In Bankruptcy.

Edwin S. Dixon, for petitioner.

J. B. MCPHERSON, District Judge. In my opinion, no question is properly presented to me for decision by the certificate of the referee. The fund in the hands of the trustee consists entirely of the proceeds. of personal property that was found upon the premises occupied by the bankrupt under a lease, and was claimed in toto by the landlord under the Pennsylvania statute concerning rent. It also appeared that the bankrupt was probably indebted to the states of Pennsylvania, New Jersey, and New York for taxes, but no claim was made by either state, and no evidence was offered to show the character of the tax or the amount due. The referee made no order either directing or refusing to direct the trustee to pay over the money to the landlord, but of his own motion certified the question whether the taxes had priority to the landlord's claim. There was no petition for review, and, indeed, there was nothing to which such a petition could apply. In effect, the referee is asking the court's opinion on a question which he foresees may arise, upon which he desires to be advised. I find nothing in the bankrupt act or in the general orders or forms to sanction such a proceeding. Section 39a, cl. 5 (Act July 1, 1898, c. 541, 30 Stat. 555 [U. S. Comp. St. 1901, p. 3436]), requires referees to "make up records embodying the evidence, or the substance thereof, as agreed upon by the parties in all contested matters arising before them, whenever requested to do so by either of the parties thereto, together with their findings. therein, and transmit them to the judges." General order 27 (89 Fed. xi) is as follows:

"When a bankrupt, creditor, trustee, or other person shall desire a review by the judge of any order made by the referee, he shall file with the referee his petition therefor, setting out the error complained of; and the referee shall forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon."

Both section 39 and the order thus quoted contemplate that there shall be a contested matter, a finding or an order, and a party aggrieved, and I see no indication anywhere that the judge may be required to answer questions before the referee himself takes action. An exceptional case might perhaps call for such instructions, but certainly in the ordinary proceeding the referee must make some order or ruling before there is anything to certify.

The certificate must be dismissed.

In re LEWIN.

(District Court, W. D. Texas, Waco Division. February 24, 1905.)

No. 422.

BANKRUPTCY-DISCHARGE-APPLICATION-EXTENSION OF TIME.

Where a bankrupt resided in a city where access to his attorneys was easy, and he failed to apply for a discharge until the latter part of the year within which he was entitled to make the application, when sickness in his family was alleged to have prevented him from filing his applica

tion within the year, but it did not appear that such sickness or other cause prevented the attorneys from preparing the petition for his signature and verification during the time prescribed, he was not entitled to an extension of time in the discretion of the court, as authorized by Bankr. Act July 1, 1898, c. 541, § 14, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427].

[Ed. Note. For cases in point, see vol. 6, Cent. Dig. Bankruptcy, § 694.]

Application for Leave to File a Petition for Discharge.
Bounds & Hart, for petitioner.

MAXEY, District Judge. The bankrupt in this case, who resides in Hillsboro, Tex., has applied to the court for leave to file a petition for discharge. It is alleged in the application that he was adjudged bankrupt December 15, 1903, that he was aware that the law permitted him to file a petition for discharge within one year from the date of the order of adjudication, and that he deferred doing so until the latter part of the year. To excuse his failure to seasonably file his petition. for discharge, he alleges that his family became seriously ill during the latter part of the year within which the petition could be filed, and so remained until after December 15, 1904.

Section 14 of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3427], provides as follows:

"Any person may, after the expiration of one month and within the next twelve months subsequent to being adjudged a bankrupt, file an application for a discharge in the court of bankruptcy in which the proceedings are pending; if it shall be made to appear to the judge that the bankrupt was unavoidably prevented from filing it within such time, it may be filed within but not after the expiration of the next six months."

No reason is assigned by the bankrupt for failing to seasonably file a petition for discharge, except that "he deferred doing so until the latter part of the year," when sickness in his family prevented him from filing the same. To authorize a petition for discharge to be filed after the expiration of a year from the date of the order of adjudication of bankruptcy, it must be made to appear that the bankrupt was unavoidably prevented from filing it within the one-year period. It is discretionary with the judge to grant the application, but the discretion to be exercised in determining the question is a judicial one, and not a discretion of an arbitrary nature. If it appear, using the language of the act of Congress, that the bankrupt was "unavoidably prevented" from filing his application in due time, he should be permitted to file it within the additional six months allowed by law. But where it is apparent that he could have timely filed it, but failed to do so for reasons wholly inadequate, the application should be denied. In the present case it is evident that the bankrupt could have filed a petition for discharge prior to the time that sickness appeared in his family, and no reason is alleged, nor is one perceived, why it could not have been filed while the family were ill. It does appear from his application that the bankrupt resided in the city of Hillsboro. That being true, his attorneys were easily accessible, and there is naught in the record to show that sickness or other cause prevented them from preparing a petition for his signature and verification during the twelve-months period.

The court, not being satisfied that the bankrupt was unavoidably prevented from filing his petition for discharge in due season, is of the opinion that the application should be denied, and it is so ordered.

B. BLUMENTHAL & CO. v. UNITED STATES.

(Circuit Court, S. D. New York. November 11, 1904.)

No. 3,541.

CUSTOMS DUTIES-CLASSIFICATION-RHINESTONES-PASTE BUTTONS.

Certain so-called rhinestones, articles composed of metal and paste, the latter being the more valuable component, which are merely used to decorate and ornament women's outer apparel, are dutiable as manufactures of paste, not specially provided for, under paragraph 112, Tariff Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 158 [U. S. Comp. St. 1901, p. 1635]. They are excluded from the provision in paragraph 414 of said act, c. 11, § 1, Schedule N, 30 Stat. 190 [U. S. Comp. St. 1901, p. 1674], for "buttons made of glass," because they are not strictly buttons, and because, though paste is a species of glass, it is differentiated therefrom elsewhere in the tariff as a separate substance.

On Application for Review of a Decision of the Board of General Appraisers.

In the decision in question, G. A. 5,640, T. D. 25,194, said board affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by B. Blumenthal & Co. Note U. S. v. Marshall Field & Company, 85 Fed. 862, 29 C. C. A. 458, and Seeberger v. Cahn, 137 U. S. 95, 11 Sup. Ct. 28, 34 L. Ed. 599.

Albert Comstock, for appellant.

Charles D. Baker, for appellee.

HAZEL, District Judge. The importation consists of rhinestones. They are properly classified as manufactures of metal and paste, of which paste (the rhinestone) is the component material of chief value. They are therefore assessable for duty under paragraph 112 (Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 158 [U. S. Comp. St. 1901, p. 1635]). The importers claim that the merchandise consists of glass buttons, and should be assessed at three-fourths of 1 cent. per line per gross, and in addition thereto 15 per centum ad valorem, under paragraph 414 of the present tariff act (Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 190 [U. S. Comp. St. p. 1674]). This paragraph specifically mentions "buttons made of glass or metal." It is not disputed that paste is a species of glass, but it is quite clear, as stated in the opinion of the Board of General Appraisers, that Congress has differentiated paste as a separate substance, and has provided a specific duty for manufactures thereof. Moreover, the articles are not strictly buttons, but, according to the evidence, are merely used to decorate and ornament women's outer apparel, such as gowns, waists, etc.

The opinion of the Board of General Appraisers is sustained.

THE PATRIA.

(District Court, E. D. New York. January 6, 1905.)

SHIPPING LIABILITY OF VESSEL-INJURY TO CONTRACTOR'S EMPLOYÉ. Where a workman employed by a contractor to do work on a steamship while she lay at a wharf undertook to climb from the wharf to the deck by means of a ladder which had been temporarily in use and had not been removed, after he was told to use the gangway, and when, by reason of the rising tide, the ladder had been lifted from the dock, and hung by a small cord to the rail, his injury by the falling of the ladder was due solely to his own negligence, and not to any fault or negligence on the part of the ship.

In Admiralty. Suit for personal injury.

Towns & McCrossin, for libelant.

Butler, Notman, Joline & Mynderse and A. G. Thacher, for claim

ant.

THOMAS, District Judge. The Patria came into port, and, for the purpose of furnishing access to her deck, a ladder was put over her side, one end of which rested upon the dock, while the other end rested against the railing, to which it was tied by a small cord to prevent lateral motion. The libelant was a machinist employed by a person engaged to make repairs on the vessel. In the morning he went aboard by means of this ladder, but by the noon hour a regular gangway had been put out from the same side of the steamer, a short distance away. The uncontradicted evidence is that, when the libelant was about to leave the steamer for dinner, he was told by the mate not to use the smaller ladder; that there was a better ladder aft. However, he did use it. Upon returning from dinner the libelant found that the tide had risen, so that the lower end of the ladder had been lifted from the dock, and the ladder itself had fallen and lay against the side of the ship, but was still supported at its upper end by the cord. Notwithstanding this known condition, and the difficulty of even putting the toe of his foot upon the round, on account of the close proximity of the ladder to the side of the ship, the libelant did step on the ladder, whereupon it necessarily fell, and he received the injuries on account of which the action was brought. It was perfectly apparent to the libelant that the ladder was not in a position to be used. He knew that it had no sufficient support. He knew that a roomy gangway was near at hand.

It is considered that the claimant was in no way negligent, and that the libelant did not employ even ordinary prudence. The libel is dismissed.

HENSEL, BRUCKMANN & LORBACHER v. UNITED STATES.
(Circuit Court, S. D. New York. November 3, 1904.)
No. 3,350.

CUSTOMS DUTIES-CLASSIFICATION-TIME DETECTORS-WATCH MOVEMENTS. So-called time detectors, used for registering the movements of watchmen, which have a clock mechanism or time indicator, are dutiable under

the provision in paragraph 191, Tariff Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 166 [U. S. Comp. St. 1901, p. 1645], for "watch movements, whether imported in cases or not."

On Application for Review of a Decision of the Board of United States General Appraisers.

The decision in question affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Hensel, Bruckmann & Lorbacher. This merchandise was known as "time detectors," and consisted of watch movements inclosed in cases, having only an hour hand, and equipped with a paper revolyable dial and other registering apparatus; being intended for use in buildings in which watchmen are stationed, for the purpose of recording the watchman's rounds. They were classified as manufactures of metal, under paragraph 193, Tariff Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645], and were claimed by the importers to be dutiable under paragraph 191 of said act (30 Stat. 166 [U. S. Comp. St. 1901, p. 1645]), relating to "watch movements, whether imported in cases or not," etc. This contention was overruled, as indicated above, on the authority of a former decision of the board. Re United States Express Company, G. A. 5,038, T. D. 23,401.

W. Wickham Smith, for the importers.
D. Frank Lloyd, Asst. U. S. Atty.

HAZEL, J. The evidence before the court satisfactorily shows that the merchandise consists of so-styled time detectors having a clock mechanism or time indicator. Duty was assessed under paragraph 193 at 45 per centum ad valorem. This was error. The article should be assessed for duty under paragraph 191, which provides for the payment of duty upon watch movements, etc. The decision of the Board of General Appraisers is reversed.

HUBBARD et al. v. CENTRAL OF GEORGIA RY. CO.

(Circuit Court, S. D. New York.

December 17, 1904.)

REMOVAL OF CAUSES-JURISDICTION-SUIT IN REM.

A suit begun in a state court by attachment of property, and removed into a federal court, will not there be dismissed for want of jurisdiction because there has been no personal service on defendant, custody of the res being recognized as giving jurisdiction.

On Motion to Set Aside Service and to Vacate Attachment.
F. W. M. Cutcheon, for the motion.
Wm. D. Guthrie, opposed.

LACOMBE, Circuit Judge. The facts as to Rhett's connection with defendant are set forth in greater detail, but the facts_are substantially the same as were before this court in Reehan v. Central of Georgia (no opinion filed). The motion to set aside the service on him as representative of the defendant is granted.

The rule laid down in Purdy v. Wallace (C. C.) 81 Fed. 513, is a sound one, and should be followed here, and defendant have been actually informed of the pendency of the action before removal.

The motion to vacate the attachment is denied.