[e] (Ky. 1893) In an action by tobacco warehousemen and factors for the purchase price of 68 hogsheads of tobacco destroyed by fire while in plaintiffs' warehouse, it appeared that defendant agreed to take the tobacco on the terms and at the price proposed by plaintiffs; that on the day of the alleged sale 10 hogsheads of the same were weighed and placed on plaintiffs' brakes for auction sale, but withdrawn at defendant's request; that on the same day plaintiffs ascertained the net weight of each of the 68 hogsheads, made entries thereof on their books, and prepared invoices ready for defendant; that the latter had previously seen and was well acquainted with the whole lot of tobacco; that, though it was the individual property of plaintiffs, and sold privately, the contract was made with reference to, and knowledge by the parties of, the general and uniform custom of the tobacco trade in L., where it was made, and that they intended to be governed thereby, as if it had been sold by plaintiffs as commission merchants. Held, that the title to the tobacco was vested in defendant.-Thompson v. Brannin, 94 Ky. 490, 21 S. W. 1057.

[f] (Mass. 1836) Where the owner of a large number of barrels of beef, all of equal value and all in one parcel, sold a certain number of them to the plaintiff and received the price, and a certain number to B., and reserved the rest for himself, and delivered them all to the agent of the vendees, and afterwards B. took away the number sold to him, and the vendor took away the number reserved, it was held that, upon such separation, the barrels remaining in the hands of such agent vested in the plaintiff.—Valentine v. Brown, 35 Mass. (18 Pick.) 549.

[g] (Mass. 1861) A purchase of goods which are designated and set apart by the seller, and paid for, and a part of which are actually removed by the purchaser's order, is sufficient to vest the property in the purchaser, as between the parties, although he has never seen the goods.-Rice v. Codman, 83 Mass. (1 Allen) 377.

[h] (Mass. 1896) Where a person accepts by telegram another's offer to sell him certain goods at a stated price, and the seller thereupon sets apart and appropriates to the purchaser the goods called for, and sends him the bill, the sale is complete.-Mitchell v. LeClair, 165 Mass. 308, 43 N. E. 117.

[i] (Mass. 1896) Under an agreement for the sale of all of a certain grade of wool produced by plaintiff's mills during 30 days, plaintiff weighed the product of each day, but did not separate it from that produced at other times, and on a shipment to the buyer sent a larger quantity than that made under the contract, all of which was rejected. Held that, the wool covered by the contract not having been separated and set apart so that it could be identified from other wool of plaintiff, there was no delivery, and the title to none passed to the buyer so as to support an action for goods sold and delivered.-New England Dressed Meat & Wool Co. v. Standard Worsted Co., 165 Mass. 328, 43 N. E. 112, 52 Am. St. Rep. 516.

[j] (Mass. 1907) Where plaintiff at his own expense delivered at his shipping point on board cars coal of the description respondent agreed to buy and pay for, the title passed, and respondent owed the contract price.-Cox v. Andersen, 80 N. E. 236.

[k] (Mich. 1888) Where a contract for the sale of a stock in a store specifies that the vendor excepts and reserves from the stock whatever the same may inventory above $4,500, which excess the vendor is to take from the stock, and payment is to be made in land and money as soon as the inventory is completed the delivery of the goods, and payment in the mode specified in the contract, to be simultaneous-and the result of the inventory showed an excess in value over the $4,500, there can be no delivery so as to pass the title until such vendor has taken out the goods excepted and reserved in excess of $4,500. -Pierson v. Spaulding, 67 Mich. 640, 35 N. W. 699.

[1] (Minn. 1892) On an order for a specified quantity of twine to be shipped on a specified day, the separation of the quantity from the seller's general stock, and shipping it before the specified day, is not an appropriation of the quantity separated to the contract, so that the title passes.-Hoover v. Maher, 51 Minn. 269, 53 N. W. 646.

[m] (Mo. 1907) A contract to sell personal property which is not specific or designated is purely executory until the property is designated or segregat

ed, and the purchaser gets no title until this has been done.-American Metal Co. v. Daugherty, 102 S. W. 538.

[n] (N. M. 1891) In an action for the price of goods ordered by mail and burned in the house of the buyer, it being a disputed question whether the buyer ordered specific kinds of goods, or left the selection to the seller, it was proper to charge that, if a buyer orders goods and permits the seller to select them, the buyer is responsible, whether the goods sent suited him or not; but if he specifies the goods wanted, and the goods sent are not in aecordance therewith, and he immediately notifies the seller thereof, and that he will not accept them, and then the seller directs him to hold them, the buyer is not responsible.-Cerf v. Badaraco, 6 N. M. 214, 27 Pac. 504.

[o] (N. C. 1853) A. bought of B. a distiller, 300 barrels of rosin, to be delivered "when called for next week," and paid for it. Within the week, B. manufactured, and had on hand at his distillery, more than the above quantity of rosin; but A. did not call for it within the week, and afterwards the rosin and distillery were burnt. Held, that A. was bound to call for the rosin within the next week; that B. was not bound to set apart for A. any particular 300 barrels; that, A. having failed to perform his part of the contract, the rosin remained at his risk, and the loss must be borne by him.—Willard v. Perkins, 44 N. C. 253.

[p] (Pa. 1896) A vendee directed the vendor to ship certain enumerated articles by freight to P., "all to be delivered in 60 days; shipments made as called for." The vendor packed the goods and set them aside in the factory, and rendered the vendee an invoice for them. Held, that the law would import delivery in accordance with the terms of the order for the goods at the end of 60 days from its date.-Pittsburg Glass Co. v. Doubleday, 2 Pa. Super. Ct. 170.

[q] (S. C. 1849) A. sold to B. 625 bags of corn, which was a portion of a larger quantity which A. had previously purchased, and which was to be delivered to A. at the railroad depot in Charleston, and A. gave to B. the following delivery order: "Mr. C. D., Agent Railroad Company-Sir: Please deliver to B. 625 bags of corn, consigned to me, and oblige. A. P. S. I am not certain that all the corn has arrived at the depot; but, when it comes, let B. have it. January 25, 1847." When the corn had arrived, B. tendered to A. the purchase money, and demanded the corn; but A. refused to let him have it. Held, that the order sufficiently identified the corn as being the first 625 bags that should arrive, and transferred to B. the right of property therein, and gave him such constructive possession as would enable him to maintain trover therefor, on demand and refusal.-Sahlman v. Mills, 3 Strob. 384, 51 Am. Dec. 630.

(154 Fed. 770.)

UNITED STATES v. WALSH.

(Circuit Court of Appeals, First Circuit. July 2, 1907.)

No. 702 (1,849).

CUSTOMS DUTIES-CLASSIFICATION-PROVISO-WOOL GOODS.

In construing Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 391, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], relating to “all manufactures * of which silk is the component material of chief value," and containing a proviso that "all manufactures of which wool is a component material shall be classified and assessed for duty as manufactures of wool,” held, that the ordinary rule should be applied that a proviso at the close of an independent paragraph like this should be construed as limiting only what precedes it, and that the words "all manufactures" in the proviso have no broader relation than the same words in the beginning of the paragraph.

Appeal from the Circuit Court of the United States for the District of Massachusetts.

For opinion below, see 154 Fed. 749.

William H. Garland, Asst. U. S. Atty. (Asa P. French, U. S. Atty., on the brief).

Norman W. Bingham (Bingham, Smith & Hill, on the brief), for importer.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM, Circuit Judge. This case turns on the construction of the proviso which concludes paragraph 391 of the customs act of July 24, 1897, c. 11, § 1, Schedule L, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], which paragraph is as follows:

“391. All manufactures of silk, or of which silk is the component material of chief value, including such as have india-rubber as a component material, not especially provided for in this act, and all Jacquard figured goods in the piece, made on looms, of which silk is the component material of chief value, dyed in the yarn, and containing two or more colors in the filling, fifty per centum ad valorem; Provided: that all manufactures, of which wool is a component material, shall be classified and assessed for duty as manufactures of wool."

The United States maintain that this paragraph is to be construed to cover all manufactures of which wool is a component material to the same extent as though the paragraph was a separate section of the act in question, and disconnected from the position which it occupies in "Schedule L-Silks and Silk Goods." If the United States. are correct, the judgment of the Circuit Court must be reversed; otherwise it must be affirmed. A full statement of the circumstances is found in the opinion of the learned judge of the Circuit Court, to which we refer for any additional information required, and in which we concur. The Board of General Appraisers decided in favor of the importer, but the paragraph which we have quoted was not referred to by them. Apparently the United States made before them no claim. arising out of it, and it certainly cannot be said that there has been any practical construction or application of the proviso which supports their present contention. On the other hand, the learned judge of the Circuit Court observes as follows:

"Whatever interpretation be given to the proviso of paragraph 391, I cannot think that it was intended to control the language of all the other paragraphs of the tariff act and to make many of them nugatory, as is contended by the government."

According to the ordinary rule, a proviso at the close of a section, or of an independent paragraph like that now before us, is to be construed as only limiting, or as being limited by, what precedes it therein. Of course, there are some necessary exceptions to the rule, the latest statement of each of which is found in United States v. Falk, 204 U. S. 143, 149, 150, 27 Sup. Ct. 191, 51 L. Ed. 411. In view of the sweeping results explained by the learned judge of the Circuit Court which would follow from not applying the general rule to the present case, we must hold that it does so apply, and that the words "ali manufactures" found in the proviso should be held to be only a repetition of the same words with which the paragraph begins, and as having absolute relation thereto.

The judgment of the Circuit Court is affirmed.

(154 Fed. 769.)

Ex parte CRAWFORD.

(Circuit Court of Appeals, Third Circuit. April 5, 1907.)

No. 1,013.

1. COURTS-FEDERAL COURTS-PROCEDURE IN AID OF EXECUTION.

The remedy given to a judgment creditor by Act Pa. July 12, 1842 (P. L. 339), by the arrest and imprisonment of the defendant on a showing of fraudulent removal or concealment of his property, is one "to reach the property of a judgment debtor" within the meaning of Rev. St. § 916 [U. S. Comp. St. 1901, p. 684], and under said section is available in the federal courts.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 936.] 2. BANKRUPTCY-EFFECT OF BANKRUPTCY ACT ON STATE INSOLVENCY LAWSARREST OF JUDGMENT Debtor.

Act Pa. July 12, 1842 (P. L. 339), which authorizes the arrest and imprisonment of a judgment debtor on a showing that he is about to remove or has concealed property with intent to defraud his creditors, is not an insolvency law of the state, although it provides that the debtor may be released on his giving a bond that he will apply within 30 days for the benefit of such law and comply with its requirements, but merely provides a remedy in aid of execution, and its operation is not suspended by the national bankruptcy act.

[Ed. Note.-Effect of national bankruptcy act on state insolvency laws and on assignments for benefit of creditors, see note to Carling v. Seymour Lumber Co., 51 C. C. A. 11.]

On Writ of Habeas Corpus and Return Thereto.

For opinion below, see 154 Fed. 761.

Seth I. McCormick, for petitioner.

A. L. Cole, opposed.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

DALLAS, Circuit Judge. The United States District Judge for the Middle District of Pennsylvania, sitting in the Circuit Court for that district, awarded a warrant of arrest under the Pennsylvania statute of July 12, 1842 (P. L. p. 339), in pursuance whereof George H. Crawford was committed to jail. The jurisdiction of the Circuit Court to do this being denied, we allowed a writ of habeas corpus, and upon its return the case thereby presented was argued by counsel, and having been duly considered by us, is now for adjudication. It should be promptly disposed of, and to avoid delay we will but briefly state the grounds of our decision.

The contention on behalf of the prisoner appears to be that authority was not given to the federal courts to issue the process which was issued in this instance, either by section 914, or 915, or 916 of the Revised Statutes [U. S. Comp. St. 1901, p. 684], and that, even if it had been, such authority would not presently exist, because, as is argued, the enactment by Congress of the bankruptcy act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]) suspended the Pennsylvania act of July 12, 1842. Neither of these positions is tenable. A judgment had been recovered in a commonlaw cause, and the warrant of arrest, being a remedy provided by the state law "to reach the property of the judgment debtor," was, we think, plainly within section 916. The cases relied upon by the learned counsel of the prisoner are not in point. In Friedly v. Giddings

et al., 119 Fed. 438, the court was dealing with a motion for an adjudication that, by reason of the character of the cause of action, the defendants ought to be confined to jail, according to the statutes of the state It was not dealing with a remedy upon a judgment, by execution or otherwise, to reach the property of the judgment debtor. The state statute under consideration in Curtis v. Feste, 6 Fed. Cas. 1004, Fed. Cas. No. 3,502, was in a very high degree penal. It did not provide a remedy to reach property, but made it "the duty of the court, in all cases described in it except one, upon conviction of the debtor, to sentence him to three years' imprisonment, and in the other, case, to sentence him to the same term of imprisonment, with a condition that he should be discharged on payment of the debt."

The Pennsylvania statute of July 12, 1842, is not an insolvent law. The proceeding it provides is not designed to effect the distribution. of the debtor's assets amongst his creditors. It is a proceeding in aid of execution. Its object is to reach property of a judgment debtor which he fraudulently conceals. The case of Commonwealth v. O'Hara, 6 Phila. 402 (cited for the prisoner), was decided by a Pennsylvania court of first instance, and the learned judge by whom that decision was rendered afterwards became a justice of the court of last resort of that state, and as such participated in its unanimous judgment in the case of Scully v. Kirkpatrick, 79 Pa. 324, 21 Am. Rep. 62. This adjudication, and others which need not be particularly referred to, accord with our present conclusion.

The order of this court is that George H. Crawford be remanded. to the custody of the keeper of the common jail of Lycoming county, there to be detained in pursuance of and in accordance with the order of the Honorable R. W. Archbald, United States District Judge for the Middle District of Pennsylvania.

NOTE.-Motion for leave to file petition for a writ of habeas corpus denied 27 Sup. Ct. 795, 206 U. S. 561, 51 L. Ed. 1189.

(154 Fed. 839.)

TWO HUNDRED AND EIGHTEEN AND ONE-HALF CARATS LOOSE EMERALDS v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. June 5, 1907.)

No. 295.

CUSTOMS DUTIES-FORFEITURE "BAGGAGE"-ARTICLES IN CLOTHING.

Held, that articles in the clothing are "baggage," within the meaning of section 2802, Rev. St. [U. S. Comp. St. 1901, p. 1873], relating to the concealment of dutiable articles "found in the baggage of any person arriving within the United States," and that a package of precious stones found in the pocket of a passenger is forfeitable under said provision.

In Error to the District Court of the United States for the Southern District of New York.

This cause comes here upon writ of error by the claimant of certain loose, unpierced, cut emeralds to review a judgment of forfeiture for violation of the revenue laws. The judgment was entered October 3, 1906, in the District Court, Southern District of New York. Upon completion of the testimony, a verdict was directed in favor of the government; both sides having moved for a direction. Subsequently, upon motion for a new trial, the district judge