shall then proceed in the same manner as if it had been .originally .com'" menced in said circuit comt." 25 St. at Large, 435. If the cause proceeds as if it began in this court, it is, of course, subject to the rules of the court governing causes begun therein, just as if the cause originally began here. Cla,'e v. Bank, 14 Blatchf. 445. Be1>ides this, the complaint has been amended in this court. The cause will be tried and decided upon the amended complaint, (Code S. C. 167;) that is to say, upon pleadings made up in this court, and governed by its rules only. The complaint has been amended in this court on the motion of the plaintiff, and to that complaint he requires an answer. The time and mode of putting in that answer depend upon our rules. One of says that an answer need not be put in, if security for costs be demanded, until the demand is complied with. Plaintiff has put himself within this rule. Let the plaintiff enter into security for costs before the clerk, under rule 75, before the defendant be required to plead to the amended complaint.
Consul General, etc. I
(Dl.BfJrictcoun. B. D. New Yor7c. December 4, 1889.)
UJIlPOSlTIONB-CoMMISSION TO FOREIl)N COUNTRy-;ExPULSJON-SAFB CONDUCT.
In'an action against the consul general of afbreign countryJ defendant moved for a commission to take te&timony in such cbuntry, It appearea that the government of that country refused toallow'1)!aintiff to enter its territory, and plaintiff furnished afIldavits tending to show the nature of the investigation and the questions to be raised, and that the commission was not likely to be properly executed in the plaintiff's absence, with due provision for his own defense. Held that the com· mission should issue only on condition that defendant obtain from hIs governtnent, and furnish to plaintiff, a safe conduct1 allowing him to enter the country and return, and be present on the execution ox the commission.
At Law. On motion lor commission to take testimony. R. D. Benedict, for plaintiff Billings & Cardozo, for defendant. The plaintiff, an American citizen, was expelled from the republic of Guatemala as a "pernicious foreigner," and the Guatemalan government directed the defendant, who was the Guatemalan consul general at New York, to publish the decree of expulsion in New York. Defendant sent the decree to the Associated Press; and this action was thereupon brought against him' for alleged libelous statements contained in said decree. Defendant thereafter moved for a commission to take testimony in Guatemala as to plaintiff's charactEir and reputation. Plaintiff furnished affidavits to show thatiin his absence such commission could not belairly conducted, nor hisoWfi witnesses procured and examined without his presence, and. opposed the allowance ofanycommisBion;unless he should be allowed to enter Guatemala, and be present at the ejtecution· of the commission.
JReported by Edward-G. Beuedict. EIIIl"of the New YOl'k bar.
FEDERAL REPORTER, vol. 4.0.
The court, BnoWN, J., said, that the taking of testimony on examination was in a certain sen'se a partial trial of the cause, and that the plaintiff, as between him and the defendant, or the Guatemalan government, as his principal, was entitled to be present thereat, if desired, where, as here, it appeared to be necessary to the protection of his legal rights. An order was accordingly entered that if the defendant, within a specified time, should furnish to plaintiff a safe conduct from the Gua!emalangovernment, permitting him to go to Guatemala, and be present on the execution of the commission and to return without molestation, the motion for a 'commission should be granted, but, failing the produosafe conduct, the motion should be denied.
SIEGFRIED et ale
(Circuit Cowrt, N. D. CaUfornfa. December 16, 1889.)
J ..S.unii-AuTHORI17 OIl' SEORETARY OIl'TREASuRy. ,... ' . . ' ,. . The secretary of the treasury is not authorized to impose, by regulations, bur. dens on commerce, not. imposed or authorized by the statute. , (SyUabus b1/ the Court.) .
Free goods not chargeable with duties, are not within the p,rovisions of sections 2854 to 2857 requiring an invoice with a certain prescribed declaration of the ship. per, and a certificate of the consul at the port of shipment, or the prescribed bond to be. presented to the coll!lctor as a cClndition of entry of the g o o d s . ,
At Law. On ,demurrer to complaint, on the ground that the facts stated do not constitute a cause of action. John S. Mosby and A. P. Van Duze:r, for plaintiffs. J. T. Oarey; U. S. Atty., for defendant. Before SAWYER, Circuit Judge. SAWYER, J. This is a suit to recover the value of a certain shipment of tea, ·at a port in China, to the port, of San FranciscQ, arising out of B refUsal of the collector to allow the: to be entered 'without presentingto him an invoice having indorsed thereon the declaration required to be .made before the consul at the port of shipment, .and the consul's certificate required by sections 2854 and following of the Revised Statutes; or giving the bond to produce one at somefutul'El day, in ance of ,the :provisions of section 2857. The: plaintiffs insist that the merchandise being tea, which pays no duty,does not fall 'within the provisions of the sta,tute, wh,ich is intended to apply to dutiable goods (j)QlYf and it appears to me that thijl ,positionisi,correct. There is nothing at all, said about non-dutiable good.sj,andthe provisions are adapted only, to dpti.a pIe. goodl:l; :supjeQt to either ad valorem, or specific duties. The declaration provided for, must state, that t.he invoice "contains, ifthe;mercbandise:meutioned