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to evade the former one. To permit it would be to sanction a fraud upon the court. As this court said in Re Fiegenbaum, 121 Fed. 69, 57 C. C. A. 709 :

“Not only should the court of bankruptcy protect the creditors from an attempt to retry an issue already tried and determined between the same parties, but the court, for its own protection, should arrest, in limine, so flagrant an attempt to circumvent its decrees.”

The present case differs, however, from the Fiegenbaum Case, because in that case the second proceeding was commenced within a very short time after the denial of the bankrupt's discharge in the former proceeding, while here' two years have elapsed; and it differs in the further and more important fact that some debts are scheduled in the second proceeding which were not provable in the first.

It is the right of an insolvent debtor who may have acquired property and incurred debts subsequent to an adjudication of bankruptcy to prosecute a second proceeding to obtain his discharge. The effect of an order like the one under review would be to deprive him of that right.

We conclude, therefore, that the order should be reversed, but without prejudice to an application by the creditors, such as has been suggested.

MERCK V. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. December 4, 1906.)

No. 75 (3,556). 1. CUSTOMS DUTIES-CLASSIFICATION-POWDERED OPIUM-DRUG ADVANCED.

Powdered opium is not dutiable under Tariff Act July 24, 1897. c. 11, § 1, Schedule A, par. 43, 30 Stat. 153 (U. S. Comp. St. 1901, p. 1629), as "opium, crude or unmanufactured,” but, under paragraph 20, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1628), as a drug advanced in value or condi

tion. 2. SAME_"CRUDE"-"UNMANUFACTURED."

Powdered opium prepared by a series of processes from gum opium, which result in a more valuable article, having a new use and a new commercial signification, held not to be opium "crude or unmanufactured," within the meaning of a tariff act. Appeal from the Circuit Court of the United States for the Southern District of New York.

For decision below, see 143 Fed. 694, affirming a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of New York.

Comstock & Washburn (Albert H. Washburn, of counsel; Charles A. Darius, on the brief), for importers.

D. Frank Lloyd, Asst. U. S. Atty.
Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. The controversy in this case is whether certain importations of powdered opium should have been classified for duty under paragraph 20 of the Tariff Act of July 24, 1897, c. 11, § i,

as

*

Schedule A, 30 Stat. 152 (U. S. Comp. St. 1901, p. 1628), or whether they were subject to duty under paragraph 43 of that act (30 Stat. 1629 [U. S. Comp. St. 1901, p. 1679]).

Paragraph 20 prescribes a duty of one-fourth of one cent per pound, and in addition thereto 10 per cent. ad valorem, on "drugs, such * bulbs, bulbous roots,

gums

*; any of the foregoing which are drugs and not edible, but which are advanced in value or condition by refining, grinding, or other process, and not specially provided for in this act.

Paragraph 43 prescribes a duty of $1 per pound on "opium, crude or unmanufactured, and not adulterated, containing nine per centum and over of morphine."

It clearly appears by the testimony in the record that opium in the crudest form in which it is commonly imported into this country is known as “gum opium” and comes in lump form. It contains various impurities, such as stones, seeds, ashes, etc., and is of varying alkaloidal strength. It also clearly appears that powdered opium is prepared from gum opium by subjecting the latter to artificial heat at a temperature regulated so as to avoid any destruction of the alkaloids present, and maintained until the water has been dried out; then comminuting and sifting it; and then, after assaying it to ascertain its morphine strength, by adding sufficient morphine so that it will conform to the standard of the United States Pharmacopæia. The two articles are dealt in as distinctive articles, and are commercially known, one as "gum opium” and the other as “powdered opium”; and the latter commands a price from 25 to 50 per cent. higher than the former. If there is any other article except the powdered opium which is known among dealers as "manufactured opium," the evidence fails to disclose the fact. It is used for purposes to which the gum opium is not adapted, viz., the preparation of all the standard opium galenicals,

We think it is plain that the importations were not crude opium in the sense in which it is to be assumed that Congress used the term. Nor do we think that they can be fairly deemed “unmanufactured opium" within the meaning of Congress. They have undergone a process which has destroyed the identity of the original article, and produced another and more valuable article, new in its use, and new in its commercial signification. If it had been intended to subject the powdered opium to duty, that purpose could have been readily accomplished by placing the duty upon opium merely. It may be conceded that no reason is apparent why Congress should have intended to exempt powdered opium from duty while laying a duty upon the crude or unmanufactured article; but the courts can only ascertain the legislative intention by the language used, and it is not their duty by a distorted construction to attempt to cover an article which may have been omitted by inadvertence. Under the Tariff Aus of 1890 and 1894 “opium, crude or unmanufactured, and not adulterated, and containing nine per centum and over of morphia,” was free of duty. While this provision was in force, powdered opium was uniformly classified by the customs officers at New York as subject to duty as a gum advanced in value, etc. The article answered that description then, and answers it now equally well. We conclude that the importations should have been classified for duty under paragraph 20.

The decision of the court below and of the Board of General Ap praisers is therefore reversed.

MIDDLETON & CO. V. UNITED STATES.
(Circuit Court of Appeals, Second Circuit December 4, 1906.)

No. 68 (3,985).
CUSTOMS DUTIES CLASSIFICATION-ARBOWROOT-STARCH.

The provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 285, 30 Stat. 173 (U. $. Comp. St. 1901, p. 1653), for "preparations • fit for use as starch," held to include arrowroot in its starchy form.

Appeal from the Circuit Court of the United States for the Southern District of New York.

In the decision below the Circuit Court affirmed witbout opinion a decision of the Board of United States General Appraisers (G. A. 5,995 [T. D. 26,234]), in which a majority of the Board affirmed the assessment of duty by the collector of customs at the port of New York.

The article in controversy was described by the Board as being commercially known as arrowroot, consisting of a fine floury form of starch extracted from the tubers or roots of the arrowroot plant, and being chiefly used for in. fants' food and to some extent in making medicinal preparations. The Board further stated that it was chemically a starch, and that, though there was no evidence that it is used for laundry purposes, it appeared that it might be so used.

It was classified under Tariff Act July 24, 1897, c. 11, 8 1, Schedule G, par. 285, 30 Stat. 173 (U. S. Comp. St. 1901, p. 1653), relating to "starch, including all preparations, from whatever substance produced, fit for use as starch," and was claimed by the importers to be free of dụty under paragraph 478 (30 Stat. 195 [U. S.. Comp. St. 1901, p. 1680]), as "arrowroot in its natural state and not manufactured," or to be dutiable under section 6 (30 Stat. 203 (U. S. Comp. St. 1901, p. 1693]), as an unenumerated manufactured article. These contentions were overruled by the Board; the article being held dutlable as classified, by similitude, under section 7 of said act. On appeal from the Board the only contention made was that assessment should have been under said section 6. In the Circuit Court the Board's decision was affirmed by consent, without argument.

Comstock & Washburn (Albert H. Washburn, of counsel). for the importers.

D. Frank Lloyd, Asst. U. S. Atty.
Before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. In affirming the decision of the court below and of the Board of General Appraisers, we do not mean to decide that the importations in controversy (arrowroot in its starchy form) were not dutiable directly under paragraph 285 of the tariff act of July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 173 (U. S. Comp. St. 1901, p. 1653), as a “preparation fit for use as starch. The Board held them dutiable under that paragraph indirectly by similitude. Whether this reasoning was sound or not, a correct result has been reached.

THE PRINZESS TRENE.
(Circuit Court of Appeals, Second Circuit. January 7, 1907.)

No. 98.

SHIPPING – INJURY OF PASSENGER NEGLIGENT REGULATIONS IN STO (Y

WEATHER.

A steamship was negligent in requiring steerage passengers to come onto the upper deck to receive their food while crossing the ocean in weather so stormy as to render it dangerous, and is liable for the injury of a passen. ger while so on deck by being thrown down by a wave, or by reason of

the wet and slippery condition of the deck. Appeal from the District Court of the United States for the Southern District of New York.

This cause comes here upon appeal from a decree awarding damages to libelant for personal injuries due to a fall which libelant sustained March 30th, 1903, two days out from Bremen, while on the deck of the steamship Prinzess Irene. The opinion of the District Judge will be found in 139 Fed. 810.

F, M. Brown and Butler, Notman & Mynderse, for appellant.
B. B. Coyne and Abbott & Coyne, for appellee.

Before Judges WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. The libelant was a steerage passenger, who under regulations enforced by the steamship line was required to come on deck to get his food, instead of having it supplied to him below. There is controversy as to some of the facts, notably as to the quantity of water which was shipped at the time; but it is not disputed that the steamér was encountering rough weather, there was a very choppy sea, with ground swell, the ship pitching heavily, and proceeding against a head wind No. 7 Beauford scale-a moderate gale. The deck was slippery with the water which had come aboard, and had been sanded so that those who had to walk upon it might have a better foothold. We do not think it at all material to determine whether the libelant was knocked over by a body of water, or whether the sand was washed away by an irruption of spray, which left him with an insecure surface upon which to walk to or from the exposed galley where coffee and zwiebach were being served. Nor do we think it makes any difference that he was a little out of line with the rest of the passengers. He had not passed beyond any roped-in or otherwise designated space. We concur with the District Judge in the conclusion that the claimant did not exercise the high degree of care which the law requires from a carrier of passengers, when it required them to come on an exposed deck under such conditions to receive their food.

It is contended that the weather was not more severe than what is usually encountered on a winter crossing to westward; that it is customary to bring the passengers on deck in such weather to feed them; and that, if arrangements were made for feeding them below, it would be necessary to use space now devoted to sleeping quarters, so that it would not be possible to carry so many steerage passengers, and it might be necessary to increase the price charged for a passage. · These results are not such as one need view with alarm. Certainly they do not constitute an excuse for modifying the well-settled rule as to a carrier's obligations to its passengers.

151 F.-2

The decree is affirmed, with interest and costs.

PARKER v. BLACK et al.

(Circuit Court of Appeals, Second Circuit. January 18, 1907.)

No. 132

1. BANKRUPTCY--SUIT BY TRUSTEE TO KECOVER PREFERENCE-JURISDICTION IN

EQUITY.

A trustee in bankruptcy may maintain a suit in equity to recover a payment made by a bankrupt to a creditor as a voidable preference; such suit being in the nature of a creditors' suit to set aside a fraudulent con

veyance. 2. SAME-VOIDABLE PREFERENCE.

A finding that creditors, at the time of receiving a payment from an insolvent, had knowledge of such facts as to give them reasonable cause to believe that he was insolvent, and to render the payment voidable as a preference at suit of the debtor's trustee in bankruptcy, held sustained by the evidence.

Appeal from the District Court of the United States for the Southern District of New York.

For opinion below, see 143 Fed. 560.
Abraham Benedict and Werner & Harris, for appellants.
W. B. Crowley, for appellee.

Argued before WALLACE, LACOMBE, and COXE, Circuit Judges.

PER CURIAM. We are entirely satisfied with the disposition made of the case upon the merits by the court below, and that the evidence fully justifies its conclusions as to the facts.

The point is taken, however, that there was a full, adequate, and complete remedy at law to recover the preferential transfer in controversy; and the defense was set up in the answer. Upon this point we think we should follow the decisions made by two different Circuit Courts of Appeal upon a state of facts practically identical with those of the present case, notwithstanding we should have been of a different opinion if the question had been originally presented to us. See Wall v. Cox, 101 Fed. 403, 41 C. C. A. 408; Off v. Hakes, 142 Fed. 364, 73 C. C. A. 464.

The decree is affirmed, with costs.

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