« 이전계속 »
cuit Judges, one or more District Judges within the Circuit shall be competent to sit in the court according to such order or provision among the District Judges as either by general or particular assignment shall be designated by the court:
"Provided, that no justice or judge before whom a cause or question may have been tried or heard in a District Court, or existing Circuit Court, shall sit on the trial or hearing of such cause or question in the Circuit Court of Appeals.”
It appears that when this case was called for argument the Chief Justice was not in attendance, nor was a Circuit Judge present, but that at that time the court was made up of three District Judges of this circuit, who had been theretofore regularly designated by particular assignment to attend as members of this court for that term. We think that the court so constituted was authorized by the statute to hear and decide the case then submitted to it, it appearing that neither of the judges so hearing and deciding it had participated in the trial of said case in the court below.
In our judgment, the decision complained of, announced by the three District Judges so attending as members of this court, was the decision of the Circuit Court of Appeals of this Circuit, and the judgment based thereon will not be set aside.
PRITCHARD, Circuit Judge. I dissent from this judgment on the ground that the court which heard the case was not properly constituted. The act creating the Circuit Court of Appeals does not, in my opinion, contain any provision which authorizes the court to be composed exclusively of District Judges, but, on the contrary, the act clearly indicates that it was the intention of Congress that either the Chief Justice, one of the Associate Justices, or one of the Circuit Judges should be present, and preside at each term of the court.
FULTON V. INSURANCE CO. OF NORTH AMERICA.
(Circuit Court of Appeals, Second Circuit. February 28, 1905.) MARINE INSURANCE-PLACE OF Loss.
Where a houseboat insured was lost while within the "natural" boundary of the inland waters of New York Harbor, as well as within the statutory lines dividing such inland waters from the high seas, fixed by the Secretary of the Treasury, the craft was covered by a policy containing a warranty that the boat should be confined to the inland waters of New York, New Jersey, and Long Island, and that no liability should exist for a loss during a deviation of the limits so named, though such deviation should not avoid the policy, which should reattach on the return of the vessel within such limits. Appeal from the District Court of the United States for the Southern District of New York.
For opinion below, see 127 Fed. 413.
PER CURIAM. The action was brought to recover under a oneyear marine policy of insurance covering the houseboat Mon Mon, which sank while under tow from Gravesend to Sheepshead Bay, and when about opposite the Oriental Hotel, and within about a quarter of a mile of Coney Island. There is no question of seaworthiness or navigation; the only controversy is as to the application of these clauses of the policy:
"Warranted confined to the inland waters of New Jersey, New York and Long Island."
"Any deviation beyond the limits named in this policy shall not avoid this policy; but no liability shall exist during such deviation; and upon the return of said vessel within the limits named herein, no disaster baving occurred, this policy shall be and remain in full force and effect, unless a disaster occurs while deviating.”
“Against perils of the Harbors, Bays, Sounds, Seas, Rivers and other waters as above named."
By the act of February 19, 1895, c. 102, § 2, 28 Stat. 672 (U. S. Comp. St. 1901, p. 2900], the Secretary of the Treasury was authorized, empowered, and directed from time to time to designate and define, by suitable bearings or ranges, with lighthouses, light vessels, buoys, or coast objects, the lines dividing the high seas from rivers, harbors, and inland waters, the act being supplementary to the act to adopt regulations for preventing collisions at sea. Pursuant to such act, the line for New York Harbor has been established as follows:
“From Navesink (southerly) Light-house N. E. 5/8 E. easterly to Scotland light-vessel; thence N. N. E. 1/2 E. through Gedney Channel Whistling Buoy to Rockaway Beach Life Saving Station."
This line lies considerably outside of the place where the vessel was lost.
The appellee insists that the line laid down under this statute has no application in this case, because it was fixed solely for the purpose of arbitrarily determining where one set of regulations as to navigation ends and another begins. It is unnecessary now to discuss or decide that point, because we are of the opinion that, ii the "natural" boundary of inland waters is to be taken instead of the “statutory” boundary, it will be found in the line which connects the extremity of Sandy Hook with the nearest point on Rockaway Beach, these headlands being the natural fauces terræ. The Mon Mon was lost well inside of that line, and was covered by the policy.
The decree is reversed, with costs, and cause remanded with instructions to decree in favor of the libelant, with interest and costs.
CROWN CORK & SEAL CO. OF BALTIMORE CITY V, STANDARD
STOPPER CO, et al.
1. APPEAL-INTERLOCUTORY ORDER GRANTING INJUNCTION.
The fixing of the bond to be given on appeal from an Interlocutory or. der granting an injunction rests in the discretion of the trial court, under'the provisions of Act June 6, 1900, c. 803, 8 7. 31 Stat. 660 (U. S. Comp. St. 1901, p. 550), and its order is not reviewable on the appea?; nor does such an appeal affect the proceedings in the court below, except as to such injunction, unless a stay is granted by that court.
[Ed. Note.—Finality of judgments and decrees for purposes of review, see notes to Brush Electric Co. v. Electric Imp. Co., 2 C. C. A. 379; Central Trust Co. v. Madden, 17 C. C. A. 238; Prescott & A. C. Ry. Co. v.
Atchison, T. & S. F. R. CO., 28 C. C. A. 482.) Appeal froin the Circuit Court of the United States for the Southern District of New York.
On motion to increase security or to remand.
Wetmore & Jenner and Robert H. Parkinson (John C. Rose, on the brief), for the motion.
J. J. Kennedy, opposed.
PER CURIAM. We cannot review the order of the court below refusing to stay the taxation of costs by the complainant, or its action in fixing the amount of the bond to be given by the defendant upon the appeal. The order is not reviewable, unless upon an appeal from the final decree. There are no circumstances which authorize us to interfere with the judgment of the judge in fixing the amount of the bond. Martin v. Hazard Powder Co., 93 U. S. 302, 23 L. Ed. 885.
As the appeal is from an interlocutory decree granting an injunction and ordering an accounting, the cause, for all purposes except a review of the injunction below, including the taxation of costs, is unaffected by the appeal, in the absence of an order by that court staying the proceedings. Section 7, Court of Appeals Act June 6, 1900, C. 803, 31 Stat. 660 [U. S. Comp. St. 1901, p. 550].
BARCUS et al. V. SHERWOOD.
(Circuit Court of Appeals, Fourth Circuit. February 21, 1905.)
ATTORNEY AND CLIENT-CONSTRUCTION OF CONTRACT-EXTRA SERVICES.
A decree construing a contract for the services of an attorney, and allowing him compensation for services rendered outside of those contracted for, reviewed and affirmed.
Appeal from the Circuit Court of the United States for the Eastern District of Virginia, in Equity.
For opinion below, see 130 Fed. 364.
Before GOFF and PRITCHARD, Circuit Judges, and BRAWLEY, District Judge.
GOFF, Circuit Judge. The real question in this appeal is one of fact, as to whether or not the services of the appellee, as attorney for the appellants, were covered by the terms of his contract with them, referred to in the proceedings of this cause. The court below found from the testimony that the appellee was entitled to compensation for services rendered by him, other than those included in the contract referred to. In this conclusion we fully concur. The allowance made the appellee by the court below, due regard being had to the character of the litigation, to the services rendered, and to the time required therefor, was reasonable, and has our approval. The valuations placed by the court below on the property recovered, on which the amount of the fee due under the contract for services was allowed, were not only suggested by the evidence, but were entirely justified by it, and therefore will not be changed by this court. See 130 Fed. 364, for report of this case and opinion of the court below.
There is no error in the decree complained of, and the same is affirmed.
UNITED STATES v. STRAUSS BROS. & CO.
Ping-pong balls are not "toys," as provided for in paragraph 418, Tariff Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 191 (U. S. Comp. St. 1901, p. 1674), but are dutiable under paragraph 17 of said act, Schedule A, $
1, c. 11, 30 Stat. 152 (U. S. Comp. St. 1901, p. 1628), as articles of collodion. 2. SAME-REVIEW OF FINDINGS OF COLLECTORS OF CUSTOMS.
Where a decision of a collector of customs as to the dutiability of imported merchandise is under review by the Board of General Appraisers or the.courts, his findings of fact, when based on no other evidence than that afforded by the articles themselves, may be reversed without any further evidence. The collector, the board, and the courts are all equally entitled to avail themselves of such information as may be derived from an inspection of the articles in connection with the facts of common
knowledge and experience, of which judicial notice may be taken. 8. EVIDENCE JUDICIAL NOTICE-PING-PONG BALLS.
In deciding whether ping-pong balls are toys, or articles constructed for the amusement of children, judicial notice may be taken of the fact that the game of ping-pong is ordinarily played on a table of such height that it would be difficult for children to play the game; that it is a game which is indulged in by adults, and which requires a degree of skill not ordinarily possessed by children; and that the balls are sold in stores that deal in athletic goods that are not within the category of toys.
Appeal from the Circuit Court of the United States for the Southern District of New York,
This cause comes here upon appeal from a judgment of the United States Circuit Court for the Southern District of New York (128 Fed. 473), affirming the decision of the Board of General Appraisers, which had reversed the classification of the collector of the port of New York. Note United States v. Wanamaker (C. C.) 136 Fed. 266.
Charles D. Baker, for the United States.
Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.
TOWNSEND, Circuit Judge. The articles in question are pingpong balls. They were returned and classified for duty as “manufactures of pyroxylin,” and were assessed as such by the collector, under paragraph 17, Act July 24, 1897, c. 11, § 1, Schedule A, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1628), which is as follows:
"Collodion and all compounds of pyroxylin, whether known as celluloid or by any other name, 50 cents per pound; rolled or in sheets, unpolished, and not made up into articles, 60 cents per pound; if in finished or partly finished articles, and articles of which collodion or any compound of pyroxylin is the component material of chief value, 65 cents per pound and 25 per cent. ad valorem."
The importers protested, claiming that said articles were dutiable as toys, under paragraph 418 of said act (section 1, Schedule N, 30 Stat. 191 (U. S. Comp. St. 1901, p. 1674]), which is as follows:
“Dolls, doll-heads toy marbles of whatsoever materials composed, and all other toys not composed of rubber, china, porcelain and parian, bisque, earthen or stone ware, and not specifically provided for in this act, 35 per cent, ad valorem."
In reversing the action of the collector, the Board of General Appraisers held as follows:
“We find from the papers before us that the articles described on the invoices as `ping-pong balls,' are of the same general character as those passed upon in G. A., 1,644 (T. D. 13,223), and board decision (unpublished) dated April 30, 1903, protest 55,065B, and there held to be toys. Following these rulings, we sustain the protests.
The Circuit Court affirmed the decision of the board. No evidence was taken either before the board or in the Circuit Court. The argument in the court below was confined to the question whether, in the absence of any evidence upon a question of fact, the Board of General Appraisers had the power to reverse the finding of fact by the collector. It is unnecessary to consider how far this argument might be applicable in a case where the collector had acted upon the evidence of witnesses produced before him. It has no relevancy to the question at issue in the case at bar, where the only evidence consisted in the articles themselves. The collector, the board, the court below, and this court are all equally entitled to avail themselves of such information as may be derived from an inspection of the articles in connection with the facts of common knowledge and experience, of which judicial notice may be taken. Here it does not even appear that the Board of General Ap