liabilities to the amount of $6,791.97. None of the goods bought in July, as above, have been paid for. Between October 1st and November 3d the bankrupt made 33 different shipments of goods to persons in various places in New Hampshire, Massachusetts, and New York, and he has professed, during his examination in these proceedings in the December following, to be unable to remember to whom all these goods were sold, if sold as he claims, or to give any reasonable explanation as to what he has done with the money received for them. The trustee in bankruptcy, a member of the bar of this court, himself able to speak and understand the Yiddish language, which is that in which the bankrupt habitually talks, has testified that, while the bankrupt's examination was progressing, the bankrupt called upon him at his office in Boston, begged him to discontinue the examination, promised to "make things good" with the creditor whom he represented as counsel, and with him, if this could be done, and went on to state during the same conversation that about $1,500 worth of the goods referred to had been shipped to different personal friends, who had paid $700 or $800 on account, and were holding the remaining $700 or $800 for the bankrupt's benefit until the bankruptcy proceedings should be concluded. The bankrupt, according to the trustee's testimony, went on to give the names of the consignees and the amount of goods shipped to each, and stated that he had given these consignees receipted bills purporting to show, contrary to the facts, that they had paid in full for the goods and owed nothing on account of them; but, upon the trustee's refusal to accept a settlement in full for the creditor he represented to the exclusion of all other creditors, the bankrupt withdrew all the above statements, denied having made them, and declared that "as a matter of fact these people have paid me for the goods which I sent them, I have given them receipted bills, and they owe me nothing, and I have no property with them or elsewhere." A further statement, made by him during the conversation and testified to by the trustee, was that a former employé had threatened to make disclosures about these goods unless the bankrupt would pay him to hold his tongue.

The referee reports that he has no doubt that the bankrupt hoped, and was perfectly willing, to make arrangements with the trustee and with the creditor referred to in order to suppress the further prosecution of his examination. The referee reports that he has not the slightest doubt of the substantial accuracy of the trustee's testimony. If this is true, I am unable to see why the trustee's claim that the bankrupt is concealing money or property in these proceedings is not supported by a sufficiently clear preponderance of evidence. The purchases of goods on credit and their subsequent disappearance, or the disappearance of money received from them, if sold, within so short a time before the bankruptcy and while the bankrupt knew he was insolvent, together with the entire failure of the bankrupt to meet by reasonable and honest explanation the presumption against him which these facts create, would to my mind go very far, without more, to prove him guilty of concealment. If, under the pressure of an inquiry into these doings of his, he has also made admissions of the kind testified to by

the trustee, I am unable to believe that justice will be done if the case be treated as one wherein the power of the court to compel restitution of what is being dishonestly withheld from creditors cannot be exercised for want of sufficient evidence.

The order denying the trustee's petition is disapproved, and is to be vacated. On the case as now presented, the referee, in my judgment, should make such an order as has been requested by the trustee.

FIRST NAT. BANK OF MT. VERNON, WASH., v. NATIONAL PARK BANK OF NEW YORK.

(Circuit Court, S. D. New York. January 26, 1910.)

BANKS AND BANKING (§ 106*)-REPRESENTATION OF BANK BY OFFICERS-SPECIAL AUTHORITY TO DRAW CHECKS.

A resolution of the directors, authorizing the president of a bank to draw checks and drafts, containing no limitation on its face, held to justify the payment by a depository of funds of the bank of a check drawn by such president against such deposit.

[Ed. Note.-For other cases, see Banks and Banking, Dec. Dig. § 106.*] At Law. Action by the First National Bank of Mt. Vernon, Wash., against the National Park Bank of New York. On motion by defendant for direction of verdict. Motion granted.

Hardin & Hess, for plaintiff.
Louis F. Doyle, for defendant.

HAND, District Judge. The plaintiff pleads the deposit of the money; the defendant, that it paid the sum deposited on the plaintiff's order. Therefore the defendant has the burden. To support it the defendant relies upon the resolution which verbally meets the conditions. In reply the plaintiff insists, first, that the resolution means no more than that Lyon should have the power to sign a check in the execution of some power which he had virtute officii, or in the execution of a special authority; second, that the only power which he had virtute officii was to pay out deposits; third, that it was obvious, from the place where the draft was drawn, that it could not have been in execution of his only implied power. If any of these three links fails, the defendant must succeed.

While the cases are by no means uniform, there is some very respectable authority for the proposition that a bank president has at least an implied power to initiate litigation and employ counsel. If so, it needs no argument to show that this power might have been exercised in Oklahoma, and that the execution of the draft at that place was not notice of the fact that Lyon was acting without the scope of his authority.

I do not rest my decision upon this ground, because the resolution has a broader meaning than the plaintiff allows. His theory is that the power conferred must be interpreted as incidental only to the

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 175 F.-56

customary powers of the president or to powers specially bestowed. The trouble is that without the resolution the president had no powers involving the disbursements of the bank's moneys, unless it be the power to conduct litigation. There were, therefore, no implied powers to which the right to draw checks could have been incidental, and the resolution must either mean that he was to draw whenever specially authorized, or it must have been meant to confer the general power to draw funds, just as though an individual had appointed him an attorney in fact for that purpose.

There remains, therefore, the interpretation that the power was to be exercised only in execution of some special authority. This is equivalent to saying that it was subject to limitations which were not apparent upon the face. I can only say that, if it was, innocent persons were not responsible for the existence of the facts upon which the power depended. Commissioners of Knox County v. Aspinwall, 21 How. 539, 16 L. Ed. 208; Royal British Bank v. Tarquand, 6 E. & B. 327; Bird v. Daggett, 97 Mass. 494; North River Bank v. Aymar, 3 Hill (N. Y.) 262; Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 195, 12 N. E. 433, 60 Am. Rep. 440.

Here the act corresponded literally with the wording of the power, according to the rule of Lord Ellenborough in Pickering v. Busk, 15 East, 38; and, as the plaintiff gave no indication in the resolution of any limitations, it makes no difference whether or not the resolution be impliedly subject to any. If it was, third persons were not obliged to look aliunde. The case is, therefore, quite different from a customary power, like that of a cahier, which depends for its extent upon usage, and which is limited by its own previous exercise. Third persons may take the express words of any power in any reasonable sense they will bear; they will not be limited unless the parties clearly so meant. While, therefore, there is, of course, no theoretical distinction between express and implied powers, at least by the better theory, there is practically an important difference when the words used are of general application.

In corroboration of my conclusion, the other words of the resolution are worth notice. Lyon was authorized, not only to make all checks and drafts, but "all contracts." In answer to the contention, in that the resolution intended no more than to give Lyon a power to be exercised only when specially authorized, these words show that it could not have been so, because the president is in any case the proper person to sign contracts which are specially authorized. The resolution must have meant more than this; it must have meant to confer upon him some self-subsisting authority. I think it meant to give him general authority to sign contracts and checks. If so, he acted within the scope of his authority.

I direct a verdict for the defendant.

PALMER v. ROGINSKY et al.

(District Court, S. D. New York. January 12, 1910.)

BANKRUPTCY (§ 293*) - SUITS BY TRUSTEE-JURISDICTION OF BANKRUPTOY COURT.

Under Bankr. Act July 1, 1898, c. 541, § 23b, 30 Stat. 552 (U. S. Comp. St. 1901, p. 3431) as amended by Act Feb. 5, 1903, c. 487, § 8, 32 Stat. 798 (U. S. Comp. St. Supp. 1909, p. 1312), which vests courts of bankruptcy with jurisdiction of suits by a trustee only when brought for the recovery of property under certain provisions of the act, unless by consent of the defendant, such court is without jurisdiction of a suit brought under section 70e to set aside a transfer of property as fraudulent under the state law, unless the defendant consents.

[Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 293.*]

In Equity. Suit by Archibald Palmer, trustee in bankruptcy of Pincus Roginsky, against Abraham Roginsky and another. On motion for preliminary injunction. Denied.

H. & J. J. Lesser, for complainant.
Herman I. Lurie, for defendants.

HAND, District Judge. This case raises the question of the jurisdiction of this court, regardless of the defendant's consent, over a suit by a trustee in bankruptcy against a fraudulent transferee of property of the bankrupt, when the right depends upon the state law, and not the act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]). The amendments of 1903 (Act Feb. 5, 1903, c. 487, 32 Stat. 797 [U. S. Comp. St. Supp. 1909, p. 1308]), as they passed the House of Representatives, gave jurisdiction in the case of transfers fraudulent under either the act of Congress or the state law; but the Senate changed section 23b by striking out the jurisdiction in the cases under section 70e, which permits the trustee to recover property fraudulently conveyed under the state law.

Of course, I cannot say just what scruple induced the Senate to change the form of section 23b, nor is it in the least necessary that I should know, because I think that their intent was clear to limit the jurisdiction of this court to cases in which the right relied upon was the creation of the bankruptcy act. Were it not for the fact that the jurisdiction, which remained under section 70e if the defendant consented, cannot be conferred by consent if the Constitution did not authorize it, one might suppose that some constitutional question had arisen in the mind of Congress. In any case I am disposed to follow Gregory v. Atkinson (D. C.) 127 Fed, 183, Hull v. Burr, 153 Fed. 945, 83 C. C. A. 61, and Skewis v. Barthell (D. C.) 152 Fed. 534.

Hurley v. Devlin (D. C.) 148 Fed. 268, and the text of Remington on Bankruptcy, p. 1040, § 1689, a writer of the highest authority, take the opposite view. The argument made would have undoubtedly much force, were it not for the history of this bill. It is quite true that under the construction I have adopted the amendment of 1903 to section 70e really effects no change in the law, and this result violates For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

a well-known canon of construction. However, no one could say, if section 70e had remained unchanged, that the changes in 23b, particularly after the Senate struck out all reference to 70e, left unaffected the jurisdiction of this court by consent. Section 23b having been changed, and singularly changed from any point of view, it is not quite adequate to the facts to say that no change was necessary in section 70e. I think that some change was necessary to remove all ambiguity as to the jurisdiction by consent over cases arising under 70e, and I believe that this was the reason why the Senate allowed this section to be changed in form, though it remained in effect as before. Therefore I must deny this motion for an injunction pendente lite upon the theory that this court has no jurisdiction of the cause.

UNITED STATES v. C. D. JACKSON & CO. et al.

(Circuit Court, S. D. New York. November 13, 1909.)

Nos. 5,443-5,447.

CUSTOMS DUTIES (§ 25*) — CLASSIFICATION - HAUTEVILLE STONE "MARBle”— "LIMESTONE."

Hauteville stone, and various other stones of substantially the same character, which are susceptible of a high polish and are used as an interior decorative stone, are not the kind of limestone that is "marble," within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 114, 30 Stat. 158 (U. S. Comp. St. 1901, p. 1635), but are dutiable as "limestone," under paragraph 117, 30 Stat. 159 (U. S. Comp. St. 1901, p. 1636).

[Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 25.*

For other definitions, see Words and Phrases, vol. 5, p. 4366; vol. 5, p. 4166.]

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

These cases were also entitled in the names of Pisani Bros., Traitell Marble Company, A. E. Bockmann, and Robert Rossmann. The decision below is reported as G. A. 6,856 (T. D. 29,496), and reversed the assessment of duty by the collector of customs at the port of New York.

D. Frank Lloyd, Deputy Asst. Atty. Gen. (Charles D. Lawrence, Asst. Counsel, of counsel), for the United States.

Walden & Webster (Henry J. Webster, of counsel), for C. D. Jackson & Co.

Curie, Smith & Maxwell (W. Wickman Smith, of counsel), for Pisani Brothers.

Comstock & Washburn (Albert H. Washburn, of counsel), for Traitell Marble Company and A. E. Bockmann.

Hatch & Clute (Walter F. Welch, of counsel), for Robert Rossmann.

PLATT, District Judge. The importations herein are Hauteville stone, and various other stones, which are admitted to be of substantially the same character and consistency, and for tariff purposes must

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