to provide a safe bottom for boats coming to his dock, and to use the same care to maintain the bottom in proper condition. There is not the slightest evidence of any inspection or care in the matter of maintaining the bottom in good condition. It seems to have been the idea of the respondent that he could wait until boats lying at or approaching his dock met with obstruction, before taking any steps to find or to remove the same. This is not the care contemplated by law. It was his duty to use ordinary care to anticipate injury, and to keep the space about his dock under surveillance, for he knew that the bed was liable to change under the action of the water. He showed no vigilance, but awaited events. Such conduct, observed through two years, does not show proper care. The libelant should have a decree. THE OUR FRIEND. THE MAJESTIC. (District Court. E. D. Pennsylvania. August 1, 1904.) No. 134. 1. ADMIRALTY-COLLISION-LIBEL IN FORMA PAUPERIS. Where libelant, in a proceeding in admiralty for collision resulting in the loss of libelant's sloop, tackle, apparel, and furniture, alleged that by reason of his poverty he was unable to defray the expense of litigation, and prayed that process might issue and be served in forma pauperis, as authorized by Act Cong. July 20, 1892, c. 209, § 1, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706], and there was no proof that libelant's sworn statement as to his poverty was false, the fact that he purchased the sloop for $500 was insufficient to establish that he possessed property at the time the suit was instituted, or had acquired any since that time, justifying the court in requiring him to give security for costs. In Admiralty. Joseph Hill Brinton, for libelant. Willard M. Harris, for respondent. HOLLAND, District Judge. This is a petition to compel the owner of the libelant sloop to enter security for costs. It appears that on or about the 30th day of May, 1904, the tug Majestic collided with libelant's sloop, as a result of which the sloop was totally wrecked, and her tackle, apparel, and furniture, together with the provisions and other articles aboard, were destroyed, the total value of which is claimed to be $600. The libelant, in his libel, alleges that, by reason of his poverty, he is unable to defray the expense of litigation, and prays that process may issue and be served in forma pauperis, in accordance with the provisions of the act of Congress of July 20, 1892, c. 209, § 1, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706]. The petition filed by respondent, requesting that the libelant be required to enter security, avers that the libelant paid $500 for the sloop, for the destruction of which he seeks to recover in this suit, and that he was engaged in the fishing business, showing conclusively that he had not brought himself within the exceptions in favor of poor seamen. The answer to this petition denies that the libelant has any other property other than the sloop that is alleged to have been wrecked, and is therefore unable to give security for costs. There are no depositions taken by the petitioner to show that the libelant made a false statement in his libel when he swore that, by reason of poverty, he was unable to defray the expense of litigation. The fact that the libelant purchased a sloop for $500 is no evidence that he was possessed of property at the institution of the suit, or has acquired any since that time, enabling him to give security in this case. There is nothing to show that he has any property outside of what he had invested in his catboat, and this, he alleges, is a total loss, by reason of the collision. It may be that the admiralty court can require a libelant to enter security in a case under this act, where the libelant, who by reason of his poverty was unable to pay costs and enter security at the time the suit was instituted and the writ issued, has become possessed of property subsequently and before the termination of the suit; but where a litigant brings an action in forma pauperis under this act, and at the time of the institution of the suit he has sufficient property to pay costs and enter security, and that afterwards is made to appear to the satisfaction of the court, the proper proceeding is, we think, under the fourth section of this act, to dismiss such cause, where it is made to appear that the allegation of poverty is untrue, or if the court is satisfied that the alleged cause of action is frivolous or malicious. As there is no evidence here to sustain an allegation that the libelant has subsequently to the bringing of the suit become possessed of sufficient property to enable him to pay the costs or enter security for the same, the petition is dismissed. UNITED STATES v. FLEITMANN & CO. (Circuit Court, S. D. New York. June 1, 1904.) 1. CUSTOMS DUTIES-SUFFICIENCY OF PROTEST-STATEMENT OF OBJECTIONS. sons for his objections." * Application for review of a decision of the Board of General Appraisers reversing the assessment of duty by the collector of customs at the port of New York on merchandise imported by Fleitmann & Co. The only question that the board passed on was whether the protest which the importers had filed with the collector of customs satisfied the requirements of section 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], where it is prescribed that an importer shall, in making a protest, set forth therein "distinctly and specifically * * the reasons for his objections." Note United States v. Bayersdorfer (C. C. A.) 126 Fed. 732, and United States v. Knowles (C. C. A.) 126 Fed. 737. It appeared that the merchandise had been improperly classified under paragraph 390, Tariff Act July 24, 1897, c. 11, § 1, Schedule L, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], relating to silk trimmings and similar merchandise, and that it was correctly classifiable under paragraph 391, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], at the rate of 50 per cent. ad valorem. The claim of the importers, however, was that "said goods are dutiable only at the rate of 50 per cent. ad valorem, under paragraph 389 of the Tariff Act of 1897." Said paragraph 389 (30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]) relates to silk bandings, bone casings, etc., while paragraph 390, under which classification should have been made, relates to manufactures of silk not specially provided for. Henry A. Wise, Asst. U. S. Atty. Benjamin Barker, Jr., for importers. TOWNSEND, Circuit Judge. The decision of the Board of Appraisers is affirmed on the authority of U. S. v. Shea, Smith & Co., 114 Fed. 39, 51 C. C. A. 664; U. S. v. Salambier, 170 U. S. 621, 18 Sup. Ct. 771, 42 L. Ed. 1167; and Allen v. U. S. (C. C.) 127 Fed. 777. In re SANBORN. (District Court. W. D. New York. April 12, 1904.) 1. BANKRUPTCY-DISCHARGE-OPPOSITION-DISCONTINUANCE-COLLUSION. Where, on an application for a bankrupt's discharge, it appeared that certain creditors had opposed the discharge, and had applied for time to file specifications, but, though the time had expired, the specifications had not been filed, and the referee, in a supplemental report, had refused a certificate of conformity required by bankruptcy rule 10, the facts tended to create a presumption or a suspicion that some act had been done by or on behalf of the bankrupt to secure the discontinuance of the opposition, justifying the refusal of the bankrupt's discharge pending a further report by the referee. In Bankruptcy. Plumley & Plumley, for the bankrupt. HAZEL, District Judge. It appears by the records of this court. that there has been opposition by various creditors to the discharge of the bankrupt. Requests for extensions of time to file specifications in opposition to a discharge were heretofore made, and granted by this court, but as yet no specifications have been filed, though the time to do so has now expired. The referee, in a supplemental report, has re fused the certificate of conformity required by rule 10. The facts therefore give rise to the presumption or suspicion that some act was done either by or on behalf of the bankrupt to secure the discontinuance of such opposition, or that the objecting creditors have been induced to withdraw the same, and to allow the discharge to be granted. It has been held that, if the opposition of the creditor is bought off, it is such a fraud, under the bankrupt act, as would warrant vacating a discharge. In re Dietz (D. C.) 97 Fed. 563. There is no doubt that the court has the power to refuse a discharge to a bankrupt where the entire proceeding is a palpable fraud upon the creditors. Without now determining that question, I believe a proper disposition at this time of the application of the bankrupt for discharge, in view of the prima facie showing of fraud, is to refer the matter back to the referee, with instructions to ascertain and report whether opposition to the discharge has actually been abandoned by the creditors, and whether such abandonment was induced in consideration of payment or part payment of their claims. The discharge of the bankrupt will accordingly be withheld until the further report of the referee on the questions now submitted to him. TIFFANY V. UNITED STATES. (Circuit Court, S. D. New York. May 23, 1904.) 1. CUSTOMS DUTIES-CLASSIFICATION-SILVER HAND Bags-Jewelry. Appeal by the Importers from a Decision of the Board of United States General Appraisers. On application for review of a decision of the Board of General Appraisers. The merchandise consisted of so-called "aumoniers," imported by C. L. Tiffany at the port of New York, and classified under the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 434, 30 Stat. 192 [U. S. Comp. St. 1901, p. 1676], for "articles commonly known as jewelry." These articles were composed of silver wire, partly oxidized, with a clasp, ring, and chains of the same material, and were intended to be used as hand bags or purses for holding money, articies of wearing apparel, etc. On the authority of a former decision (G. A. 4,829, T. D. 22,688), the board affirmed the collector's assessment of duty. William B. Coughtry, for importer. Charles Duane Baker, Asst. U. S. Atty. TOWNSEND, Circuit Judge. The merchandise in question comprises hand bags or purses carried by women on the arm, in the hand, or suspended from the belt, and used for holding money, articles of wearing apparel, tickets, and similar articles. They were assessed for duty under the provisions of paragraph 434 of the act of 1897 as "articles commonly known as jewelry." The importer protested, claiming that they were dutiable under the provisions of paragraph 193 of said act as "articles composed of silver." The uncontradicted testimony of witnesses from various branches of trade, including dealers in jewelry, fancy goods, silverware, and of salesmen in the department stores, shows that these articles are not commonly known as jewelry, and are not manufactured in jewelry factories, or sold as articles of jewelry. The decision of the Board of General Appraisers is reversed. NARETTI v. SCULLY. (District Court, E. D. Pennsylvania. July 30, 1904.) No. 1. 1. JUDGMENTS-RELEASE-ANSWER-AMENDMENT. Where, on an issue as to the validity of a release of a judgment, the answer alleged that the release was executed without consideration, but the release showed on its face that a consideration was paid, and the depositions failed to sustain the answer, but tended to show that libelant was coerced into executing the release through fear of imprisonment, the latter would be permitted to amend his answer so as to attack the validity of the release on that ground. In Admiralty. Upon a rule to show cause why clerk should not file a release, the libelant was permitted to amend his answer. Joseph Hill Brinton, for libelant. HOLLAND, District Judge. In the matter of the petition of John Scully, by his attorney, George Hart, for a rule on the clerk to file a release of a judgment against the said respondent in the above-mentioned case, I have carefully read the depositions on both sides. The petition alleges the execution of the release of this judgment, and the filing of the same with the clerk. The libelant alleges, as a matter of defense, that there was no consideration for the execution of the same, but the release shows upon its face that there was a consideration paid. It is duly executed, and properly witnessed before a notary public, although its execution is denied by the libelant. The facts in this case are rather extraordinary, and call for a thorough investigation. Papers properly and legally executed cannot be set aside without proper proceedings had, and deliberate consideration of the same. The depositions of respondent fail to sustain the answer, but, taken together with those of the libelant, they would indicate that the libelant was coerced into executing this release through fear of imprisonment. If that is the case, the answer should fully state the facts as they really are, and attack the validity of the release upon such grounds as will |