understand, that the plaintiff, in serving the writ upon him in May, 1909, returnable at the October term next, intended the October term of 1909, rather than the October term of 1908, which was a thing of the past, and therefore an impossible return day. I also find as fact that the failure to change the date of the writ resulted from accident or mistake, and under the circumstances that justice requires an amendment to be made.

The statutes of New Hampshire in respect to amendments are very liberal, and presuppose that anything which justice requires by way of amendment may be made, unless it shall deprive the defendant of some substantive right.

I will pass over the earlier New Hampshire decisions, because they seem to have been decided, as said by Judge Bell in Berry v. Osborn, 28 N. H. 279, 283, referring to section 10, c. 186, Rev. St. 1843, "without especial reference to the provisions of this statute, and though this fact might justly lead to the belief that neither the court nor the bar had supposed that any change was made by it in the practice usual in England, yet the calls too frequently made, both upon our time and our patience, have led to a renewed and more careful examination of its provisions than we have heretofore made," and more especially because the earlier cases can have no pertinent weighty bearing upon questions of amendment in New Hampshire, in view of the liberalizing statutes upon that subject since Berry v. Osborn.

I will only refer to the following statutes and cases: Rev. St. 1843, c. 186, §§ 10, 11; Comp. St, 1854, c. 198, §§ 10, 11; Gen. St. 1867, c. 207, §§ 8, 9; Gen. Laws, 1878, c. 226, §§ 8, 9; section 1 of an act in relation to amendment to civil causes (Laws 1879, c. 7); Pub. St. 1901, c. 222, §§ 7, 8; Berry v. Osborn, 28 N. H. 279, 283; Kelly v. Gilman, 29 N. H. 385, 61 Am. Dec. 648; Tillson v. Bowley, 8 Greenl. (Me.) 163; Bartlett v. Lee, 60 N. H. 168; Brown v. Ellsworth, 72 N. H. 186, 188, 55 Atl. 356.

This amendment should be allowed because, the month of October next being named, the defendant must have understood the coming October, because it would be clear, and absolutely clear, to any mind. that a month in a year before the service could not have been intended. In the early case of Tillson v. Bowley in the state of Maine, 8 Greenl. (Me.) 163, it is said:

"When a month is referred to, it will be understood to be of the current year, unless, from the connection, it is apparent that another is intended. But in the present case, from the nature of the complaint, no other could possibly be understood."

The case at bar is quite within the reasoning of that case.

The return on the writ shows an attachment on real estate in some town; but the fact is found by a commissioner that the defendant had no real estate there. That being so, the defendant could not have been prejudiced, or have acquired any rights under the attachment.

The defendant places considerable reliance upon Parsons v. Shorey, 48 N. H. 550. That case, however, does not establish any general and absolute rule. It contains wholesome suggestions as to the desirability of avoiding unseemly records; but the decision is based upon the view that a writ which had actually operated upon real estate by an actual

attachment had so far performed its function that it could not be used again. But that is not this case.

I have no doubt as to the power and the duty of this court, in a case removed from the state court, to make such amendments as justice requires and such as would be permissible under the state statute, provided they do not offend the federal statutes or the federal decisions upon the subject of amendments. See Rev. St. U. S. §§ 914, 948, 954 (U. S. Comp. St. 1901, pp. 684, 695, 696); Circuit Court Rules 11, par. 1; Tilton v. Cofield, 93 U. S. 163, 23 L. Ed. 858; Randolph v. Barrett, 16 Pet. 138, 142, 10 L. Ed. 914; West v. Smith, 101 U. S. 263, 25 L. Ed. 809; Deford v. Mehaffy (C. C.) 13 Fed. 481; Hodges v. Kimball, 91 Fed. 845, 849, 34 C. C. A. 103.

The plea in abatement is overruled, and the motion to amend is granted.

In re PRIEGLE PAINT CO. RICHMOND BROS. v. RICHARDSON.

BLACKBURN VARNISH CO. v. SAME.

(District Court, N. D. Alabama, S. D. January 14, 1910.) SALES (§ 450*)-CONDITIONAL SALES-EFFECT OF RIGHT OF RESALE "ABSOLUTE SALE."

If a seller of goods parts with possession to the buyer, and invests him with the right to sell as his own and treat the proceeds as his own, the sale is "absolute," and not conditional, and title vests in the buyer, even though there is an agreement that it shall not pass until the price is paid. [Ed. Note. For other cases, see Sales, Dec. Dig. § 450.*

For other definitions, see Words and Phrases, vol. 1, p. 42.

What constitutes a contract of conditional sale, see note to Dunlop v. Mercer, 86 C. C. A. 448.]

In the matter of the Priegle Paint Company, bankrupt. On petition to review order of referee denying petitions of Richmond Bros. and the Blackburn Varnish Company, respectively, to reclaim property. Order affirmed.

Thompson & Thompson, for petitioners.
Perdue & Cox, for trustee.

GRUBB, District Judge. This matter came on for hearing on a petition to review an order of the referee in bankruptcy, disallowing two petitions for reclamation of certain goods furnished the bankrupt by the petitioners, Richmond Bros. and the Blackburn Varnish Company. Each petition presents the same question. Petitioners testify that they started the bankrupt in business, under an arrangement by which the goods were furnished to it, title to be retained in sellers until the goods were sold, for the purpose of their security, the bankrupt to have the right to sell at such prices and on such terms as he saw fit, and to be accountable to sellers for invoice prices only, on his general credit; the sellers having no title to or lien on the proceeds of such sales. The bankrupt testified that the first shipment of goods only was on consignment, that all goods subsequently furnished were

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

sold on credit, and that only a small and indistinguishable part of the goods on hand when the petition was filed belonged to the first shipment.

Assuming the transaction to have been as testified to by petitioners —that is, a conditional sale, with retention of title to secure purchase money until the goods were resold, which it was contemplated the bankrupt would do in the usual course of trade, and only to be accountable to the sellers for proceeds of such sales on his personal account and credit-the inquiry is as to the validity of this transaction as against the general creditors of the bankrupt. The retention of title, for security of purchase, until the goods are resold, under a contract by which the title to the proceeds of sale vests in the seller, has been upheld, when assailed by creditors, in the cases of In re Pierce, 157 Fed. 755, 87 C. C. A. 537, 19 Am. Bankr. Rep. 662; In re Columbus Buggy Company, 143 Fed. 859, 74 C. C. A. 611, 16 Am. Bankr. Rep. 759; In re Dunlop, 156 Fed. 545, 86 C. C. A. 435, 19 Am. Bankr. Rep. 361; In re E. M. Newton & Company, 153 Fed. 841, 83 C. C. A. 23. 18 Am. Bankr. Rep. 567; and In re Gray (D. C.) 170 Fed. 638, 21 Am. Bankr. Rep. 375. The distinguishing fact in this case is that the petitioners, as testified to by themselves, had no other right in or to the proceeds of the resale than had the other creditors of the bankrupt, had no right to require the bankrupt to pay over the specific proceeds of the goods resold, and could only look to his general credit for payment for such goods as were resold.

In the case of Pontiac Buggy Company v. Skinner (D. C.) 158 Fed. 858, 20 Am. Bankr. Rep. 206, District Judge Ray, after quoting from the case of In re Garcewich, 115 Fed. 87, 53 C. C. A. 510, 8 Am. Bankr. Rep. 149, as follows:

"When the property is delivered to the vendee for consumption or sale, or to be dealt with in any way inconsistent with the ownership of the seller, or so as to destroy his lien or right of property, the transaction cannot be upheld as a conditional sale, and is a fraud upon the creditors of the vendee. Even in the case of a chattel mortgage, when it is understood between the mortgagor and the mortgagee that the mortgagor may sell the chattels in his business and use the proceeds, the transaction is fraudulent in law as against the creditors of the mortgagor. Such an arrangement, if expressed in the instrument, defeats its essential nature and qualities as a mortgage, so that, in a legal sense, it is not a security, but merely the expression of a confidence by the mortgagee in the mortgagor, and, if made, but not expressed in the instrument, is equally vicious, if not more suggestive of a fraudulent purpose." -said:

"Is this the law as to conditional sales? In Re Carpenter (D. C.) 11 Am. Bankr. Rep. 147, 125 Fed. 831, 833, this court followed In re Garcewich, supra, in a case where the order for goods was quite similar to the one under consideration here. and pointed out the distinction, sharply drawn, between that line of cases where the title to property sold is to pass when paid for only, and in the meantime the property is to be retained and used by the vendee, or, if sold, the proceeds are to take or stand in its place and be passed over to the vendor in payment or as his own, and that other line of cases where the sale is in terms conditional-that is, it is provided that the title shall remain in the vendor until the property is paid for, but still the vendee is given full power to use up, consume, or sell, and give good title, and take or hold the proceeds as his own. Earle v. Robinson, 91 Hun, 363, 36 N. Y. Supp. 178, affirmed 157 N. Y. 683, 51 N. E. 1090, In re Kellogg (D. C.) 7 Am. Bankr. Rep. 270, 112 Fed. 52, Prentiss Tool & Supply Co. v. Schirmer, 136 N. Y. 305, 32 N. E. 849, 32 Am.

St. Rep. 737, Cole v. Mann, 62 N. Y. 1, and Ballard v. Burgett, 40 N. Y. 314, are illustrations of the first class of cases; while In re Garcewich, supra, In re Carpenter, supra, Ludden v. Hazen, 31 Barb. (N. Y.) 650, Frank v. Batten, 49 Hun, 91, 1 N. Y. Supp. 705, and Bonesteel v. Flack, 41 Barb. (N. Y.) 435, are illustrations of the latter. Brackett v. Harvey, 91 N. Y. 214, a mortgage case, illustrates both. If the vendor parts with the possession to the vendee, and invests him with the right to sell as his own and treat the proceeds as his own, then the sale is absolute, and the title is in the vendee absolutely, as fraud is presumed, even if there be an agreement that title to the property shall remain in the vendor until the debt is paid. But if the agreement be that the vendee may sell, and that if he does he shall pay over the proceeds to the vendor to apply on the debt, then there is no fraud, and the vendor has the title. If a mortgage permits the mortgagor to sell and use the proceeds as his own, the transaction is presumed fraudulent, and the mortgage is void. If the mortgage permits the mortgagor to sell, and stipulates that the proceeds shall apply to the mortgage debt, the mortgage is valid. The normal and proper purpose in both cases is that the proceeds shall be applied in extinguishment of the debt."

The facts in this case bring it within the influence of the case last cited. The petition to review the order of the referee is denied, and his order denying each petition is confirmed.

HATTERS' FUR EXCHANGE v. UNITED STATES.

(Circuit Court, S. D. New York. November 12, 1909.)
No. 5,069.

CUSTOMS DUTIES (§ 38*)—"FURS, UNDRESSED"-CLIPPINGS-WASTE.

Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 561, 30 Stat. 198 (U. S. Comp. St. 1901, p. 1683), providing for "furs, undressed," includes undressed clippings and detached portions of fur, used for the same purpose as the skin from which derived; and such material is therefore removed from the provision for "waste, not specially provided for," in section 1, Schedule N, par. 463, 30 Stat. 194 (U. S. Comp. St. 1901, p. 1679).

[Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 38.*
For other definitions, see Words and Phrases, vol. 4, p. 3009.]

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

Protest of the Hatters' Fur Exchange as to classification of certain so-called "undressed fur." Reversed in part.

B. A. Levett, for importers.

D. Frank Lloyd, Deputy Asst. Atty. Gen. (Charles Duane Baker, Sp. Atty., of counsel), for the United States.

MARTIN, District Judge. The only question presented in argument is as to the classification of that portion described in the protest as undressed fur, consisting of remnant pieces of rabbit skins. The question at issue is whether these remnant pieces of rabbit skins are to be treated as undressed fur, and therefore free of duty, under paragraph 561, Tariff Act 1897 (Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1683]), or as waste, under paragraph 463 of said act. It is contended on the part of the gov

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ernment that the case of United States v. Hatters' Fur Exchange (C. C.) 153 Fed. 595, T. D. 27,971, governs the case at bar and that the doctrine of stare decisis applies.

In the case at bar that portion of the importer's protest relating to combings, combings being principally of hair, is waived by the importer; hence we have a different case. The contention now involves only undressed clippings of rabbit skins and portions of the fur that have become detached from the pelt by reason of heating and by other means. No question is made but what the article in controversy is "undressed fur." The government contends, however, that its uses are the same as the combed hair in the case above cited and there held to be dutiable as waste. That contention amounts to this, namely, the reading into paragraph 561 the words "not used as waste." The language of that paragraph is made up of just two words, "furs, undressed." Is it to be construed the same as though it read "fur, undressed, not used as waste"? Whether used as waste or not, the evidence shows that it is used for the same purpose to which the skin as usually cut up is employed, and that it comes from the rabbit pelt, which of itself is treated as free under the tariff act.

The mere evidence of trimming and the pieces "falling onto the floor" does not, to my mind, take it out of the paragraph as undressed fur. I know of no theory of fairness or principle of protection that requires such a judicial construction of paragraph 561 as to read into it the words "not used as waste," and I know of no reason why the Board of Appraisers or the court should change such plain and simple provisions of the tariff law for the sole purpose of revenue. Neither do I think that the use to which this article may be put takes it out of the provisions of paragraph 561. There are no ambiguous expressions, no words of doubtful meaning, used in either of the paragraphs in question. The language in paragraph 463 is "waste, not specially provided for in this act," and needs no such construction as is contended for in this case to give that paragraph full effect.

If we apply to this case the doctrine applied by the Supreme Court in Chew Hing Lung v. Wise, 176 U. S. 156, 20 Sup. Ct. 320, 44 L. Ed. 412, viz., if the article in question is squarely covered by a paragraph of the free list, it is not to be taken out of that paragraph by a general provision like that of paragraph 463. The syllabus correctly states the decision in these words:

"The designation of an article eo nomine, either for duty or as exempt from duty, must prevail over words of a general description, which might otherwise include the article specially designated."

I think the undressed fur, as described by the evidence and covered by the protest now contended for, should be free, and to that extent the decision of the Board is reversed.