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the collector of customs at the port of New York on an importation by W. Nishimiya. Note G. A. 5,334, T. D. 24,410, and Murphy v. Arnson, 96 U. S. 131, 24 L. Ed. 773.
Albert Comstock and Percy W. Crane, for importer.
Charles Duane Baker, Asst. U. S. Atty.
TOWNSEND, Circuit Judge. The merchandise in question is saké, imported from Japan. The Board of Appraisers finds that it is a beverage made from rice by processes similar to those employed in making beer, but which in alcoholic strength, quality, general appearance, and otherwise resembles still wine, and therefore held it to be dutiable at 50 cents per gallon, by similitude to still wines containing more than 14 per cent. of absolute alcohol, under the provisions of paragraph 296 of the tariff act of 1897. Act July 24, 1897, c. 11, § 1, Schedule H, 30 Stat. 174 [U. S. Comp. St. 1901, p. 1654]. The importer protests on the ground that the beverage is dutiable either as ale or beer, under the provisions of paragraph 297 of said act, either directly or by similitude; or as a nonenumerated manufactured article under section 6 of said act. This beverage is neither ale, beer, nor still wine. It is similar to ale or beer, in that the material from which it is made is rice, and in the fact that it is, like beer or ale, fermented with yeast. It is more like wine than beer in its quality, as the percentage of alcohol contained in it is about 17 per cent., while the percentage of alcohol in beer ranges between 32 and 9 per cent., and in wine between 72 and 16 per cent. A test of the sample by taste and smell and examination indicates that it is only remotely similar in quality to either wine or beer. In use it is like either liquid, being drank for flavor and exhilaration. It is unlike them in that it is ordinarily drank hot. In quality it is more like wine in the sense that it is still, as distinguished from the ordinary effervescent ale or beer. In these circumstances saké is not sufficiently similar to still wine to warrant its assessment for duty under paragraph 296 of the act; and because of the high percentage of alcohol therein, the absence of effervescence, and its quality, taste, and use, as aforesaid, it does not seem to be sufficiently like beer or ale to permit of its inclusion under paragraph 297. The conclusion reached is that it is so radically different from the articles covered by both of said paragraphs that it should have been classified for duty as a nonenumerated manufactured article under section 6 of said act.
The decision of the Board of Appraisers is reversed.
TILGHMAN et al. v. EIDMAN, Internal Revenue Collector.
(Circuit Court, S. D. New York. May 25, 1904.)
L SUCCESSION TAX-REPEAL-SAVING CLAUSE.
Where no succession tax provided for by Act Cong. June 13, 1898, c. 448, 80 Stat. 450 [U. S. Comp. St. 1901, p. 2291], was due, payable, or a lien on the property of the deceased at the time the act was repealed by Act Cong. April 12, 1902, c. 500, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 279], in effect July 1, 1902, the tax to which the estate would otherwise
have been subject was not "imposed" at the date of the repeal within the saving clause of section 8 of the repealing act, providing that taxes previously imposed should not be affected by the repeal.
Demurrer to Complaint.
Charles Duane Baker, Asst. U. S. Atty., for the demurrer.
LACOMBE, Circuit Judge. I am unable to distinguish this case from Mason v. Sargent, 104 U. S. 689, 26 L. Ed. 894. Under the statute and amendments and the principle enunciated in that case, no tax was due or payable, nor was there a lien for any tax upon the property of the deceased, at the time the repealing act of April 12, 1902, went into effect (July 1, 1902). Under these circumstances it cannot be said that any tax was "imposed" within the meaning of the saving clause, section 8 of the act last cited. Act April 12, 1902, c. 500, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 279].
The demurrer is overruled, with leave to answer within 10 days after entry of order.
JOHN CHURCH CO. et al. v. ZIMMERMANN.
(Circuit Court, E. D. Wisconsin. July 11, 1904.)
1. FEDERAL COURTS-EQUITY-BILL-INTERROGATORIES-FAILURE TO ANSWEREXCEPTIONS.
Where a bill in the federal courts for infringement of copyright prayed the usual discovery in an answer by the defendant both to the allegations and interrogatories, the waiver of an answer under oath did not entitle defendant to file an answer consisting of a mere general denial neither responding to the interrogatories nor stating "the circumstances of which the defendant intends to avail himself by way of defense," as required by the federal equity rules; and an answer so filed was subject to exceptions.
In Equity. On exceptions to the answer for insufficiency.
SEAMAN, District Judge. The bill in this case is founded on an alleged copyright and alleged infringements thereof by the defendant, and the usual discovery is sought in an answer by the defendant, both to allegations and interrogations, oath thereto being waived. The answer is a mere general denial, neither responding to the interrogatories nor stating "the circumstances of which the defendant intends to avail himself by way of defense" (1 Daniell's Ch. Pl. & Pr. [6th Am. Ed.] 712), nor otherwise complying with the fundamental rule in equity that "he shall answer fully to all the matters of the bill" (rule 39) when he "submits to answer." On exception thereto for manifest insufficiency the question is raised whether the answer is subject to such exception when oath is waived. That this exception is well taken under the equity practice of the federal jurisdiction is settled by the equity rules adopted by the Supreme Court (pursuant to sections 913, 917, Rev. St. [U. S. Comp. St. 1901, pp. 683, 684]) and the line of decisions.
thereunder. 1 Bates on Federal Eq. Prac. §§ 118, 334, and citations; 1 Foster's Fed. Prac. §§ 148, 153; 3 Desty's Fed. Prac. 1757. Confusion has arisen upon this question through the rulings in various state courts and statements in text-books of a general rule in equity that no exception for insufficiency lies where the answer is not under oath. The decisions pro and con in the several states are largely, though not in all instances, due to special provisions by statute or rule, and, however instructive, cannot govern the federal procedure. Of the text-books cited it is sufficient to refer to a leading authority, Daniell's Chancery Pl. & Pr., wherein it is remarked in the text (volume 1, p. 737 [6th Am. Ed.]) that "no exception can be taken to an answer put in without oath or signature or attestation of honor," citing in the note Hill v. Earl of Bute, 2 Fowl. Ex. Pr. 10, and New York and Tennessee cases; and the same view is repeated in the notes, page 760. The rule thus stated, however, cannot prevail under the rules of equity practice promulgated by the Supreme Court to supplant "the slow and oppressive procedure of the English practice for compelling an appearance and answer" with the "simple, speedy, and effectual procedure" established by the rules. 1 Bates on Fed. Eq. Prac. § 334. Preserving the original and· inherent power of equity to enforce discovery, these rules are unmistakable in requiring the defendant "to search his conscience," and answer fully, with or without oath. Waiver of oath to the answer "is not a waiver of the right to a full answer," and affects only the evidential character of the pleading. 1 Bates, § 118, and cases cited. The single instance of departure from this view in U. S. v. McLaughlin (C. C.) 24 Fed. 823, is disapproved in the cases thus cited, including Whittemore v. Patten (C. C.) 81 Fed. 527, in the same circuit.
The exceptions to the answer are sustained, and the defendant is required to answer fully on or before the next rule day.
UNITED STATES v. R. F. DOWNING & CO.
SAME v. GODILLOT & CO.
(Circuit Court, S. D. New York. May 23, 1904.)
Nos. 3,440, 3,441.
1. CUSTOMS DUTIES-MARKET VALUE-REMISSION OF LOCAL TAXES-DROIT DE VILLE-OCTROI TAX.
Held, in regard to merchandise imported from France, that its "market value," as defined in Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 [U. S. Comp. St. 1901, p. 1924], does not include the amount of certain internal revenue imposts of that country known as the "octroi tax" and the "droit de ville," which are not general in their application, but vary with the locality, and which are not collected if the merchandise is exported.
On Application for Review of Decisions of the Board of General Appraisers.
The decisions under review reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by R. F. Down
ing & Co. and Godillot & Co. Duty had been assessed on the basis of an appraisement of the market value of the goods, that included the amount of certain internal revenue imposts of France, known as the "octroi tax" and the "droit de ville." which are not general in their application, but vary with the locality, and which are not collected if the merchandise is exported. The board held that the case was not within the rule of United States v. Passavant, 169 U. S. 16, 18 Sup. Ct. 219, 42 L. Ed. 644, where it was decided by the Supreme Court that the so-called bonification of tax by the German government, which was in effect the remission, on the exportation of merchandise from that country, of a general tax that would have been collected, had the merchandise not been exported, constituted an element of market value, as defined in Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat. 139 [U. S. Comp. St. 1901, p. 1924]. Note G. A. 5,414, T. D. 20,761.
Charles Duane Baker, Asst. U. S. Atty.
W. Wickham Smith, for R. F. Downing & Co.
TOWNSEND, Circuit Judge. The decisions of the Board of General Appraisers are affirmed on the authority of Rheinstrom et al. v. U. S. (C. C.) 118 Fed. 303.
In re SUTTER BROS.
(District Court, S. D. New York. April 28, 1904.)
1. BANKRUPTCY-COURTS-ANCILLARY JURISDICTION.
Where proceedings were had in a federal District Court other than that in which a corporation was adjudged a bankrupt, by which a receivership was extended to property located in such other district, and various other orders were made by such court, it had ancillary jurisdiction to grant a creditor's application for the examination of witnesses as authorized by Bankr. Act July 1, 1898, c. 541, § 21a, 30 Stat. 552 [U. S. Comp. St. 1901, p. 3431].
Sutter Bros., a corporation, was adjudged a bankrupt in the United States District Court for the Northern District of Illinois. Receivers were appointed by that court, and the receivership extended to property in the Southern District of New York on application made to the District Court of that district by petitioning creditors. Various orders were made in the Southern District of New York, in the proceeding, relating to property in that district, after which an application was made by a creditor to the District Court for the Southern District of New York, under Bankr. Act, § 21a, for the examination of witnesses, which application was granted ex parte, and an order made accordingly, after which the bankrupt moved to vacate such order for lack of jurisdiction. Motion denied.
Stern, Sanger & Barr (William J. Barr, of counsel), for the motion. Lesser Bros. (William Lesser, of counsel), opposed.
HOLT, District Judge. I think that the order of this court making the Chicago receivers, receivers here, and the various orders made here since, make this a case pending in this court in such a sense as to authorize the order objected to, to be made. Even if no previous proceedings had been had in this court, I think that such an order could be made
here if previously authorized in the court where the proceeding is pending. With sincere respect for the court rendering the opinion in In re Williams, 10 Am. Bankr. R. 538, 123 Fed. 321, I cannot concur in it. Motion denied.
GEORGE LUEDERS & CO. v. UNITED STATES.
(Circuit Court, S. D. New York. May 25, 1904.)
1. CUSTOMS DUTIES-CLASSIFICATION-SANDALWOOD-LOGS OF Wood.
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 decision of the collector of customs at the port of New York in assessing duty on certain merchandise imported by George Lueders & Co. Note In re Parke, G. A. 4,845, T. D. 22,755.
J. Stuart Tompkins, for importers.
TOWNSEND, Circuit Judge. The merchandise in question consists of pieces of sandalwood, not uniform in size, several feet long and several inches thick. The importation was assessed at 20 per cent. ad valorem, under paragraph 198 of the tariff act of July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1646], which is as follows:
"(198) Sawed boards, planks, deals, and all forms of sawed cedar, lignum vitæ, lancewood, ebony, box, granadilla, mahogany, rosewood, satinwood, and all cabinet woods not further manufactured than sawed, fifteen per centum ad valorem; veneers of wood, and wood, unmanufactured, not specially provided for in this act, twenty per centum ad valorem."
The importers duly protested against such classification, claiming that the wood was free of duty, under paragraph 699 of said act, c. 11, § 2, Free List, 30 Stat. 202 [U. S. Comp. St. 1901, p. 1689], covering "Wood: Logs and round unmanufactured timber, including pulpwoods, firewood, handle-bolts, shingle bolts, gun-blocks for gun-stocks, rough, hewn or sawed, or planed on one side, hop-poles, ship-timber and ship-planking; all the foregoing not specially provided for in this act" or under paragraph 700, providing for "all forms of cabinet woods in the log, rough or hewn only," and "woods not specially provided for in this act, in the rough.