error would not be bound to maintain a gate or flagman at the crossing where the defendant in error was injured. Beisiegel v. New York C. R. Co. 40 N. Y. 9; Weber v. New York C. & H. R. R. Co. 58 N. Y. 451; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 12 Sup. Ct. Rep. 679, 12 Am. Neg. Cas. 659. The Spanish doctrine, which has prevailed on the Isthmus since the beginning of time, is that, when it is shown that an employer has exercised due diligence and care in the selection of his servants and in his supervision over them, his responsibility for their acts ceases. 12 Manresa, Civil Code of Spain, pp. 617, 618. While the fact of a foreign law must be proved to the jury, like any other fact, questions of competency and of construction are for the court. Consequa v. Willings, Pet. C. C. 225, Fed. Cas. No. 3,128; Bank of China v. Morse, 168 N. Y. 458, 56 L.R.A. 139, 85 Am. St. Rep. 676, 61 N. E. 774; Union Cent. L. Ins. Co. v. Pollard, 94 Va. 146, 36 L.R.A. 271, 64 Am. St. Rep. 715, 26 S. E. 421. Mr. Theodore C. Hinckley submitted the cause for defendant in error: Washington & G. R. Co. v. Gladmon, 15 Wall. 401, 21 L. ed. 114; Crane Elevator Co. v. Lippert, 11 C. C. A. 521, 24 U. S. App. 176, 63 Fed. 942. The trial court was justified in refusing the request of plaintiff in error relative to not allowing this defendant in error to recover in damages for pain and suffering. Panama R. Co. v. Bosse, 249 U. S. 41, 63 L. ed. 466, 39 Sup. Ct. Rep. 211; Panama R. Co. v. Toppin, 252 U. S. 308, 64 L. ed. 582, 40 Sup. Ct. Rep. 319; Panama R. Co. v. Beckford, 145 C. C. A. 430, 231 Fed. 436. The rule of law in regard to the negligence of an adult, and the rule in regard to that of an infant of tender years, are quite different. By the adult there must be given that care and attention for his own protection that are ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly, and cannot be visited upon another. Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. Of a child of three years of age less caution would be required than of one of seven; and of a child of seven less than one of twelve or fifteen. The caution required of the child, and this is to be determined is according to the maturity and capacity in each case by the circumstances of that case. Whether ordinary care or reasonable prudence requires a railroad company to keep a flagman stationed at a crossing that is particularly dangerous is, as a general rule, a question of fact for the Shearm. & Redf. Neg. 49; Mangam v. jury to determine, under all the circumstances of the case; and the omission to Brooklyn R. Co. 38 N. Y. 455, 98 Am. station a flagman at a dangerous cross-86 Am. Dec. 582; Pennsylvania R. Co. v. Dec. 66; Smith v. O'Connor, 48 Pa. 218, ing may be taken into account as evi- McTighe, 46 Pa. 316; Washington & G. dence of negligence; although in some R. Co. v. Gladmon, 15 Wall. 401, 21 L. cases it has been held that it is a ques- ed. 114. tion for the court. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 421, 422, 36 L. ed. 485, 490, 491, 12 Sup. Ct. Rep. 679, 12 Am. Neg. Cas. 659. Manifestly, the evidence is such that different minds might reasonably have drawn different conclusions as to whether or not the defendant in error was guilty of any contributory negligence at all, and under such circumstances the evidence should invariably be submitted to the jury. Weller v. Chicago, M. & S. P. R. Co. 120 Mo. 635, 23 S. W. 1061, 25 S. W. 532; Brooks v. Somerville, 106 Mass. 271. The fact that the defendant in error was, at the time of his injury, a minor, seven years of age, made it incumbent upon the trial court to submit the question of contributory negligence to the jury. Mr. Justice Holmes delivered the opinion of the court: This is an action brought in the district court of the Canal Zone for the division of Cristobal, to recover from the Panama Railroad Company for personal injuries suffered by the minor, Pigott, in the city of Colon, Republic [553] of Panama. Pigott recovered a judgment which was affirmed by the circuit court of appeals. 168 C. C. A. 183, 256 Fed. 837. The case is brought to this court under the Panama Canal Act, August 24, 1912, chap. 390, § 9, 37 Stat. at L. 560, 566, Comp. Stat. §§ 10,037, 10,045, 9 Fed. Stat. Anno. 2d ed. p. 110, 4 Fed. Stat. Anno. 2d ed. p. 780. The facts may be stated in a few words. The minor, a boy of seven, was run over when at tempting to cross the railroad track on a street in Colon. There was evidence that the crossing was much used, and that, especially in the afternoon, the time of the accident, there usually were many children about; there were, however, neither gates nor a watchman at the place. A hedge higher than the child somewhat obstructed the view. The engine was backing a box car and did not have the lookout required by the company's rules. There was evidence also that it gave no warning by bell or whistle. In short, by the criteria of the common law, the plaintiff had a right to go to the jury with his case. The fundamental argument for the plaintiff in error is that the law of Panama was not applied in determining the principles of liability or in fixing the rule of damages. It is contended that if, as there was evidence to prove, due care had been used in the selection of servants by the railroad, the company was not answerable for their negligence, and that in any event V. there could be no recovery for pain. Both FRANCIS P. GARVAN, as Alien Property Custodian. (No. 396.) (See S. C. Reporter's ed. 554-569.) enemy property demand by judicial Alien Property Custodian of these contentions are simply attempts to reargue what was decided in Panama R. Co. v. Toppin, 252 U. S. 308, 64 L. ed. seizure. 582, 40 Sup. Ct. Rep. 319. The plaintiff War enemy property in error certainly did not get less than 1. There can be no doubt that Congress it was entitled to when, in view of con- has power to provide for an immediate tradictory testimony from lawyers on the seizure in war times of property supposed two sides, the court left the law of to belong to the enemy, as it could provide for an attachment or distraint, if adequate Panama to the jury. The court was war-provision is made for a return in case of ranted in also leaving to the jury the mistake. As it can authorize a seizure in question whether proper care required pais, it can authorize one through the help the company to have a flagman or gate of a court. at the crossing and the other safeguards War that we have mentioned. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 12 Sup. Ct. Rep. 679, 12 Am. Neg. Rep. 659. In view of the extreme youth of the plaintiff we cannot say that the court erred in allowing the jury [554] to attribute his misfortune to the defendant's conduct alone, whatever difficulties there might be in the case of an older person; and we perceive no other ground for not allowing the verdict and the decision of the two courts below to stand. Judgment affirmed. enforcement. 2. A demand by the Alien Property Custodian under the Trading with the Enemy Act of October 6, 1917, for the delivery to him of property to which he is entitled, may be enforced by the Federal district courts under § 17 of that act, giving to those courts jurisdiction to make all such orders and decrees as may be necessary and proper to enforce the provisions of the act. War - enemy property conclusiveness of determination of Alien Property Custodian. 3. The determination of the Alien Property Custodian that certain property is liable to seizure as being that of an alien enemy must, whether right or wrong, be deemed conclusive in a possessory ac CENTRAL UNION TRUST COMPANY OF tion brought by that officer to obtain immediate possession, the President having NEW YORK, Individually and as Trus delegated his authority to him under the tee, etc., Plff. in Err., Trading with the Enemy Act of October 6, 1917, § 5, and the act providing in § 7c FRANCIS P. GARVAN, as Alien Property that, "if the President shall so require, any money or other property owing or belonging V. Custodian. (No. 392.) [Nos. 392, 393, 394, 395, and 396.] to or held for, by, on account of, or on, todian or in the Treasury of the United behalf of, or for the benefit of an enemy States, to abide the result. or ally of an enemy not holding a license granted by the President hereunder, which the President after investigation shall determine is so owing or so belongs, or is so held, shall be conveyed, transferred, assigned, delivered or paid over to the Alien Property Custodian," to which the amen datory Act of November 4, 1918, added, after the requirements of transfer, the words, "or the same may be seized by the Alien Property Custodian, and all property thus acquired shall be held, administered and disposed of as elsewhere provided in this act," provision being made in § 9 for immediate claim for a return of the property and for suit, in which case the property is to be retained in the custody of the Alien Property Custodian, or in the Treasury of the United States, to abide the result. War enemy property resort of Alien Property Custodian to courts remedy of claimant. 4. The natural interpretation of the provision of the Trading with the Enemy Act of October 6, 1917, as amended by the Act of November 4, 1918, that the sole relief and remedy of any person having any claim to any property transferred to the Alien Property Custodian, or required so to be, or seized by him, shall be that provided by the terms of the act, is that it refers to the remedies expressly provided by 9, viz., the filing of a claim for a return of the property and the bringing of suit, and that property required to be transferred, and property seized, stand on the same footing, not that the resort by the Custodian to the courts instead of to force opens to the person who has declined to obey the order of the statute, or who has prevented a seizure, a right by implication to delay what the statute evidently means to accomplish at once. claimant. 5. A proceeding brought by the Alien Property Custodian under the Trading with the Enemy Act of October 6, 1917, § 17, to obtain possession of property as being that of an alien enemy, gives nothing but the preliminary custody, such as would have been gained by seizure, although the property is to be conveyed to him, and by the amendatory Act of March 28, 1918, he is vested with all the power of a commonlaw trustee in respect of all property other than money which has been or shall be, or which has been or shall be required to be, conveyed to him, and is given the power to sell and manage the same as though he were absolute owner, since this act did not repeal 9 of the earlier act, which provides for the immediate filing of a claim for a return of the property and the bring ing of suit, the property, in case of suit, to be retained in the custody of the Cus Argued January 10 and 11, 1921. Decided January 24, 1921. FIVE WRITS of Error to the United States Circuit Court of Appeals for the Second Circuit to review decrees which affirmed decrees of the District Court for the Southern District of New York, in favor of the Alien Property Custodian, in suits to obtain possession of property as being that of alien enemies. Affirmed. See same case below, in Nos. 392-395, The facts are stated in the opinion. Mr. Perry D. Trafford argued the cause and filed a brief for plaintiffs in error in Nos. 392 and 393: That the United States district court should not make a decree for the seizure of property not included in the terms of the Civil War Confiscation Act, and that the decree of the court in such case was no protection to parties complying with it, is established by many decisions. Bigelow v. Forrest, 9 Wall. 339, 351, 19 L. ed. 696, 700; Day v. Micou, 18 Wall. 156, 161, 21 L. ed. 860, 862; Risley v. Phenix Bank, 83 N. Y. 331, 38 Am. Rep. 421, 111 U. S. 125, 28 L. ed. 374, 4 Sup. Ct. Rep. 322. In its simplest elements a trust is a confidence reposed in one person, called the trustee, for the benefit of anyone, called a cestui que trust, with respect to the property held by the former for the benefit of the latter. 39 Cyc. 18. a A trustee may be defined generally as person in whom some estate, interest, power in or affecting property is vested for the benefit of another. or Taylor v. Davis (Taylor v. Mayo), 110 U. S. 330, 28 L. ed. 163, 4 Sup. Ct. Rep. 147. Regardless of the particular power given to trustees, if it be one which calls for the exercise of judgment and discretion, an active trust which the Statute of Uses does not affect is created, and the legal title is vested in the trustees. 28 Am. & Eng. Enc. Law, 925. the general principles of the law of It seems unnecessary to depend upon trusts to establish the proposition that a valid trust is created by such instruments as these which the Custodian now questions; for they are expressly sanc tioned and declared to be trusts by the statutes of Massachusetts, and it happens that the authorities have passed decisively upon this very point. Cooke v. Warner, 56 Conn. 234, 14 Atl. 798; Brackett v. Middlesex Bkg. Co. 89 Conn. 645, 95 Atl. 12; Lancashire Ins. Co. v. Maxwell, 131 N. Y. 286, 30 N. E. 192; Re Home Provident Safety Fund Asso. 129 N. Y. 288, 29 N. E. 323; Ruggles v. Chapman, 59 N. Y. 163; People ex rel. Ruggles v. Chapman, 64 N. Y. 557. Probably there is no class of property which the court should be more jealous in protecting than that held by trustees; and one reason for this attitude is the strict accountability of trustees to the beneficiaries. It is, of course, the moral as well as the legal duty of trustees to protect funds confined to them against attacks; and they are, moreover, bound to do so for their own protection in such a case as this, since a decree authorizing the seizure of this property would be no protection to them when called upon to account many years later, if, as a matter of law, the Trading with the Enemy Act does not give the court jurisdiction over the property of American citizens. Risley v. Phenix Bank, 83 N. Y. 337, 38 Am. Rep. 421; Day v. Micou, 18 Wall. 156, 160,.21 L. ed. 860, 862; Bigelow v. Forrest, 9 Wall. 339, 351, 19 L. ed. 696, 700; Re Home Provident Safety Fund Asso. 129 N. Y. 288, 29 N. E. 323. It appears from the statute itself that it is enemy property and the rights of enemies therein which are taken, and not all property in which an enemy may have an interest. Day v. Micou, 18 Wall. 156, 21 L. ed. 860; Claims of Marcuard (Citizens' Bank v. United States) 20 Wall. 114, 115, 22 L. ed. 327, 328; Burbank v. Conrad, 96 U. S. 291, 293, 24 L. ed. 731, 732; Conrad v. Waples, 96 U. S. 279, 285, 24 L. ed. 721, 722. The authority intended to be conferred upon the Custodian is such as is usually conferred upon a receiver. It has been held, however, that a receiver of an insolvent corporation is not entitled to take possession of the securities deposited with a state superintendent of insurance, which, like the securities now seized, constitute a trust fund. 44 Misc. 31, 89 N. Y. Supp. 753; Rickman v. Rickman, 180 Mich. 224, 146 N. W. 609, Ann. Cas. 1915C, 1237. A court of law will review the conclusion of an administrative officer upon admitted facts, and such an officer cannot confer jurisdiction upon himself by his mistake as to the law. American School v. MeAnnulty, 187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33; Gonzales v. Williams, 192 U. S. 1, 48 L. ed. 317, 24 Sup. Ct. Rep. 177. The Custodian cannot override the act of Congress, and this court will not aid him in an attempt to do so. Burfenning v. Chicago, St. P. M. & O. R. Co. 163 U. S. 321, 41 L. ed. 175, 16 Sup. Ct. Rep. 1018; Waite v. Macy, 246 U. S. 606, 62 L. ed. 892, 38 Sup. Ct. Rep. 395; American School v. McAnnulty, supra. If it should be urged that the Congress had it within its power to enact that the "determination" of the Custodian should be conclusive upon all persons and upon all courts (except, perhaps, in proceedings brought under § 9 of the act), it should be a sufficient answer to point out that the Congress made no such enactment, as it has done in other cases (see, for example, the Customs Administration Act and Contract Labor Law referred to in the cases of De Lima v. Bidwell, 182 U. S. 1, 45 L. ed. 1041, 21 Sup. Ct. Rep. 743, and Gonzales v. Williams, supra); and such power in an administrative officer will not be implied. United States v. Sherman & Sons Co. 237 U. S. 146, 59 L. ed. 883, 35 Sup. Ct. Rep. 520. Under any view the trustees are entitled to their day in court before they can be required to deliver the property from their possession to the Custodian. Kahn v. Garvan, 263 Fed. 209. Mr. Emory R. Buckner argued the cause, and, with Messrs. Gerard C. Henderson and H. H. Nordlinger, filed a brief for plaintiffs in error in Nos. 394 and 395: Enemy property may be of three kinds: property subject to capture at sea; property subject to capture on land; and property which cannot be "captured" at all, but which may, with the proper legislative authority, be confiscated by appropriate legal proceedings. Lamar v. Browne, 92 U. S. 187, 196, 23 L. ed. 650, 654; Manila Prize Cases (United States v. Dewey) 188 U. S. 254, 278, 47 L. ed. 463, 475, 23 Sup. Ct. Rep. Cooke v. Warner, 56 Conn. 234, 14 Atl. 798; Re Home Provident Safety Fund Asso. 129 N. Y. 288, 29 N. E. 323; Rug gles v. Chapman, 59 N. Y. 163; People ex rel. Ruggles v. Chapman, 64 N. Y. 557;415; Jecker v. Montgomery, 13 How. 498, Raymond v. Security Trust & L. Ins. Co. 516, 14 L. ed. 240, 247; 1 Kent, Com. 13th ed. pp. 101, 102; The Flad Oyen, 1 C., Rob. 114; Sawyer v. Maine F. & M. Ins. Co. 12 Mass. 291; The Siren, Fed. Cas. No. 12,911; Bradstreet v. Neptune Ins. Co. 3 Sumn. 600, Fed. Cas. No. 1,793; Alexander's Cotton (United States v. Alexander) 2 Wall. 404, 17 L. ed. 915; Planters' Bank v. Union Bank, 16 Wall. 483, 21 L. ed. 473; Young v. United States, 97 U. S. 39, 24 L. ed. 992; Kirk v. Lynd, 106 U. S. 315, 317, 27 L. ed. 193, 194, 1 Sup. Ct. Rep. 296; J. Ribas y Hijo v. United States, 194 U. S. 315, 48 L. ed. 994, 24 Sup. Ct. Rep. 727; United States v. Anderson, 9 Wall. 56, 65, 67, 19 L. ed. 615, 617, 618; United States v. Padelford, | 9 Wall. 531, 19 L. ed. 788; Miller v. United States (Page v. United States) 11 Wall. 268, 308, 20 L. ed. 135, 145; Brown v. United States, 8 Cranch, 109, 3 L. ed. 504; Bigelow v. Forrest, 9 Wall. 339, 350, 19 L. ed. 696, 700. Sup. Ct. Rep. 658, Ann. Cas. 1917D, 854; Harriman v. Interstate Commerce Commission, 211 U. S. 407, 53 L. ed. 253, 29 Sup. Ct. Rep. 115. Having invoked the jurisdiction of the court, libellant must make out a case according to law. Clinkenbeard V. United States, 21 Wall. 65, 22 L. ed. 477; United States v. Philadelphia & R. R. Co. 123 U. S. 113, 31 L. ed. 138, 8 Sup. Ct. Rep. 77; De Bary v. Dunne, 162 Fed. 961; Freeman v. United States, 157 Fed. 195, 84 C. C. A. 643, 168 Fed. 1022; United States v. Nebraska Distilling Co. 25 C. C. A. 418, 46 U. S. App. 704, 80 Fed. 285; United States v. Bank of America, 15 Fed. 730; United States v. Myers, 3 Hughes, 239, Fed. Cas. No. 15,846. A trust deed such as the one at bar creates a real trust, the terms of which are binding upon the trustees, upon the insurance company, and upon the suc The act gives the Custodian more than a mere possessory right to enemy prop-cessors in interest of the insurance comerty seized by him. Day v. Micou, 18 Wall. 156, 161, 21 L. ed. 860, 862. The Custodian's determination, therefore, cannot be conclusive. United States v. Anderson, 9 Wall. 56, 19 L. ed. 615; Jecker v. Montgomery, 13 How. 498, 14 L. ed. 240; Bigelow v. Forrest, 9 Wall. 339, 19 L. ed. 696; Conrad v. Waples, 96 U. S. 279, 24 L. ed. 721; Burbank v. Conrad, 96 U. S. 291, 24 L. ed. 731; Waples v. United States, 110 U. S. 630, 28 L. ed. 272, 4 Sup. Ct. Rep. 225; Avegno v. Schmidt, 113 U. S. 293, 28 L. ed. 976, 5 Sup. Ct. Rep. 487; Shields v. Schiff, 124 U. S. 351, 31 L. ed. 445, 8 Sup. Ct. Rep. 510; American | School v. McAnnulty, 187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33; Gegiow v. Uhl, 239 U. S. 3, 60 L. ed. 114, 36 Sup. Ct. Rep. 2; Interstate Commerce Commission v. Louisville & N. R. Co. 227 U. S. 88, 92, 57 L. ed. 431, 433, 33 Sup. Ct. Rep. 185. The language of the statute is so clear that even if it could be shown that the draftsmen had a different intention, it is doubtful whether such evidence could affect its construction. Caminetti v. United States, 242 U. S. 470, 61 L. ed. 442, L.R.A.1917F, 502, 37 Sup. Ct. Rep. 192, Ann. Cas. 1917B, 1168. Any other construction than that which we urge would render the act unconstitutional, or at least would raise doubtful questions of constitutionality, which should strongly influence this court against any such construction. United States v. Jim Fuey Moy, 241 U. S. 394, 401, 60 L. ed. 1061, 1063, 36 pany. The deed of trust is a contract creating valid property rights in the policyholders; that contract and those rights are inviolable, and it is the right and duty of the trustees to retain the trust fund and pay it out only for the purposes authorized by the trust deed. Cooke v. Warner, 56 Conn. 234, 14 Atl. 798; Brackett v. Middlesex Bkg. Co. 89 Conn. 655, 95 Atl. 12; Risk v. Kansas Trust & Bkg. Co. 58 Fed. 45; Lancashire Ins. Co. v. Maxwell, 131 N. Y. 286, 30 N. E. 192; Re Home Provident Safety Fund Asso. 129 N. Y. 288, 29 N. E. 323; People ex rel. Ruggles v. Chapman, 64 N. Y. 557; Ruggles v. Chapman, 59 N. Y. 163; Babcock Printing Press Mfg. Co. v. Ranous, 31 App. Div. 629, affirmed in 164 N. Y. 440, 54 N. Y. Supp. 1048, 58 N. E. 529; Fullerton v. National Burglar & Theft Ins. Co. 63 How. Pr. 5, affirmed in 16 N. Y. Week. Dig. 56, 100 N. Y. 76, 2 N. E. 629; Duncan v. Stanton, 30 Barb. 533; Vandiver v. Poe, 119 Md. 348, 46 L.R.A. (N.S.) 187, 87 Atl. 410, Ann. Cas. 1914D, 435; Vandiver v. Fidelity Sav. Bank, 120 Md. 619, 87 Atl. 1086; Imperial L. Ins. Co. v. Hambitzer, 95 Mich. 513, 55 N. W. 365; Falkenbach v. Patterson, 43 Ohio St. 359, 1 N. E. 757. The only rights vested in the Custodian by the Trading with the Enemy Act are the rights belonging to the |