such a sale any refunds of duty subsequently obtained would belong to the importer. Plaintiff contends that the terms were "in bond, actual duty," in which case all refunds of duty would go to the purchaser. The cause was tried by the court without a jury, and the record contains no agreed statement of facts and no special finding of facts. The practice in such cases is indicated in Lehnen v. Dickson, 148 U. S. 71, 13 Sup. Ct. 481, 37 L. Ed. 373:

*

The rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the court upon a writ of error, * and, when the finding is special, the review may extend to the sufficiency of the facts found to support the judgment; but, if there be no special findings, there can be no inquiry as to whether the judgment is thus supported. We must accept the general finding as conclusive upon all matters of fact, precisely as the verdict of a jury. * * * No mere recital of the testimony, whether in the opinion of the court or in a bill of exceptions, can be deemed a special finding of facts."

There are seven assignments of error. The first is to allowing the plaintiff, when examined as a witness, to testify that he first knew of defendant getting any refunds from the government for excess of tobacco duties about January 26, 1900. The question being objected to, plaintiff's counsel stated that to one of the claims the statute of limitations was set up as a bar, and he wished to show that his client had no knowledge of the transaction. Thereupon the court stated that the objection was overruled without passing on the point of law, saying: "You can raise that point afterwards." To which disposition of the question exception was reserved. Even if it was error to admit the testimony, the error is manifestly harmless. Subsequently, at the close of plaintiff's case, defendant's counsel asked for a dismissal of the complaint so far as lot 109 is concerned, on the ground that claim for it is barred by the statute of limitations. The court denied the motion "at the present time," saying that it would "take it into consideration on the whole case." No exception was reserved, and we do not find in the record any further reference to the matter or any exception taken. Under these circumstances there seems to be nothing to which the sixth assignment of error would apply. It alleges error in allowing plaintiff to recover on lot 109, against which defendant had pleaded the statute of limitations. But, if the point be sufficiently presented, there is no merit in it. The case is not like Wood v. Young, 141 N. Y. 211, 36 N. E. 193, cited on the brief. Under "actual duty" terms of sale, the importer became the agent of the purchaser, to make protest in due form, to retain lawyers, and to prosecute the claim before Boards of Appraisers and in the courts, being entitled to reimburse himself out of the proceeds. Demand was a necessary prerequisite to recovery, and the plaintiff was in no position to make demand till he learned the facts. The remaining assignments aver that it was error to hold that the several sales were upon agreement to pay "actual duty." There being no special findings, we must accept the general finding as conclusive upon all questions of fact. There is nothing, therefore, presented by these assignments.

The judgment is affirmed.

JACKSON & S. TRACTION CO. v. GREEN.

(Circuit Court of Appeals, Second Circuit. January 12, 1909.)

No. 128.

STREET RAILROADS (§ 57*)-ACTION ON INTEREST COUPONS-EVIDENCE OF PAY

MENT.

Evidence considered, and held not to sustain the defense of payment in an action on coupons from street railroad bonds.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 141; Dec. Dig. § 57.*]

In Error to the Circuit Court of the United States for the Southern District of New York.

This cause comes here upon writ of error from a judgment in favor of defendant in error, who was plaintiff below. The action was brought upon $10,000 of coupons on bonds of the defendant company, and verdict was directed in plaintiff's favor.

Griggs, Baldwin & Pierce (Franklin Pierce, of counsel), for plaintiff in error.

Rumsey, Sheppard & Ingalls (John S. Sheppard, Jr., and Russel R. Vaughn, of counsel), for defendant in error.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

LACOMBE, Circuit Judge. The uncontradicted testimony, in connection with the averments of the answer. shows that in the spring of 1901 defendant corporation issued 400 5 per cent. bonds, with coupons attached, and turned them over to one Boland and his associates. Boland had bought the railroad property at receiver's sale and turned it over to defendant. The syndicate consisted of Boland, Cochen, Lewis, McCarthy, Flynn, and another, and the answer admits that they "owned the bonds." They hypothecated the bonds, apparently soon after their issue, with the North American Trust Company as security for a loan of about $300,000 made upon a note signed by three or four members of the syndicate. We do not understand that it is contended that Boland and his associates were not bona fide holders of the bonds, for value, without notice, and before maturity. Certainly the answer and testimony, taken together, fully establish that proposition. Moreover, it is indisputable upon the proof that long before the coupons in question fell due the trust company were bona fide holders for value of bonds and coupons. The plaintiff having at the trial presented and put in evidence these very coupons, then in his possession, was prima facie entitled to recover, and we find no evidence in the record to controvert his ownership of them, nor to show that he was himself a party to any fraud or illegality affecting the bonds or coupons. The answer admitted that payment had been duly demanded. Under these circumstances he was entitled to a verdict, unless some defense to his claim was established.

The only defense set up in the answer is "payment." It is alleged that on October 8, 1901, after the coupons were due and payable, and

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

still undetached from the bonds, and while bonds and coupons were owned by Boland and his associates, who were also owners of practically all the stock, they agreed with defendant for a valuable consideration that the net earnings of the defendant then on hand, amounting to $33,336.95, should be transferred to the surplus account, and that therefrom there should be an 8 per cent. dividend on the stock, and that said money so paid out as a dividend should also be a payment of the coupons, and said coupons should thereupon become and remain the property of defendant. Of course no such agreement could operate to impair the title of the trust company, which held the coupons as well as the bonds, as collateral, and which was under no obligation to part with coupons, even though interest on the note was paid. The trust company, however, elected to give up the coupons without being paid for them, more than a month after they were due (November 7, 1901), detached them from the bonds, and turned them over to Flynn, who acted for the syndicate, and who had paid interest on the note. It is not unusual to allow a person who has pledged bonds as collateral and who keeps his interest charges paid up to take the coupons as they fall due.

The only testimony offered in support of the defense pleaded in the answer is the following: The minute book of the board of directors showed that at a meeting held October 8, 1901, Boland and two other directors being present, the secretary reported that the net earnings amounted to $33,336.95 up to October 1st, and suggested that this amount be transferred to the surplus account, also a dividend of 8 per cent. on the capital stock be paid out of the surplus, and that Mr. Boland moved that such a disposition be made, which was carried unanimously. The capital stock was 3,000 shares (of which Boland held all but 4), and an 8 per cent. dividend on it would amount to $24,000 only. The secretary testified that the dividend was paid as directed, but that he did not know whether it was turned back by the stockholders for further development purposes. Boland, who was president of the company, being called as a witness, testified:

"We made only this issue of bonds, and it was with the understanding that as long as these bonds had to be hypothecated, that the company was earning its dividends, that the coupons should be cut from time to time as they matured, and that the surplus of the earnings of the road should remain in the company for construction."

This was struck out-it was not responsive to any question-and defendant reserved an exception. Flynn testified that he took the coupons off to secure the payment of the interest on the loan, and that subsequently a new loan on the same collateral was secured from Coler & Co., and the trust company loan taken up. The court excluded certain records of the board of directors touching the issue of the stock and bonds. The resolution directed a delivery of the whole series of bonds to the president, to be used by him in paying off the holders of bonds of a former issue and for the completion of the railway to Michigan Center and Grass Lake. Exception was reserved to the exclusion, but the evidence has manifestly nothing to do with the defense of payment. Boland, when asked if he had a conversation with Flynn about the coupons, said that he had "the only

one he could remember"; but, when it appeared that such conversation antedated, not only the delivery of the bonds, but even the execution of the mortgage, the court quite properly excluded it. He also said that he had "a conversation with reference to what should be done with the coupons" with McCarthy; "nothing further than that they should be cut off." The court refused to allow Boland to testify what he did with the money received from the trust company, and exception was reserved. The court also refused to allow two of the firm of Coler & Co. to testify as to what Flynn and McCarthy said to them in November, 1901, about the coupons, and exception was reserved. It is apparent from the above statement that no evidence was put in or offered which tended to support the averments of payment in the answer.

We find no weight in defendant's contention that the bonds and coupons are nonnegotiable. Moreover, no such defense was pleaded. The judgment is affirmed.

In re GOLDBERG.

(Circuit Court of Appeals, Second Circuit. January 12, 1909.)

No. 123.

BANKRUPTCY (§ 461*)-APPEAL-TIME FOR TAKING.

The 10 days allowed for an appeal from a judgment making an adjudication of bankruptcy by Bankr. Act July 1, 1898, c. 541, § 25a (3), 30 Stat. 553 (U. S. Comp. St. 1901. p. 3432), cannot be extended by means of a motion to vacate the judgment.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 920; Dec. Dig. § 461.*

Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]

Petition for Revision of Proceedings of the District Court of the United States for the Southern District of New York.

Samuel J. Rawak, for petitioner.

Walter T. Kohn, for the State Bank.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

PER CURIAM. This is a petition by the bankrupt to revise an order of the District Court, Southern District of New York. On March 6, 1907, petitioner was adjudicated a bankrupt. He did not appeal, and the time limited by the statute (Act July 1, 1898, c. 541, § 25a (3), 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432]) for taking an appeal expired in March, 1907. A year later, March 23, 1908, he moved the District Court to vacate the order of adjudication; his application was denied. This is merely an attempt indirectly to extend the time within which to review the adjudication of bankruptcy. That cannot be done, Matter of Berkebile, 144 Fed. 577, 75 C. C. A. 333. Order affirmed.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

HAMMOND LUMBER CO. v. SAILORS' UNION OF THE PACIFIC et al. (Circuit Court, N. D. California. January 20, 1909.)

No. 13,919.

1. CONTEMPT (§ 40*)-NATURE OF PROCEEDINGS TO PUNISH-EVIDENCE-"CRIMINAL PROCEEDING."

A proceeding against members of labor unions to punish them for contempt for prosecuting a criminal conspiracy to violate an injunction, granted by the court in a civil suit, restraining them from interfering with the business or employés of the complainant therein, is a criminal proceeding within the meaning of Rev. St. § 860 (U. S. Comp. St. 1901, p. 661), which provides that no discovery or evidence obtained from a party or witness by means of a judicial proceeding shall be given in evidence or in any manner used against him in any court of the United States in any criminal proceeding.

[Ed. Note. For other cases, see Contempt, Cent. Dig. § 124; Dec. Dig. § 40.*

For other definitions, see Words and Phrases, vol. 2, pp. 1751-1753; vol. 8, p. 7623.]

2. CRIMINAL LAW (§ 42*)-EVIDENCE-JUDICIAL ADMISSIONS.

To entitle a party in a criminal proceeding against him in a federal court to invoke the protection of Rev. St. § 860 (U. S. Comp. St. 1901, p. 661), providing that no discovery or evidence obtained from a witness by means of a judicial proceeding shall be given in evidence or in any manner used against him in any court of the United States in any eriminal proceeding, to exclude testimony given by him in another court in obedience to a subpoena, it is not necessary that he should have claimed the privilege of the statute when such testimony was given, and when he may have had no reason to suppose that an attempt would ever be made to use it against him. It is sufficient if he claim the exemption at the time the evidence thus obtained is first sought to be so used contrary to the statute.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 45; Dec. Dig. § 42.*]

Proceeding to Punish for Contempt.

See, also, 149 Fed. 577.

This is a proceeding to have punished for contempt the respondents hereinafter named, for the alleged violation of certain injunctive orders heretofore granted in the above-entitled cause. The material facts are these:

On July 9, 1906, the complainant filed its bill in this court against the Sailors' Union of the Pacific, Pacific Coast Marine Firemen's Union, Marine Cooks' and Stewards' Association, Andrew Furuseth, Walter McArthur, and a large number of other individuals named therein as defendants, setting up that complainant was engaged in the coast shipping and sea-carrying trade for passengers and freight between the port of San Francisco and other ports of California, and in such business owned and employed certain vessels, with a large amount of capital invested therein and in said trade; that the defendants Sailors' Union of the Pacific, Pacific Coast Marine Firemen's Union, and Marine Cooks' and Stewards' Association were each and all corporations composed of large membership, with their principal offices or headquarters at the port of San Francisco, the members of which were all seafaring men following divers occupations as such; and that said defendant corporations, with the individual defendants named in the bill, had confederated, colluded, and conspired together for the purpose of injuring, obstructing, and interfering with the business of complainant, and preventing complainant from peaceably pursuing the same, and had by violence, intimidation, and other unlawful means, taken and had in pursuance of said conspiracy, interfered to *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes