was only on Saturday mornings; but she also admitted that in the winter-time the boy came into her room nearly every day, and that in the summer-time he was always out of doors; and it was with the period from April to October only that the complaint is concerned. The same witness also testified that on one occasion defendant stopped in front of the house in a sleigh and she heard him say to the plaintiff's wife, who had gone to the gate, in a low voice,-not exactly a whisper, but a low voice,-"We are watched;" but the same witness also admits that she, the observer and reporter of this conversation, was at the time at the window of her own room,- -a distance, according to her own statement, of from 100 to 150 feet. Except for the letters, there is absolutely nothing else on this branch of the case. Such evidence, standing alone, is altogether too feeble to support the inference which the jury seem to have drawn from it, especially in view of the fact that the offense charged against the defendant is a crime,-an offense involving moral turpitude. In such cases the rule is well settled that when the evidence is as capable of an interpretation which makes it consistent with the innocence of the accused party as with one consistent with his guilt the meaning must be ascribed to it which accords with his innocence rather than that which imputes to him a criminal intent. Morris v. Talcott, 96 N. Y. 100; Jaeger v. Kelley, 52 N. Y. 274; Pollock v. Pollock, 71 N. Y. 137; Crook v. Rindskopf, 105 N. Y. 476, 12 N. E. Rep. 174. The only remaining evidence of the case is that tending to show opportunity. The plaintiff testified that, suspecting his wife's unfaithfulness, he followed her one morning, accompanied by a young man, a stranger, whom he hired for the occasion. That he saw her enter the Cosmopolitan Hotel, by the ladies' entrance. Thereupon he entered the hotel himself, by the main entrance, into the restaurant; thence went to the clerk's desk, looked over the register, to see if he could trace any names, stated his case to the clerk, who referred him to the proprietor, found the latter, and, with his permission, accompanied by the clerk, went upstairs, into the hallway outside of room No. 59. The door of No. 59 was shut, but through the fan-light over the top he heard voices within, one of these voices being that of his wife. He understood what was said, but did not state it, not being asked by either side so to do. He then left the hall-way, returning, after a considerable time, with a detective and the young man. They took post in a room adjoining, and, after another long interval, entered room 59, which they found untenanted, the bedclothes tumbled, a champagne bottle and two wine glasses standing on the table, and his wife's parasol in the fire-place. On his way home that evening he met his wife on the train. He did not see the defendant that day, except, perhaps, at Ramsay's in the evening. With regard to this narrative, two suggestions are pertinent. In the first place, it is testified to only by the plaintiff. Himself an interested witness, he does not seek to corroborate his statements by the evidence of the young man, the clerk, the register, the proprietor, or the detective, nor does he attempt to account for the absence of any of them, except the boy, infra. In Clifton v. U. S., 4 How. 242, it is said that "if the weaker and less satisfactory evidence is given and relied on in support of a fact, when it is apparent to the court and jury that proof of a more direct and explicit character was within the power of the party, the same caution which rejects the secondary evidence will awaken distrust and suspicion of the weaker and less satisfactory; and that it may well be presumed, if the more perfect exposition had been given, it would have laid open deficiencies and objections which the more obscure and uncertain testimony was intended to conceal." Plaintiff's failure to avail of any corroborative proof, when such, for all that appears, was readily producible, requires us to examine this part of his narrative with more than ordinary caution. In the second place, it will be noted that, so far as above set forth, plaintiff's statement of occurrences at the Cosmopolitan Hotel does not implicate the defendant. What is it that connects him therewith? The additional statement of the plaintiff that he recognized one of the voices which he heard through the fan-light as that of George I. Ryerson. Though he knew defendant well, he was not particularly intimate with him,-had no such acquaintanceship with the tones of his voice as he may be assumed to have had with those of his wife's. Beyond this statement of plaintiff's opinion, however, as to the identity of the voice of an unseen speaker, there is not a scintilla of evidence connecting defendant with the transactions at the Cosmopolitan Hotel on the 11th of August. Upon this point, as in regard to the letters, plaintiff is the sole witness. To sustain a verdict in such an action as this solely upon the evidence of the plaintiff, who testifies, not to facts, but to opinions, and to opinions formed at a time when his mind was excited, and his judgment prejudiced by the passions of jealousy, shame, and anger, would be contrary alike to reason and authority. This verdict is not sustained by the evidence, and should be set aside, especially where, as in this case, it has, perhaps, been induced by matters not in proof. On the third day of the trial, plaintiff, who had endeavored unsuccessfully to subpoena defendant's wife the evening before, called the marshal to the stand, and undertook to prove by him, before the jury, what efforts he had made to find her. This was promptly excluded. Again, at the close of defendant's case, plaintiff moved on allidavits for leave to reopen his case and to examine a new witness, the young man who accompanied him to the Cosmopolitan Hotel, and whom he had not called in chief. This was refused, on the ground that it appeared by the plaintiff's own statements, and by the city directories, that he might easily have procured the witness' attendance by the first day of the trial. So, too, plaintiff was, on the objection of defendant's counsel, refused leave to reopen his case by recalling witnesses, and examining them as to new matter not developed on cross-examination. The results of all these applications were before the jury, and, no doubt, led them to suppose that testimony damaging to the defendant was thus kept out of the case by his objection. Beyond the statement that they "might not draw inferences without actual facts to support them," the jury were not specially cautioned against giving any weight to supposed testimony not before them, the court assuming that they possessed a higher degree of intelligence than they seem to have displayed; and this extraordinary verdict may find its possible explanation in a prejudice excited by defendant's insistence on a strict application of the rules of proof. By whatever cause it was induced, however, it is clearly not sustained by the evidence, and should be set aside. Allusion was made upon the argument to the denial of defendant's motion to take the case from the jury upon the whole proof. Counsel refer to a rule familiar to state practice, viz., that where the court would set aside a verdict if against the defendant, it should nonsuit when asked so to do. A nonsuit in a state court and a direction of a verdict for defendant in a federal court, however, do not leave the plaintiff in the same position. In the one case he can pay up his costs, get together more evidence, and sue again; finding in the nonsuit no bar to his recovery. To such new action, however, the judgment entered upon direction of a verdict in a federal court would be a bar. Insurance Co. v. Broughton, 109 U. S. 121, 3 Sup. Ct. Rep. 99; Oscanyan v. Arms Co., 103 U. S. 261. In denying the defendant's motion to direct a verdict in his favor, it was stated that such denial was induced by the consideration that the defendant was not thereby irreparably prejudiced, the motion for a new trial securing him against any wrong from a verdict founded on insufficient proof. At the same time, it appeared to the court that, in view of the suggestion of additional proof made on the motion to reopen the case, it would be unfair to the plaintiff to prevent him from going to a jury either in this case or in any other. He might have been irreparably injured by the direction of a verdict. Let the verdict be set aside. PREBLE V. BATES et al. (Circuit Court, D. Massachusetts. December 10, 1889.) 1 BILL OF EXCEPTIONS-IN FEDERAL COURT-FILING. A bill of exceptions, so far as regards the duty of the attorney taking it, should be considered as filed when taken to the clerk's office and placed in the hands of the proper officer for filing. The form of indorsement placed on it by the clerk is immaterial 2. SAME. Rev. St. U. S. § 914, requiring the pleading, practice, and forms in the circuit court to conform as near as may be to those of the courts of the state in which it is held, does not govern the preparation and perfecting of a bill of exceptions. In re Iron Co., Sup. Ct. Rep. 150, followed. 8. SAME-TIME OF PERFECTING. In the federal courts the rule is that the bill of exceptions must be signed at the term in which judgment was rendered, not the term at which trial was had. At Law. L. C. Southard and B. F. Butler, for plaintiff. COLT, J. The question now before the court is whether a bill of exceptions can be allowed in this case. A verdict was rendered for the plaintiff December 20, 1888, and on December 22, the counsel for the plaintiff consenting, 20 days were allowed the defendants within which to file a bill of exceptions. On January 11, 1889, or within the 20 days, the counsel for the defendants took their proposed bill of exceptions to the clerk's office of the circuit court, and handed it to the deputy-clerk, who then wrote across it, in pencil, the following memorandum: "Rec'd Jan. 11, 1889." The objection is made that this was not a filing of the bill of exceptions, and that consequently no bill is now before the court. cannot see the force of this objection. So far as the counsel for the defendants is concerned, the bill should be considered as filed when taken to the clerk's office and placed in the hands of the proper officer for filing. The form of indorsement which the clerk, as a matter of practice or of convenience, puts upon the paper is immaterial, and cannot affect the rights of the parties. Whether notice was given the plaintiff's counsel of the filing of the bill, or a copy was served upon him, or whether what was done was in conformity with the practice in the state courts, (Pub. St. Mass. 847,) are also immaterial; because the practice and rules of the state court do not apply to proceedings in the circuit court, taken for the purpose of reviewing in the supreme court a judgment of the circuit court, and such rules and practice, embracing the preparation, perfecting, settling, and signing of a bill of exceptions, are not within section 914 of the Revised Statutes. In re Iron Co., 128 U. S. 544, 553, 9 Sup. Ct. Rep. 150. The counsel for the plaintiff raises the further objection to the allowance of any bill of exceptions in this case, that a bill of exceptions cannot be signed after the term at which the trial took place, except with the consent of counsel, or the express order of the court, and that in the present case more than one term has elapsed since the trial. After a careful examination of the cases referred to by counsel, I conceive the rule to be this,-that a bill of exceptions must be signed at the term in which judgment was rendered. This rule is subject to certain exceptions, dependent upon special circumstances, which, however, it is not necessary to consider in this case. I admit that the expression is sometimes used, "at the term the trial was had," as distinguished from the phrase, "at the term judgment was rendered." The true rule, however, is stated by Chief Justice WAITE, in Muller v. Ehlers, 91 U. S. 249, in the following language: "As early as Walton v. U. S., 9 Wheat. 651, the power to reduce exceptions taken at the trial to form, and to have them signed and filed, was, under ordinary circumstances, confined to a time not later than the term at which the judgment was rendered. This, we think, is the true rule, and one to which there should be no exceptions, without an express order of the court during the term, or consent of the parties, save under very extraordinary circumstances." In the present case the motion for a new trial was not finally disposed of until October 12, 1889, and no judgment has as yet been entered upon the verdict. As soon as the motion for a new trial was overruled the defendants' counsel asked to have their bill of exceptions allowed. The consideration of the bill of exceptions was unnecessary until the motion for a new trial was decided, because that motion might have been granted, when the exceptions would fail, as a new trial would take place. The course of proceedings in this case shows the reason and justice of the rule that it is the term at which judgment is rendered, rather than the term at which the trial was had, that a bill of exceptions must be signed. For these reasons, I shall hold that the bill of exceptions in this case, filed by the defendants with the clerk, is properly before the court. GORDON et al. v. MAGONE, Collector. (Circuit Court, S. D. New York. December 5, 1889.) 1. CUSTOMS DUTIES-APPRAISEMENT-FOREIGN MONEY-SHANGHAI TAELS. Small masses of silver, not always uniform in size, nor regular in shape, but conforming generally to an oval shape like that of a hat turned upside down, or of a Chinese shoe, marked by an officer selected by the consensus of Chinese bankers with characters indicating the fineness, and the number of taels, or the weight of the silver therein, and circulated in China as the only money of account, are coins of China; and the value of a tael of the same is a proper subject of annual estimation by the director of the mint, and of proclamation on the 1st day of January by the secretary of the treasury, within the meaning of section 3564, Rev. St. U. S. 2. SAME-PROCLAMATION AS to Value. If the value of a foreign coin be estimated by the director of the mint upon the basis used by him in estimating the values of other foreign coins of the same metal, proclaimed by the secretary of the treasury on the 1st day of January of any year, and be proclaimed by the secretary of the treasury during a subsequent month of the same year, the director, in the absence of any proof to the contrary, will be presumed to have performed his entire duty, and to have made such estimation of the value of such foreign coin at the time required by said section 3564, and the proclamation, during such subsequent month, by the secretary of the treasury of its value so estimated, is a compliance by him with the requirements of that section. At Law. Action to recover back duties. The plaintiffs made one importation August 28, and another September 21, 1886, into the port of New York, from Shanghai, China, of certain dressed furs, which were invoiced in Shanghai taels. The defendant, as collector of customs at that port, pursuant to the decision of the treasury department, (S. 6839,) made April 3, 1885, converted the taels at the rate of $1.175 each into money of account of the United States; and on August 28 and September 22, 1886, respectively, the duties in the case of these importations, as estimated by the proper officers, at the legal rate thereof, on the amounts of such money so obtained, were paid by the plaintiffs to the defendant as such collector. On January 31 and February 1, 1887, respectively, the duties in the case of these importations were liquidated by the proper officers at the same amounts as the estimated amounts. Thereafter, within the time required by law, the plaintiff's protested against the exaction of duties on these amounts, claiming that duty should have been exacted on amounts so obtained by converting these taels into money of account of the United States, at the rate of $1.1094 each; and, having made appeals |