. C., Ill.), 1 Am. B. R. 231, 91 Fed. 514; In re Union Planing Mill, 2 N. B. N. Rep. 384; In re Shaw (D. C., Pa.), 6 Am. B. R. 501, 109 Fed. 782; Matter of Caledonia Coal Co. (D. C., Mich.), 43 Am. B. R. 93, 254 Fed. 742; In re Lewis (D. C., Mass.), 4 Am. B. R. 51, 99 Fed. 935; Matter of Slomka (C. C. A., 2d Cir.), 9 Am. B. R. 635, 122 Fed. 630; In re Crown Point Brush Co. (D. C., N. Y.), 29 Am. B. R. 638, 200 Fed. 882, quoting text; Matter of Western Condensed Milk Co. (C. C. A., 9th Cir.), 44 Am. B. R. 558, 261 Fed. 62. Distinction overlooked.- See In re Byrne (D. C., Iowa), 3 Am. B. R. 268, 97 Fed. 762; In re Lawler (D. C., Wash.), 6 Am. B. R. 184, 110 Fed. 135. A state statute cannot override the act of Congress, even if a lien exists under the former at the time when the proceedings in bankruptcy are begun. In re Consumers' Coffee Co. (D. C., Pa.), 18 Am. B. R. 500, 151 Fed. 933. 196. Matter of Crawford Woolen Co. (D. C., W. Va.), 34 Am. B. R. 223, 218 Fed. 951. 197. In re Fall City, etc., Co. (D. C., Ky.), 3 Am. B. R. 437, 98 Fed. 592; In re Worcester Co. (C. C. A., 1st Cir.), 4 Am. B. R. 497, 102 Fed. 808; In re Crow (D. C., Ky.), 7 Am. B. R. 545, 116 Fed. 110; In re Potter's Sons (D. C., Ky.), 16 Am. B. R. 226, 143 Fed. 407; Moore v. Greene (C. C. A., 4th Cir.), 16 Am. B. R. 648, 145 Fed. 480; Matter of Spies-Alper Co. (D. C., N. J.), 36 Am. B. R. 470, 231 Fed. 535; Matter of Woulfe & Co. (C. C. A., 5th. Cir.), 39 Am. B. R. 91, 239 Fed. 128. If the State statute gives no lien to a county on the property of a tax collector for moneys collected by him, the county is not entitled to priority of payment out of his bankrupt estate. In re Waller (D. C., Md.), 15 Am. B. R. 753, 142 Fed. 883; In re Iroquois Machine Co. (D. C., R. I.), 22 Am. B. R. 183, 166 Fed. 629, holding that where an attachment upon a debtor's property is dissolved by his adjudication as a bankrupt, the attaching creditor's claim for costs of the attachment is a debt entitled to priority. As to a lien of garnishment, see Matter of Culpepper (Ref., Tex.), 31 Am. B. R. 762. of that State.198 The priority should be clearly evidenced by some statutory provision, or by a judicial rule so definitely established as to have the force of a statute.199 It seems that a creditor will be allowed the same priority under the bankruptcy act which he would 198. In re Byrne (D. C., Iowa), 3 Am. B. R. 268, 97 Fed. 762. Text cited in In re United States Lumber Co. (D. C., Wash.), 30 Am. B. R. 682, 206 Fed. 236; In re Lawlor (D. C., Wash.), 6 Am. B. R. 184, 110 Fed. 135. 199. In re Potter's Sons (D. C., Ky.), 16 Am. B. R. 226, 143 Fed. 407. See also Vidal, Petitioner (C: C. A., 1st Cir.), 36 Am. B. R. 783, 233 Fed. 733; Gandia & Slubbe v. Cadierno (C. C. A., 1st Cir.), 36 Am. B. R. 789. Community property.- In New Mexico, a husband has only a community interest in property acquired by himself or wife during the marriage, and upon the bankruptcy of the husband, community creditors are entitled to priority of payment as to community property. In re Chavez (C. C. A., 8th Cir.), 17 Am. B. R. 641, 149 Fed. 73. Priority of debts owing by foreign corporation to residents of State out of property in the State, sustained and applied. See In re Standard Oak Veneer Co. (D. C., Tenn.), 22 Am. B. R. 883, 173 Fed. 103. Claim by wife for wages.- Under the statutes and law of Alabama, a wife on the bankruptcy of her husband is entitled to a prior claim for wages due under a contract for services in her husband's store. Matter of Davidson (D. C., Ala.), 37 Am. B. R. 480, 233 Fed. 462. Costs incurred in an action against the bankrupt prior to bankruptcy, which would constitute a preferred claim under the insolvency laws of Rhode Island, are entitled to priority against the estate in bankruptcy. In re Daniels (D. C., R. I.), 6 Am. B. R. 699, 110 Fed. 745. Priority of mortgage executed prior to four months' period. Where a real estate mortgage was executed by a bankrupt more than four months prior to the filing of a petition against him for adjudication, it constitutes a valid mortgage against all creditors except such as may have acquired a lien prior to its proper record and is entitled to priority under subdivision 5, unless void under the State law as made with intent to hinder, delay and defraud creditors. Bean v. Orr (C. C. A., 5th Cir.), 25 Am. B. R. 400, 182 Fed. 599, revg. In re Tysor-Cheatham Mercantile Co. (D. C., Ga.), 24 Am. B. R. 434, 178 Fed. 733; Rouse v. Ottenwess & Huxtell (C. C. A., 6th Cir.), 31 Am. B. R. 115, 208 Fed. 881. Money due from a guardian to his ward, on a settlement of his accounts in a probate court of Kentucky, is entitled to priority from the estate of the guardian in bankruptcy, the statutes of Kentucky providing that in a distribution of insolvent estates, whether on a voluntary or involuntary assignment, or the death of the insolvent, debts due as a guardian shall be paid in full before any payment shall be made to general creditors. (Ky. St., 1903, § 74.) In re Crow (D. C., Ky.), 7 Am. B. R. 545, 116 Fed. 110. But see under the Michigan statute, In re Jones (D. C., Mich.), 18 Am. B. R. 206, 151 Fed. 108. Labor claims.-Claims for services rendered the bankrupt allowed as preferred claims under section 8339 of the Ohio General Code and section 64-b (5) of the bankruptcy act. Emerson v. Castor (C. C. A., 6th Cir.), 37 Am. B. R. 719, 236 Fed. 29. The secretary, general manager, and superintendent of a lumber company, whose duties include employing workers, directing sales, overseeing the |