proceedings in bankruptcy a valid and subsisting lien, for it had been obtained more than four months prior to such proceedings. We do not think the lien thus obtained was lost by reducing the claim to a judgment. By the law of Oregon, the lien of an attachment upon personal property is enforced by a provision in the judgment entry directing the sale of the attached property. The judgment order so made does not create a new lien nor discharge the old. It directs only the enforcement of the lien. It is similar in its nature to a decree for the foreclosure of a mortgage. It sustains the attachment lien, and subjects the attached property to its satisfaction. Construing the language above quoted from section 67f, we think it refers solely to liens, and that it does not mean that all judgments rendered within four months prior to bankruptcy shall be null and void. The use of the words. "judgments *** or other liens" indicates that it was the purpose of the act to avoid liens only which were obtained by judicial proceedings within the prescribed time, and not to declare void judgments as such. This view is in harmony with other provisions of the bankruptcy law. Judgments rendered, even after bankruptcy, are sustained as determining the claim thereby adjudged. Section 63a. In brief, the intention. of the act was to set aside preference liens obtained by legal proceedings within four months prior to bankruptcy. The lien in the present case was "obtained" by the attachment. The bankruptcy law recognizes all valid liens that existed four months prior to bankruptcy proceedings. The attachment lien was not discharged nor was its nature altered by the judgment. It required no judgment or levy to make it good as a lien. It would have remained a valid lien if no judgment had been taken. No lien was "obtained" by the judgment, and none was lost thereby.

We are aware of decisions which are not in harmony with this view. In re Lesser (D. C.) 108 Fed. 201, Brown, district judge, held that the provisional lien acquired by an attachment more than four months prior to the filing of a voluntary petition in bankruptcy by the defendant is discharged where the judgment is not obtained until within four months prior to the filing of the petition. The court, in reaching this conclusion, was moved by the consideration that the attachment lien, under the laws of Connecticut, was but a provisional lien, only to be made effective through a judgment, levy, or demand, and by the opinion entertained by the court that all judgments obtained within the prescribed period were within the ban of the statute, and that unless a valid judgment could be rendered, and a valid levy could be made, no method remained to enforce the provisional lien. So, in Re Johnson (D. C.) 108 Fed. 373, Wheeler, district judge, held that the lien provided for under the statutes of Vermont does not become perfect as a charge upon the attached property until the recovery of the judgment and the taking in execution, and that, since the statute declares such judgment and levy void, a creditor, without them, has no perfect lien, and that the judgment and levy are wholly inoperative to perfect what was theretofore an imperfect lien. Lowell, district judge, however, in Re Blair (D. C.) 108 Fed. 529, held that by the statutes of Massachusetts an attachment creates a lien, and that the purpose of section 67f is to declare void only liens obtained by judgments, attach

ments, or other legal proceedings, within the prescribed period prior to bankruptcy. Said the court:

"Where, however, the lien is created by the attachment, the judgment and levy create no new or additional lien, but only enforce a lien already existing. Hence in this case the levy and execution did not affect the property attached with a lien avoided by the bankrupt act, but only enforced a lien already existing, which lien the bankrupt act expressly protected."

With these views, and with those of the court herein appealed from, we agree.

The judgment of the district court is affirmed.

(113 Fed. 892.)

TREAT, Internal Revenue Collector, v. TOLMAN.

(Circuit Court of Appeals, Second Circuit. February 28, 1902.)

No. 61.

1. Power of Attorney-Definition.

A power of attorney is an instrument by which the authority of an attorney in fact or private attorney is set forth.

2. WARRANT OF ATTORNEY-DEFINITION.

A warrant of attorney is an instrument authorizing an attorney at law to appear in behalf of its maker, or confess judgment against him. 3. INTERNAL REVENUE-STAMP TAX-WARRANT TO CONFESS JUDGMENT.

A provision in a note authorizing any attorney at law to appear in court on behalf of its maker and confess judgment against him is a warrant of attorney, and not a power of attorney, and is not within War Revenue Act June 13, 1898, requiring stamps on powers of attorney to sell or convey real estate and perform other acts.

In Error to the Circuit Court of the United States for the Southern District of New York.

This is an appeal from a judgment entered in favor of the plaintiff in a cause tried in the circuit court for the Southern district of New York (106 Fed. 679) upon an agreed state of facts, the substantial portions of which are as follows:

The defendant is the collector of internal revenue of the United States in this district. The plaintiff made loans of divers sums of money to various persons, from whom he received 1,025 instruments or memoranda in writing. commonly known as "judgment notes," of which the following is a copy in blank:

after date, for value received, I promise to pay, to the order of myself, dollars, at room A, St. Paul Building, 220 Broadway, with interest at 6 per cent. per annum after maturity. And to secure the payment of said amount I hereby authorize, irrevocably, any attorney of any court of record to appear for me in such court, in term time or vacation, or before any justice of the peace, at any time hereafter, and confess a judgment. without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with costs and ten dollars attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment; hereby ratifying and confirming all that my said attorney may do by virtue thereof.

The action is brought to recover the sum of $269.06, with interest from August 10, 1899, paid, as alleged, under protest, to the collector of internal

revenue by the plaintiff. It represents the value of $1,025 revenue stamps, of the denomination of 25 cents each, with interest, affixed to 1,025 instruments in writing, which the government contends contains, not only a promissory note, but a power of attorney. The plaintiff did affix a two cent stamp to each of the promissory notes, but failed to affix the 25 cent stamp to the remainder of the instrument in writing, which the government contends is a power of attorney, and therefore taxable. The demand for the payment of the sum now sought to be recovered was made by the collector of internal revenue for the Second district, under and pursuant to the provisions of the act of congress approved June 13, 1898, entitled "An act to provide ways and means to meet war expenditures and for other purposes." The specific portion of the act relied upon by the collector in exacting payment of the tax, and now relied upon by him in defending this suit for refund, is that portion of Schedule A which reads as follows: "Power of attorney to sell and convey real estate or to rent or lease the same, receive or collect rent, sell or transfer any stock, bonds, scrip, or for the collection of any dividends or interest thereon, or to perform any and all other acts not hereinabove specified, twenty-five cents: provided, that no stamps shall be required upon any papers necessary to be used for the collection of claims from the United States, for pensions, back pay bounty, or for property lost in the military or naval service." The government contended that under the provision, "or to perform any and all other acts not hereinabove specified," the defendant was justified in exacting the payment of said 25-cent stamp tax. The court held that said instrument comprised a promissory note, and a separable clause providing for the entry of judgment on said note in case of nonpayment, and that the latter was not a power of attorney, within the meaning of said section, but was rather what is known as a "warrant of attorney."

Arthur M. King, for plaintiff in error.

Before WALLACE, Circuit Judge, and TOWNSEND, District Judge.

TOWNSEND, District Judge (after stating the facts). The legislative intent, as disclosed by the special provisions of said schedule, appears to have been to tax those instruments by which one individual authorizes another to act on his behalf, either at meetings of corporations, or in the transaction of certain classes of business relating to real estate or corporate securities, or claims against the United States not enumerated in said proviso. The general clause, "or to perform any or all other acts not hereinabove specified," should, therefore, be interpreted, under the doctrine of noscitur a sociis, to refer to other classes of business of the same general character as those specifically enumerated. All of the acts within the scope of this classification are such as may be performed by any layman as an attorney in fact. The acts authorized under the instrument in question are confined to the exercise by an attorney at law of a court of record of his duties as an officer of the court in the proceedings taken in such court by virtue of his retainer. Such an instrument has always been recognized as a warrant of attorney, or evidence of authority to such attorney to represent the party as such officer of court in such a proceeding. The distinction between powers of attorney and warrants of attorney is clearly set forth in text-books and the decisions of the courts. A power of attorney is an instrument by which the authority of an attorney in fact or private attorney is set forth. By attorney in fact is meant one who is given authority by his principal to do a particular act not of a legal character. A warrant of attorney is an instrument authorizing an at

torney at law to appear in an action on behalf of the maker or to confess judgment against him. An attorney at law is employed to appear for parties to actions or other judicial proceedings, and is an officer of the court. And. Law Diet. pp. 92-94; 18 Am. & Eng. Enc. Law, p. 871; 28 Am. & Eng. Enc. Law, p. 685; Hunt v. Rousmanier, 8 Wheat. 174, 5 L. Ed. 589. It would seem that congress could not have intended by such general words to impose a tax upon this class of official acts done in the course of judicial proceedings. Such a tax, for the purpose of revenue, should not be extended by general or ambiguous words to embrace transactions without its expressed scope. Boyd v. Hood, 57 Pa. 98; Smith v. Waters, 25 Ind. 397.

This conclusion is strengthened by the fact that no case has been cited in which such warrants have been taxed. The provisions of the section in question accord with the provisions of preceding acts of a similar character.

The original federa! internal revenue act, in enumerating the instruments required to be stamped, says:

any

"Any bonds, bills single or penal, foreign or inland bills of exchange, promissory note, or other note for the security of money, letter of attorney, except for invalid pensions, or to obtain or sell warrants, for land granted by the United States as bounty for military services performed in the late war." 5th Cong. Sess. July 6, 1797. c. 11, § 1 (1 Stat. 527). The question as to the scope of this act was raised in Davis v. Ostrander, 1 Johns. Cas. 106. The court there decided that an arbitration bond was not within the provisions of said act.

case reads as follows:

A note to this

"On application of the clerk for the direction of the court, on the question whether powers of attorney in suits pending in court ought to be received without being stamped, the court said that such powers need not be stamped. and that the above-mentioned act applied to general letters of attorney only.”

The clause in question, then, embodies a warrant of attorney, or evidence to the court of a retainer whereby a party to a pending cause has substituted an officer of court as his representative before the court in said cause. Such a warrant does not constitute said officer of court an agent or attorney in fact to carry on business, and is not within the provisions of this statute which authorizes the taxation of powers of attorney.

The decision is affirmed.

(113 Fed. 894.)

BRADFORD GLYCERINE CO. v. KIZER.

(Circuit Court of Appeals, Sixth Circuit. February 12, 1902.)

No. 1,024.

1. EVIDENCE-OPINION-QUALIFICATION OF EXPERT.

A professor of chemistry, otherwise qualified as an expert, is not disqualified from giving his opinion as to the cause of an explosion of nitroglycerine, in answer to a hypothetical question, by the fact that he has had no practical experience in its manufacture.

2. SAME-SUBJECTS OF EXPERT TESTIMONY-MATTERS IN ISSUE.

Whether a defendant was guilty of contributory negligence, under the facts shown by the evidence, is a question for the jury, and a witness

cannot properly be permitted to express his opinion thereon in answer to a hypothetical question.

3. SAME-COMPETENCY OF EXPERT-DISCRETION OF COURT.

Whether a witness is qualified to testify to a matter of opinion is a preliminary question, the determination of which rests largely in the discretion of the trial judge, and his decision is conclusive, unless clearly shown to be erroneous in matter of law.

4. APPEAL-REVIEW-EXCEPTIONS.

A charge to which no exception was taken at the time cannot be reviewed on a writ of error.

5. MASTER AND SERVANT-ACTION FOR INJURY TO SERVANT-FACTS RAISING PRESUMPTION OF NEGLIGENCE.

Where, in an action by a servant against the master to recover for an injury caused by an explosion of nitroglycerine, manufactured by defendant, it was an undisputed fact that the nitroglycerine exploded spontaneously, and there was evidence tending to show that if pure and properly made it would not so explode, but that it would if impure, it was not error to charge that, if the jury found such to be the fact, then a presumption of impurity arose from the fact of the explosion.

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

The defendant in error, plaintiff below, hereafter called the plaintiff, brought this action against the plaintiff in error, defendant below, hereafter called the defendant, to recover damages sustained on account of an accident caused by the explosion of nitroglycerine. The defendant was engaged in manufacturing and exploding nitroglycerine in oil and gas wells. The plaintiff, for some time before and at the time of the accident, was at work for the defendant as an oil-well shooter. It was his duty to haul the nitroglycerine from the magazine of the defendant, where it was stored, to oil and gas wells, place it in tin shells, lower it to the bottom of the well, and there explode it by dropping a heavy weight upon it. It is necessary that such nitroglycerine should be properly manufactured, and the materials composing it should be in proper proportions, and the nitroglycerine thoroughly washed in order to prevent spontaneous combustion. The plaintiff, at the time of the accident, had removed from the wagon in which he had brought it to the well the nitroglycerine, which was contained in cans. He had put a part of it into the tin shells, which he had lowered into the well, and the cans from which this nitroglycerine had been taken were returned to the wagon. While preparing to uncork another can in the derrick he heard a hissing sound in the wagon, and, glancing up, saw a blaze coming from one of the empty cans, and ran out of the derrick just as an explosion took place, which threw him down, injuring him about the head and body, where he was struck by pieces from the exploding cans. The negligence averred is furnishing nitroglycerine which had been improperly manufactured by the defendant, and was therefore likely to explode when handled in the usual way. The defendant claimed that the plaintiff was guilty of contributory negligence in using leaky cans and allowing his wagon to become saturated with the fluid. There was evidence that impure nitroglycerine would explode spontaneously, but that pure nitroglycerine would not so explode, and four witnesses were asked the following question by plaintiff's counsel: "Supposing a nitroglycerine shooter had brought in his wagon to an oil well a number of cans of nitroglycerine, and after having emptied the nitroglycerine therefrom in the month of August, and after said cans had been so opened and emptied, and were replaced in the wagon, and without coming in contact with any substance whatever, except the air, a blaze is generated, and appears upon and issuing from said cans, and the can explodes; to what, in your opinion, based upon your knowledge and experience, as above stated by you, would said blaze and explosion be attributed?” Allowing this question to be answered is alleged as error. The defendant placed a witness on the stand, and asked him whether, in his opinion, it was ordinary care and prudence in that business for a shooter, when the