try was liquidated July 6, 1900. The liquidating clerk, by mistake, made the date of liquidation July 7, instead of July 6, 1900, the figure "" being in red ink. He then passed the entry back to the entry clerk, who discovered the error in the date and corrected it by drawing a line through the figure "y" and writing over it in black ink the figure "6." It was admitted by 'the importer that the change was not made with the intent to injure or benefit any one. The record of the liquidation of this entry, No. 17, in the entry clerk's office, shows that it was liquidated July 6, 1900. The evidence shows that the entry was placed upon the bulletin of liquidations, which is posted for the inspection of importers; and it is stipulated between the parties that the bulletin sheet of July 6, 1900, shows this entry to have been posted as liquidated July 6, 1900. The importer also received notice dated July 6, 1900, from the entry clerk, advising it of the liquidation of this entry; and the memorandum on the back of this notice setting forth the data from which to prepare a protest was admitted to be in the handwriting of Mr. Hollman, acting for and on behalf of the importer. The protest was presented to the surveyor of customs on the 17th of July, 1900, who declined to receive it on the ground that it was not presented in time. It was then presented to the Board of United States General Appraisers, who, after hearing, on the 17th of October, 1905, sustained the decision of the surveyor. An application was then made, within the time allowed by law, to the Circuit Court for the Eastern district of Missouri, for a review of the questions of law and fact involved in the decision; and upon consideration of the evidence taken by the Board of General Appraisers, together with some additional evidence. taken pursuant to an order of court, the Circuit Court entered the order here complained of.

Two questions are presented by this record: First, was the protest presented in time; and, second, if so, was the merchandise properly assessed at 60 per cent. ad valorem, as jewelry, under paragraph 434 of the act of 1897?

Section 14 of an act of Congress (Act June 10, 1890, 26 Stat. 137, c. 407 [U. S. Comp. St. 1901, p. 1933]), entitled "An act to simplify the laws in relation to the collection of revenue," approved June 10, 1890), so far as it becomes necessary for the determination of the question first suggested, is as follows:

"That the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, including all dutiable costs and charges, and as to all fees and exactions of whatever character (except duties on tonnage), shall be final and conclusive against all persons interested therein unless the owner, importer, consignee, or agent of such merchandise, or the person paying such fees, charges, and exactions other than duties, shall, within ten days after 'but not before' such ascertainment and liquidation of duties, as well in cases of merchandise entered in bond as for consumption, or within ten days after the payment of such fees, charges, and exactions, if dissatisfied with such decision give notice in writing to the collector, setting forth therein distinctly and specifically, and in respect to each entry or payment, the reasons for his objections thereto, and if the merchandise is entered for consumption shall pay the full amount of the duties and charges ascertained to be due thereon."

We think the provision of the statute above quoted fixes definitely the time within which the protest must be filed, and that the 10 days

* * *

begins to run from the date of final liquidation. Prior to this act of 1890, a protest could be filed at any time after entry and duties estimated thereon; the final liquidation being regarded only as fixing the limit beyond which notice could not be given. Davies v. Miller, 130 U. S. 284, 9 Sup. Ct. 560, 32 L. Ed. 932. The case of Davies v. Miller was decided in 1889, and the statute in force at that time provided that the decision of the collector should be final unless the owner, importer, agent, or consignee of the merchandise-"shall within ten days after the ascertainment and liquidation of duties give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein distinctly and specifically the grounds of his objection thereto." This provision, as already suggested, the Supreme Court held, only fixed the limit beyond which notice could not be given; and it was doubtless for the very purpose of avoiding the inconvenience arising from this practice that in the act of 1890 the words "but not before" were inserted in section 14, thus confining the time of the protest to within 10 days from final liquidation and to prevent it from being filed either before the final ascertainment or after the expiration of the 10 days from such final ascertainment. In re Guggenheim Smelting Company, 112 Fed. 517, 50 C. C. A. 374; In re Bailey et al., 112 Fed. (C. C.) 413.

It is admitted that this entry, No. 17, was as a matter of fact liquidated on the 6th of July, 1900, but it is insisted that, because the liquidating clerk by inadvertence indorsed upon the entry in red ink the words "liquidated July 7th, 1900," the time for filing the protest began to run from that date. While it is true that Mr. Hollman, representing the appellee, stated in his affidavit that he obtained possession of entry No. 17 in order to get the details of the assessment for the purpose of filing protest if necessary, and that he did not observe any date other than the date of July 7, 1900, as indicating the date of liquidation; yet in our judgment the fact, if it was a fact, that the correction of the date on the entry had not been made until after Mr. Hollman's examination, which he states in his affidavit was made July 7, 1900, would not have the effect to extend the time, for the importer was not bound to take notice of the notations made by the liquidating clerk on the entry, but was bound to take notice of the liquidation bulletin sheet posted for inspection by importers and the notice sent to the importer by the entry clerk. Article 1417 and article 1460, Customs Regulations 1899. It is admitted that both the notice sent to the importer and the liquidation bulletin sheet in relation to this entry were dated July 6, 1900, and that the liquidation bulletin sheet shows the entry in question to have been posted as liquidated on July 6, 1900. We think, too, that the record clearly shows that the correction of the date on the entry itself was made on July 6, 1900, the date of liquidation, and the fact that Mr. Hollman did not see it was due to some oversight on his part. Mr. Johnson, the entry clerk, testified that entries were recorded the day they were received in a record book called "Record of Liquidations," and that this entry, No. 17, appeared upon that book as liquidated July 6, 1900, and that no change or correction in relation to this entry was made upon the record. Hence the correction of the date upon the entry, it is reasonable to presume, was

made before the entry was recorded. It follows from what has been said that the decision of the Board of General Appraisers was right, and should have been affirmed.

The conclusion reached upon the first question presented by the record renders it unnecessary to consider the second question.

The order of the Circuit Court is reversed, with directions to affirm the decision of the Board of United States General Appraisers.

(156 Fed. 100.)

STAIR V. KANE.

(Circuit Court of Appeals, Sixth Circuit. October 17, 1907.)

No. 1,656.

1. NEGLIGENCE-ACTION FOR NEGLIGENCE-QUESTION For Jury.

The petition, in an action against the lessee of a theater for a personal injury, alleged that among the appliances of the theater of which de fendant had control was a fire extinguisher, which was kept on the sill of an open window at the side of the stairway leading to the gallery of the theater, that it was unsecured, and was in a place where men and boys in crowding down the stairway, as was usual at the close of a performance, were likely to knock it out of the window, as they in fact did, and that it fell and injured plaintiff, who was on the walk below. There was evidence tending to support such allegations. Held, that the petition and evidence made a case of negligence which was properly submitted to the jury.

The accident itself in such case may be regarded, in the absence of explanation, as proof of the negligence charged.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 218, 271.]

3. EVIDENCE-RELEVANCY-SIMILAR TRANSACTIONS.

In such action, evidence was admissible to show that the descending crowd had several times previously dislodged the fire extinguisher from its place in the window, and that such fact was known to defendant, as material in determining whether or not the fire extinguisher was in an unsafe and dangerous place, and whether defendant was negligent in placing and permitting it to remain there on the occasion in issue.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 406-413.]

In Error to the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio.

Wm. B. Beebe and A. W. Lamson, for plaintiff in error.

R. B. Newcomb, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS, Circuit Judge. This was a suit brought by a minor, through his mother, for personal injuries against the lessee of the Cleveland Theater, in Cleveland, Ohio. The young man, Kane, had attended a night performance, and as he was leaving the theater he was struck on the sidewalk in front by a fire extinguisher, which, during the performance, and for some time before, had been standing in the window on the third or gallery floor, next the stairs down which

the occupants of the gallery passed to reach the street. The case went to the jury, and there was a verdict for the plaintiff.

It was the contention of the plaintiff that the defendant owned and controlled the fire extinguisher, that he negligently and carelessly placed it in the window unfastened and unsecured, and as a result it fell from the building and injured the plaintiff. In other words, the contention was that the fire extinguisher was unfastened and unsecured, and occupied a dangerous position, and that, although no one saw it fall, the jury had a right, under the circumstances, to infer that it fell because of the negligence of the defendant in permitting it to remain where it was, when he might reasonably anticipate that the crowding and jostling of the young men and boys, just out from an entertainment and eager to reach the street, would, in their hurry, push it from the window onto the fire escape and permit it to fall down upon the people leaving the theater below.

There are really but two questions presented: First, whether the petition stated a case of negligence which was supported by sufficient evidence to sustain the verdict; and, second, whether the court did right in permitting the introduction of evidence tending to show that the fire extinguisher was so placed in the window, unfastened and unsecured, and next the stairs which descended from the gallery towards the street, that on several occasions it was struck by the jostling crowd and fell over in the direction of the fire escape, being caught and held by an employé then on duty. There are some other questions relating to charges given or refused, but they all really depend upon the disposition of those that we have indicated.

1. As to the petition and the evidence in its support, we entertain. no doubt that a case of negligence was stated by the plaintiff, and that the evidence was sufficient to warrant the court in leaving to the jury the determination whether the defendant was or was not guilty as charged. The petition states that the defendant had charge and control of the fire extinguisher which fell and injured the plaintiff; that the defendant negligently placed it in a window next the stairs which descended from the gallery, not safely or properly fastened or secured, and as a result it fell from the window over the fire escape and down on to the street, where it struck and injured the plaintiff, who was just leaving the theater. We think this states a case in favor of the young man against the lessee of the theater. The latter was compelled by law to provide a fire extinguisher, but it was his duty to put it in a secure place, where it would not be liable to fall out the theater and injure a patron or passer-by. This obligation accompanied the duty. The petition charges the violation of the obligation to place the fire extinguisher in a secure place. He was negligent in placing it. where the ordinary movement of a gallery crowd (of which he was advised) might jostle it loose and let it fall on to the sidewalk. The accident itself might be regarded, in the absence of explanation, as proof of the negligence charged. Scott v. London Dock Co., 3 H. & C., 596; Cinti., etc., Ry. Co. v. South Fork Coal Co., 139 Fed. 528, 71 C. C. A. 316, 1 L. R. A. (N. S.) 533; Traction Co. v. Holzenkamp, 74 Ohio St., 379, 78 N. E. 529.

2. The ruling on the introduction of certain evidence arose during the testimony of Gross and Grussey, employés of the defendant not a great while before the accident. Gross was a special police officer and watchman in charge of the gallery from October 1, 1904, until February, 1905. He noticed the fire extinguisher standing in the window. next the stairway where the crowd descended from the gallery. Asked to state what he noticed, if anything, with reference to the fire extinguisher when the crowd would be going down stairs, he said, after objection: "The crowd would rush for the stairs. They would jam up against the window, and, when the window was open, there was twice that the fire extinguisher fell out, and I grabbed it."

At another place, Gross, in answering as to how the crowd came to knock the fire extinguisher out of the window, said:

"It started to fall, and I grabbed it as it went out, because the crowd came rushing like a lot of cattle. The small boys especially would fall into the sill of the window as they went down those stairs."

Grussey was ticket taker in the gallery and night watchman until August, 1905. Answering the question: "I wish you would state what you noticed when the crowd was rushing out with reference to the fire extinguisher in the window," Grussey said: "I have noticed the crowd bumped up against it and throwed it down several times." Grussey testified that he reported the knocking of the fire extinguisher out of the window to the manager of the theater, and wanted to put up some slats there to keep the crowd from brushing up against the window. Cookson, the manager, said this could not be done; no slats could be put up there.

As stated, the testimony of Gross and Grussey was admitted subject to exception, and its use was carefully limited in the charge; the court saying:

"I am requested, gentlemen, to charge that it is only the negligence of the defendant on the night in question which is to be considered by you as determining its liability in this case, and not its negligence at some other time. Evidence of what had occurred with respect to this fire extinguisher prior to the night when the accident occurred was only admitted in evidence for the purpose of showing that the fire extinguisher would fall over, and that the defendant was notified of the fact that it would so fall over or out as claimed by the plaintiff. Only for that purpose are you to consider the testimony of anything that happened in respect to the falling over of the fire extinguisher prior to that night."

In other words, the evidence was not used to show negligence on the part of the lessee on former occasions, but tended to show the usual conduct of the crowd in descending or "piling down" from the gallery; and, in view of such anticipated conduct, the fire extinguisher, in being placed unfastened in the window next to the descending crowd, was being left in an unsecure, dangerous, and negligent position. The fact that the descending crowd had several times dislodged it from its place in the window, and this was known to the lessee, was material in determining whether the fire extinguisher was or was not in an unsafe and dangerous place, and the lessee negligent in placing and leaving it there. We think the testimony was properly admitted, and we find no error in the action of the court below which would warrant a reversal. The judgment is affirmed.