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for a review of the questions of law and fact involved in such decision. Thereupon the court shall order the Board of Appraisers to return to said Circuit Court the record,
and within twenty days after the aforesaid return is made the court may, upon the application of the
refer it to one of said general appraisers, as an officer of the court, to take and return to the court such further evidence as may be offered
within sixty days thereafter, in such order and under such rules as the court may prescribe.”
The following are among the rules prescribed by the Circuit Court for the Southern District of New York under the foregoing authority:
“(2) No order for an additional or further return will be made, where it is made to appear that the protestant had reasonable notice to appear before said Board of General Appraisers and show cause why the decision of the collector should not be affirmed, and after such notice, without proper excuse, he failed to appear in person or by attorney, and he offered no evidence in support of his contentions as presented in his protest, and no such evidence is found in the record and papers in the case, and none was taken by the board."
“(11) On the examination of a witness before the general appraiser, if any interrogatory to the witness, or any part of his testimony, is objected to as improper or irrelevant, the general appraiser shall decide upon the objection. If he decides against the objection, he shall note the objection and his decision thereon, and proceed to take down the testimony; but if he decides that the objection is well taken, the testimony shall not be taken down unless it is insisted on by the party against whom the decision is made. If the taking down of the testimony in opposition to his decision is insisted on, such fact shall be noted, and the testimony shall be taken; and in that case the party making the objection may, at the hearing, move to have the objectionable testimony expunged."
At the hearing before the general appraiser under said order of the court, counsel for the government objected to the introduction of any testimony, on the ground that no legal evidence was produced before the Board of General Appraisers. This objection was sustained by the general appraiser, on the authority of the decision of the Circuit Court for the Eastern District of Pennsylvania in Allen v. U. S. (C. C.) 127 Fed. 777. Counsel for the importers excepted to this ruling, and insisted upon the introduction of the evidence under rule 11, above quoted. This being granted, the government excepted.
Walden & Webster (Howard T. Walden, of counsel), for the importers.
D. Frank Lloyd, Asst. U, S. Atty.
HAZEL, District Judge. The articles in question consisted of Chinese silk goods, which were assessed for duty by the collector at $3 per pound, under paragraph 387 of the act of July 24, 1897, chapter 11, § 1, Schedule L, 30 Stat. 186 [U. S. Comp. St. 1901, p. 1669]), as all silk goods in a piece “boiled off.” Under the same paragraph the merchandise if “in the gum” may come into this country upon payment of duty at the rate of $2.50 per pound. An examination of the record discloses that the importers appealed to this court without first giving evidence before the board, except that they filed an affidavit and produced samples of the shipment. This is not a compliance with the provisions of the customs administrative act. United States v. China & Japan Trading Co., 1971 Fed. 864, 18. C. C. A. 335; Allen v. United States (C. C.) 127 Fed. 777; Donat v. United States (C. C.) 124 Fed. 463. The government seasonably objected to taking testimony in this court; but, the importers insisting, the testimony was
taken under rule 11, applicable in this circuit to appeals from the Board of General Appraisers. Upon the authority of the cases cited, the preliminary motion of counsel for the government to expunge the evidence taken in this court is granted. The filing of an affidavit with the board, describing the process of manufacturing the imported article, is not thought to be sufficient to take this case out of the decisions to which attention is directed, where other essential evidence is obtainable. The decision of the Board of General Appraisers is affirmed.
SANBO V. UNION PAC. COAL CO.
COURTS-JURISDICTION OF FEDERAL COURTS-ALLEGATIONS OF CITIZENSHIP.
Where the complaint in an action in a federal court in which jurisdiction depended on diversity of citizenship failed to allege plaintiff's citizenship, an amendment to cure the defect and show jurisdiction must allege the requisite citizenship, not only at the time it is filed, but at the time the action was commenced.
[Ed. Note.--For cases in point, see vol. 13, Cent. Dig. Courts, $ 878.
Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp V. Williams, 10 C. C. A. 249; Mason v. Dullaghain, 27 C. C. A. 298.] On Motion for Leave to File Amended Complaint. Doud & Fowler, for plaintiff. Dorsey & Hodges, for defendant.
RINER, District Judge. The original complaint in this case, containing two causes of action, was filed in this court on June 23, 1903. A demurrer to the complaint was sustained, with leave to amend. An amended complaint, also containing two causes of action, was filed November 9, 1903, to which a demurrer was filed and sustained. The plaintiff having elected to stand upon his amended complaint, a judgment was entered in favor of the defendant dismissing the case, and the plaintiff thereupon sued out a writ of error to the court of appeals for this circuit. 140 Fed. 713. The jurisdiction of this court depending upon the citzenship of the parties, and there being no allegation in the complaint that the plaintiff was a citizen of this or any other state, the judgment was reversed, upon the ground that the circuit court had no jurisdiction of the action, and the case was remanded to this court, with instructions to allow or refuse to allow an amendment in this particular in its discretion. On the 8th of February, 1906, plaintiff applied to this court for permission to file an amended complaint, containing but a single cause of action, and in which it is averred "that the said plaintiff is a citizen of the United States and of the state of Colorada, and is a resident of the city and county of Denver in the state of Colorado.” Even in this proposed amended complaint there is no allegation that the plaintiff was a citizen of the state of Colorado at the time this action was begun, two years and
seven months prior to the application to file this amendment. The necessary allegation as to the citizenship of the parties was omitted altogether in the original complaint and also in the amended complaint, and in the amended complaint now sought to be filed the averment is that the plaintiff is (which means at this time, two years and seven months after the original action was brought) a citizen of the state of Colorado; not that he was such citizen at the time the suit was begun. This question was before the Supreme Court of the United States in the case of Menard v. Goggan, 121 U. S. 253, 7 Sup. Ct. 873, 30 L. Ed. 914. In disposing of the case, Chief Justice Waite said:
"If the necessary citizenship actually existed at the time the suit was begun, it will be for the court below to determine when the case gets back whether the record shall be amended so as to show that fact, and thus make out the jurisdiction."
It will thus be seen that the amended complaint now sought to be filed does not come within the rule announced by the Supreme Court, and the motion for leave to file it will be denied.
Even if the amendments were allowed, I think the plaintiff's right to maintain the action may well be considered doubtful. An administrator is a statutory officer. The office and the powers of the administrator are creatures of statute, and from the averments in the complaint in this case the action is to recover for injuries resulting from an accident occurring in the state of Wyoming, and the administrator who brings this action is appointed in Colorado. Under the statutes of Wyoming, the administrator of a decedent's estate is given the right to maintain an action for his death. In Colorado, under whose laws this plaintiff was appointed and is acting, an administrator is without legal capacity to maintain such an action. Under the laws of Colorado an administrator is not only not given the right to maintain an action of this character, but the right to maintain such an action is expressly denied, and vested in certain named relatives, and the amount, if any, recovered is the individual property of such relatives, and is no part of the estate of the deceased person, and not subject to his debts. My attention has been called to no statute of this state giving an administrator authority either to maintain the action or distribute the funds realized therefrom in case of recovery, and I think none exists. However, it is neither profitable nor at all necessary to pursue this discussion, as the motion will be denied upon the first ground stated.
An order will be entered denying the motion filed herein on February 8, 1906, requesting permission to file an amended complaint, and dismissing the case at plaintiff's cost, upon the ground that this court has no jurisdiction of the action.
HARTMAN V. JOHN PETERS & CO.
(District Court, M. D. Pennsylvania. June 1, 1906.)
No. 702. BANKRUPTCY_PARTNERSHIP-ACTS OF BANKRUPTCY.
A conveyance by a partner of his individual property, although with intent to prefer a firm creditor, does not constitute an act of bankruptcy by the firm, and will not sustain proceedings in bankruptcy against the partnership.
[Ed. Note.—For cases in point, see vol. 6, Cerit. Dig. Bankruptcy, § 57.] In Bankruptcy. On exceptions to report of referee. G. Wilson Swarts, for exceptions. Harry M. Leidigh, for petitioning creditors.
ARCHBALD, District Judge. This case is ruled by in Re Redmond, 9 N. B. R. 408, Fed. Cas. No. 11,632, which is squarely in point. As is there pertinently said: “It seems too clear to admit of argument that, in order to maintain proceedings in bankruptcy against partners as such, it must be alleged and proven that the firm has committed an act of bankruptcy; and that, when the act charged is the fraudulent conveyance of property, it must be of partnership property.
A conveyance by one partner of his individual property, although an act of bankruptcy as against him, will not sustain a proceeding in bankruptcy as against the firm, even though such conveyance was made with intent to hinder, delay, or defraud firm creditors, or with a view of giving preference to a firm creditor. In such case the proceeding must be against such partner alone.”
The only act of bankruptcy charged in the present instance is the transfer by John Peters, one of the members of the respondent firm, of his individual property (his farm) with intent to defraud his creditors, and upon this it is prayed that the firm may be adjudged bankrupt. By an amended or supplemental petition, the transfer is alleged to have been with intent out of the proceeds to prefer W. S. Adams, his son-in-law, an indorser for the firm, and the Gettysburg National Bank, which held a number of the firm notes which he had indorsed, and the prayer is modified so as to extend not only to the firm, but to the individual members. The referee upheld the proceedings, and directed that an adjudication be made; but upon the strength of the authority cited, as well as upon principle, this cannot be sustained. The act relied on was individual and single, being simply the conveyance by John Peters of his farm to secure certain of the firm debts. The circumstances attending the transaction and the parties benefited thereby may justify the conclusion that it was fraudulently intended, or, if not that, that it at least effected a preference of the firm creditors secured. But with this the firm itself, so far as appears, had nothing whatever to do; nor had Earl Peters, the other member of it, who could not be affected, nor could his partnership interest, by the separate and distinct act of his copartner, dealing, not with the firm property, but with his own. The petition should have been directed
against John Peters, and not, as it is, against the firm, and must therefore be dismissed. There are other questions in the record, but this is decisive, and they will not be considered.
The exceptions are sustained, and the proceedings are dismissed, at the cost of the petitioning creditors.
FAWCETT V. UNITED STATES.
Combed silk that has fallen from or been caught in the machines in which it was undergoing further operations is dutiable under the provision in paragraph 384, Tariff Act July 24, 1897, c. 11, § 1, Schedule L, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1668], for silk not further manufactured than combed, and is not subject to the provision for silk waste in paragraph 661, § 2, Free List, 30 Stat. 201 [U. S. Comp. St. 1901, p.
1688]. 2. SAME-SILK WASTE-SILK COCOONS.
Paragraph 661, Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688], enumerating "silk cocoons and silk waste," includes those articles only when not manufactured at all. On Application for Review of a Decision of the Board of United States General Appraisers.
The decision under review affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by Hughes Fawcett.
Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for importers.
D. Frank Lloyd, Asst. U. S. Atty.
WHEELER, District Judge. This merchandise is combed silk that had fallen from, or been caught in, the machines, through which it was undergoing further operations with other silk of the same quality, which kept on toward further completion. The silk schedule of the act of 1897 lays a duty on “384. Silk partially manufactured from cocoons or from waste silk and not further advanced, or manufactured than carded or combed silk, forty cents per pound.” Act July 24, 1897, c. 11, § 1, Schedule L, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1668). This material was none the less combed silk because it got out of place or dirty in the further process, so as not to be further advanced than combed silk. It was situated in the process like the steel-rail crop ends in Robertson v. Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 686, which were held to be none the less steel because they were an overplus in the manufacture of steel rails. “Silk cocoons and silk waste” are free by paragraph 661, § 12, Free List, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688], but that is when they are not manufactured at all; when they are, they come under paragraph 384.