« iepriekšējāTurpināt »
e wire to be drawn through them are drilled into the r machinery. The wortles are bars of steel of different 1 inches wide and 17 inches deep, having holes suitable ig.. of Judge Lacombe, in United States v. Meier, 136 Fed. . 421, cited in the opinion of General Appraiser Fischer, (T. D. 27,536), would seem to be applicable to the case ation. I quote: component materials are unchanged, processes of manufacture
completed commercial article known and recognized in trade on metal but as fitters, and which is designed and adapted for >, to which the composition metal of trade could not be put t been subjected to such additional processes of manufacture.” ates, as said, are manufactures of steel bars or plates, 10 longer the plates specifically enumerated in paragraph a process of manufacture, the bars or plates have become cally completed in manufacture and with a purpose disat of the original product. ontended by the importers that the term "plates," as used | 135, has heretofore been held by this court, in Morris ates, supra, to include a steel table which was attached to
could be moved on wheels, and that such case is a preceIn that case the decision evidently was based upon the ne v. United States, supra; the court holding that the arvithin the provision for "plates and steel in all forms and hese citations are thought inapt; for in the record it is -y the importers that they do not rely on that part of parawhich relates to "steel in all forms and shapes.” Conceder, an analogy between the articles under consideration and ble in the Morris Case, I am, nevertheless, constrained by ce and reasoning of counsel for the government to now hold ress primarily intended by paragraph 135 to simply include
that have not been manufactured into some other completed al article. cision of the Board is overruled, and the classification of the s affirmed.
In re WALDER.
No. 1,388. UPTCY-DISCHARGE-HEARING BEFORE SPECIAL MASTER. special master, on the hearing of objections to a bankrupt's discharge,
be governed solely and entirely by such legal evidence as may be ssible under the specifications. -BURDEN OF PROOF. o the hearing of an application for the discharge of a bankrupt, the len of proof to sustain the specifications of objection is upon the creditwho filed the same, and that burden never shifts. -EVIDENCE.
referee, acting as special master in hearing objections to a bankrupt's charge, has no legal right to consider any evidence wbich has been pre
viously offered before him as referee, or to refuse to recommend a discharge upon the ground that, at some former hearing before him as referee, he, as such referee, may have formed some opinion upon some fact which would be sufficient to bar a discharge, unless such fact is legally established by proper evidence under the specifications, In Bankruptcy. On report of special master on petition for discharge.
See 142 Fed. 784.
PLATT, District Judge. On June 15, 1905, the bankrupt filed in this court a petition asking for a discharge from all his debts in bankruptcy, which was in due course referred to Henry G. Newton, referee, as special master, to report thereon. Creditors were duly notified by the special master, and at the time appointed certain ones appeared, and, on July 7, 1905, filed specifications of objection to such discharge. Continuances were had until December 17, 1906, at 4 p. m., which time was definitely set for a hearing on said specifications of objection. Mr. William A. Wright, counsel for the objecting creditors, then appeared, and stated that his clients did not wish to proceed in the matter, and that he should not do anything more in relation to the opposition to the discharge. From the report before me it positively appears that nothing further was done by him or by his clients in support of said specifications. Not a scintilla of testimony was presented to the special master, bearing upon or in any way affecting the specifications. In fact, no witness was called and sworn before him for any purpose whatsoever.
In that situation the duty of the special master was plain. It was supposed that, after the lessons contained in my opinion in 138 Fed. 473, In re Hendrick, supplemented as they are by final action in the same case (143 Fed. 647), there would be a clear understanding among the referees as to the way to act when petitions for discharge should be referred to them as special masters. I recommend a careful examination of the two opinions cited, and cannot believe that, after such study, any one can entertain a reasonable doubt as to the course which he must pursue in such matters.
Counsel for bankrupt made certain claims of law before the special master which were inferentially overruled by the special master. They express sound law, and, although the Hendrick Case may be enough, some of these are so tersely and forcibly stated that I am impelled to insert them:
• (a) That the special master must be governed solely and entirely by such legal evidence as may be admissible under the specifications."
"(c) That the burden of proof to sustain the alleged specifications is upon the creditors that filed the same, and that burden never shifts."
"(f) That the special master, before whom these specifications are pending, has no legal right to refuse to recommend such discharge upon the ground that, at some former hearing before him as referee, he, as such referee, may have formed some opinion upon some fact which would be sufficient to bar a discharge, unless such fact or facts were legally established by proper evidence upon the specifications.
"(g) That such special master is by law prohibited from considering any evidence that has been offered before him as referee, and is further prohibit
concluding upon such evidence, or through any source whatever, tiat the facts mentioned in the specifications were legally established, in ence of proper evidence duly admitted upon the hearing before him as master upon the petition for a discharge, and the alleged specifica
e court sympathizes with the special master, and is pained to at the bankrupt must go scot free. His case is a bad one; but, e creditors do not care to press matters, no one can rightfully lay olame upon either the court or the referee. To sustain the specions in the way proposed would clearly deprive the bankrupt of his
in court," and cannot be tolerated. he recommendation submitted with the report is therefore reced, but sufficient facts appear in the report to warrant an order of charge. Let the same be entered.
In re ELDRED. (District Court, E. D. New York. March 20, 1907.) BANKRUPTCY-APPLICATION FOR DISCHARGE-REFERENCE.
Under rule 41 in the Eastern district of New York, it is the duty of objecting creditors to see that the objections to a bankrupt's application for discharge are referred to a referee as special master and to arrange for the hearing thereon.
In Bankruptcy. On motion to dismiss application for discharge.
CHATFIELD, District Judge. This motion to dismiss the bankrupt's application for discharge was made by the objecting creditors, who filed specifications on the 15th day of January, 1907. Thirty days have elapsed since that time, and neither the objecting creditors nor the bankrupt have taken any steps to have the issues referred to a special master or brought on before the court. The Bankruptcy Law of July 1, 1898, c. 541, § 14, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3427], provides: "a. Any person may, after the expiration of one month
subsequent to being adjudged a bankrupt, file an application for a discharge in the court
"b. The judge shall bear the application for a discharge, and such proofs and pleas as may be made in opposition thereto by parties in interest, at such time as will give parties in interest a reasonable opportunity to be fully heard, and investigate the merits of the application and discharge the applicant unless
Under this section of the bankruptcy law it would seem to be necessary to have a calendar for issues raised by objections to applications for discharge, and to have some calendar practice as to the bringing on of these issues for trial. In the Southern district of New York, it being impossible for the court to dispose of such a calendar, the matters are referred as of course to the referee, who has acted in the proceeding, as special master, and it is then the duty of the bankrupt, inasmuch
as it is held that he is asking for the privilege of a discharge, to bring the matter on before the referee. In the Eastern district of New York no uniform rule for reference to a special master has been adopted; but, inasmuch as the court could not find opportunity to dispose of these issues, each one has been referred to a special master, and rule 41 adopted, by which the objecting creditors have been compelled to arrange for the 'hearings before the referee as special master, and therefore, inferentially, to see that an order of reference has been entered. In the case at bar the attorney for the objecting creditors, apparently in reliance upon the rule in the Southern district, has done nothing, and the attorney for the bankrupt, following the rule in the Eastern district, has also taken no steps.
Without further comment or discussion, and as rule 41 covers the practice in the Eastern district, it seems to the court that the issues raised by the objecting creditors on the application of the bankrupt for discharge should be referred to the referee as special master to take testimony and report thereon, and the clerk will enter an order accordingly.
Thereafter it will be the duty of the objecting creditors to arrange for a hearing under rule 41.
In re LUBER et al.
(District Court, E. D. Pennsylvania. March 8, 1907.)
Where a fraudulent transfer of property is charged as an act of bankruptcy, in an involuntary petition, great latitude in the admission of evi. dence should be allowed on the trial, and all the circumstances fairly connected with the transaction may be shown.
HOLLAND, District Judge. The averment in the involuntary petition in bankruptcy in this case was that the alleged bankrupts conveyed, transferred, concealed, and removed merchandise with intent to hinder, delay, and defraud their creditors.
In the investigation of questions of fraud, as a rule, great latitude is allowed in the admission of evidence, in order that the jury may be able to determine from all the circumstances whether the transaction was fraudulent or not. Questions of fraud can scarcely ever be proven by direct evidence, hence the necessity for the admission of all the circumstances fairly connected with the transaction. All the evidence to which objection was made was clearly admissible, nor can I
agree with the exceptants that there was error in the charge of the court.
The motion and reasons for a new trial are overruled.
In re BROMLEY. ;trict Court, E. D. Pennsylvania. February 28, 1907.)
OBJECTIONS TO DISCHARGE-AMENDMENT. cations of objection to the discharge of a bankrupt which are in uage of the statute without more, and contain no statement of e not amendable. Note.--For cases in point, see Cent. Dig. vol. 6, Bankruptcy, 8 716.) ruptcy. On petition to amend.
& Lewis and R. Stuart Smith, for petitioner. jer Shapley, for bankrupt. AND, District Judge. The petition of W. F. Bay. Stewart to amend specifications of objection to the discharge of the should be refused. The original specifications were in the of the act, and nothing more. There is no statement of fact 1 an amendment can be grafted, and leave to amend should ranted where only the words of the statute are used. In re D. C.) 103 Fed. 64; In re Mudd (D. C.), 105 Fed. 348; In
(D. C.) 120 Fed. 972. so ordered.
JOXIE NERVE FOOD CO. OF NEW ENGLAND V. MODOX
CO. et al.
(Circuit Court, D. Rhode Island. February 20, 1907.) E-MARKS AND TRADE-NAMES -SUIT FOR INFRINGEMENT - BURDEN OF .
complainant, seeking the aid of a court of equity in protection of rights in a proprietary medicine, should be required as a part of his irmative case to allege and prove that his preparation is what it purrts to be, and is represented to the public to be, there being no presumpn that such representations are true upon which a court can act. E-SECRET PREPARATION. While the proprietor of a secret preparation is entitled to protection : bis trade secret, yet to the extent that he has revealed or represented he character or composition of his preparation to the public he has waived crecy, and there is no hardship in requiring him to prove the truth of uch representations to a court of equity whose aid he invokes for its rotection, ME--Right TO RELIEF IN EQUITY-FRAUDULENT REPRESENTATIONS TO BLIC.
Complainant manufactured and sold in bottles, a liquid called “Moxie Nerve Food" or "Moxie,” wbich was represented to the public by the labels and wrappers to have been prepared “from a simple sugar cane like plant grown near the equator," discovered by a Lieutenant Moxie, and to be a nerve food which had recovered brain and nervous exhaustion : also paralysis, softening of the brain, locomotor ataxia, and insanity, when caused by nervous exhaustion. In a suit for an injunction restraining infringement of the trade mark under which the preparation was sold and unfair competition, the bill did not allege that such representations were true, nor that the preparation contained such ingredient or the