., KEVENEY V. MAGONE.

491

NEJ.SON;. J. Service of summons is set aside. The charter of'the village of Alexandria, incorporated by act of the legis!ature of Minnesota approved March 5, 1881, provides in section 21, as follows:

"When any suit or action shall be com mt> need against said vllJage. the service therein shall be made by copy left with the recorder of said village."

By the General Laws of Minnesota approved February 28,1885, (chapter 153,) the manner prescribed for the service of summons upon mu-. nicipal corporations is that it "6ha11 be served upon the mayor or chief executive officer of such corporation," etc. The service was made in this case upon the "village of Alexandria, by handing to and leaving with N. P. Ward, president of council, a true and correct copy hereof, personally," etc. As there was a special law with regard to the village of Alexandria, contained in section 21 of the charter, the General Laws of 1885 did not supersede it. See Amyv. Oityoj Watertown, 130 U. S. 3U8, 9 Sup. Ct. Rep. 530. Ordered that summons be set aside.

KEVENEY

et at. v.

MAGONE,

Collector.

(Circuit Court, S. D. New York. April 22, 1890.)
CuSTOMS DUTIES-CONSTRUCTION OF LAWS-CLASSIFICATION-CORK CARPETJNG.

Cork carpet or carpet,ing, used to cover floors, and composed of ground waste cork bark, linseed-oil, gum, and a loosely woven jute fabric as a back, such cork bark, ,though greater in bulk than the bulk of its other component materials com· bined;beirig one-eleventh only of its entire value, is not dutiable as "cork manufactured," under the provision for "corks and cork 1;)ark, manufactured, contained in Schedule N of the tarilt act of March 8,1883, (22 U. S. St.. 612; Tarif[ Index, New, par. 422.)

At Law. Action to recover back duties. During the year 1888 the plaintiffs made nine importations from Kirkcaldy, Scotland, into the port of New York, of so-called "cork carpet or carpeting:" This cork carpet or carpeting was classified by the defendant, as collector of customs at that port, as, or as assimilating to, "oilcloth," under the provision for "all other oil-cloth except silk oil-cloth," contained in Schedule J of the tariff: act of March 3, 1883, (22 U. S. St. 507; Tariff Index, New, par. 340,) and pursuant to this provision duty was thereon at the rate of 40 per cent. ad valorem. Against tbis classification and exaction the plaintiffsdulyprotested, claiming that, by force of treasury decision S, 1,436, made February 28,1873, and of the provision for "corks' and cork bark, manufactured," contained in Schedule N of the same tariff act, (22 U. S. St. 512; Tariff Index, New, par. 422,)this cork carpet or carpeting was dutiable atthe rate of25 per centum ad valol'ei)'I,· . Thereafter the plaintiffs, .having Imide due appeals, duly bronght this suit to recover the. difference between the duties at the rate exacted by the defendant as said collector, and duties at the rate claimed ' by thtlm in their protests. UpOll the trial of this suit it appeared that

492

FEDERAL REPORTER,

vol. 42.

this cork carpet or carpeting was composed of ground cork, mixed with linseed--oiland gum, and applied by rollers to a loosely woven jute fabric as a back; that this ground cork was waste cork bark produced during the manufactQre from cork bark of corks for bottles, floats for seines, and other articles, and ground fine in burr-stone mills; that the bulk of this ground cork was greater than the bulk of the other component materials of the cork,carpet or carpeting combined, and that its value. was about gum, and one-fourth of that of one-sixth ,of that of the linseed-oil the jute fabric, or, in other words, about one-eleventh of that of the entire corkca,rpet or carpeting; that oil-cloths for floors, stamped, printed, were composed. of jute burlaps, or other like founpainted, dations, as ,backs, ochre mixed with linseed-oil and gum, were generally" painted on their backs, and stamped, or painted and stamped, orpaiJ;lted.and printed, on their surfaces; that there oil-cloths cotriposed of cotton cloths as backs, painted and printed. Or printed and stamped on their surf'aces, and used for table covers, for stairways, and sometimes for other purposes; that the oil-cloths for floors, above described, and cork carpet or carpeting of the kind of that in suit, were both used for the same purpose, viz., to cover floors. Both sides having rested, the defendant's counsel moved the court to direct the jury to find a verdict for the defendant, on the grounds: (1) That the cork carpet or carpeting in suit was in fact oil-cloth, and, as such, was dutiable at 40 per centum ad valorem, as assessed by the defendant collector, under the provision" for all other oil-cloth, except silk oil-clotH," contained in Schedule J of the tariff act of March 3, 1883, (Tariff Index, New, par. 340.) (2) That, Hit was not oil-cloth, it was in fact "il;·.darpet or carpeting" of "other material," and as such was dutiable attha rate of 40 per centum ad valorem, under the provision for "carpets and carpetings of wool, flax, or cotton, or parts of either or other material, not otherwise herein specified ," contained in Schedule K of the same tariff act, (Tariff Index, New, par. 378.) (3) That, if it was neither such oil-cloth, nor such carpet or carpeting, it assimilated, under section 2499 of the same act, in use, and to a considerable extent in texture and material,' to, and was dutiable at the same rate, 40 per centum ad valorem, as, some one of the "oil-cloths for floors, stamped, painted, or printed," or "all other Qil-cloth, except silk oU-cloth,'1 as provided in said Schedule J. (4) That if it was neither such oil-cloth, nor such carpet or carpeting, nor assimilated to such oil.cloth, it assimilated in use to the carpets and carpetings provided for in said Schedule K. (5) That the plaintiffs had not proven facts sufficient to entitle them to recover. Stephen G. Clarke-and Charles CurU, for plaintiffs. Ji..'dward MitcheU, U. S. Atty., and Thoma8 Greenwood, Asst. U. S. Atty., for defendant. Circuit Judge, (orally.) lam unable to concur in the view8 of theplaintitfs' counsel as to the phraseology" cork bark, manufactured." I think there must be some intention of congress to discriminate and difthe expression "manufaciures of cork," and the phrase

UlDHAN ".LA ,"ORO"
II

'98

cork bark, manufactured." Therefore, on the testimony of this case 81 it stands, touching the manufacture or this article, I am unable to accede to the proposition that it is covered by the 422d paragraph of the tariff act, and I Bhall therefore direct a verdict for the defendant.

LEmlAN .,. LAFORGE.

(Ci1'CUU 001lll1, E ·. D. New Yorlc.

May 18, 1MO.)

L

BANXRUPTOY-lI'BDBBAL JURISDICTION-RIGJlTS OF ASSIGNBB. Under Act Congo June 7, 1878, (20 St. U. S. p. 99, 0. 160,) and act of Maroh 11,188'7, (24 St. U. 8. P. 552, C. 878,) repealing the bankrupt law, except 811 to cases pending,

a.

includi\lg rights of debtors and creditors, "and rights of and suits by or against assignees" in any matter or case which bad arisen, or which might thereafter arise; and laving the jurisdiction of lObe United States ctrouitcourts in such C8lI6I!, the circuit bas Jurisdiction 01 a suit by an assignee in bankruptcy to preven\ a person from estabhshing on the bankrupt's property, by proceedings in a state court, the lien of a fraudulent judgment obtained in 1869. . In such suit, though the judginent W8ll rendered by a court of competent jurisdiction, and Is regular on ita faoo, the oral admissions and declarations of defendant that·it was fraudulently o\)tained are sumcient to defeat its operation, where such statementa were deliberately made, in answer to inquiries by interested persons, and with such detail of circumstanoos and re8ll0ns 811 to leave no doubt that be fullyundel!stood what he said.
OF ASSIGNEB Ilf BANXRUPT'S PROPBRTY.

SAME-8UIT TO ENJOIN ENFORCEMBNT OF JUDGMBNT-EvIDBNCB.

.1.

s., MF.-INTBRlST

nev. 8t. U. S. § 5046, vesta in the assignee in bankruptcy lObe title to aU property ot.the l:>ankrupt conveyed in fJ1aud of creditors; and Code CiviiProo. N. Y. 1382, provides that actions founded on frand, except for the recovery of money, do not aocrue until the fraud is discovered. Beld, that an assignee in bankruptcy has summent interest in property conveyed by the bankrupt in fraud of creditors, where the bar of the statute of limitations is not completed, from the time the· fraud W88 discovered. to maintain a suit to prevent sncb property from being subjected to the lien of a fraudulent judgment.
lt is not necessary, to entitle the assignee to malntain suoh suit, tbM be baTe actual possession of the property.

'- SAMB-POSSESSION OF PROPBRTY BY AsSIGNBB.

BAME...,.LIMITATION OF ACTIONS BY ASSIGNEB.

The two-years limitation on suita "between an assignee In bankruptcy and a person claIming an adverll6 interest, touching any property or rights of property transferrable to or vested in. such 88signeQ," imposed by Rev. St. U. B. § 5057, does not apply, in such suit, where the suit is brought within two years after defendant commenced proceedings to establish lObe lien. The assignee seeks to prevent the establishing of the lien, and not tc set aside the judgment. Tbe objection that the assignee may not be able to obtain possession of the property on which the judgment is sought tc be. established as a lien cannot be sua-, tained by defendant where be is a party to the proceedings in bankruptcy; since, if the proceedings go through without reaching the propert:r. the uaIcnee's neht to it ceases, and defendant can then enforce h1a judimell"

6.

SAMB-POSSBSSION BY ASSIGNBB.

In Equity.

Hffnry Daily, Jr., for the orator. Roswell W. KeeM, for .defendant.
WHEEI,ER, J. On November 3, 1869, judgment W88 entered in the 8uperiorcourt of the city.of New York in favor of the defendant against