Second. Where the whole testimony has not been incorporated in the record, it will be presumed that such testimony preponderates in favor of, and sustains, the judgment of the trial court.

Third. Where findings of fact are specifically filed by the trial court, sitting without intervention of a jury, and no exceptions are taken to such findings, no other or additional findings are asked, and the testimony in full is not incorporated in the record, such findings will be taken as true, and the appellate court, in passing upon the case, will only reverse it in case it finds the judgment rendered to be contrary to the facts so found and set forth by the trial court.

Under these principles, it is clearly apparent that the judgment of the lower court in this case must be in all respects sustained. And in justice to that court we feel constrained to state that, by what we have said herein, we do not intend to imply that improper and irrelevant testimony under the peculiar circumstances involved was admitted and considered. In the course of the trial the learned judge presiding, in passing upon the motions to strike out the testimony excepted to, said: "I think that those motions should not prevail because the testimony that you move to strike out is all in one shape or another material and pertinent. It all has some force. How much weight or probative force is to be given to it is another matter, because this motion does not go to that. This motion is based on the theory that it is altogether inadmissible for any purpose for which it is offered. Now, it seems to me that it is admissible for some purpose or another. Some of your criticism goes to the exactness of the testimony. On the whole consideration of the matter. I admit the testimony for some weight, for some probative force as to each item. Of course, as to how much is a question for after consideration, but I will refuse the motions to strike out."

A careful consideration of the 14 bills of exceptions setting forth summaries of the evidence excepted to has convinced us that he was entirely right in this ruling, and such consideration further convinces us that he was entirely right in the final conclusions reached by him, for from this record as it is before us comes the abiding conviction that this railroad company, after securing the efficient services of these engineers-men standing in the forefront of their profession, and of approved character for probity-has sought by technicalities to escape its liability for the just and contract compensation due from it for such services. The appeal bond in this case was in the penalty of $1.000, conditioned to pay damages and costs. The formal order of judgment is not set forth in the record, and we are wholly unable to determine whether provision was made in it for the payment of interest upon the principal of the debt from the date of the judgment until its payment. To such interest plaintiff engineers are clearly entitled. More than a year has already elapsed since this judgment was rendered.

Out of abundance of caution, therefore, we will remand this cause to the court below, with direction, if such order of judgment does not already so provide, it be corrected so as to make full provision for the payment of such interest. And, affirming, as we do, the court below in its adjudication of the principles involved, it follows that defendants. in error must recover of the plaintiff in error their costs in this court expended.

MEMORANDUM DECISIONS.

(154 Fed. 1002.)

CRAFT, Internal Revenue Collector, v. SCHAFER. (Circuit Court of Appeals, Sixth Circuit. June 26, 1907.) No. 1,589. On rehearing. Petition dismissed. For former opinion, see 153 Fed. 175, 82 C. C. A. 349. Before SEVERENS and RICHARDS, Circuit Judges, and COCHRAN, District Judge. RICHARDS, Circuit Judge. In this case we held (see our opinion of March 5, 1907, 153 Fed. 175)1 that section 3176 of the Revised Statutes [U. S. Comp. St. 1901, p. 2068] does not apply in the collection of the special tax exacted for the sale of oleomargarine, so as to authorize the assessment of a penalty of 50 per cent. of the tax for a neglect or refusal to make a return; and, further, that a tax of $6 per annum for selling oleomargarine not artificially colored, which was exacted from certain dealers at substantially the same time and for the same period that the tax of $48 per annum for selling artificially colored oleomargarine was collected, ought to be refunded. The case has been reargued, but the conclusions we reached after the first hearing have not been disturbed. At the same time, we think we probably went to an unnecessary length in stating: "The oleomargarine acts are complete in themselves. They either contain provisions of their own for the enforcement of the tax, or they incorporate such sections of the internal revenue laws as Congress thought ought to be made applicable. Section 3176 of the Revised Statutes was not one of those sections, or Congress would have said so, making it applicable in the enforcement of the oleomargarine tax. This has been the holding in Re Kearns, Collector (D. C.) 64 Fed. 481, and in Re Kinney (D. C.) 102 Fed. 468, not to mention other analogous cases." By this statement, we adopted the reasoning in the Kearns and Kinney Cases, and inferentially passed upon the applicability of a number of sections of the internal revenue law which, we are informed, are being used, by direction of the Commissioner, in the enforcement of the oleomargarine tax. It was only necessary for us to pass upon the applicability of section 3176, and to this we think our opinion should be limited. There are a number of reasons why section 3176 can have no applicability which might not obtain with reference to some other section of the general law.

(154 Fed. 1003.)

FLICKENGER WHEEL CO. v. WAGNER. (Circuit Court of Appeals, Sixth Circuit. August 3, 1907.) No. 1,594. Appeal from the District Court of the United States for the Northern District of Ohio. L. E. Powell, for appellant. L. C. Barker, W. J. Geer, John F. Wilson, Cobb, Howard & Bailey, Van Deman, Burkhart & Smith, and Brown, Burnsides & Ballington, for appellees.

PER CURIAM. Decree of District Court affirmed, with costs. See 145 Fed. 162, 76 C. C. A. 132.

(154 Fed. 1003.)

HOGG v. HOAG et al. HOFFMAN et al. v. HOGG. (Circuit Court of Appeals, Second Circuit. June 20, 1907.) Nos. 238, 239. Appeals from the Circuit Court of the United States for the Southern District of New York. On appeal and cross-appeal from a final decree of the Circuit Court for the Southern District of New York, filed July 25, 1905. The opinion of the Circuit Court is reported in 107 Fed. 807. John De Witt Warner, for Hogg and others. Anderson, Pendleton & Anderson, for Hoffman and others. Charles Bulkley Hubbell (Charles F. Matthewson, of counsel), for appellees William

1 83 C. C. A. 349.

H. Hoag and others. Huntington & Rheinlander (Francis K. Pendleton and Origen S. Seymour, of counsel), for Hoag. Gould & Wilkie (William B. Goodwin, of counsel), for the receiver. Before TOWNSEND and COXE, Circuit Judges, and HOUGH, District Judge.

PER CURIAM. The record presents an unusual number of perplexing problems, the solution of which is rendered doubly difficult by the fact that the transactions in question occurred 20 years ago; all the principal actors being now dead. The opinion of the circuit judge presents a painstaking and elaborate statement of facts. This statement has been criticised, and some minor errors and discrepancies have been pointed out, but it is unnecessary to attempt to correct them, as, in our judgment, they are all negligible and have no bearing upon the result. After a careful examination of the record and the briefs we are not persuaded that reversible error exists. In the case of Coe we have no doubt whatever of the correctness of the conclusions of the Circuit Court. If all the evidence, documentary and oral, relating to the Coe trust were before us, we feel confident that many of the transactions which now seem inexplicable would be made clear, but, in the absence of such proof, we are not justified in presuming mala fides, especially where, as in the case of Coe, no motive for wrongdoing appears. Regarding the liability of Hogg, as found by the Circuit Court, the testimony leaves us in doubt as to the intent and purpose of the parties in the delivery and acceptance of the certificate 182. No theory which is advanced regarding it leads to a perfectly consistent and satisfactory conclusion. In such circumstances we are of the opinion that the Circuit Court has adopted the most natural and logical solution of the difficulty by treating Hogg as a subscriber for 270 shares under the trust and as succeeding to the rights and obligations of the defaulting syndicate members. So treated, the transaction is consonant with honesty and fair dealing, which, in the absence of proof to the con trary, must necessarily be inferred. We are unable to find in the record sufficient proof of wrongdoing to justify the inference of the existence of a conspiracy to defraud entered into by men who, apparently, were held in high esteem by their associates in the various efforts to complete the Oregon Pacific Railroad, and who were regarded as men of high character in the community in which they lived. The decree should be affirmed, with costs to the executors of the estate of George S. Coe against the cross-appellants.

TOWNSEND, Circuit Judge, heard the argument and participated in the preliminary consultation.

(154 Fed. 1004.)

THE J. L. LUCKENBACH. (Circuit Court of Appeals, Fourth Circuit. July 9, 1907.) No. 674. Appeal from the District Court of the United States for the Eastern District of Virginia. For opinion below, see 144 Fed. 980. Floyd Hughes and J. L. Jeffries, for appellant. Gordon Paxton, for appellee. Before PRITCHARD, Circuit Judge, and BRAWLEY and MCDOWELL, District Judges.

PER CURIAM. We have carefully examined and considered the testimony in the case above stated, and are of opinion that it does not sustain the conclusion of the court below that the steamship "Luckenbach" was at fault. It is therefore ordered and adjudged that the decree below be reversed, and the case remanded to the District Court for the Eastern District of Virginia, with directions to dismiss the libel.

(154 Fed. 1004.)

KING v. SUPREME TENT KNIGHTS OF MACCABEES OF THE WORLD. (Circuit Court of Appeals, Sixth Circuit. August 3, 1907.) No. 1,659. In Error to the Circuit Court of the United States for the Western District of Tennessee. Lehman, Gates & Lehman, for plaintiff in error. F. Zimmerman, for defendant in error.

PER CURIAM. Order dismissing cause on motion of plaintiff in error. See 142 Fed. 678, 73 C. C. A. 668.

(154 Fed. 1004.)

KUTTROFF, PICKHARDT & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. March 5, 1907.) No. 190 (3,651). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 147 Fed. 758, reversing a decision of the Board of United States General Appraisers. G. A. 5,768 (T. D. 25,523). Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for importers. J. Osgood Nichols, Asst. U. S. Atty. Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. Decision affirmed. The majority of the court concurring in the opinion below, and Judge LACOMBE concurring in the result because the tariff act was passed after and with full knowledge of long-continued departmental construction classifying this substance as a color or dye.

(154 Fed. 1004.)

REPUBLIC IRON & STEEL CO. v. TAGGART. (Circuit Court of Appeals, Sixth Circuit. August 3, 1907.) No. 1,611. In Error to the Circuit Court of the United States for the Northern District of Ohio. Halbrook & Monsarrat, for plaintiff in error. King & Tracy, Marshall & Fraser, and George D. Welles, for defendant in error.

PER CURIAM. Judgment of the District Court affirmed. See 141 Fed. 910, 73 C. C. A. 144.

(154 Fed. 1005.)

UNITED STATES v. CRUCIBLE STEEL CO. (Circuit Court of Appeals, Second Circuit. April 12, 1907.) No. 184 (4,150). Appeal from the Circuit Court of the United States for the Southern District of New York. For decision below, see 147 Fed. 537, affirming a decision of the Board of United States General Appraisers. G. A. 6,213 (T. D. 26,870). J. Osgood Nichols, Asst. U. S. Atty. William J. Gibson, for importers. Before WALLACE and COXE, Circuit Judges.

PER CURIAM. Decree affirmed.

(154 Fed. 1005.)

UNITED STATES v. TREFOUSSE, GOGUENHEIM & CO. UNITED STATES v. PASSAVANT & CO. (Circuit Court of Appeals, Second Circuit. January 8, 1907.) Nos. 137, 136 (4,128, 4,129). Appeals from the Circuit Court of the United States for the Southern District of New York. For decision below, see 144 Fed. 708, reversing a decision of the Board of United States General Appraisers. J. Osgood Nichols, Asst. U. S. Atty. Frederick W. Brooks, for importers. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. Decrees affirmed in open court.

(154 Fed. 1005.)

WEST CHICAGO R. CO. et al. v. CHICAGO CONSOLIDATED TRACTION CO. et al. (Circuit Court of Appeals, Seventh Circuit. July 30, 1907.) No. 1,368. Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois. Henry S. Robbins, for appellants. Nathaniel C. Sears, Albert J. Hopkins, and Clarence A. Knight, for appellees.

PER CURIAM. Appeal dismissed. See 150 Fed. 612.

(154 Fed. 1006.)

WESTINGHOUSE ELECTRIC & MFG. CO. v. MONTGOMERY ELECTRIC LIGHT & POWER CO. (Circuit Court of Appeals, Second Circuit.

June 7, 1907.) No. 268. Appeal from the Circuit Court of the United States for the Northern District of New York. Before WALLACE and TOWN

SEND, Circuit Judges, and HOLT, District Judge.

HOLT, District Judge. The resignation of Judge WALLACE and the death of Judge TOWNSEND having left me the only member of the court which heard this appeal, I think that I have no power to render any decision or make any order upon the application for a rehearing. I therefore decline to act upon such application for want of power.

END OF CASES IN VOL. 83.