return consideration, so far as it may be in his possession. MacGreal v. Taylor, supra. The reason for this doctrine is that courts of law, in giving an infant the right to avoid his contract, have acted as if exercising the original chancery jurisdiction relating to infants' estates. In trying to do equity, and in determining what relief can be granted, the court considers whether the parties can be restored to their original positions, or whether innocent third parties have acquired rights to the property. In doing this the court aims to protect the infant, and not allow him to be taken advantage of before he reaches the age at which he becomes responsible for all of his conscious transactions. But the bankruptcy law is intended for the relief of an honest bankrupt, and at the same time for the protection of his creditors, and equal distribution of whatever assets he had within the times covered by the provisions of the statute. As between the bankrupt and the infant, the contract certainly could be avoided, and the infant restored as far as possible to his original position. A conveyance showing the giving of title by an infant, or a transfer subject to equities, could be avoided, and the property followed in the hands of third parties; but it is considered never to have been the law that if the property cannot be traced, or if the person with whom the voidable contract was made did not have it in his power to make restitution, transactions with innocent third parties could be opened in order to find property with which to reimburse the infant. And so in the present case, the creditors' rights having intervened, and the status of all the parties having been established by the filing of a petition in bankruptcy, the infant's contract can be avoided only to the extent of allowing him to prove a claim to the amount of his advances. for money had and received. An infant may avoid a usurious contract, and sue for a loan under a contract for money had and received. Millard v. Hewlett, 19 Wend. (N. Y.) 301. Upon such a claim he would share with the other general creditors. This is in effect giving him his privilege as an infant to revoke his contract. Without such privilege he would be com pelled to stand upon what he received from the bill of sale; and this being fraudulent, and he apparently having knowledge of the trans action, he might have no claim which could be proved as against the other creditors for his advances. It would seem that all the righ which could be claimed by him is to be protected from the conse quences of his knowledge of the bankrupt's situation, and to be a lowed to put in his claim for the money he paid in return for th bill of sale. As to the wages, also, it is evident that the amount of $96 thereo is outside the provisions of subdivision 4 of section 64 of the bankrup cy act (Act July 1, 1898, c. 541, 30 Stat. 563 [U. S. Comp. St. 190 p. 3447]), and therefore not a preferred claim. SPECKMAN v. SMEDLEY BROS. May 27, 1907.) (District Court, E. D. Pennsylvania. No. 1, September Session, 1905. 1. ASSIGNMENTS EQUITABLE ASSIGNMENTS EVIDENCE. Defendants testified that P., before becoming a bankrupt, arranged to pay defendants their full claim of $5,400 when the United States paid P. the final balance due to him on a claim then pending; but no definite amount was agreed on to be paid to defendants, nor was the "arrangement" recognized by the government-the disbursing officer only promising to notify defendants when settlement was to be made, so that they might be present. At the settlement a check for $5,000 was made payable to the bankrupt, which was turned over to defendants; the bankrupt refusing to pay more. Held, that such facts were insufficient to constitute an enforceable equitable assignment. 2. JUDGMENT-NON OBSTANTE VEREDICTO. Where, in a suit by a bankrupt's trustee to recover an alleged preferential payment, defendants filed no plea in abatement raising the point that a partnership existed between the bankrupt and another who was interested in the fund, and such point was not made by affidavit of defense or notice of special matter accompanying the general issue pleas, it could not be raised for the first time on motion for judgment non obstante. In Bankruptcy. Motion for new trial, and motion by defendant for judgment notwithstanding the verdict. Edmund W. Kirby, for plaintiff. J. B. MCPHERSON, District Judge. This suit is brought by the trustee in bankruptcy of George W. Pierson to recover from the defendants an alleged preferential payment of $5,000, which was admittedly made in September, 1903, less than one month before the petition was filed. The verdict was for the plaintiff, and establishes the facts that the bankrupt was insolvent when the payment was made, and that the defendants had reasonable cause to believe that a preference was thereby intended. A question of law is now to be decided under the reserved point, namely, whether the payment in September was made to carry out an equitable parol assignment of $5,000, which is said to have been made early in 1903 out of a fund which the bankrupt then claimed to be due him from the United States. This fund was paid to the bankrupt in the following September, and t of it the defendants received the $5,000 that is now in dispute. pon this question I have only to say that I have considered all the testimony that bears upon it, and am clearly of opinion that it is much too vague and uncertain to be submitted to a jury. If they had been allowed to take it into account, and had found in favor of the defendants on this issue, I should think it my duty to set the verdict aside. There was some loose testimony about an "arrangement" by which the defendants were to be paid their full claim of $5,400 when the United States paid the final balance due to the bankrupt; but it is dear that no definite amount was agreed upon, that the "arrangement" as not recognized by the United States, and that the bankrupt never ost his control over the fund. Evidently the bankrupt merely prom.. ised to pay the defendants when he received this balance, and the disbursing officer of the government merely promised to notify the defendants when the settlement was to be made, so that they might be present at that time. A check for $5,000 was made payable to the bankrupt, who refused to pay more; and it is, I think, quite clear that the "arrangement" was nothing more than the usual promise of a debtor to pay when he shall be in funds, followed by the creditor's effort to hold him up to his promise, and by the debtor's effort to get off with as small a payment as possible. Such an "arrangement" falls short of being an enforceable equitable assignment. When the defendants really set out to obtain a valid assignment, the testimony in reference to another claim against the bankrupt shows that they knew what they needed. The defendants seek to raise another question of law upon the motion for judgment, based upon the meager testimony concerning a partnership of one kind or another, which is said to have existed between the bankrupt and a man named Stewart. It is argued that the preferential payment was made out of a fund that belonged to Stewart and the bankrupt as a firm, and therefore that the plaintiff—who is the trustee of Pierson alone, no petition having been filed against the firm has no right to recover in this action. In my opinion, however, this defense is made too late. It concerns the character in which the plaintiff sued, and in correct practice should have been made earlier in the cause, probably by plea in abatement. But no such plea was filed, and even under the liberal practice in Pennsylvania it is impossible to overlook the fact that this defense was not referred to in the affidavit of defense, or in the notice of special matter which accompanied the general issue pleas. In consequence, the plaintiff had no notice of this point until the trial, and even then, as the record shows, the defendants' chief reliance was upon the making of an equitable parol assignment early in 1903. I do not think, therefore, that the defendants should be allowed to take their chance of a verdict on the principal issue, and practically to reserve the question of partnership. in order to use it in case of failure to maintain their principal costention successfully. It is to be considered, also, that the money recov ered by the plaintiff will be under the control of the District Court. which may be relied upon to see that it goes to the creditors that are justly entitled to receive it. At all events, the defendants, having obtained the money in violation of the act of Congress, and having waived whatever technical objection to the suit they may have had. by failing to put such objection forward at the proper time, should not be allowed to retain the money. The motions for a new trial and for judgment notwithstanding the verdict are refused. To the refusal of judgment in favor of the defendants upon the reserved point an exception is sealed. EARLE BROS. v. UNITED STATES. (Circuit Court, S. D. New York. February 27, 1907.) No. 4,313. 1. CUSTOMS DUTIES-CLASSIFICATION-BALATA-INDIA RUBBER. Crude balata is "india rubber, crude," within the meaning of Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 579, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1684]. 2. SAME "INDIA RUBBER"-COMMERCIAL DESIGNATION. The term "india rubber," in Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 579, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1684], has a commercial meaning that includes nearly a hundred varieties of inspissated vegetable gums, among them balata, which are used in the manufacture of what are commonly known as "rubber goods." [Ed. Note.--Interpretation of commercial and trade terms in tariff laws, see note to Dennison Mfg. Co. v. United States, 18 C. C. A. 545.] On Application for Review of a Decision of the Board of United States General Appraisers. Henry W. Rudd, for importers. D. Frank Lloyd, Asst. U. S. Atty. HOUGH, District Judge. The subject of this appeal is the gum or juice of the balata or "bully" tree. Its nature and dictionary definitions have been fully set forth in T. D. 23,599 and 26,751. The collector assessed duty upon this substance as a nonenumerated unmanufactured article under paragraph 6 of the tariff act of 1897 (Act July 24. 1897, c. 11, Schedule A, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1527]), and his assessment has been affirmed. The importers claim that it is entitled to free entry as "india rubber crude," under paragraph 579, § 2, Free List, 30 Stat. 198 [U. S. Comp. St. 1901, p. 1684]. It is abundantly shown by the treasury deisions cited, and indeed is not denied, that botanically the balata or "bully" tree is different in species, if not in genus, from that to the gm of which the term "india rubber" was first applied upwards of 10 years ago. But under the rule that in laws relating to the revenues words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word (United States v. Buffalo Gas Fuel Co., 172 U. S. 341, 19 Sup. Ct. 200, 43 L. Ed. 469), the importers contend that the trade and commerce of the United States did not now, nor was there indeed anywhere known at the time of the pasage of the present tariff act, any one kind or variety of vegetable gum or juice identified or described or actually designated by the words india rubber crude." It is further asserted that "india rubber" was in 1897, and still is, a term used to designate nearly an hundred varieties of "inspissated vegetable gums" capable of use and actually used in the manufacture of what are commonly known, and in 1897 were commonly known, as "rubber goods." This particular gum is, and ong has been, used for making dress shields and machinery belting, both of which articles are commonly described as "rubber shields" and "rubber beltings." In my opinion these contentions of the importers have been abundantly sustained by the testimony introduced in this court. I think it must be assumed that the framers of the tariff act knew that there was a great variety of gums generically and commercially described as "india rubber," and within that category balata is fairly included. The decision of the Board of Appraisers is reversed. SVEA INS. CO. et al. v. VICKSBURG, S. & P. RY. CO. (Circuit Court, W D. Louisiana. February Term, 1907.) 1. INSURANCE-PAYMENT OF Loss-SUBROGATION OF INSURER. An insurance company, which paid a loss to the owners of cotton destroyed by fire, is subrogated to the right of such owners to maintain an action against a railroad company to recover damages, on the ground that the fire was caused by its negligence; such action being subject to the same defenses that might be invoked against the owners of the cotton had it been brought by them. [Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, § 1506.] 2. NEGLIGENCE-ACTIONS FOR DAMAGES-DEFENSE OF CONTRIBUTORY NEGLI GENCE. In such an action, contributory negligence of a compress company, which had possession of the cotton as bailee at the time it was destroyed, is imputable to the plaintiff, and constitutes a defense. [Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, $$ 130, 140.] 3. RAILROADS FIRES-SUFFICIENCY OF EVIDENCE OF NEGLIGENCE. A verdict holding a railroad company liable for the value of cotton destroyed by fire, on the ground that the fire was negligently caused by one of its engines, held not supported by the evidence, on the ground that. while it warranted a finding that the fire was caused by sparks from the engine, it did not support a finding either that the engine was improperly constructed or defective, or that it was negligently operated. [Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1733, 1735.] In an action against a railroad company to recover damages for neg ligently setting fire to and destroying a quantity of cotton in the operation of one of its engines, it was shown that, however well constructed an engine might be, or however carefully it might be operated, sparks would be thrown from its smokestack which would endanger inflammable material within a distance of 30 or 40 feet; that the cotton was at the time in the possession of a compress company as bailee of the owners, which company. with the consent of defendant, had extended the platform next its building over defendant's right of way to within less than 10 feet of a yanl track on which the engine alleged to have set the fire was engaged in switching cars; and that the cotton in bales was piled on such platform. It was, also, shown that the compress company kept barrels of water at hand, and employed a watchman, whose duty it was to keep the barrelfilled, and to keep watch and guard against fire. At the time of the fire. the watchman had gone away in violation of his duty, although both he and the manager of the compress who was in the building knew that the engine was being operated on the track. If he had been present, it ap peared probable that he would have discovered and extinguished the fire before damage was done. Held, that the compress company, in so constructing its platform and placing the cotton thereon, assumed such risk as arose from the operation upon defendant's track of a properly equipped engine operated with due care and regard for the exposéd cotton, and it |