tion; (3) That the device of the certificates was inoperative to vest
the legal title in the petitioner, or to prevent the lien of the railway
mortgage from attaching to it, or to prevent the delivery of the rolling
stock to the road; (4) That being the property of the road the peti-
tioner was not entitled to rent; (5) That the leases might be treated
as mortgages, and that the petitioner's interest thereunder was sub-
ordinate to that of the mortgage bondholders; (6) That the transac-
tion, though not an actual fraud, was a constructive fraud upon the
mortgagees. lb.
4. In 1881, H., a citizen of Ohio, through P., M. and others of Chicago,
speculated in grain in the markets of the latter city, lost money, and
settled with his Chicago creditors by agreeing to convert a narrow
gauge railroad in Ohio, which he owned, into a standard gauge, and
to extend the same to places named in the agreement, and to organize
a new company to take the property thus altered and extended, and
to cause the new company to issue bonds which the creditors were to
take in satisfaction of their respective debts. The company was
organized; the stock and bonds were issued and delivered to H.,
except a small amount of stock which was issued to sundry persons to
enable them to become directors; and H. passed over the property to
the company. The value of the property so conveyed was very much
less than the face value of the stock and bonds so issued for it. No
money payments of subscription to the stock were made by H. to the
company. The railway company soon became insolvent, and in 1885,
after recovery of judgments against it for amounts due and payable on
its bonds, P., M. and the other creditors filed a bill in equity to com-
pel H. to pay his subscriptions in cash. A part of the stock of H.
having been passed over to L., the bill set forth that that transfer had
been made for the benefit of H., and sought to make H. liable in like
manner for that stock. H. answered to the bill. Afterwards he
became insolvent, and made an assignment of his estate for the benefit
of his creditors. The assignee then appeared, and set up that the
only consideration for the original debts of P., M. and others was an
illegal gambling transaction, by betting upon future values of wheat;
that the claims which formed the sole consideration for the transfer
of the bonds was a pretended balance of said winnings; and that the
judgments were founded on the bonds so transferred and on no other
consideration. There were other pleadings which need not be detailed.
The allegations respecting the character of the grain transactions
were, on motion, stricken out by the court below. Held, (1) That
the organization was grossly fraudulent from first to last, without a
single honest incident or redeeming feature; (2) That P., M. and the
other Chicago creditors had not only no knowledge or complicity in
the company's illegal organization, but that they understood that the
stockholders were to be subject to the liability imposed by the law of
Ohio, namely, full payment in money or its equivalent, and, in addi-
tion, 100 per cent; (3) That the evidence, if taken to be true, did not
establish a gambling transaction between H. and P., M. and the other
creditors; (4) That, therefore, the defendant was not injured by the
action of the court in striking out allegations regarding these trans-
actions, and in afterwards passing upon them; (5) That the same
measure of liability applied to the stock of H. standing in L.'s name
which applied to that standing in his own name; (6) That as the
attention of the court below was not called to the question of the
allowance of interest, this court would not disturb the decree in that
respect. Lloyd v. Preston, 630.
5. The directors of a corporation organized under the laws of Pennsylvania
voted to make an assignment of the property of the corporation for
the benefit of its creditors, which vote was ratified by the stockholders.
They further voted to make a mortgage to secure a claim of one of
the directors as a preferred claim. The assignment was made without
making the mortgage. In an action by the assignee to enforce pay-
ment from a stockholder of his subscription to the stock, held, that the
defendant could not set up the failure to make the mortgage as invali-
dating the assignment. Potts v. Wallace, 689.
6. When the assets of an insolvent corporation, organized under the laws of
Pennsylvania, fail to meet the liabilities of the company by an amount
equal to or greater than the sum due the company from a stockholder
by reason of unpaid subscriptions to his stock the assignee has an action
at law against him to recover such unpaid subscriptions without first
resorting to equity for an assessment. Ib.
7. In an action against a stockholder in an insolvent corporation to recover
unpaid subscription to his stock for the benefit of creditors, it is no
defence to show that when the corporation was solvent he offered to
pay in full and his offer was declined, if it also further appear that he
refused to be absolved from his contract, and stood upon his rights
as a stockholder until the company became embarrassed. lb.
See CONSTITUTIONAL LAW, 17;
JURISDICTION, C, 4;
PENAL LAW, 1.
1. A direction of the Circuit Court to the jury to find for the defendant
in an action against a common carrier for causing the death of a pas-
senger, on the ground that the evidence did not establish negligence
on the part of the carrier, and did show contributory negligence on
the part of the passenger, is approved. Mitchell v. New York, Lake
Erie & Western Railroad Co., 513.
2. When the plaintiff's evidence makes out a prima facie case, and the
defendant, after going into his evidence, does not go to the jury on
the question of fact, he abandons his defence, so far as it depends on
his own evidence, and takes the position that the plaintiff's evidence
does not make out a case. Potts v. Wallace, 689.
EVIDENCE, 10;
PRACTICE, 2.
1. The provision in section 845 of the Revised Statutes of the District of
Columbia that when the judgment in a criminal case is death or con-
finement in the penitentiary the court shall, on application of the
party condemned, to enable him to apply for a writ of error, "post-
pone the final execution thereof," etc., relates only to the right of the
accused to a postponement of the day of executing his sentence, in
case he applies for it in order to have a review of an alleged error;
and, with the exception of this restriction, the power of the court was
left as it had been at common law. In re Cross, 271.
2. In trials for felonies it is not in the power of the prisoner either by
himself or his counsel, to waive the right to be personally present
during the trial. Lewis v. United States, 370.
3. The making of challenges is an essential part of the trial of a person
accused of crime, and it is one of his substantial rights to be brought
face to face with the jurors when the challenges are made. Ib.
4. Though no specific exception was taken in this case by the prisoner,
based upon the fact that he was called upon to challenge jurors not
before him, a general exception, taken to the action of the court in
prescribing the method of procedure, was sufficient. Ib.
5. Where no due exception to the language of the court in instructing the
jury is taken at the trial, this court cannot consider whether the trial
court went beyond the verge of propriety in its instructions. Ib.
6. On the trial of the case, after the accused had pleaded not guilty to the
indictment, the court directed two lists of thirty-seven qualified jury-
men to be made out by the clerk, one to be given to the district
attorney and one to the counsel for the defendant, and further directed
each side to proceed with its challenges, independently of the other,
and without knowledge on the part of either as to what challenges
had been made by the other. To this method of proceeding, the
defendant at the time excepted, but was required to proceed to make
his challenges. He challenged twenty persons from the list of thirty-
seven persons from which he made his challenges, but in doing so he
challenged three jurors who were also challenged by the government.
The government challenged from the list of thirty-seven persons five
persons, three of whom were the same persons challenged by the
defendant. This fact was made to appear from the lists of jurors used
by the government in making its challenges and the defendant in
making his challenges, To the happening of the fact that both parties
challenged the same three jurors, the defendant at the time objected,
but the court overruled the objection, and directed the jury to be
called from the said two lists, impanelled and sworn, to which the
defendant at the time excepted. Held, that there was substantial
error in this proceeding and the judgment of guilty must be reversed.
Ib.
See CONSTITUTIONAL LAW, 12, 13;
EVIDENCE, 4, 5, 6, 13.
1. A reappraisement of imported merchandise under the provisions of Rev.
Stat. § 2930, when properly conducted, is binding. Earnshaw v. United
States, 60.
2. When the facts are undisputed in an action to recover back money paid
to a collector of customs on such reappraisement, the reasonableness
of the notice to the importer of the time and place appointed for the
reappraisement is a question of law for the court. Ib.
3. Appraisers appointed under the provisions of Rev. Stat. § 2930 to reap-
praise imported goods constitute a quasi-judicial tribunal, whose action
within its discretion, when that discretion is not abused, is final. Ib.
4. An importer appealed from an appraisement of goods imported into New
York, in 1882. A day in June, 1883, was fixed for hearing the appeal.
The government, not being then ready, asked for an adjournment,
which was granted without fixing a day, and the importer was informed
that he would be notified when the case would be heard. March 19,
1884, notice was sent by letter to him at his residence in Philadelphia,
that the appraisement would take place in New York, on the follow-
ing day. His clerk replied by letter that the importer was absent, in
Cuba, not to return before the beginning of May then next, and asked
a postponement till that time. The appraisers replied by telegram
that the case was adjourned until March 25. On the latter day the
case was taken up and disposed of, in the absence of the importer or
of any person representing him. Held, (1) That the notices of the
meetings in March were sufficient; (2) That, in view of the neglect of
the importer to make any provision for the case being taken up in his
absence, and of his clerk to appear and ask for a further postponement
of the hearing, the court could not say that the appraisers acted unrea-
sonably in proceeding ex parte, and in imposing the additional duties
without awaiting his return. Ib.
5. Paintings upon glass, consisting of pieces of variously colored glass, cut
into irregular shapes and fastened together by strips of lead, painted by
artists of superior merit especially trained for the work, representing
biblical subjects and characters, and intended to be used as windows
in a religious institution, imported in fragments to be put together in
this country in the form of such windows, are subject to the duty of 45
per cent imposed by paragraph 122 of the tariff act of October 1, 1890,
26 Stat. 573, c. 1244, upon stained or painted window glass and stained
or painted glass windows wholly or partly manufactured, and not spe-
cially provided for by this act; and not to the duty imposed by para-
graph 677, 26 Stat. 608, c. 1244, upon paintings specially imported in
good faith for the use of any society or institution established for
religious purposes, and not intended for sale. United States v.
6. In the latter part of October, 1890, the firm of S., D. & G. imported from
Europe articles described in the entry as "finished gunstocks with
locks and mountings," unaccompanied by barrels for the guns. The
collector levied duty on them as guns, under paragraph 170, in Sched-
ule C of the act of October 1, 1890, c. 1244, (26 Stat. 579.) The im-
porters protested that they were dutiable as manufactures of iron,
under paragraph 215 of Schedule C of the act. The general appraisers
affirmed the decision of the collector. It did not appear that the gun-
stocks had formed part of completed guns in Europe, and the question
of the importation of the barrels was not involved, although it appeared
that the gunstocks were intended to be put with barrels otherwise
ordered, to form complete guns. The Circuit Court, on appeal by the
importers, reversed the decision. On appeal to this court, by the United
States; Held, that the decision of the Circuit Court was correct. United
States v. Schoverling, 76.
7. The provision of § 2 of the act of January 29, 1795, (1 Stat. 411,) is
not still in force. Ib.
8. In construing tariff acts an article may be held to be enumerated,
although not specifically mentioned, if it be designated in a way to
distinguish it from other articles. Junge v. Hedden, 233.
9. Arthur v. Butterfield, 125 U. S. 170, and Mason v. Robertson, 139 U. S.
624, cited and approved. Ib.
10. The meaning of the term "article," when used in a tariff act, consid-
ered. lb.
11. Dental rubber, imported into the United States in 1885 was subject to
a duty of 25 per cent ad valorem, as an article composed of india-rubber
not specially enumerated. Ib.
12. Imported articles, used as head-coverings for men, invoiced as "Scotch
bonnets," and entered, some as "worsted knit bonnets," and others as
"worsted caps," and made of wool, knitted on frames, were liable to
duty as "knit goods made on knitting frames," under "Schedule K,
Wool and Woollens," of § 2502 of the Revised Statutes, as enacted by
§ 6 of the act of March 3, 1883, c. 21, (22 Stat. 509,) and not under
"Schedule N-Sundries," of the same section, § 2502, p. 511, as "bon-
nets, hats and hoods for men, women and children." Toplitz v.
Hedden, 252.
See EVIDENCE, 9, 10;
JURISDICTION, B, 2.
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