tnr,elJPaUet aL ' , .. ,:!:
'r, "', ,: .'
(DistrIct Court, N.,Ddowa.
BY' ORErlrTORL ., . The bankruptcy act of 1898' 'does: notlluthoifize "creditors ot a proposed adjudi. , voluntary bankrupt·, to file answers In (lpposition to, his. petition cation. . . ' ! , ' ., ; S. SAME-EXAMINATION OF ENTI'l:LlllD: TO DEMAND. person who, shqws that he Is actually a creditor of the bankrupt, by hI's as a: creditor in the bankrupt's schedUle, or by other evisktisfactoryto the referee, Is, entitled to an order for the exa.mination of the bankrupt,'although he has Dot formally proved his claim.
:6JUlkrpptcy.Submitted from VYilliaril A. Ladd, . . referee i,tl bankrllptcy. Crim & Penn, for bankrupts. . J. G.Myerly and J. W. Corry,for, creditora.
.' '. . '. , 'I I ,; I
rupt act which authorizes creditors:to 'file3..llswers to a voJuntary in bankruptcy; such as filed intiliscase; and, viewreferee is affirmed. ing the, pa,pers in that .light, the order of act On tbe:other hand',I know of no provision of the which requires that a must file ,and, prove up. his claim tpe bankbefore be is entitled W an order rup.t.Befo:fe granting. an order the oill ba,tllrrupt, ther-eferee ,t:lhould be satisfied, tbat the party applying for the . Order iis intact a creditor of the bankr1,lpti· ,but, if this fact be shown,no goo4 reason exists Why the examination shOUld not be bad, even though th-e creditor. may not have proved his .claim in .set form. 'rhu,s, in this case, if)t Kip.gman & 00. are Dllmedas creditors. in the attached to the petition in bankruptcy, ,I see no good pUl'pqse to :bj} served in compelling theIll togo t.o.the expense of prov.i;ng up their>,claim, as a condition preceqent to the exercise of their: right to. e;xamine, the bankrupt. In this, case the Sl;hedule& filed by the do not disclose any assets, and so far no trustee has been appointed.' Unless assets are discovered, no div.idend, ,will beruade,.andthecreditors may properly. to iJ;lcur the expense ot .pro,ving. their claims 'lOti! it appears that. some good¥iU. resultfl'om. ,i:lo: ,doing. If the purpose of the creditors who filed the anSWers j!tJ:icken from the files was to obtain an order for the examination of the 'bankrupt, they should be accorded leave to renew the application in proper form, which may be done through an attorney appearing for them.
'SHffiAS, District Judge. I kn'ow of noprovisi.on of the bank-
UNITED STATES V. MOREWOOD & CO.
UNITED STATES v. MOREWOOD & CO.
(Circuit Court, S. D. New York. May 19, 1899.) No. 2,667.
CUSTOMS DUTIES'-ApPRATSEMENT-RECALL FOR CORRECTION OF ERRORS.
,Under artiCle 1126 of the treasury regulations of 1892, after an appraisement has been completed, and a return thereof made to the importer, and accepted by him, the appraisement cannot be recalled, even for the correction of a clerical error, where the effect of such correction is to change the appraisal; and, if such action is taken, the importer has the right to protest against the second valuation on the ground that it amounts to a new appraisement, and is without jurisdiction, and is not bound to give notice of dissatisfaction, as provided in section 13 of the customs administrative act of 1890.
Appeal by the United States from a decision of the board of general appraisers, which reversed the action of the collector in the assessment of duty upon the merchandise in question. H. P. Disbecker, Asst. U. S. Atty. Arthur Sherer, for appellees. TOWNSEXD, District Judge., In this case .four invoices of sugar were entered at the custom house and appraised, November 13, 1896. It appears that one Of the clerks in the appraiser's office found that he had made a mistake in the final appraisal,'and cor-' rected two (if the invOices before they left the appraiser's office. The four invoices were then returned to the collector, and the importer ",as noti:f).ed of the appraisal, and wrote on the return : "All right. Accept." After this had been done, said appraiser remembered that he had forgotten to correct his former mistake as to two of the invoices, and he then recalled them from the collector, and changed the figures. The government contends that the effect of this action was merely to CQrrect a clerical error, and not to make a new appraisal, and that, therefore, under article 1126 of the treasury regulatio'ns" of 1892, and section 13 of the customs administrative act of 1890, the decision of the appraiser was final and conclusive as to the dutiable value of such merchandise against all parties interested therein, unless the importer, within two days thereafter, called for a new appraisal. Counsel for the importer contends that an unlawful duty was exacted upon said valuation, and that the recall of the invoices for the making of a new valuation thereon after the appraisement had been completed, and return thereof made to the importer, and accepted by him. was illegal and void, and in conflict with treasury regulations, which provide that such recall cannot be made for the purpose of changing the appraisal. The board of general appraisers has found that the change of value was a new appraisement, without lawful warrant, and void. It is not clear from the evidence in this case exactly what kind of an error was made in the appraiser's office, but I concur in the decision of the board, because, assuming that the error was a clerical one,-which is not satisfactorily shown,-it seems to me that
under the prOVISIOns of article 1126 of the treasury regulations even the correction of a clerical error is not permitted where it amounts to a change in the appraisal. The lmporter thereupon had the right to protest against the second valuation by the appraiser on the ground that he (the 'appraiser) had no jurisdiction to recall the invoices, and rp.ake a I am not suffi· dently familiar with the practice in these matters to feel certain as to the proper course to be pursued, but it seems to me that under section 13 of the customs administrative act of 1890 it is doubtful whether the importer could have taken advantage of this unauthorb;ed act of the appraiser by notice, within two days after appraisement, of dissatisfaction, because this does not appear to be a question of dissatisfaction with an appraisal, but of jurisdiction to make a new appraisal. The decision, of the board of general appraisers is affirmed.
SCHOELLKOPF, HARTFORD &' MACLAGAN, STATES. (Circuit Court, S. D. New York. May 18, 1899.) No. 2,493.
, CUSTOMS DUTIES-CLASSIFICATION-CRUDE CARBOLIC ACID.
The article known commercially and popularly as crude carbQlic acid, and used for manufacturing purposes, which is the first product of the distillation of coal tar, and' contains, in addition to carbolic acid. many combinations of basic oils and bitumens, .although notchemlcally an acid, is entitled to free entry under paragraph 473, of the tariff act of 1890 as an "acid used for manufacturing purposes," and is not dutiabie under paragraph 19 as a preparation Of coal tar.
Appeal by the importers froni a decision of the board of general appraisers, which sustained the action of the collector of customs in assessing duties upon the importations in ql,lestion. Albert Comstock, for importers. J. T., Vall Rensselaer, Asst. U. So Atty. TOWNSEND, DistrictJudge. The article in question is a crude product obtailled from the of coal tar, and was assessed per cent., ad valorem" in. accordance with the provifor duty sions of par::"graph 76 of the act of 1890, as a product known as an oil. The importers protested, claiming that it was either free, as an acid used for purposes, under paragraph 473 of said act, orqutiable at 20 per cent. ad valorem, as a "preparation of coal tar," under paragraph 19 "of said act. In view of the decisions in Matheson & CO. v" U. 8., 18" G.,C. A. 143, 71, Fed. 394, affirmed in 78 Fed. 810, and U. 8. v. Warren Chemical '&Mfg. Co., 28 O. C. A. 50,0, Fed, 638;.it is admitted that the assessment of duty at 25 <;ent. was wrong. The sole question herein, is whether this product is free under paragraph 473. It is conceded that it il) commerciaIly known as crude carbolic acid, and that it