tradicted by any other witnesses. While under the whole testimony a suspicion of fraud is raised, it cannot be held that there has been such clear and convincing proof of fraud as is required by law to overthrow direct and affirmative testimony. It is not enough that a case should raise a strong suspicion. There must be some clear, affirmative, and convincing testimony to support an allegation of fraud.

The respondent raises the objection that paragraph 8 of instructions on the back of the blank proof has not been complied with. That provision is as follows:

"(8) The witnesses at time of taking the inventory should each count the packages of the several denominations mentioned in the inventory and keep an accurate account of the same on separate sheets of paper. The computations to be made by the witnesses of the total number of such packages and their aggregate net weight should be compared, and checked with the manufacturers' inventory, and if agreeing therewith should be signed by the witnesses and the claimant, and delivered to him as a memorandum of his inventory, and from which he could make a new claim should his original claim be lost or misplaced."

While there is some question whether there has been a strict compliance with this provision, the court cannot hold that this clause is intended as a condition precedent to the petitioner's right to a rebate. The clause seems to the court to be for the protection of the respondent and of the claimant in case of loss. The court cannot hold that the testimony presents any defense under this clause in the instructions.

The learned counsel for the United States has presented certain requests for findings and rulings. Without reciting those requests or going over the case further in detail, it is sufficient to say that the requests may be regarded as refused, except so far as this opinion shows them to be granted. Those requests may, however, be made distinctly a part of the record, so that the respondent may have full right to exceptions.

A decree may be entered for the petitioner for the amount claimed, namely, $1,771.92, and for his costs.

ROBERT et al. v. PINELAND CLUB et al.

SANDERS et al. v. SAME.

(Circuit Court, D. South Carolina. August 4, 1905.)

1. REMOVAL OF CAUSES-JURISDICTION OF FEDERAL COURT-DISTRICT OF SUIT. Where the parties to a suit in a state court are citizens of different states, and the other conditions necessary to make the cause one of federal cognizance exist, it is removable by the defendant, although neither party is a citizen or resident of the state in which suit is brought.

[Ed. Note. For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 60.

Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249; Mason v. Dullagham, 27 O. C. A. 298.] 2 SAME TIME FOR FILING PETITION.

Where, in a suit in a state court against an unincorporated association to recover lands the title to which was vested in defendant's trustees, the court held that such trustees were necessary parties, and they were thereupon brought in, the cause was removable on a petition filed by them in apt time after the service of process on them, although the time for the filing of an answer by the association had expired.

On Motion to Remand to State Court.

C. J. Colclock and A. McS. Bostick, for plaintiffs Robert and others. Jas. A. Harley, for plaintiffs Sanders and others.

W. S. Smith, W. B. De Loach, and Smythe, Lee & Frost, for defendants.

BRAWLEY, District Judge. 1. It is contended that, inasmuch as neither plaintiffs nor petitioning defendants are citizens of South Carolina, this court has no jurisdiction. It was so held at one time, but more recent decisions of the federal courts are to the effect that the restrictive language of the first section of the act applies only to suits commenced in the United States courts by original process, and that they have no application to suits removed from the state courts. Judge Dillon, in his work on Removal of Causes, says:

"It is now well settled that where the parties are citizens of different states, and the other conditions of removability are satisfied, the cause may be removed to the federal court, notwithstanding the fact that neither plaintiff nor defendant is a citizen or resident of the state where the suit is brought, or of the district within the territorial jurisdiction of the federal court to which it is to be transferred."

Judge Newman, in Rome Petroleum, etc., Co. v. Hughes, etc., Co. (Č. C.) 130 Fed. 585, reviews the decisions, quoting Judge Shiras in Fales v. Chicago, etc., R. R. Co. (C. C.) 32 Fed. 673:

"It seems to me that the question of federal cognizance is confounded with question of the place of bringing suit by original process. The latter question has nothing to do with the right of removal. The question whether an action might have been brought by original process in any federal court is material in order to determine whether it was a case of federal cognizance; but, that question being decided in favor of federal jurisdiction, the question of the proper place or district in which the suit might have been brought by original process is wholly immaterial on the question of removal." And again:

"If a suit is brought in a case of federal cognizance in a court of a state of which the defendant is not a resident, then the election is given to such nonresident defendant to carry the case by removal into the federal court."

In Whitworth v. R. R. Co. (C. C.) 107 Fed. 557, Judge Evans held that a nonresident defendant, although neither plaintiff nor defendant was a citizen of the state in which suit was brought, could remove it to the federal court. Judge Newman therefore held that the case was removable.

The same question was decided by Judge Simonton, of this circuit, in Virginia-Carolina Chemical Co. v. Sundry Insurance Companies (C. C.) 108 Fed. 452. The syllabus (No. 3) gives the substance of his decision in these words:

"An action brought by B., a Virginia corporation, under these circumstances, in the state court, against a corporation of another state, is removable into the federal court at the instance of the defendant corporation, notwithstanding that neither the defendant corporation nor the plaintiff corporation is a resident of South Carolina."

Chief Justice Burnam, of the state Court of Appeals of Kentucky, in Ill. Central R. Co. v. Whitworth (Ky.) 73 S. W. 766, decides (March 24, 1903):

"That a suit between citizens of different states may be removed to the federal court, though neither party is a resident of the state where the suit is brought."

Judge Keller, in Foulk v. Gray (C. C.) 120 Fed. 156, in a carefully prepared opinion, cites the cases on both sides, and, while saying that "the trend of authority is distinctly in favor of the proposition' that such a case is removable, holds, as there is no authority strictly binding upon him, that the court does not have jurisdiction except by consent of both parties; that while the defendant waives objection to removal the plaintiff cannot be held to have waived his right to object by bringing the suit in the state court. Judge Simonton, in the case already cited, says:

"The right of removal is given wholly to the defendant, without any reference in a remote degree to the plaintiff or his wishes; so no waiver on the part of the plaintiff is necessary or proper."

As the great weight of authority is on the side of the right of removal, and as my predecessor in this circuit has so expressly decided, I feel myself bound to overrule the objection on this point.

2. The second ground upon which the motion to remand rests is that the petition for removal was not filed in proper time. These suits were begun in 1902 in the state court to recover a part of the lands alleged to be in the possession of the Pineland Club. The record before me is very imperfect. It appears in the second of the cases above stated that in the original complaint the Pineland Club, John F. Garnett, president, Edward E. Denniston, and Edward W. Clark, Jr., trustees, were named as defendants; but it does not appear that the trustees were served, and by order of the court made October 7, 1903, upon motion of plaintiff's attorneys an amended complaint was substituted, and the Pineland Club was

named as the sole defendant. In the first of the cases stated it appears that the Pineland Club was the only defendant named. Service was made by leaving a copy with the wife of Garnett, who was the president of the club, and a citizen of South Carolina, since deceased. The Pineland Club is an unincorporated association, and the lands in controversy are held as a shooting preserve. After the cases had been pending for some time, the trustees above named filed their petition (Ripley having been meantime substituted as one of the trustees in lieu of Denniston) setting forth the pendency of the suits, and that the petitioners were seised in fee and in actual possession of the lands in controversy, and that, this being an action for the recovery of real property, the petitioners were proper and necessary parties to a complete determination of the controversy; and by order of the court, October 7, 1904, the trustees were made parties. A petition for removal was filed November 7, 1904. There is no doubt that the petition was filed in proper time after service upon them of the amended complaint whereby they were made parties, but it is contended that, inasmuch as the petitioners individually were members of the Pineland Club, they were already parties by service upon the president of the club, and therefore that the petition for removal comes too late. The legal title to the lands in controversy is in the petitioners as trustees. The Pineland Club, as already stated, was an unincorporated association. Whether such an association could hold land was somewhat discussed in the argument before me, but it is unnecessary to go into the learning on that subject, for I need not decide whether it could or could not, the fact being that it did not, for the legal title is indisputably in the trustee, and, the state court having decided that the trustees were necessary and proper parties, that decision is binding, even if I entertained a doubt, which I do not. It is true that these trustees, as individuals, were beneficially interested in the land, and it might be that for some purposes service upon the president of the club might bind them. I express no opinion on that point, because the record does not disclose the precise nature of the Pineland Club, or the authority of its president; but concurring, as I do, in the view of the state court, that the trustees who hold the legal title are proper and necessary parties to a controversy affecting the title to the lands in question, I must hold that the objection that the petition for removal was not filed in the proper time is not well taken.

The motion to remand is therefore refused.

WILMERDING v. UNITED STATES.

(Circuit Court, S. D. New York.

No. 3,721.

December 12, 1904.)

CUSTOMS DUTIES-ENTERED VALUE-CORRECTION-CLERICAL ERROR. Certain importers inadvertently entered a shipment of goods on the basis of an invoice which, through clerical error, failed to specify certain charges as nondutiable. Their inclusion in the entered value indicated a price for the goods which rendered them subject to a higher duty than that which would have been applicable had they been entered at their true value. The error was not brought to the importers' attention until, after liquidation, demand was made for the increased duties that had been assessed on account of the error, whereupon they sought permission to correct the error. Held, that this should have been allowed.

On Application for Review of a Decision of the Board of United. States General Appraisers.

Note Gillespie v. Ü. S. (C. C.) 124 Fed. 106; Lawder v. Stone (C. C.) 125 Fed. 809; and In re Crooks, G. A. 5,877, T. D. 25,890.

The decision of the Board of General Appraisers overruled the protest of Wilmerding, Morris & Mitchell against the assessment of duty by the collector of customs at the port of New York. The importers, in their protest, demanded relief from the assessment of increased duties, alleged to be due to a clerical error in making out an invoice covering certain matting. It appeared that the invoice on which entry was made failed to specify various nondutiable charges as being included in the invoice price. As to some of the items on the invoice it made no difference in the rate of duty whether these charges were deducted or not; but on other items the inclusion of the charges was sufficient to bring the value of the merchandise above the dividing line of 10 cents per square yard, established in paragraph 333, Tariff Act July 24, 1897, c. 11, § 1, Schedule J, 30 Stat. 180 [U. S. Comp. St. 1901, p. 1662], under which the matting was dutiable. A duty of 7 cents per square yard and 25 per cent. ad valorem was thereby incurred, instead of 3 cents per square yard, the rate on matting valued at less than 10 cents per square yard, which would have been applicable had the invoice been correctly made out, and which was the rate on the basis of which entry was made originally. On incomplete evidence the Board of General Appraisers held that the importers had not made out a case showing them to be entitled to the relief sought, and affirmed the assessment of duty. In the circuit court the importers introduced much additional evidence, showing that it was not intended to include said nondutiable charges in the value of the merchandise; that the failure to specify them separately in the invoice was due to an inadvertence; that the matting was of a standard variety largely imported, on which it was usual to pay a duty of 3 cents per square yard; that its value in this market precluded the idea of a higher duty; that the fact that the terms of the invoice demanded the imposition of the higher rate, instead of the rate of 3 cents per square yard stated in the entry, was not noticed either by the manager of the matting department of the importers' establishment or by the custom house broker, nor by the entry clerk either in the office of the collector or in the naval office, who should have rejected the entry as stating the wrong rate, nor by the appraiser's office, nor by the liquidating clerk of the collector, and was not observed until the entry reached the liquidator of the naval office. The higher duty was thereupon adopted by the liquidating clerk in the custom house, and agreed to by the naval office, and the entry thus was liquidated on the basis of the same figures as had been before all the persons mentioned; and the importers were notified to pay the balance found due, which was the first time the error was brought to their attention. It was shown further that the error was due (1) to an inadvertent omission of the items of charges from the invoice, and (2) to the fact that at the time of entry neither the manager, broker, entry clerks, nor appraiser observed that certain lines of the invoice, without deducting the charges above mentioned, would, on their