94 F. 354 -

354

94 FEDERAL REPORTER.

rupt coIitinued to reside in Utah: 'for more than 'five years thereafter, namely, until September, 1895,,·when he removed with his family to this city. His petition in bankruptcy was filed in January, 1899. The period of limitation for the commencement of actions on judgments in this state is 20 years (Code, § 376) i but a special provision (section 390) enacts as follows:
"Where' a cause ot' ... ... ... accrues against a person who Is not then a' resIdent of the state, an action; cannot be brought thereon, In a court personal representative, after, the expiration of the state against him <J>r of the time limited by the laws of· h.ls: residence for bringing a like action, excepth;y a resIdent of. the state, ... . , . (1) where the cause of action originally accrued in faVOr of a resident of the state; or (2) where before the expiration of· the, time so limited, the person, in whose favor it originally accrued, was or became a resident of the stllte; or the cause of. action was assigned to, and thereafter continuously owned by, a resident of the state."

From the above provisions it is evident that at the time the petition in bankruptcy was filed, the claim of these creditors was barred by the statutes of limitathm, not only in the states of Utah and California where the parties then resided, and where the judgment was obtained, but also ill this state. Many, if not all, of the states have provisions similar to that of section 390 of the Code of this state above citedilll);d the principle of such statutes asstattitea of repose, interstate COI11ity and the public convenience, required the ,general application of that rule. By the federal law the state statute of limitation is ordinarily applied in legal proceedings arising within the state. Notwithstanding the decision in the case of In reRay, 1 N. B. R. 203, Fed. Cas. No. 11,589, I think the weight of authority and of sound reason requires the claim be, expunged (In re Cornwall, 9 Blatchf. 114, 126, 137, 138, 6 N. B. R. 305, Fed. Cas. No. 3,250, and caSf'l there cited; In re Noesen, 12 N. B. R 422, Fed. Oas. No. 10,288; Inre Kingsley, 1 N. B. R. 329, Fed. Cas. No. '1,819; In re Harden, 1 N. B. R.395, Fed. Cas. Ro. 6,048), and the decision of the referee is therefore sustained. The insertion of this debt in the schedules of the bankrupt was no revival of the claim. The rights of other creditors to the assets, if there are any assets, could not be thus prejudiced.

to

=

In 1'6 CLIFFE. (District Court,E. D. Pennsylvania. June 2, 1899.)

No. 45. 1.

BANKRUPTCy-SUFFICIENCY OF PETI'i'ION-WAIVER OF OBJECTIONS.

A petition in involuntary bankruptcy which alleges, as the act of bank· ruptcy on which an adjudication Is .asked, that the debtor suffered creditors to obtain a preference through legal proceedings, is insufficient if it merely follows the words of the statute, without specifyfrig the details of the transactian constituting the preference. But this defect is amendable, and is waived by ,the respondent if he files ,a general denial, and demands a trial by. jury.. '
PREFERENCE.

2.

SAME-AcT8 OF

Under Bankruptcy Act 1898, § 3, cl. 3, providing that it shall be an act of bankruptcy if a debtor shall have "suffered or permitted, whUe in-

IN RE CLIFFE.

35.5

solvent, any creditor to obtain a preference through legal proceedings," and has not vacated or discharged such vreference "at least five days before a sale or final disposition of any property affected," where suit is brought against an insolvent debtor, and he makes no defense, and judgment is rendered against him, and execution issued and levied on his goods, and he allows a sale thereunder to be made without applying to be adjudged bankrupt, he commits an act of bankruptcy.

In Bankruptcy.

On ntotion for new trial. Andrew W. Crawford. for petitioning creditors. John S. FreeJJ?-uu, for the bankrupt.

McPHERSON, District Judge. The petition avers that Walter R. Cliffe is insolvent; and charges as an act of bankruptcy that "on the 27th day of January, 1899, [he] suffered, while inSOlvent, other creditors to obtain a preference through legal proceedings, and not having at least five days before sale or final disposition of his property affected by such preference vacated such preference." Suits had been brought against him, upon which judgments had been obtained shortly before the petition was presented, followed by executions and a sheriff's sale of his personal property. He made no defense to the suits, and allowed the sale to be. held without applying to be adjudged a bankrupt. He answered the petition"denying "that he had committed the act of bankruptcy set forth in said petition," averring "that he should not be declared bankrupt for any cause in said petition alleged," and demanding "that the. same may be inquired of bya jury." At the trial he objected orally to the insufficiency of the petition, but his objection was overruled, and the jury were instructed that he had committed an act of bankruptcy if he was insolvent at the time the executions were issued. His answer did not aver that he was solvent when the executions were levied, and it may be that his silence upon this point was equivalent to an admission of insolvency. Nevertheless, the question of insolvency was treated as a disputed question of fact, and to this issue the evidence was almost exclusively directed. The jury found the fact against him, and he now asks for a new trial, mainly on the ground that the petition is insufficient, because it does not specify the details of the preference charged. This would have been a good objection if it had been made in season, either by a motion to dismiss the petition or by the answer. But, as the defect is clearly amendable, the objection was too late at the trial, and is too late now. It was waived by demanding an issue on the merits, and requiring the petitioning creditors to prepare for trial on the disputed facts. The bankrupt's· failure to vacate the preference obtained by the levy brings the case within the principle of In re Moyer, 8 Pa, Dist. R. 214, 93 Fed. 188. The motion for a new trial is refused, and judgment for the plaIntiffs in the issue will be entered on the verdict. It is also ordered that Walter R. Cliffe be adjudged a bankrupt.

94 FEDERAL REPORTER.

KLIPS'.l'EIN etal.

v.UNITED STATES.

(Circuit Court, S.D. New York. January 27, 1899.)
CUSTOMS DUTIES-CLASSIFICATION-ALIZARINE VIOI.ET.

Alizarine violet, known as "alizarine cyav-ine R" was entitled to free entry as an alizarine color or dye, under paragraph 368 of' the act of 1894, and was not dutiable as a coal-tar product, under paragrapll 14 of said act.

This was an application for a review of a decision of the board of g£neralappraisers in respect to the classification for duty of a certain color or dye known as "alizarine violet." The evigence showed that the merchandise was commercially known as an artificial alizarine color' or dye, first imported in October, 1894; and .that it was a product of alizarine Bordeaux, which is a product of the oxidation of alizarine. The merchandise was classified by the collector, and 'by the board of general appraisers on appeal, as a.coal·tar product, at 25 per cent. ad valorem, under plU'agraph 14 of the tariff act of August 28, 1894. Edward Hartley, for appellants.' James T; Van Rensselaer, Asst. U. S. Atty. WHEELER, District Judge. This importation was called "aliz· ltrine violet," and 'appears to have been known'as "alizarine cyanine R." The question about it is Whether it is a ,coal·tar, or an aliz· arine, color or dye. The· decision heretofore filed was made upon the tei!1timony of one of the importers taken before the board, without that of the same witness taken in this court, which had not been sent. That testimony indicated that it was a Mal-tar color with som.e doubt, arising somewhat, perhaps, from the fact that artificial alizarine is produced from anthracene, which is a coal·tar product. 'Cochrane v. Soda Fabrik, 111 U. S. 293, 4 Sup. Ct. 455. The decision of the that evidence was followed: The testimony taken in this co:urt, considered with, and notwithstanding, that given before, seems to show fairly that it is, and was known as, an arti· ficial alizarine color or dye. This leads to an opposite conclusion from that reached before. Affirmance set aside, and decision reversed.
UNITED STATES v. TUBBS.' (Dh,ltrict Court, D. South Dakota, S. D. May 24, 1899.)

1,

INDICTMENT FOR MAILING PROIlIBITED MATTEH -SUFFICIEFCy-IDENTIFICA.· TION OF LET1'ER. ,

An indictment under Rev. St. § 3893, charging the defendant with having deposited in a post office, for mailing and .delivery, a letter giving in· formation where, how, and of whom might be obtained an article designed and intended for the procuring of abortion, must in some manner iden'eify such letter, to the end that the accused may be informed of the nature of the charge, and that a judgment may he pleaded in bar to a second prosecution for the same offense; and the letter should be set out in the indictment, or a sufficient reason given for not doing so.