In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. For opinion below, see 127 Fed. 374. Frank P. Prichard, for plaintiff in error. Before ACHESON, DALLAS, and GRAY, Circuit Judges. ACHESON, Circuit Judge. It is conceded, as it must be, that the decision of this court in the case of Supreme Council A. L. H. v. Black, 123 Fed. 650, 59 C. C. A. 414, is conclusive here against the plaintiff in error (the defendant below), unless the plaintiff in this action (Daix) had lost his right to treat the contract as rescinded by reason of his delay of two years and three months in giving notice of his election to rescind, or the limitation of one year prescribed by the sixty-eighth general by-law of the defendant corporation had barred his action. These two grounds of defense are now to be considered. 1. Aside from the mere delay in signifying his election to rescind, nothing whatever is shown from which a waiver by Daix can be inferred. He received no benefits from the corporation. He did no act in recognition of the validity of the by-law passed in August, 1900, to take effect October 1, 1900, whereby the corporation undertook to reduce the amount payable on the death of Daix from $5,000 to $2,000. If Daix, after the receipt of the notice of October 1, 1900, had paid the assessment based on the attempted reduction, he would have signified acquiescence in the by-law. He therefore refrained from paying that assessment. Then the corporation, at the expiration of 30 days after the date of the notice of October 1st, expelled Daix from the order. This action of the corporation is thus recited in the affidavit of defense: "By reason of the nonpayment of assessment number 39, which was called on October 1, 1900, the said plaintiff was suspended from the defendant order, and subsequently expelled, and therefore his benefit certificate became void, according to the laws of the said defendant." Thus the corporation undertook to extinguish the rights of Daix under his benefit certificate. Thereafter the corporation steadfastly. maintained the position that Daix's certificate was avoided and his rights lost. In this posture of affairs, upon what principle was Daix bound to give earlier notice to the corporation than he did of his election of remedies? We cannot see that he was under any obligation to move sooner in the assertion of his rights. He was not in the enjoyment of any of the fruits of the contract. Never having received anything of value from the corporation, he had no restitution to make. He did no act tending to mislead the corporation, nor any act indicating his intention to waive his right to treat the contract as rescinded. We do not perceive that the corporation suffered any legal or actual injury from the delay of the plaintiff in signifying his election to rescind. No such injury is alleged with sufficient precision in the affidavit of defense. The averments of the affidavit of defense in that particular were justly regarded by the court below as vague and insufficient. We cannot understand how the corporation could have been injured by the delay of which it now seeks to avail itself. The position of the parties in point of fact had not changed. The corporation had repudiated its contract with Daix, and therein persisted. In conducting its business after the passage of the by-law of August, 1900, it pursued the policy deliberately determined on when that by-law was adopted. It is not suggested in the affidavit of defense, nor is it to be believed, that the corporation would have changed its course of action, had it received earlier notice from Daix of his intention to treat the contract with him as rescinded, and to sue to recover back the assessments he had paid. 2. The general by-law upon which the corporation relies to bar this action is as follows: "(68) No action at law or in equity, in any court shall be brought or maintained, or any cause or claim arising out of any membership or benefit certificate, unless such action is brought within one year from the time when such action accrues. Such right of action shall accrue 90 days after all proofs called for, in case of death of a member, shall have been furnished. In all cases where no proof of death has been furnished by a beneficiary, as required within 12 months after such death, all claims that might have been made shall be regarded as abandoned, and no proof shall thereafter be received or any claim made thereon." It is as clear to us as it was to the court below that this by-law has no application to the present cause of action. It is one of a group of bylaws under the general head, "Death-Notice-Proofs, etc.," and relates evidently to the named subjects. The plaintiff in this action was not proceeding to enforce any cause or claim arising out of his membership or benefit certificate. His action was based upon a rescission of the contract, and was to recover back what he had paid thereon. We discover no error in this record, and accordingly the judgment is affirmed. DOWSE et al. v. HAMMOND. In re SWEETSER. Ex parte FLORENCE MACH. CO. No. 526. 1. BANKRUPTCY-PROVABLE DEBTS-TAKING NEW PROMISE FROM BANKRUPT EFFECT. Where, after a creditor had proved his debt in bankruptcy, evidenced by notes, he took from the bankrupt other notes for the same indebtedness without surrendering the original notes, he is not ordinarily presumed to have discharged the debt proved, nor to be precluded from maintaining his proof, while at the same time proceeding against the bankrupt personally on the new notes, so long as he has not received full satisfaction of his debt. 2. SAME-COSTS. Where issues in the bankruptcy proceeding arising out of the mixed condition of the claims were caused entirely by the methods of a creditor, the trustees should not be charged with the costs of a proceeding to determine such issues. Appeal from the District Court of the United States for the District of Massachusetts. For opinion below, see 128 Fed. 165. Warren Ozro Kyle (Fred Joy, on brief), for appellants. Before COLT and PUTNAM, Circuit Judges, and BROWN, District Judge. PER CURIAM. The essential facts in this case are clearly stated in the opinion of the learned judge of the District Court, and his conclusions, as well as the method of reasoning by which he reached them, are entirely satisfactory to us. They need to be supplemented on only a single point, being that to which relates the first of the rulings which, according to his opinion, he was requested to make. The record does not show that the notes made by the bankrupt and his wife, described in the ruling as given to the creditor in question before the proof referred to therein was made, were received in discharge of any existing notes. Inasmuch as the notes originally held by the creditor, in accordance with the practice under the then existing bankruptcy statutes, must have been produced when the proof was made, the presumption is that the creditor retained them undischarged, and received those signed by the bankrupt and his wife merely as collateral thereto. Under those circumstances, it is so clear that the refusal of the district judge to give the ruling was correct that we need not elaborate in reference thereto. The mixed condition in regard to the claims which are now in issue, which condition is fully explained in the opinion of the learned judge of the District Court, arose entirely from the methods of the creditor. Under the circumstances it was reasonably incumbent on the assignees, who are now the appellants, to bring the facts to the attention of the court-both to the District Court and to the appellate tribunal. In this respect this proceeding is quite analogous to those by trustees under a will, or other persons occupying trust relations, to obtain the instructions of the court with reference to any doubtful subject-matter coming within the scope of their duties; and they ought not to be charged with costs in favor of the creditor whose method of proceeding brought about the condition which requires investigation. Therefore we allow no costs on this appeal. The decree of the District Court is affirmed, and neither party will recover any costs on appeal. JAMES P. SMITH & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. March 11, 1904.) No. 161. 1. CUSTOMS DUTIES-CLASSIFICATION-FILLED BOTTLES. in Paragraph 258, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1650], relating to "anchovies bottles," and paragraph 276 of said act, 30 Stat. 172 [U. S. Comp. St. 1901, p. 1652], relating to extract of meat, and providing that "the dutiable weight of the fluid extract of meat shall not include the weight of the package in which the same is imported," are not to be construed as re moving bottles containing the merchandise enumerated in said paragraphs from the provision in paragraph 99 of said act (Schedule B, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1632]), for "bottles filled or un filled, not otherwise specially provided for, and whether their contents be dutiable or free." Appeal from the Circuit Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decision of the Circuit Court, Southern District of New York (124 Fed. 291), which affirmed a decision of the Board of General Appraisers sustaining the collector of the port of New York in his assessment of certain articles for duty purposes. F. W. Brooks, for appellant. Chas. F. Baker, for the United States. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. PER CURIAM. The articles in question are anchovies in glass bottles, and fluid extract of meat in glass bottles. No question is made as to the duty imposed on the anchovies and the extract of meat, but the importers protested against exaction of duty on the bottles. The importations are under the tariff act of 1897, and the relevant portions are: “99. Plain green or colored, molded or pressed, and flint, lime, or lead glass bottles, vials, jars, and covered or uncovered demijohns and carboys, any of the foregoing, filled or unfilled, not otherwise specially provided for, and whether their contents be dutiable or free (except such as contain merchandise subject to an ad valorem rate of duty, or to a rate of duty based in whole or in part upon the value thereof, which shall be dutiable at the rate applicable to their contents) shall pay duty as follows: If holding more than one pint," etc.: "provided, that none of the above articles shall pay a less rate of duty than forty per centum ad valorem." Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633]. "258. Fish known or labeled as anchovies, sardines, sprats, brislings, sardels, or sardellen, packed in oil or otherwise, in bottles, jars, tin boxes or cans, shall be dutiable as follows: When in packages containing seven and one-half cubic inches or less, one and one-half cents per bottle, jar, box or can; containing more than seven and one-half," etc., 44 if in other packages, forty per centum ad valorem. All other fish (except shell-fish), in tin packages, thirty per centum ad valorem," etc. Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 171 [U. S. Comp. St. 1901, p. 1650]. "276. * able weight of Fluid extract of meat, fifteen cents per pound, but the dutithe fluid extract of meat, shall not include the weight of the package in which the same is imported." Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 172 [U. S. Comp. St. 1901, p. 1652]. We are clearly of the opinion that there is nothing in paragraphs 258 and 276 to take the bottles containing the articles therein specified out of the operation of the comprehensive language of paragraph 99, which calls for duty on the bottles, whether they be empty, filled with free merchandise, or filled with merchandise which is dutiable otherwise than ad valorem. Paragraph 276 expressly provides that the dutiable weight of the fluid extract shall not include the weight of the package in which it is imported, thus leaving the bottles to be assessed. elsewhere. This is the more significant since the act, in some other portions (e. g., paragraph 241), provides that the dutiable weight of the contents shall include the weight of all tins, jars, and other immediate coverings." Paragraph 258 does not lay an ad valorem duty on the contents of the bottles, and certainly does not include them with the dutiable measurement of contents. They must therefore find their place under paragraph 99. The decision is affirmed. LEAYCRAFT & CO. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. April 13, 1904.) No. 156. 1. CUSTOMS DUTIES-CLASSIFICATION-ARROWROOT STARCH. Held, that the provision in paragraph 478, Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 195 [U. S. Comp. St. 1901, p. 1680], for “arrowroot in its natural state and not manufactured," relates to the tubers or root of the arrowroot plant, though no importations are ever made in that form, and does not include the article commercially known as arrowroot, consisting of starch made from arrowroot tubers, which is more properly classifiable as "starch," under paragraph 285 of said act (Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 173 [U. S. Comp. St. 1901, p. 1653]). Appeal from the Circuit Court of the United States for the Southern District of New York. For decisions below, see 124 Fed. 999, and G. A. 4,491, T. D. 21,405. Stephen G. Clarke, for appellants. D. Frank Lloyd, for appellee. Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges. WALLACE, Circuit Judge. The importations in controversy were arrowroot in its starchy form, answering the dictionary definitions, which describe it as "a nutritive starch obtained from the root stalk" of several species of the maranta, "a plant which grows in the West Indies, and which was considered a specific for the wounds caused by poisoned arrows; hence its name." "In its preparation the tubers are mashed, and the pulp soaked in water. This dissolves out the starch, which is separated from the fibers by settling, and the water is then drawn off, and the starch cleansed, and finally dried in the sun." The question is whether the importations fall within the enumeration of paragraph 478 of the tariff act of July 24, 1897, c. 11, § 2, Free List, 30 Stat. 195 [U. S. Comp. St. 1901, p. 1680], whereby "arrowroot, in its natural state, and not manufactured," finds a place upon the free list. They were subjected to duty under paragraph 285, of that act (section 1, Schedule G, 30 Stat. 173 [U. S. Comp. St. 1901, p. 1653]), as "starch, including all preparations from whatever substance produced, fit for use as starch." The two provisions, read |