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treasurer had been in the state of Michigan on any business of the corporation, the court would then have acquired jurisdiction of the corporation by service upon him. Commenting upon that case the Supreme Court said:

"According to the view thus expressed by the Supreme Court of Michigan, service upon an agent of a foreign corporation will not be deemed sufficient unless he represents the corporation in the state. This representation implies that the corporation does business or has business in the state for the transaction of which it sends or appoints an agent there."

Later in the opinion, at page 359 of 106 U. S., page 362 of 1 Sup. Ct. (27 L. Ed. 222), the court says:

"The transaction of business by the corporation in the state, general or special, appearing, a certificate of service by the proper officer on a person who is its agent there would, in our opinion, be sufficient prima facie evidence that the agent represented the company in the business. It would then be open, when the record is offered as evidence in another state, to show that the agent stood in no representative character to the company, that his duties were limited to those of a subordinate employé, or to a particular transaction, or that his agency had ceased when the matter in suit arose."

Much of what is said in this case goes to the question whether the agent upon whom process was served was of sufficiently high grade so that he could be "properly deemed representative of the foreign corporation." As bearing upon that question, the fact whether the company was actually engaged in business in the state, and the extent of the business committed to the management of the agent, would be material. But if the officer served was a general officer of the corporation, then the extent of the business transacted by him in the state is of no importance in determining the question as to whether he is of an official rank such as to make him properly representative of the company. The precise question. under consideration was before the Circuit Court for the Northern District of Illinois in the case of Houston et al. v. Filer & Stowell Co., 85 Fed. 757, and it was there held that, when the manager of a corporation goes into another state on the business of the corporation, service of summons against the corporation in a suit relating to that business may be made on him there, although the corporation does not transact business in the state so as to make it an inhabitant thereof. In my judgment, the opinion in this case is a correct exposition of the law. Any individual may be served in any state where he is found without regard to the place of his residence. A corporation is entitled to no greater exemption. It ought to be held to be present in any state to which it sends its general officer for the transaction of its corporate business. The case of St. Louis Wire-Mill Company v. Consolidated Barb Wire Company et al., 32 Fed. 802, arising in this circuit, and decided by Judge Thayer, does not present the precise question, for the officer upon whom service was there made did not enter the state for the purpose of carrying on any business on behalf of the corporation, but came there for the purpose of attending a fair at St. Louis; and the question now under consideration is not considered in the opinion. The case of Eirich v. Donnelly Contracting Company (C. C.) 104 Fed. 1, is in point, but seems to have been decided upon a misappre

hension of the law. The court there quashed the service upon the ground that the defendant was not "found" in the district of Ohio; evidently basing the decision upon the earlier federal statutes requiring that the defendant be found in the district as a condition. of federal jurisdiction. But under the present statute it is sufficient to confer jurisdiction if the plaintiff is a citizen of the district where the action is brought and service is obtained on the defendant. The facts in the case of Clews v. Woodstock Iron Company (C. C.) 44 Fed. 31, would also bring the case within the question. now raised, but the question is not discussed in the opinion, although the decision is adverse to the validity of the service. The case of United States Graphite Co. v. Pacific Graphite Company (C. C.) 68 Fed. 442, is likewise in point on its facts, and held against the validity of the service; but the distinction which is pointed out by Judge Grosscup in the case in 85 Fed. 757, is not adverted to in the opinion.

The plea to the jurisdiction will therefore be overruled, and the cause will go to trial upon the merits on the answer, in which the plea is embodied.

AMERICAN SUGAR REFINING CO. v. UNITED STATES.

(Circuit Court, S. D. New York. March 10, 1905.)
No. 3,543.

CUSTOMS DUTIES-DATE OF EFFECT OF CUBAN TREATY-RETROSPECTIVE OPERA

TION.

In construing the treaty with Cuba, the ratifications of which were exchanged March 31, 1903, and which contained both the provision that it should take effect on the tenth day after the exchange of ratifications and the provision that it should "not take effect until approved by the Congress," and which Congress approved by act of December 17, 1903 (33 Stat. 3, c. 1), providing that it should apply "on the tenth day after the exchange of ratifications," held, that the treaty was intended to be retroactive, and to relate to Cuban goods imported 10 days or more after the ratifications were exchanged.

On Application for Review of a Decision of the Board of United States General Appraisers.

For decision below, see G. A. 5,665, T. D. 25,255, which affirmed the assessment of duty by the collector of customs at the port of New York.

H. B. Closson, for importers.

Henry A. Wise, Asst. U. S. Atty.

WHEELER, District Judge. The convention for the reduction of 20 per cent. of the duties on Cuban products provided for exchange of ratifications before January 31, 1903, which was extended two months, and for going into effect on the tenth day after the exchange of ratifications. On the 19th of March the Senate added to that article: "This convention shall not take effect until approved by the Congress." Ratifications were exchanged March 31,

1903. These importations of Cuban products were made between July 14th and September 9th. Duties were assessed without reduction, against which protests were made before or on October 21, 1903, and were submitted to the Board of General Appraisers. On December 17, 1903, congress passed "An act to carry into effect" the convention, which provided that whenever the President shall receive satisfactory evidence that Cuba has made provision to give. full effect to the convention, he was authorized to issue his proclamation declaring that he had received such evidence, "and thereupon on the tenth day after exchange of ratifications of such convention between the United States and the republic of Cuba, and so long as the said convention shall remain in force, all articles of merchandise being the product of the soil or industry of the republic of Cuba * * * shall be admitted at a reduction of twenty per cent. of the rates of duty thereon." 33 Stat. 3, c. 1. The President immediately made such proclamation. The board overruled the protests April 28, 1904, and confirmed the assessment without reduction. From that decision this review is brought.

When the collector assessed the duty there was no law in force relating to it but the general tariff law, and his assessment was clearly right; but if the assessment of duties is going on until the board is done with it-which seems to be the case the question now is whether the decision of the board was right, according to the law of the subject, when that decision was made. If the President and Senate could fix duties by treaty without the concurrence of the Congress, they did not attempt to in this matter. While it was open its taking effect was fixed upon the approval of the Congress, and it derives its force from the act of Congress. No question is understood to be made, and there seems to be no doubt, but that Congress may well provide for the liquidation of duties at a different rate on goods imported before, and especially by reduction; which would be the disposing of what, for the relief of the importers, would be entirely within the power of Congress. Stockdale v. Insurance Co., 20 Wall. 323, 22 L. Ed. 348. So far as the treaty went, it was made very plain that the reduction was to commence on the 10th day after the exchange of ratifications. Congress did not leave the subject open to any construction by using any other expression, but took the same, and thereby enacted of itself that "on the tenth day after the exchange of ratifications, and so long as said convention shall remain in force, all articles of merchandise being the product of the soil or industry of the republic of Cuba shall be admitted at reduction of the rates of duty thereon."

* * *

* * *

Merchandise is being admitted for tariff purposes until the duties are finally liquidated, which, as to this merchandise, was not till after that act of Congress was passed. These views do not seem to be contrary to U. S. v. Burr, 159 U. S. 78, 15 Sup. Ct. 1002, 40 L. Ed. 82. The intention of Congress appears to have been sought for there, and ascertained from other parts of the act than the one date left to stand after it had gone by; but here there are no such other provisions to control. This act affirms the treaty as it was

made with this date in it, and enacts the date itself in the same terms. The intention to relieve Cuban imports from that date seems clear.

Decision reversed.

THE AMERICA.

(District Court, D. New Jersey. March 23, 1905.)

SALVAGE-ASSISTING IN MOVING VESSEL FROM BURNING DOCK-COMPENSA

TION.

Two libelants, who were in a skiff and, at the request of the master of a steam lighter moored to a burning dock in the night, took him and two deckhands to the vessel, and assisted them in casting it loose and pushing it off, rescuing it from a position of imminent peril, held to have performed a salvage service, and to be entitled to an award of $200 there for; the vessel being worth $18,500.

[Ed. Note.-Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]

In Admiralty. Suit to recover for salvage service.

Abe J. David and William Pintard, for libelants.

John F. Foley and Howard S. Harrington, for claimant.

LANNING, District Judge. The first question presented by the pleadings and proofs in this case is whether the libelants performed a salvage service. It appears that on the night of February 27, 1904, the steam lighter America was tied at the dock of the Borne Scrymser Company, on Staten Island Sound. One of the crew had been assigned to duty as watchman for that night. About midnight a fire broke out in the buildings covering the dock where the America was lying. When the alarm was given the owner of the vessel, Capt. Daniel McElroy, hastened to the dock; but, finding that his access to the vessel by the ordinary route was cut off by the fire, he reached the water's edge some 300 or 400 feet distant from his vessel. There he hailed three men, two of whom were the libelants in this case, who were in an oyster skiff about 50 feet distant from where he was standing. They came to him, and he and two of his deckhands jumped into the skiff, and, at his request, were rowed to the America. On reaching the America it was found that the member of the crew who had been assigned to duty as a watchman for that night, for some reason not explained in the testimony, was not on the vessel. There was no one on board to care for her. She had no steam. Her pilot house had already been scorched by the heat. She was in imminent peril, and it became necessary, in order to save her, to get her away from the dock as speedily as possible.

The libelants claim that when they reached the America in their oyster skiff they were the first to board the vessel, and that they threw off the lines which fastened her to the dock and pushed her bow out from the dock, so as to enable her to catch the ebbing tide and to float out and away from danger. They say that they did not, while they were performing this service, see either Capt. McElroy or any of his deckhands, and they claim that they alone performed the service which

saved the vessel. On the other hand, the captain and his deckhand, Samuel Rose, claim that they were the persons who loosened the lines of the vessel and pushed her away from the dock, and enabled her to float out into the sound and away from the burning dock. The testimony of the libelants that they performed service in saving the vessel is corroborated by that of other witnesses. So, also, is the testimony of Capt. McElroy as to the work done by him and the men in his employ likewise corroborated. I am satisfied that Capt. McElroy, his deckhand, Samuel Rose, and the two libelants all boarded the imperiled vessel the instant the oyster skiff reached her, and that they all joined in the effort to save her. The service performed by the libelants was, therefore, a salvage service.

It is insisted by the claimant that after his vessel had reached a place of safety he paid the libelants five dollars, and that they accepted that sum as full compensation for their service. The evidence, in my judgment, does not warrant such a conclusion. Neither do I think the claimant has established his defense that the libelants have lost their right of recovery by reason of the alleged larceny of a shovel from the vessel. The final question, therefore, is, what amount shall be allowed to the libelants for the salvage service rendered by them. There was no special danger in performing their service. I am convinced that Capt. McElroy assumed command of the vessel and that the libelants acted as his assistants merely. The whole time of their engagement upon the vessel did not exceed an hour. In the case of The Oregon (D. C.) 27 Fed. 871, $200 was allowed to a tug which drew three lighters, worth with their cargoes about $4,500, away from a burning building near which the lighters were moored. In Wilson v. Winchester (C. C.) 30 Fed. 204, the libelant's tug towed a schooner away from a pier near which certain oil works were in flames, and an award of $200 for salvage services was made. In The Rose (D. C.) 31 Fed. 176, the libelant's tug towed a lighter laden with cotton from a burning pier to a place of safety, and $140 was allowed for salvage services. It is admitted that the value of the America was $18,500.

Considering this case in all its aspects, I think an allowance of $200 to the libelants will be fair. There will be a decree to that effect.

In re GIRARD GLAZED KID CO. (No. 2.)

(District Court, E. D. Pennsylvania. March 27, 1905.)

No. 1,767.

BANKRUPTCY-JURISDICTION-CONTROVERSIES BETWEEN CREDITORS.

A claimed indebtedness from one creditor of a bankrupt to another, growing out of transactions not connected with the bankruptcy proceedings, cannot be litigated in such proceedings or adjusted in the distribution of dividends.

On Certificate by Referee Concerning Claim of Clara V. Illingsworth.

George L. Crawford, for Clara V. Illingsworth.

Arthur E. Weil, for trustee.

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