It will be noticed that there are payments amounting to $811.36. Goods sold from February 14, 1901, to June 29, 1901, inclusive, total the same amount.

The question certified is whether or not Joseph Wild & Co., the claimants, can prove the balance of their claim, to wit $2,565,92, without surrendering the sum of $634.78, received by them on October 10, 1901, which is said to be preferential. The bankrupts were insolvent from January 1, 1901, but the first goods were delivered by the plaintiffs to them on February 14, 1901. The account was open long prior to four months preceding the filing of the petition in bankruptcy, and had been running from February 14, 1901, down to October 8, 1901, when the last delivery of merchandise to the bankrupts took place. Two days later, October 10, 1901, the sum of $634.78 was paid to the plaintiffs. This was the last transaction between them, and within four months of the time of the presentation of the petition in bankruptcy. There were no subsequent credits. It was simply a payment on account of a former indebtedness, and it is ruled by In re Colton Export & Import Co., 10 Am. Bankr. Rep. 14, 121 Fed. 663, 57 C. C. A. 417. The cases of Jaquith v. Alden, 118 Fed. 270, 55 C. C. A. 364 (same case decided by the Supreme Court of the United States, and reported in 9 Am. Bankr. Rep. 773, 23 Sup. Ct. 649, 47 L. Ed. 717), and Yaple v. Dahl-Millikan Grocery Co., by the same court, reported in 11 Am. Bankr. Rep. 596, 24 Sup. Ct. 552, 48 L. Ed. 776, rule that where a debt. for goods sold to the bankrupt upon a running account was all incurred within four months prior to filing a petition in bankruptcy, and while the alleged bankrupt was insolvent, of which fact the creditor was ignorant, payment on account did not constitute preferential transfers, under section 60a of the bankrupt act of July 1, 1898 (chapter 541, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3445]), which must be surrendered, under section 57g, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], before the creditor can prove his claim, although the greater part thereof was for goods sold before the last payment was made. In the Jaquith v. Alden Case the last transaction was a purchase of goods by the bankrupts. We therefore hold that an increase of the bankrupt's estate, as a net result of the transactions between the bankrupt and a creditor within four months prior to filing the petition in bankruptcy, where the last transaction was a payment on account of the indebtedness, is not sufficient to relieve the creditor from surrendering this last payment as preferential before he is permitted to prove the balance of his claim against the bankrupt's estate, when the account runs far back beyond the four months before the petition is presented, and the transactions between them end with a large payment on account of the whole indebtedness. Under such circumstances, it is a preferential claim, and must be surrendered before the balance of the account of the creditor can be proven. Kimball v. Rosenham Co., 114 Fed. 85, 52 C. C. A. 33; In re Sagor Bros., 9 Am. Bankr. Rep. 361, 121 Fed. 658, 57 C. C. A. 412. Where in a running account payment by the bankrupt within the four months has induced new credits, which resulted in a net increase to the estate, the creditor may be said to have once surrendered his preference by the giving of the subsequent credit;

but where, as in this case, the bankrupt, beginning far beyond the fourmonth limit, makes a number of purchases, and then finally, within the four months makes a large payment on account, the creditor has been preferred. To hold otherwise would clearly give him a greater percentage of his debt than would be given to others of the same class. Any other creditor in this estate who might have from time to time sold goods to the bankrupt beginning subsequent to January 1, 1901 (date of insolvency), down to a time within the four months, without receiving payments on account, would certainly be in the same class with the claimant here, and would receive a less per cent., if claimant be not required to surrender the alleged preference.

The order of the referee directing the trustee to pay to Joseph Wild & Co. a dividend on $2,565.92 of the same percentage as other creditors of the same class, without surrendering the said preferential payment of $634.78, is reversed.

EIMER & AMEND v. UNITED STATES.

(Circuit Court, S. D. New York.

January 27, 1906.)

No. 3,937.

CUSTOMS DUTIES TREASURY REGULATIONS-SCIENTIFIC APPARATUS. Certain scientific apparatus, etc., imported for educational institutions. was claimed to be subject to paragraph 638, Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 200 [U. S. Comp. St. 1901, p. 1686], exempting such articles from duty when imported in compliance with regulations of the Secretary of the Treasury; but the importers had not filed a certificate of delivery to the institutions within 90 days after entry, as required by such regulations. Held, that that requirement is a reasonable one, and that the collector, in default of a compliance therewith, properly exacted duty on the apparatus.

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

The decisions in question relate to importations by Eimer & Amend at the port of New York, consisting of importations of scientific apparatus, etc., which the importers contended was subject to paragraph 638, Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 200 (U. S. Comp. St. 1901 p. 1686), admitting such apparatus free of duty when imported for educational institutions, on compliance with regulations prescribed by the Secretary of the Treasury. The Board of General Appraisers affirmed the action of the collector in denying free entry, on the ground that the following regulations were not complied with: Within 90 days after the date of the entry, and before liquidation thereof free of duty, there shall be filed with the collector a certificate, signed by an authorized officer of the society or institution, that the articles named in the order for "special importation" have been delivered to said society or institution, and are to be retained as its permanent property, and that said articles were not delivered out of the stock on hand of any dealer or agent. * * On the filing of the above certificate, and not before, the collector may order the liquidation of the entry free of duty. In case of failure to file the said certificate, the entry will be liquidated for duty, and the duty will be collected.

Walden & Webster (Howard T. Walden, of counsel), for the importers.

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

HAZEL, District Judge. The merchandise, consisting of philosophical and scientific apparatus, utensils, instruments and preparations, was entered free of duty by the importers, but the appraisers returned the same as "manufactures of glass and metal, glass chief value, 45 per cent.," "mf. of metal, 45 per cent.," and as "blown glassware, 60 per cent." The said apparatus, described on the invoices Nos. 2,183, 2,188, and 2,189, were imported for the use of the University of Wisconsin and the Worcester Polytechnic Institute. The oaths of an authorized executive officer of each institution and of the importers, as required by the treasury regulations, were duly and seasonably filed. But the importers failed to conform with the treasury regulations (T. D. 24,616, art. 9), which require the filing of a certificate by an officer mentioned in the regulation within 90 days after entry, and before liquidation thereof free of duty, stating that the importation has been delivered to such institution, "and are to be retained as its permanent property, and that said articles were not delivered out of the stock on hand of any dealer or agent." Certificates conforming to the requirement, instead of being delivered to the collector, were delivered to the Board of General Appraisers at the hearing, more than a year after the liquidation. On account of the importer's failure to comply with the treasury regulation, the collector charged a duty upon the articles at 45 per cent. ad valorem, under paragraphs 112 (Act July 24, 1897, c. 11. § 1, Schedule B, 30 Stat. 158 [U. S. Comp. St. 1901, p. 1635]), and 193 (section 1, Schedule C, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645]), and 60 per cent. ad valorem under paragraph 100 (section 1, Schedule B, 30 Stat. 157 [U. S. Comp. St. 1901, p. 1633]), and 25 per cent. ad valorem under paragraph 3 of the act of July 24, 1897, c. 11, § 1, Schedule A, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1627]. The board held that compliance with such regulations as the Secretary of the Treasury had prescribed for the administration of paragraph 638 was a condition precedent to the right of free entry. From that determination the importers have appealed to this court. Their position is that the regulations mentioned are simply for the guidance of the collector; that they are not binding on the court, and, the protest being meritorious, the rule of liberal construction should prevail. That the regulations were inconsistent with law or unreasonable is not claimed. In Eimer v. United States (C. C.) 87 Fed. 202, Judge Townsend held that a regulation prescribed by the Secretary of the Treasury under the tariff act of 1894, which required the filing of an affidavit before the arrival of the articles, was reasonable, and failure to conform to such treasury rule justified the collector in requiring payment of the prescribed duty. The case of Hensel v. United States (C. C.) 72 Fed. 52, cited by the importers, is not analogous to the situation presented here. There no particular time was prescribed for filing the certificate. Upon the authority of the Eimer Case, the action of the Board of General Appraisers is affirmed.

146 F.-10

CASSEL v. UNITED STATES.

(Circuit Court, S. D. New York. January 30, 1906.)

No. 3,969.

1. CUSTOMS DUTIES-FINALITY OF LIQUIDATION "ENTRY."

In construing Act June 22, 1874, c. 391, § 21, 18 Stat. 190 [U. S. Comp. St. 1901, p. 1986], which provides that the "settlement of duties shall. after the expiration of one year from the time of entry, * * be final and conclusive," held, that the "entry" referred to does not mean the entire transaction leading up to the liquidation, but the act of the importer in presenting to the collector the document known as an "entry.” 2. SAME RELIQUIDATION-PENDENCY OF PROTEST.

Act June 22, 1874, c. 391, § 21, 18 Stat. 190 [U. S. Comp. St. 1901, p. 1986], provides that, in the absence of protest, an entry may not be reliquidated more than one year after entry. Held, that the presence of a protest relating to a portion of an importation does not give the collector the right to reliquidate as to another portion to which the protest does not relate.

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

The decision below is reported as G. A. 5,962 (T. D. 26,147), and affirmed the assessment of duty by the collector of customs at the port of New York on merchandise imported by F. C. Cassel.

Comstock & Washburn (Albert H. Washburn, of counsel), for the importer.

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

HAZEL, District Judge. This appeal from the decision of the Board of General Appraisers is sought to be sustained on the ground that the increased duty assessed by the collector upon the merchandise specified in the protest was owing to a reliquidated entry made more than one year after the original entry. Section 21 of the act of June 22, 1874, c. 391, 18 Stat. 190 [U. S. Comp. St. 1901, p. 1986], provides:

"That whenever any goods, wares, and merchandise shall have been entered and passed free of duty and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall have been delivered to the owner, importer, agent or consignee, such entry and passage free of duty and such settlement of duties shall, after the expiration of one year from the time of entry in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties."

The principal contention seemingly arises over the question whether certain protests filed with the collector by the importer were lodged against the merchandise upon which there was a reliquidation. On October 24, 1903, the importer protested against the reliquidation, on the ground that the entry was more than one year old and had previously been liquidated and the duties paid, and the merchandise delivered to the importer. There were two protests filed challenging the original liquidation, which were not sent to the Board of General Appraisers, nor were they acted upon by the collector until later. On

October 14, 1903, the collector sustained the first protest and reliquidated the entry on the other, which specified articles consisting of toys. Instead of reducing the duties upon the latter, against which there was no protest, the reliquidation increased them.

It is now contended by the government, as I understand the point, that, as a protest had previously been filed to the liquidation of some of the goods, the collector acted within his right in reliquidating the entry as to the other goods entered, even though more than a year had elapsed from the time of entry. The Board, in construing section 21 of the act of 1874, held that the word "entry" related to the various transactions leading up to the liquidation; that "the entire transaction by which the importer obtains entrance of his goods into the body of the merchandise of the United States" must be given effect. This interpretation of the word "entry," however, is not in harmony with the decisions construing that term. It is practically admitted by counsel for the government that the legal conclusions of the Board are erroneous. The government contends that the year within which the collector can, under the statute, reliquidate the entry, begins at the time the importer presents the entry to the collector, and not from the original liquidation of the duty. This view, apparently, finds support in the following cases: United States v. Frazer, 10 Ben. 347, Fed. Cas. No. 15,161; United States v. Seidenberg (C. C.) 17 Fed. 227; United States v. Legg, 105 Fed. 930, 45 C. C. A. 134; Mosle v. Bidwell (C. C.) 119 Fed. 480; United States v. Leng (D. C.) 18 Fed. 15; Beard v. Porter, 124 U. S. 437, 8 Sup. Ct. 556, 31 L. Ed. 492; Gandolfi v. United States, 74 Fed. 549, 20 C. C. A. 652. These adjudications firmly settle the point under consideration, namely, that the usual meaning attached to the word "entries" has reference to the documents to which the statutes in pari materia refer, and which they designate as entries. United States v. Legg, supra. Coming now again to the question of the original protests which were filed by the importer, the position of the government is that, as final action had not been taken thereon, they were still effectual for the purpose of reliquidation, although more than one year had elapsed since making the entry. The importer insists that none of the protests mentioned were directed to the items specified as "artificial fruits," and yet the collector singled out such items and assessed them at a higher rate of duty, although there was no dissatisfaction with the original liquidation. The original protests are not included in the record, and therefore I accept the facts as contended by the importer. The collector, in my opinion, was not justified in reliquidating the particular entry in question. In other words, the filing of a protest which has remained unacted upon by the collector for more than one year does not authorize a readjustment of the duties in the absence of fraud, where there has been a liquidation upon some of the merchandise not covered by the protest, though included in the entry. As the protests that were pending at the time of the reliquidation did not cover the merchandise reliquidated, I am constrained to hold that such action by the collector was a violation of the statute and should be overruled.

The decision of the Board is reversed.