« PreviousContinue »
property required by the order, then, confessedly, proceedings for contempt, by fine and imprisonment, would result in nothing; certainly not in a compliance with the order. The contempt in this case could only be purged by a reiteration of the physical impossibility to comply with the order whose disobedience is being thus punished. An order made under such circumstances would be as absurd as it is inconsistent with the principles of individual liberty."
In a proceeding of this sort, it should appear from the evidence, beyond a reasonable doubt, that the bankrupt has in his possession money and effects which should go into the hands of the trustee in bankruptcy. Judge Gray's language is that over the bankrupt's denial that he has such possession or control of the money or effects the evidence should "indisputably show" the contrary. This may be shown in the manner referred to above, or by the method followed in the Shachter Case, supra; but it should be shown clearly, satisfactorily, and beyond a reasonable doubt.
While the evidence in the case at bar shows very strong probability, and even more than a probability, that the bankrupts in this case have not dealt fairly with their creditors or with the trustee, it is not to my mind sufficiently definite and convincing to justify the conclusion that they are withholding any definite amount, or even an approximate amount, of money or goods from the trustee. Certainly it fails to show with any degree of satisfaction that they have withheld the amount found by the referee to be in their hands. If there was evidence in the record to show with some definiteness the amount of stock on hand in the bankrupts' stores on the 1st of June, 1903, and any evidence to show the amount of goods sold by them for cash which they did not deposit in bank; how much of this money was paid out, or, if not paid out, with some degree of certainty, how much was retained—data would then be had from which to make some fair calculation. But in the absence of this I do not think that any one can take this evidence, and this entire record, and say that the bankrupts have any amount of goods or money, fixing it even approximately, in their hands, which has not been turned over to the trustee.
This is a case which should have further investigation; and, while the finding of the referee cannot be approved, the contempt proceeding will be retained in court to hear additional evidence, if counsel for movant should desire to offer the same, in conformity and in line with what has been hereinbefore stated.
The order is that the finding of the referee be disapproved, but the contempt proceeding be retained for such further action as may be proper.
In re TUCKER et al.
Ex parte NEW YORK COTTON EXCH.
(District Court, D. Massachusetts. July 22, 1904.)
1. BANKRUPTCY-LOAN BY WIFE-PROPERTY RECEIVED FROM HUSBAND AS GIFT,
A transfer of corporate stock by a husband to his wife as a gift by surrendering certificates owned by him and causing new ones to be issued in her name, was, in effect, a direct transfer to her, and void under the law of Massachusetts, where the parties resided, and, the stock being in law his property, its retransfer to him by his wife as a loan affords no basis for a claim by her against his estate in bankruptcy.
In Bankruptcy. On review of decision of referee.
LOWELL, District Judge. Tracey Tucker, one of the bankrupt partners, before his bankruptcy, assigned to his wife a seat in the New York Cotton Exchange, standing in his name, as security for the redelivery of 25 shares of Amalgamated Copper stock and 40 shares of United States Steel stock, preferred, alleged to have been lent by her to him, or to the firm. If the shares thus lent were the separate property of the wife, she is entitled to reimbursement, according to the principles of equity which control the federal courts, whatever be the statutes and decisions of Massachusetts. James v. Gray (C. C. A., 1st Circuit, July 6, 1904) 131 Fed. 401. Counsel for the trustee in bankruptcy has contended that this stock did not belong to the bankrupt's wife, but to the bankrupt himself, or to his firm. It was not disputed at the argument, and I so find, that the certificates of stock in question, indorsed in blank, were in the possession of Tracey Tucker as his own property before his marriage; that the indorsements were filled out to Mrs. Tucker after the marriage, and the certificates were sent to the transfer agent, the intention being to give her the stock, and no consideration passing between the parties; that certificates in the name of Mrs. Tucker were duly issued and delivered to her, and that these certificates were by her indorsed in blank, and delivered for the benefit of the bankrupt firm. It was not disputed that the title to this stock, when represented by certificates so indorsed, passed by delivery to the holder. Under the statutes of Massachusetts, a gift from husband to wife is void unless it is made under conditions not here complied with. The gift by Tracey Tucker to his wife was, therefore, void, and the stock handed by Mrs. Tucker to the firm did not belong to her.
Some language in James v. Gray, above cited, may be taken to mean that a federal court like this, which does equity, will disregard the statutes of Massachusetts as interpreted by its courts, and will uphold transfers made directly from husband to wife; but this language, I think, was not intended by the Court of Appeals to apply to a transfer by way of pure gift, under the circumstances here presented. As this point was not argued before me—because James v. Gray had not then overruled In re Talbot (D. C.) 110 Fed. 924—counsel may apply for a reargument on this point alone, if they wish to do so. See Wallingsford v. Allen, 10 Pet. 583, 594, 9 L. Ed. 542; Lucas v. Lucas, 1 Atk. 270. Some suggestion was made of an antenuptial agreement between Mr. and Mrs. Tucker, but counsel for Mrs. Tucker has called the attention of the court to no evidence establishing such an agreement. He argued chiefly that the corporation itself constituted such a conduit between Mr. and Mrs. Tucker as to validate his gift of the stock to her, in the same manner that a gift of real estate is validated by being passed through a third person. But the cases are not analogous. Here the corporation did not take the title to the stock, which passed directly, from the transferror to the transferee.
Judgment of the referee affirmed.
HALL & BISHOP V. UNITED STATES.
(Circuit Court, S. D. New York. May 23, 1904.)
No. 3,306. 1. CUSTOMS DUTIES–CLASSIFICATION-DRESS GOODS-EMBROIDERED WOOLEN
Held, that embroidered dress goods of wool are dutiable, under Tarifi Act July 24, 1897, c. 11, § 1, Schedule K, par. 369, 30 Stat. 184 (U. S. Comp. St. 1901, p. 1667], as "dress goods
of wool, and not specially provided for," rather than as "articles embroidered by band or machinery,
made of wool," under paragraph 371 of said act (30 Stat. 185 (U. S. Comp. St. 1901, p. 1667]). 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 in question affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Hall & Bishop.
Frederick W. Brooks, for importers.
TOWNSEND, Circuit Judge. The merchandise in question was assessed for duty as "women's and children's dress goods, not specially provided for," under the provisions of paragraph 369 of the tariff act of July 24, 1897, c. 11, § 1, Schedule K, 30 Stat. 184 (U. S. Comp. St. 1901, p. 1667). The importers protested, claiming that the goods in question were dutiable under the provisions of paragraph 371 (30 Stat. 185 (U. S. Comp. St. 1901, p. 1667]), of said act, as "embroideries and articles embroidered by hand or machinery, made of wool, or of which wool is a component material.” The Board of General Appraisers has found that the articles in question are women's dress goods, and also that they are articles embroidered by hand or machinery.
The sole contention of the importers herein is that inasmuch as paragraph 371, under which they claim, is unqualified, while the provisions of paragraph 369 are qualified by the words "not specially provided for," the nerchandise is dutiable under the former provision. This contention is supported by decisions of the Supreme Court of the United States and by various decisions in this circuit. The precise question, however, as applied to this merchandise, has been decided adversely to these appellants by the Circuit Court of Appeals in the Third Circuit in the case of Thomas v. Wanamaker (C. C. A.) 129 Fed. 92. It appears that the decision therein was based upon other grounds, and it is claimed that the question herein was not presented to the court in the Third Circuit. In accordance with the established rule I feel obliged to follow the decision of the Court of Appeals in the Third Circuit, and solely on that ground I am constrained to affirm the decision of the Board of General Appraisers.
J. R. SIMON & CO. v. UNITED STATES.
B. ULMANN & CO. v. SAME.
(Circuit Court, S. D. New York. May 25, 1904.)
Nos. 3,307, 3,361. 1. CUSTOMS DUTIES-CLASSIFICATION-DRAWN WORK-FLAX FABRICS-IMITA
Held, that articles of so-called “drawn work," composed of flax, made by drawing some of the threads and tying and looping them with other threads to form figures, are not dutiable as articles made in imitation of lace, under Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 (U. S. Comp. St. 1901, p. 1662], but as fabrics of flax under paragraph
346 of said act (30 Stat. 181 (U. S. Comp. St. 1901 p. 1663)). 2. SAME-COUNTABLE FLAX FABRICS-DRAWN WORK-VARIATION IN THREAD
In construing the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 346, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1663], of different · rates of duty on fabrics of flax, varying according to thread count, etc., held that it is not necessary that a fabric should be homogeneous throughout in order to bring it within said paragraph, and that the paragraph may include so-called "drawn work" from which some of the threads have
been removed. Appeal by the Importers from a Decision of the Board of United States General Appraisers.
On application for review of decision of the Board of General Appraisers. These proceedings were brought by J. R. Simon & Co. and B. Ulmann & Co. for review of two decisions of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs at the port of New York. Note G. A. 5,329, T. D. 24,373, and G. A. 4,643, T. D. 21,944.
Howard T. Walden, for J. R. Simon & Co.
TOWNSEND, Circuit Judge. The articles in question are linen doilies and similar articles, made by drawing some of the threads and tying and looping them with other threads to form figures. They were assessed for duty at 60 per cent. ad valorem as articles made in part of imitation of lace, made of flax, not otherwise specially provided for, under paragraph 339 of the act of July 24, 1897, c. 11, § 1, Schedule J, 30 Stat. 181 (U. S. Comp. St. 1901, p. 1662), and are claimed to be dutiable as woven fabrics of flax, etc., under paragraph 346 (30 Stat. 181 (U. S. Comp. St. 1901, p. 1663]), of said act. The articles in question are woven fabrics of flax (U. S. v. McBratney, 105 Fed. 767, 45 C. C. A. 37), and it is not necessary that the fabric should be homogeneous throughout in order to be dutiable under the countable provisions of the act (Hedden v. Robertson, 151 U. S. 521, 14 Sup. Ct. 434, 38 L. Ed. 257; United States v. Albert, 60 Fed. 1012, 9 C. C. A. 332). The Board of General Appraisers has found as a fact that the merchandise in question is imitation of lace. Inasmuch as there is not a particle of testimony to support this finding of the board, and inasmuch as a mere inspection of the articles confirms the testimony that they are not imitation of lace, this finding cannot be sustained. Furthermore, it appears from an examination of paragraphs 312, 388, and 390 of the act that Congress is legislating concerning the duty on handkerchiefs, has specifically provided for a duty on handkerchiefs having drawn threads by virtue of the provisions of paragraph 388, while in paragraph 390 they have imposed a similar duty on laces and articles made wholly or in part of lace. This distinction between drawn work and lace supports the foregoing conclusion.
The decision of the Board of General Appraisers is reversed.
NISHIMIYA V. UNITED STATES.
(Circuit Court, S. D. New York. May 25, 1901)
1. Customs DUTIES-CLASSIFICATION-SAKÉ-SIMILITUDE.
Tariff Act July 24, 1897, c. 11, § 6, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), provides that any unedumerated article "which is similar either in material, quality, texture or the use to which it may be applied to any article enumerated
as chargeable with duty, shall pay the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars before mentioned.” In regard to sake', a Japanese alcoholic beverage made from rice by processes similar to those employed in making beer, which resembles still wine in its percentage of alcohol, which in quality is only remotely similar to wine or beer, though in some respects like either in point of use, held, that the article is not sufficiently similar to wine to warrant its classification as such under Act July 24, 1897, c. 11, § 1, Schedule H, par. 296 (30 Stat. 174 (U. S. Comp. St. 1901, p. 1654]), nor to beer or ale to permit its classification as either under paragraph 297 of said act (30 Stat. 174 (U. S. Comp. St. 1901, p. 1655]), but that its proper classification is as an unenumerated manufactured article under section 6 of said act (30 Stat. 205 (U. S. Comp. St.
1901, p. 1693]). 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 assessment of duty by