Imágenes de páginas

ing & Co, and Godillot & Co. Duty had been assessed on the basis of an appraisement of the market value of the goods, that included the amount of certain internal revenue imposts of France, known as the “octroi tax" and the "droit de ville," which are not general in their application, but vary with the locality, and which are not collected if the merchandise is exported. The board held that the case was not within the rule of United States v. Passavant, 169 U. S. 16, 18 Sup. Ct. 219, 42 L. Ed. 644, where it was decided by the Supreme Court that the so-called bonification of tax by the German government, which was in effect the remission, on the exportation of merchandise from that country, of a general tax that would have been collected, had the merchandise not been exported, constituted an element of market value, as defined in Customs Administrative Act June 10, 1890, c. 407, $ 19, 26 Stat. 139 (U. S. Comp. St. 1901, p. 1924). Note G. A. 5,414, T. D. 20,761.

Charles Duane Baker, Asst. U. S. Atty.
W. Wickham Smith, for R. F. Downing & Co.
Albert Comstock, for Godillot & Co.

TOWNSEND, Circuit Judge. The decisions of the Board of General Appraisers are affirmed on the authority of Rheinstrom et al. v. U. S. (C. C.) 118 Fed. 303,


(District Court, S. D. New York. April 28, 1904.) 1. BANKRUPTCY-COURTS-ANCILLARY JURISDICTION.

Where proceedings were had in a federal District Court other than that in which a corporation was adjudged a bankrupt, by which a receivership was extended to property located in such other district, and various other orders were made by such court, it had ancillary jurisdiction to grant a creditor's application for the examination of witnesses as authorized by Bankr. Act July 1, 1898, c. 541, $ 21a, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431].

Sutter Bros., a corporation, was adjudged a bankrupt in the United States District Court for the Northern District of Illinois. Receivers were appointed by that court, and the receivership extended to property in the Southern District of New York on application made to the District Court of that district by petitioning creditors. Various orders were made in the Southern District of New York, in the proceeding, relating to property in that district, after which an application was made by a creditor to the District Court for the Southern District of New York, under Bankr. Act, $ 21a, for the examination of witnesses, which application was granted ex parte, and an order made accordingly, after which the bankrupt moved to vacate such order for lack of jurisdiction. Motion denied.

Stern, Sanger & Barr (William J. Barr, of counsel), for the motion. Lesser Bros. (William Lesser, of counsel), opposed.

HOLT, District Judge. I think that the order of this court making the Chicago receivers, receivers here, and the various orders made here since, make this a case pending in this court in such a sense as to authorize the order objected to, to be made. Even if no previous proceedings had been had in this court, I think that such an order could be made here if previously authorized in the court where the proceeding is pending. With sincere respect for the court rendering the opinion in In re Williams, 10 Am. Bankr. R. 538, 123 Fed. 321, I cannot concur in it.

Motion denied.


(Circuit Court, S. D. New York. Vay 25, 1904.)

No. 3,207.


Held, that sandalwood, in pieces of varying sizes, several feet long and several inches thick, to which nothing has been done beyond removing the bark and sawing the wood into lengths convenient for transportation, is not dutiable under paragraph. 1:18. Tariff Act July 24, 1897, c. 11, $ 1, Schedule C, 30 Stat. 167 [C. S. Comp. St. 1901, p. 1646), as "wood, unmanufactured, not specially provided for," but is free of duty, under the provision in paragraph 6.9 of said act, c. 11, $ 2, Free List, 30 Stat. 202 [C.

S. Comp. St. 1901, p. 1689), for “logs of wood.” Appeal by the Importers from a Decision of the Board of United States General Appraisers.

On application for review of a decision of the Board of General Appraisers. The decision under review affirmed the decision of the collector of customs at the port of New York in assessing duty on certain merchandise imported by George Lueders & Co. Note In re Parke, G. A. 4,815, T. D. 22,755.

J. Stuart Tompkins, for importers.
D. Frank Lloyd, Asst. U. S. Atty.

TOWNSEND, Circuit Judge. The merchandise in question consists of pieces of sandalwood, not uniform in size, several feet long and several inches thick. The importation was assessed at 20 per cent. ad valorem, under paragraph 198 of the tariff act of July 21, 1897, c. 11, § 1, Schedule C, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1646], which is as follows:

"(198) Sawed boards, planks, deals, and all forms of sawed cedar, lignum vitie, lancewood, ebony, box, granadilla, mahogany, rosewood, satinwood, and all cabinet woods not further manufactured than sawed, fifteen per centum ad valorem; veneers of wood, and wood, unmanufactured, not specially provided for in this act, twenty per centum ad valorem."

The importers duly protested against such classification, claiming that the wood was free of duty, under paragraph 699 of said act, c. 11, § 2, Free List, 30 Stat. 202 [U. S. Comp. St. 1901, p. 1689), covering “Wood: Logs and round unmanufactured timber, including pulpwoods, firewood, handle-bolts, shingle bolts, gun-blocks for gun-stocks, rough, hewn or sawed, or planed on one side, hop-poles, ship-timber and ship-planking; all the foregoing not specially provided for in this act" -or under paragraph 700, providing for "all forms of cabinet woods in the log, rough or hewn only," and "woods not specially provided for in this act, in the rough.


The board states in its return that duty was assessed on the sandalwood as "wood in the log, unmanufactured." The only witness in this court testified that the sample produced fairly represented the logs comprised in the importation in question. This sample is a log, and nothing has been done to it except to take off the bark and saw it into logs of a convenient length for importation. It is not of the character of woods provided for in paragraph 198, including "sawed boards," "veneers," and similar unmanufactured woods, but is merely a log, and, as such, is entitled to free entry under paragraph 699 of said act,

The decision of the Board of General Appraisers is reversed.


(Circuit Court, S. D. New York. May 26, 1904.)



So-called soap pencils, composed of wood and soap, soap being the component material of chief value, are dutiable as unenumerated manufac. tured articles, under Tariff Act July 24, 1897, c. 11, § 6, 30 Stat. 205 (U. S.

Comp. St. 1901, p. 1693). On Application for Review of a Decision of the Board of United States General Appraisers.

The decision in question (G. A. 5,528, T. D. 24,881) reversed the assessment of duty by the collector of customs at the port of New York.

Charles Duane Baker, Asst. U. S. Atty.
Howard T. Walden, for the importer.

TOWNSEND, Circuit Judge. The merchandise in question consists of soap pencils, so called, on which duty was assessed at the rate of 35 per cent. ad valorem, under the provisions of paragraph 208 of the tariff act of July 24, 1897 (Act July 24, 1897, c. 11, § 1, Schedule D, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1646]), as manufactures in chief value of wood. The importer claims that the articles are properly dutiable at the rate of 20 per cent. ad valorem, as a nonenumerated manufactured article, under the provisions of section 6 of said act (30 Stat. 205 (U. S. Comp. St. 1901, p. 1693]). The Board of General Appraisers sustained the claim of the importer.

It appears from the reports of the local appraiser and of the United States chemist that soap is the component material of chief value in these pencils. Inasmuch as there is no provision in the act of 1897 for manufactures of which soap is the component material of chief value, the articles are properly dutiable as nonenumerated manufactured articles, under section 6 of said act, and the decision of the Board of General Appraisers is therefore affirmed.


(Circuit Court of Appeals, Sixth Circuit. August 2, 1904.)

No. 1,303.



The filing by a defendant in a state court of an answer and a motion, supported by alidavits, for the dissolution of a preliminary injunction or restraining order which had been granted ex parte, and the hearing of such motion on ex parte affidavits by the judge in chambers, where he had no power to determine any question on the merits, do not preclude the defendant from removing the cause where his petition therefor was presented before the time when, by the laws of the state or the rules of the court, he



Shannon's Code Tenn. $S 184+1867, providing for the condemnation of riglit of way by railroad companies, do not authorize an entry on the land without consent of the owner until his compensation has been ascertained and either paid or secured, unless, perhaps, for the purpose of making a survey; and a company can acquire no rights by going upon the land and commencing construction work without the owner's consent after it has

filed a petition for condemnation. 3. SAME--PRIORITY OF RIGHT-UNRECORDED CONVEYANCE.

A statutory proceeding for the condemnation of right of way for railroad purposes is but a substitute for its acquisition by contract, and the filing of a petition for condemnation by a railroad company gives it no right as against another company, whichi previously obtained a deed from the owner for the same purpose, although such deed was not recorded, and especially where, as by the Tennessee statute, it is expressly provided that such proceedings shall affect only the interests of the parties thereto and unborn

remaindermen, and the grantee company is not a party. 4. SAME-PRELIMINARY SURVEY.

There being no statute in Tennessee requiring a survey before the institution of proceedings to condemn right of way for railroad purposes, or authorizing the recording of surveys, such a survey gives no priority of right as against another company which subsequently acquires right of way

over the land by conveyance from the owner. 5. SAME-EXECUTORY CONTRACT_STATUTE OF FRAUDS.

A contract for the sale or conveyance by a landowner of right of way to a railroad company, although in parol and executory, is good as against another company which subsequently institutes proceedings for condemnation of the same land, with notice that such an agreement had been made, such company not being an innocent purchaser protected by the statute of frauds.

Appeal from the Circuit Court of the United States for the Eastern District of Tennessee.

John B. Keeble (Chas, N. Burch, of counsel), for appellant.

R. H. Sansom, Leon Jourolmon, Henry Hudson (W. A. Henderson, Alex P. Humphrey, and Jourolmon, Welcker & Hudson, of counsel), for appellee.

Before LURTON and SEVERENS, Circuit Judges, and EVANS, District Judge.

(1. See Removal of Causes, vol. 42, Cent, Dig. $ 10.

131 F.-42

LURTON, Circuit Judge. This is an appeal under the seventh section of the Court of Appeals Act March 3, 1891, c. 517, 26 Stat. 828 [U. S. Comp. St. 1901, p. 550), from an interlocutory decree granting an injunction pendente lite. The controversy is between two antagonistic railway companies over a right of way across the same property, desired by each for the purpose of constructing and operating a spur track to reach certain manufacturing industries upon the south bank of the Tennessee river, in the vicinity of Knoxville, Tenn. For some time before this litigation these industries had been endeavoring to secure such a spur track, and had been negotiating with both companies to that end. The evidence tends to show that the only practicable approach for either company was over a narrow strip of land lying between the river and the base of a bluff, the property of one S. B. Luttrell. This narrow strip between the bluff and the river is insufficient for two independent railway approaches, even if it had been desirable and profitable for each company to own and operate a spur for its own use. Negotiations were proceeding upon the basis that the right of way across Luttrell's land, as well as for other parts of the route, would be secured by the industries to be served and donated to the railway company with whom an agreement should be finally concluded. The evidence tends to show, however, that the appellant company was understood as also requiring that the expense of grading should be borne by these in lustries. Preliminary surveys were made by each company, but the Southern Railway Company first came to an agreement, and first made a location definite and final. This agreement seems to have been concluded, though possibly not fully executed until a day or two later, on June 29, 1903. By the terms of this agreement the industries agreed to procure the necessary rights of way and the railroad company to grade, construct, and operate the desired spur. Upon the next dayJune 30th-several rights of way were secured, including the right of way over the Luttrell property, now in dispute. As early as this dateJune 30th-if not earlier, the appellant company heard disquieting reports that the Southern Railway Company had come to an agreement under which it was to construct the spur in question. Its own plans and purposes do not seem to have been definite prior to this, for only on this day did the company's engineer file in the office of Mr. Ellis, the company's general manager, the plans and estimates upon which a final conclusion could be reached and a proposal made to or accepted from the manufacturing companies to be accommodated. On the next day - July 1st-Mr. Ellis began inquiries with a view of ascertaining the truth of the reported agreement with the Southern Railway. As this matter of notice to the appellant of the steps taken by the Southern Railway to acquire a right of way from Luttrell may be of importance, we quote from the ex parte affidavit of Mr. Ellis, who, after stating that on June 30th, and while absent from the city of Knoxville, the company's engineer had filed in his office the completed survey and estimates for a spur track, says:

"On the following day (July 1st) I began the preparation of a report and letter to President Smith, but, having various outside intimations that there might be some truth in the reported negotiations with the Southern Railway Company, on the first day of July I called upon Mr. Gaut, and asked if he koriv

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