and Pierce, the leading director and backer of the appellant, one of its directors. The authorized capital stock of the Toledo company was $100,000, half common and half preferred. But $105,000 of the preferred stock and half that much of the common was issued, and of all this but $25,000 was sold on the market. Aside from the appellant, the original arrangement contemplated the taking over of the Standard Manufacturing Company of Toledo at a valuation of $15,000. Later the Lucas Pump Company, of Toledo, was absorbed at a valuation of $8,000. The original arrangement provided for the purchase of the entire plant and business of the appellant. For this, $75,000 in stock was to be given, and cash for the stock on hand to be appraised. This was subsequently modified, and in July, 1903, only the pump plant and business of the appellant were sold on the following terms: $54,000 of the par value of the preferred stock of the United States Pump & Supply Company; $27,000 of the common stock of the same company; $30,000 of the par value in two-year bonds of the same company. All of this being turned over to Mr. Fellows, the attorney of the appellant, as trustee for it. This stock was received by Mr. Fellows upon the condition that it should not be put upon the market for a period of one year. The bonds were secured by a deed of trust on but a part of the Toledo company's property; the deed containing a condition that no bondholder should have the right to institute any action foreclosing the mortgage, except in case of refusal on the part of the trustee to perform some duty imposed upon him. The Toledo company was unable to meet its maturing obligations, owing to a want of ready money, and it never paid any dividends upon its preferred stock. No public record was made of the sale by the appellant to the Toledo company. The sale to the Toledo company was made in July. In September an option was given to the Chamberlain-Rider Čompany for $9,000 on the implement business, and to the Hudson Manufacturing Company for what proved to be $1,800 on the bicycle business of the appellant. Both these companies were organized or to be organized by former stockholders or employés of the appellant for the purpose of taking over what was left of its business. Following these deals, the books of the appellant company were placed in the hands of Pierce for the purpose of collecting its assets and winding up its business. The appellant had ceased to be a going concern. of the witnesses testified that Mr. Chamberlain told him that for the past two years they had been losing money on account of the bicycle business, and that they had put the matter in Mr. Pierce's hands to close up. As to the business of the Bean-Chamberlain Manufacturing Company, it had ceased doing business, and, as soon as Mr. Pierce could get things wound up, the company would go out of existence. Mr. Bean was a witness, and testified that they were closing up the business of the Bean-Chamberlain Company as rapidly as they could, and that would have been the ultimate end. That was what they were striving for. Including the real estate, farm implements, and bicycle business, optioned, but not sold, the assets of the appellant at the time of the filing of the petition in bankruptcy, aside from the stock and bonds received from the Toledo company, did not exceed in value $25,000. The liabilities amounted to over $75,000. There being testimony tending to show the above facts, the court left it to the jury to say whether the sale to the Toledo company was made with intent to hinder, delay, or defraud the creditors of the appellant; advising the jury that, in determining the question of intent, they should consider the necessary result of the acts done by the appellant, for every one is presumed to contemplate the necessary consequences of his conduct. It is now contended that the instruction of the court below upon this point was inconsistent with the construction placed by this court upon subdivision 1 of section 3, cl. "a," of the bankruptcy act, in Lansing Boiler & Engine Works v. Ryerson & Son (C. C. A.) 128 Fed. 701.1 The appellant complains because the court did not instruct the jury that the whole question for them was one of actual intent, and that if they should find that the appellant made the transfers in good faith, without an actual intent to hinder, delay, or defraud its creditors, it could not be adjudged a bankrupt, whatever the result of the transfers may have been. We fail to see wherein the position of the court was inconsistent with our holding in the Lansing Boiler Case. In that case the court below took the view that the giving of a mortgage by a manufacturing company on all its property to secure a part of its indebtedness was an act of bankruptcy, although the property mortgaged was worth enough at a fair valuation not only to liquidate the mortgage, but to pay all the remaining debts of the company twice over. We held that the court erred in assuming that, because the mortgage covered the whole property of the debtor, it necessarily followed that a case was made out under subdivision 1, and that no proof of good faith could prevail against that assumption, saying: "Upon the vital question of the bona fides of the mortgage, it was of importance to consider, among other things, what was the value of the property mortgaged, when compared with the indebtedness of the company. Moreover, the testimony of those conducting the transaction was admissible to prove its actual good faith. In the end, when all the available light had been shed upon it, the court would be in a situation to judge whether the transaction was prompted by a fraudulent motive or a legitimate one." The fault we found with the court in that case was that it refused to consider the question whether the mortgagor acted in good faith in giving the mortgage. Our holding was that if the mortgage was given in good faith, and without intent to hinder, delay, or defraud creditors there was no act of bankruptcy. There was testimony tending to show that the property mortgaged was worth $70,000, the mortgage was for $27,000, and the remaining creditor's claims amounted to $8,000. If this was credible, there was left property worth $43,000 to pay claims aggregating $8,000, and the court should have considered these facts both in determining whether the company was insolvent when it gave the mortgage, and whether the mortgage was given in good faith. In the present case the court submitted to the jury the question whether the transfers complained of were made in good faith, or with intent to hinder, delay, and defraud, saying: "The intent with which an act was done is very difficult to prove. Of course, the mind cannot be probed to ascertain just what that intent was. It must be inferred, and usually is inferred, from the circumstances, from the act itself, and from its necessary effect. If this operation necessarily was to 1 63 C. C. A. 253. produce the consequences of the act prohibited by the statute, you may infer the intent to defraud-the intent to hinder, delay, or defraud." After commenting upon the facts, the court left them to the consideration of the jury, advising them that they were the judges of the facts. In determining the question of the solvency of the company, the court excluded from consideration the stock and bonds received from the Toledo company and deposited in the hands of Fellows, as trustee, because they were under restrictions which rendered them unavailable to meet the claims of creditors. The charge, as a whole, fairly left the determination of the question of good faith to the jury. While the court commented upon the facts, and indicated a view unfavorable to the appellant, at the same time it advised the jurors that they were the final judges of the facts, and that whatever views it might indicate with respect to the facts were in no sense binding upon them. We have no criticism to make because of these comments, since we heartily concur in the views expressed. In our opinion, the proof was of such a nature that no injustice was done to the appellant by the action of the court. For the court to have complied with the request of the appellant, and instructed the jury that, ignoring the natural and necessary result of the transfers made, they should direct their attention solely to the good faith of the transaction, and, whatever the result of its conduct, acquit the appellant, if they found it had acted in good faith, would have been misleading. It was the right of the jury to determine the intent, but in doing so it was the duty of the jury to consider the testimony and the natural presumptions which flow from acts done by design. If a company in failing circumstances willfully places all its property beyond the reach of its creditors, that circumstance is a fact to be considered in determining whether it did so in good faith, without any intent to hinder, delay, or defraud its creditors. There was no specific exception taken to any particular portion of the charge of the court as given. Ten requests to charge were presented by the respondent below and refused. The exception to this refusal was so worded that we are disposed to regard it rather as a general exception to the refusal to charge all the requests in a lump, than a specific exception to the refusal to charge each separate request (Bogk v. Gassert, 149 U. S. 17, 26, 13 Sup. Ct. 738, 37 L. Ed. 631; Holloway v. Dunham, 170 U. S. 615, 619, 18 Sup. Ct. 784, 42 L. Ed. 1165), so that, some of the requests (notably the eighth and ninth) being clearly unsound, under the rule all are disposed of. We resolve the doubt as to the exception in favor of its being a general one, not only because the proof so abundantly sustains the verdict, but, if the exception be taken as a specific one, we are satisfied that the requests which were proper were sufficiently covered by the charge as given, and that no prejudice resulted to the appellant from the refusal to charge. The judgment of the court below is affirmed. (131 Fed. 219.) SACKETT v. MCCAFFREY et al. (Circuit Court of Appeals, Ninth Circuit. May 23, 1904.) No. 957. 1. INTERNAL REVENUE-STAMP TAX-HOMESTEAD DECLARATION-ACKNOWLEDG MENT. A notary's certificate of acknowledgment attached to a declaration of homestead was subject to a stamp tax under War Revenue Act June 13, 1898, c. 448, § 13, 30 Stat. 454 [U. S. Comp. St. 1901, p. 2294], requiring documents mentioned in the schedule, and certificates of any description required by law not otherwise specified, to be stamped. 2. APPEAL-RECORD-ORIGINAL DOCUMENTS-CERTIFICATION. Where the Circuit Court, as authorized by Court Rule 14, subd. 4 (91 Fed. vii, 32 C. C. A. lxxxix), transmitted to the Circuit Court of Appeals an original document admitted in evidence over objection that it was not stamped, it was immaterial that the copy of the document contained in the record did not show either that the document or the certificate of acknowledgment indorsed thereon by a notary public was not stamped. 3. SAME-JUDICIAL ACTS. Under Civ. Code Mont. §§ 1606, 1609, 1611, providing that acknowledgments by married women to instruments purporting to be executed by them must be taken in the same manner as that of any other person, and shall be that she "executed the same," a notary, in taking a married woman's acknowledgment to a declaration of homestead, required by section 1700, does not act as a judicial officer. 4. SAME-STATE FUNCTIONS. Since stamps required to be affixed to a notary's certificate of acknowledgment to a declaration of homestead, under War Revenue Act June 13, 1898, c. 448, § 14, 30 Stat. 455 [U. S. Comp. St. 1901, p. 2296], are required to be furnished by the person for whose benefit the instrument is furnished such tax is not objectionable on the ground that the notary, in taking the acknowledgment and indorsing his certificate, was exercising a function of the state government not subject to federal taxation. 5. SAME-UNSTAMPED INSTRUMENTS-EVIDENCE-STATE DECISIONS. Decisions of state courts that instruments, though unstamped, as required by War Revenue Act June 13, 1898, c. 448, § 14, 30 Stat. 455 [U. S. Comp. St. 1901, p. 2296], were admissible in evidence, have no application to federal courts. 6. SAME-STATUTES-REPEAL. War Revenue Act, June 13, 1898, c. 448, § 13, 30 Stat. 454 [U. S. Comp. St. 1901, p. 2295], providing for a stamp tax on certificates attached to legal instruments, was amended by Act March 2, 1901, c. 806, § 7, 31 Stat. 941 [U. S. Comp. St. 1901, p. 2294], which, however, specifically provided for the continuing of the law with regard to the stamping of unstamped instruments subject to a stamp tax at the time they were issued; and section 14 of the original act (30 Stat. 455 [U. S. Comp. St. 1901, p. 2296]), providing that unstamped instruments should not be recorded or received in evidence, was not repealed either by Act March 2, 1901, or by Act April 12, 1902, c. 500, 32 Stat. 96 [U. S. Comp. St. Supp. 1903, p. 276], which repealed the whole of Schedule A of the original act; and Rev. St. § 13 [U. S. Comp. St. 1901, p. 6], declares that the repeal of a statute shall not release or extinguish any penalty, forfeiture, or liability incurred thereunder, unless the repealing act so expressly provides, etc. Held, that the repeal of the act requiring certificates to be stamped did not authorize the subsequent admission in evidence of an instrument containing an unstamped certificate of acknowledgment subject to the tax. In Error to the Circuit Court of the United States for the District of Montana. The plaintiff in error, a citizen of New York, brought this action in ejectment against the defendants, citizens of Montana, to recover possession of lot 11 in block 89 in the city of Anaconda, Mont., alleged to be of the value of $2,500 and more. The plaintiff in error bases her claim of title to the premises in controversy upon a sheriff's deed dated May 19, 1902, issued pursuant to an execution sale upon a deficiency judgment against the defendants in error. The defendants in error deny the right of the plaintiff in error to the premises, and claim title to the property under a declaration of homestead dated November 24, 1900, and made by Mary McCaffrey; her husband, Joseph McCaffrey, not having made such selection. The plaintiff in error, in reply to this defense, alleges that the declaration of homestead filed by Mary McCaffrey was wholly void and of no effect by reason of the omission to state an estimate of the actual cash value of the premises therein described, and denies that the premises in question could have been a homestead, because the defendants in error at the time of filing the pretended declaration of homestead, and long prior thereto, did not reside on the entire premises described, a portion of the lot in question being occupied by and rented to tenants of the defendants in error, and entirely distinct from the premises used by defendants in error as a home. Upon the trial, for the purpose of showing that the premises in controversy were at the date of their sale under execution exempt from execution, the defendants in error offered in evidence the homestead declaration of Mary McCaffrey, dated November 24, 1900, covering the entire premises in controversy to which plaintiff in error objected on the grounds (1) that the instrument was not stamped as required by the laws of the United States in force at the date of its execution; (2) that the notarial certificate of acknowledgment to said instrument was not stamped as required by the laws of the United States at the date of its execution; and (3) that the filing of record of the same in its unstamped condition was in violation of said laws, and the record thereof was void and of no effect as against the rights of the plaintiff in error. The objection was overruled, and the declaration of homestead admitted in evidence. The jury returned a verdict in favor of the defendants in error, and a judgment was entered thereon. Upon this judgment a writ of error was obtained by the plaintiff in error. E. B. Howell and Charles E. Sackett, for plaintiff in error. Before GILBERT, ROSS, and MORROW, Circuit Judges. MORROW, Circuit Judge (after stating the facts as above). The specification of error mainly relied upon is the admission in evidence of the homestead declaration of Mary McCaffrey over the objection of the plaintiff in error that it was an instrument required by law to be stamped, under the provisions of the act of June 13, 1898, and, being in an unstamped condition, was not entitled to be recorded or admitted in evidence. The act of Congress approved June 13, 1898, entitled "An act to provide ways and means to meet war expenditures, and for other purposes" (30 Stat. 448, 458, c. 448 [U. S. Comp. St. 1901, pp. 2284, 2300]), provides in Schedule A for the prepayment of an internal revenue tax by means of stamps, denoting the tax on certain documents to which the stamps are to be affixed. Among other documents mentioned in this schedule as subject to a stamp. tax is that of a "certificate of any description required by law, not otherwise specified in this act, ten cents." Within this very broad language the plaintiff in error claims that the homestead declaration. is itself a certificate subject to the stamp tax; but as this claim is not seriously urged it need not be considered, except in connection with the notarial certificate of acknowledgment, which the law of Montana requires to be indorsed upon or attached to the instrument before it |