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ARGUED AND DETERMINED
CIRCUIT COURTS OF APPEALS AND DISTRICT COURTS OF THE UNITED STATES, AND COURT OF APPEALS
OF THE DISTRICT OF COLUMBIA
in admiralty, declaring the forfeiture of the ROSS TOWBOAT CO. v. UNITED STATES. tug Dolphin under the provisions of section
2874, R. S. (Comp. St. § 5565). (Circuit Court of Appeals, First Circuit. Jan.
The parties have stipulated that the stateuary 6, 1925.)
ment of facts contained in the opinion of No. 1697.
the court may be taken as proved. It is as Customs duties w 130_Tug towing barge, un
follows: laden, without permit from customs collector “The steamship Korona, bound for the or naval officer, held not subject to forfeiture; United States, took on board at the island "tackle, apparel, and furniture."
Tug, which towed barge containing intoxi- of Bermuda, a foreign port, a quantity of cating liquor, unladen, without permit of cus
liquor, and proceeded to a point off the. toms collector or of naval officer, in violation coast of Rhode Island, within four leagues of Rev. St. 88 2872, 2874 (Comp. St. 88 5563, of the coast, where she was met by the barge 5565), was not subject to seizure or forfeiture, William J. Lermond, which was towed by the in view of section 2873 (Comp. St. § 5564), either on theory that barge and tug constituted tug Dolphin; that the liquor was there one vessel, or that tug was part of "tackle, ap- transshipped to the barge which was towed parel, and furniture" of barge.
by the tug to a pier at Newton Creek, [Ed. Note.-For other definitions, see Words Brooklyn, N. Y., where the cases and barand Phrases, First and Second Series, Ships' rels containing the whisky were unladen Tackle, Apparel, and Furniture.]
from the barge and brought on shore, withAppeal from the District Court of the out any permit from any collector of cusUnited States for the District of Massachu- toms or any naval officer for said unloading, setts; Elisha H. Brewster, Judge.
as required by section 2872 of the Revised Libel by the United States against the unladen before the Korona had come to a
Statutes (Comp. St. § 5563); that it was ocean tug Dolphin, claimed by the Ross Towboat Company. Decree for libelant, and proper place for the discharge of her cargo claimant appeals. Reversed and remanded,
or had been authorized to unload; that the with directions.
master of the steamship Korona, of the
barge, and of the tug Dolphin were all privy Albert T. Gould, of Boston, Mass. (Char- and consenting to all the facts alleged; that les S. Bolster and Blodgett, Jones, Burnham the value of said merchandise was, accord& Bingham, all of Boston, Mass., on the ing to the highest market price at the port brief), for appellant.
where landed, in excess of $400." Laurence Curtis, 2d, of Boston, Mass. R. S. § 2872, provides in substance that, (Robert 0. Harris, of Boston, Mass., on the except as authorized under conditions not brief), for the United States.
here material, no merchandise brought in Before BINGHAM, JOHNSON and AN- any vessel from a foreign port shall be unDERSON, Circuit Judges.
laden or delivered from such vessel within
the United States, except between the risJOHNSON, Circuit Judge. This is an ing and the setting of the sun, unless speappeal from a decree of the District Court, cial license has been granted, nor at any 3 F.(20)-1
*For opinion below, see 285 F. 881.
time without a permit from the collector and unload or deliver any merchandise brought naval officer, if any, for such unloading or in any vessel from a foreign port contrary delivery.
to the provisions of the act; and the section Section 2874 R. S. (Comp. St. § 5565), provides that the merchandise here referred is as follows:
to, which may be seized and subjected to for“Sec. 2874. All merchandise, so unladen feiture, must be unladen or delivered from or delivered contrary to the provisions of such vessel. section 2872, shall become forfeited, and By section 2874, where the value of the may be seized by any of the officers of the merchandise shall amount to $400 at the customs; and where the value thereof, ac- port or district where landed, the vessel, taccording to the highest market price of the kle, apparel, and furniture are made subsame, at the port or district where landed, ject to like forfeiture. shall amount to $400, the vessel, tackle, ap- Under section 2873 (Comp. St. § 5564), parel, and furniture shall be subject to like one who was knowingly concerned and aided forfeiture and seizure."
in removing, storing or otherwise securing No part of the cargo of liquors was un- such merchandise is made liable to a penalloaded from the tug, but the District Court ty of $400, and to be disabled for holding held that section 2874 should be construed any office of trust or profit under the Unitso as to include the tug as one of the in- ed States for a term not exceeding seven struments used in the violation of the stat- years. It will be noted that this section ute; that, with the barge, it constituted one makes it an offense to be concerned in revessel. In its opinion the court said that, if moving, storing, or otherwise securing, thus the statute were construed strictly and con- making it manifest that these acts, and not fined solely to the vessel from which the the act of aiding in the transportation of merchandise was unladen, “there was not such merchandise, constitute the crime which such an identity between the tug. and the may be punished. barge as would justify the court in holding It is contended that the words "tackle, apthat the tug was the vessel from which the parel, and furniture” may include the tugmerchandise was unladen."
boat. The tackle referred to is evidently In United States v. Stowell, 133 U. S. 1, that of the vessel, and by no construction 12, 10 S. Ct. 244, 245 (33 L. Ed. 555), the can it be held that the tugboat is any part court said:
of such tackle. There is no merit in this "By the now settled doctrine of this court contention. (notwithstanding the opposing dictum of It is claimed that the tug and its tow conMr. Justice McLean in United States V. stitute one vessel, and cases are cited in Sugar, 7 Pet. 453, 462, 463) statutes to pre- which a tug and tow have been in collision vent frauds upon the revenue are considered with other vessels through the alleged negas enacted for the public good and to sup- ligence of the tug in performing a towage press a public wrong, and therefore, al- service; but these cannot be relied upon to though they impose penalties or forfeitures, govern in this case. not to be construed, like penal laws gener- The court cannot read into the statute ally, strictly in favor of the defendant; but what is not there by reasonable and fair they are to be fairly and reasonably con- inference. The customs laws, under which strued, so as to carry out the intention of this forfeiture was decreed, were enacted to the Legislature. Taylor v. United States, 3 prevent smuggling. If, under recent legisHow. 197, 210; Cliquot's Champagne, 3 lation, it has become necessary to extend the Wall. 114, 145; United States v. Hodson, 10 provisions of these statutes, it should be Wall. 395, 406; Smythe v. Fiske, 23 Wall. done by Congress, and not by the courts. 374, 380."
If the construction placed upon the statute Applying the law of construction stated by the District Court in this case can be in this case, we find nowhere in the Revenue sustained, a harbor tug which has docked a Acts any intention of Congress that any
vessel from which merchandise brought from vessel other than the vessel from which the a foreign port has been unladen in violagoods are unladen shall be forfeited under tion of the statute would be liable to forsection 2874. In that section it is the vessel feiture. from which the goods are unladen which
The decree of the District Court is remay be seized and declared forfeited. versed, and the case is remanded to that
By section 2872 it is made unlawful to court, with directions to dismiss the libel.
3 F.(20) 3 BANK OF CALIFORNIA V. BRAINARD. able under the provisions of the Bankruptcy in re SIMON BROS.
Act. (Circuit Court of Appeals, Ninth Circuit.
Examining the record, as we must to asJanuary 5, 1925. Rehearing Denied
certain, not whether the verdict was against January 26, 1925.)
the weight of the testimony, but whether
there was any testimony at all which, if No. 4294,
credited by the jury, was sufficient to susBankruptcy 303(3)-Evidence held to sus.
tain a verdict for the trustee, we find evitain finding that deposit was not in usual course, but intended to pay bankrupt's in. dence of the following facts: debtedness to bank, constituting voidable The bankrupts had been doing business preference.
with the bank since April, 1919. On SepEvidence held to sustain finding that checks tember 24 of that year they owed the bank deposited by bankrupt were not deposit in usual for borrowed money $45,000. During the course of business, but intended to pay bankrupt's notes to bank under circumstances year 1921 the bankrupts lost heavily in their showing bankrupt's knowledge of insolvency,
business. In November of that year the and constituted voidable preference.
bank expressed its dissatisfaction with the way
in which the nkrupts were doing busiIn Error to the District Court of the ness, and from that time there was constant United States for the Southern Division of reduction of the debt and of loans by the the Northern District of California; George bank. In 1922 there were many conferences M. Bourquin, Judge.
between the bankrupts and the bank perAction by G. W. Brainard, as trustee in taining to the financial condition of the bankruptcy of Simon Bros., a copartnership bankrupts' business, and reductions of the composed of Bert Simon and another, do- indebtedness to the bank were made at the ing business under the name of Simon Bros., latter's request. In the meanwhile, the and also under the name of the Hercules Ce- bankrupts' business was in a failing condiment Products Company, against the Bank tion. On January 1, 1922, their books of California. Judgment for plaintiff, and showed an inventory of $296,124. On Jandefendant brings error.
uary 1, 1923, they showed $71,494. On FebPillsbury, Madison & Sutro, and Frankruary 28 of that year they showed $5,494. D. Madison, all of San Francisco, Cal., fór March 5, 1923, was the date of the alleged the plaintiff in error.
voidable preference. The bankrupts had Norman A. Eisner and Joseph Kirk, both just received $12,000, the final payment of of San Francisco, Cal., for the defendant in the purchase price of real estate which they
had sold. At that time the bankrupts' balerror. Before GILBERT, HUNT, and RUD- and one Marymont, the purchaser of the
ance in the bank was $5.74. Sam Simon KIN, Circuit Judges.
property, entered the bank and at the deGILBERT, Circuit Judge. The defend-posit window deposited four checks, two on ant in error as trustee in bankruptcy of land bank, and one on a San Luis Obispo
other San Francisco banks, one on an OakSimon Bros., a partnership consisting of bank, amounting in the aggregate to $12,Bert Simon and Sam Simon, recovered a judgment against the plaintiff in error for dow, presented checks for the principal and
170.60. They then went to the note win$12,381.41 as a preference payment receiv- interest of the notes, and asked for the sured from the assets of the bankrupts within render of the bankrupts' notes to the bank, four months prior to the filing of the petition in bankruptcy. The only question be- on which there was due and unpaid $12,fore this court is whether the trial court 381.40. There were present at that window erred in denying the motion of the plaintiff three note clerks of the bank, Redmond, in error for a directed verdict in its favor. Lyons, and Carmany. Redmond consulted It is contended that the motion should have Lyons concerning the surrender of the notes. been allowed on the ground that the deposit Lyons answered that he would not take the of checks with the bank whereby the pay- responsibility, and told Redmond to conment was made was made in the ordinary sult Mr. Pentz, who was the vice president course of business and was subject to set-off, and cashier. and that there was no evidence that the bank The question was
whether the checks knew of the insolvent condition of the bank- should be taken in payment of the notes. rupts, or that it had reasonable cause to be- Lyons testified that Marymont appeared to lieve that the effect of the payment would be excited and said, "You take it; you take be to enable it to obtain a preference void- it; don't say anything, but take it;" and