in a matter which was possibly of some concern to themselves, and to themselves alone, in effect said to the court that it was not material to them, and that what they wanted was, not to make objections to form, but to secure an extension of time within which to plead. When that request was not approved by the court, they still passed over the formal and erroneous way of verifying the petition, and prepared and tendered an answer to the merits of the case; setting up what they intended should be, and supposed was, a full defense to the action. The case, at that point, and eo instanti that proceeding, passed beyond that stage when the previous formal steps were important. The defendants had then voluntarily left those matters behind, as immaterial, and the case had then advanced to the point where matters of substance were to be considered; and it seems to the court that the defendants had clearly waived any right afterwards to raise those questions, which, though previously important to them, had ceased to be so by their own plainly-implied consent to the contrary. The rule prescribed by the supreme court on this subject does not say that, unless a petition is verified in the precise manner indicated in the form, it shall be unavailing and void. Nothing of this sort is intimated in any positive sense. But in case the form is not literally followed, and in case the directory provisions of the act are not literally pursued, a defendant may avail himself of the defect, or he may waive those purely personal advantages or privileges. But to say that a slip made in the preparation of a petition (it may be, in the hurry rendered necessary by some suddenly developed exigency) should be fatal, would be indeed a sacrifice of substance to form, and the widest possible departure from all modern notions of the liberality and flexibility of rules of practice in courts of justice. We doubt if congress or the supreme court intended such a result. say that a slip of the character indicated might be purposely disregarded or ignored by the defendant until after four months had passed, or, indeed, until after the whole proceeding was about concluded, and then be returned to and resurrected for the purpose of undoing all that had been done, would seem to be out of all reason. Yet that would be the direct and necessary result of a rigid adherence to the decisions in such cases as Hunt v. Pooke, 5 N. B. R. 161, Fed. Cas. No. 6,896; In re Butterfield, 6 N. B. R. 257; and Moore v. Harley, 4 N. B. R. 71, Fed. Cas. No. 9,764. The court is glad to be relieved from the stress of those decisions by the very much better reasoned opinions in all the later cases, such as In re Raynor, 7 N. B. R. 536, Fed. Cas. No. 11,597; In re McNaughton, 8 N. B. R. 44, Fed. Cas. No. 8,912; and In re Simmons, 10 N. B. R. 254, Fed. Cas. No. 12,864. To Upon this point the court has therefore reached the conclusion that the objection to the form of verification of the petition in this case comes too late. It seems to the court that the proper time to raise the objection ended with the tender of the answer to the merits, if not previously. The plain admission of the alleged act of bankruptcy emphasizes these conclusions. If the defendants had secured the ex tension of time to plead to the 28th of April, and if they could at that late date have made and maintained the objection that the failure to properly verify the petition was jurisdictional and fatal, a dangerous precedent would have been established, from which much collusive harm might come, and the ends of justice and the wise purposes of the bankrupt act entirely frustrated, in many cases. The motion to dismiss the petition for want of proper verification is therefore overruled. Upon the whole case as it now presents itself under section 18 of the bankrupt act, it seems to the court to be its imperative duty to make an adjudication as soon as practicable after 10 days have expired after the return day fixed in the subpoena; and as no reason has been suggested, legally sufficient to prevent or further delay it, the adjudication will be made now. In re THOMAS. (District Court, S. D. Iowa, Central Division. April 3, 1899.) No. 531. 1. BANKRUPTCY-DISCHArge-SpecifiCATIONS IN OPPOSITION. A discharge in bankruptcy will not be postponed or refused on speclfications in opposition which merely allege the creditor's belief that the bankrupt owns property which he is concealing, and has not listed in his schedule, since creditors have full opportunity to ascertain the facts in relation to such property by examination of the bankrupt. 2 SAME-BURDEN OF PROOF. The bankrupt's application for discharge will not be denied unless creditors opposing the same allege and prove one of the statutory grounds for withholding the discharge. The court will not refuse to discharge the bankrupt on grounds not specified or proved by creditors. 3. SAME-GROUNDS FOR REFUSING DISCHARGE-FRAUD. It is no ground for refusing to discharge a bankrupt that the debt of the opposing creditor was created by the fraud of the bankrupt. In Bankruptcy. Application of bankrupt for discharge. On cer tificate of S. S. Ethridge, Esq., referee in bankruptcy. L. L. Mosher, for bankrupt. WOOLSON, District Judge. Application having been duly made for discharge of the bankrupt, and referred to the proper referee, notice was duly given to creditors of time fixed for filing written appearance in opposition to the discharge. Within the time so fixed, one creditor (Anna Harding, of Indianola, Iowa) filed with the referee certain specification of grounds in opposition to discharge. Briefly stated, these grounds were: That in 1893, she lent to the bankrupt $100, taking his note therefor; note to mature in one year. After the debtor's repeated refusals to pay the debt, this creditor put the note into judgment, viz. in April, 1895. "That since the execution of said note said Thomas purchased a homestead in Indianola, Iowa, and, to avoid the payment of this and other debts, had the deed to said property executed to his wife. That he is now occupying said property as a home for himself and family, and in the enjoyment of the luxuries of life in a home secured with funds received in part from your petitioner." The grounds of opposition to discharge, a part of which are quoted above, close with the expression of the creditor's belief that the bankrupt now has sufficient funds to pay her said claim against him, and that he is asking discharge for the sole purpose of avoiding payment of his honest debts, which he is abundantly able to pay. With reference to that portion just summarized of the stated grounds, it is sufficient to say that the mere belief of the creditor cannot postpone granting the discharge. The present bankruptcy statute affords abundant opportunity for examination under oath of the bankrupt, touching every material phase of his rights and interests in property, so that the creditor is able to obtain the sworn testimony of the bankrupt in all these matters; and one ground for refusal to grant discharge is-section 14, b (1)—that he has committed the offense of-section 29, b (2)—making “a false oath in or in relation to any proceeding in bankruptcy." If the facts were as claimed, as to the bankrupt having property not scheduled, and the bankrupt had so testified on his examination, the trustee should have pursued the interest of said bankrupt, and brought its proceeds into the estate. If, with the facts as claimed, the bankrupt had testified otherwise, such false oath could successfully have been used to prevent his discharge. But no ground of opposition to discharge is herein based on a false oath. Section 14, paragraph b, makes it the duty of the judge to grant the discharge, provided the requisites as to notice, etc., have been observed, unless one of the two grounds in said paragraph stated is proven. The duty of proving that such ground exists is on the opposing creditor. Where the grounds are duly specified, and, if proven, would prevent discharge, the judge will fix time and place of hearing. But the judge neither seeks to discover grounds, nor supplies lack of specification. "He shall discharge, unless," etc. The grounds here specified are (1) obtaining the loan of money under promises not performed, etc.,-in substance, that the debt was created by fraud; (2) that the bankrupt has an interest in the homestead standing in the name of the wife; and (3) belief of creditor that bankrupt has property with which, if he would, he might pay the claim. That the debt was created by fraud of the bankrupt, if such be the case, is not a ground for refusal of discharge under the statute. Section 17 provides that from debts so created a discharge does not release the bankrupt. And, when the discharge is pleaded as a defense to the enforcement of such debt, proof that the debt was so created makes the discharge inoperative against it. But the statute does not justify withholding the discharge therefor. Collier, in his excellent treatise on Bankruptcy, says (page 135): "A discharge can be refused only because the existence of one of the two grounds mentioned in this section is established, or else because it is shown that the court has no jurisdiction. The mere fact that the only debt is one which the discharge will not affect-for instance, that it was due from the debtor in a fiduciary capacity, or was created by his fraud-is no reason for refusing the discharge. The question how the discharge affects particular 92 F.-58 debts is to be determined thereafter by the court in which the bankrupt may be sued upon the debt, should the bankrupt in that suit interpose the discharge as defense. In re Elliott, 2 N. B. R. 110, Fed. Cas. No. 4,391; In re Rathbone, 1 N. B. R. 324, 2 Ben. 138, Fed. Cas. No. 11,580; In re Rosenfield, 1 N. B. R. 575, Fed. Cas. No. 12,058; In re Wright, 2 N. B. R. 41, Fed. Cas. No. 18,070; In re Stokes, 2 N. B. R. 212, Fed. Cas. No. 13,476; In re Tracy, 2 N. B. R. 298, Fed. Cas. No. 14,124; Chapman v. Forsyth, 2 How. 202." As to the other grounds attempted to be specified herein, the specifications do not state grounds here available, under the condition of the estate. As before stated, abundant opportunity has been given for examination of the bankrupt at the first meeting of creditors, and at the time fixed for filing appearance in opposition to discharge. The creditor did not avail herself of these, and no facts are specified which will justify refusal of discharge, under the statute. Therefore the objections to discharge, as specified, must be overruled, and discharge granted. UNITED STATES v. H. B. CLAFLIN CO. (Circuit Court of Appeals, Second Circuit. March 1, 1899.) No. 49. CUSTOMS DUTIES-SILK FABRICS-INTERPRETATION OF STATUTE. * Tariff Act July 24, 1897, par. 387, reads: "Woven fabrics in the piece * weighing not less than 1% ounces per square yard and not more than eight ounces per square yard, and containing not more than 20 per cent. in weight of silk, if in the gum, 50 cents per pound, and if dyed in the piece, 60 cents per pound; if containing more than 20 per cent. and not more than 30 per cent. in weight of silk, if in the gum, 65 cents per pound, and if dyed in the plece, 80 cents per pound; if containing more than 30 per cent. and not more than 45 per cent. in weight of silk, if in the gum, 90 cents per pound, and if dyed in the piece, $1.10 per pound; if dyed in the thread or yarn and containing not more than 30 per cent. in weight of silk, if black * *, 75 cents per pound, and if other than black, 90 cents per pound; if containing more than 30 and not more than 45 per cent. in weight of silk, if black * *, $1.10 per pound, and if other than black, $1.30 per pound; if containing more than 45 per cent. in weight of silk, or if composed wholly of silk, if dyed in the thread or yarn and weighted in the dyeing so as to exceed the original weight of the raw silk, if black $1.50 per pound, and if other than black, $2.25 per pound; if dyed in the thread or yarn, and the weight is not increased by dyeing beyond the original weight of the raw silk, $3.00 per pound; if in the gum, $2.50 per pound; if boiled off, or dyed in the piece, or printed, $3.00 per pound; if weighing less than 1% ounces and more than of an ounce per square yard, if in the gum, or if dyed in the thread or yarn, $2.50 per pound; if weighing less than 1% ounces and more than 3 of an ounce per square yard, if boiled off, $3.00 per pound, if dyed or printed in the piece, $3.25 per pound; if weighing not more than % of an ounce per square yard, $4.50 per pound." Held, that the lastnamed percentage of the silk per yard (more than 45 per cent.) was to be carried forward, and applied to the subdivision relative to fabrics weighing less than 1% ounces and more than 1% of an ounce per yard, and that where the weight of the fabrics was not more than 1% of an ounce per yard. * * Appeal from the Circuit Court of the United States for the Southern District of New York, This cause comes here upon an appeal from a decision of the circuit court, Southern district of New York, reversing a decision of the board of general appraisers which affirmed a decision of the collector of the port of New York touching the classification for duty of certain importations under the tariff act of July 24, 1897. Frank Lloyd, for the United States. Everit Brown, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. LACOMBE, Circuit Judge. The merchandise in question consists of certain woven fabrics known as "silk mull" and "tinsel gauze," composed in chief value of silk, but in part of other materials; said fabric weighing over of an ounce and under 13 ounces per square yard, and containing less than 20 per cent. in weight of silk. There is no dispute that unless it is included within the provisions of paragraph 387, under which the collector classified it, the merchandise is dutiable under paragraph 391: "All manufactures of silk, or of which silk is a component material of chief value not specially provided for in this act fifty per centum ad valorem." # * * 1." Paragraph 387 reads as follows: "387. Woven fabrics in the piece, not specially provided for in this act. weighing not less than one and one-third ounces per square yard and not more than eight ounces per square yard, and containing not more than twenty per centum in weight of silk, if in the gum, fifty cents per pound, and if dyed in the piece, sixty cents per pound; if containing more than twenty per centum and not more than thirty per centum in weight of silk, if in the gum, sixty-five cents per pound, and if dyed in the piece, eighty cents per pound; if containing more than thirty per centum and not more than forty-five per centum in weight of silk, if in the gum, ninety cents per pound, and if dyed in the piece, one dollar and ten cents per pound; if dyed in the thread or yarn and containing not more than thirty per centum in weight of silk, if black (except selvedges), seventy-five cents per pound, and if other than black, ninety cents per pound; if containing more than thirty and not more than forty-five per centum in weight of silk, if black (except selvedges), one dollar and ten cents per pound, and if other than black, one dollar and thirty cents per pound; if containing more than forty-five per centum in weight of silk, or if composed wholly of silk, if dyed in the thread or yarn and weighted in the dyeing so as to exceed the original weight of the raw silk, if black (except selvedges), one dollar and fifty cents per pound, and if other than black, two dollars and twenty-five cents per pound; if dyed in the thread or yarn, and the weight is not increased by dyeing beyond the original weight of the raw silk, three dollars per pound; if in the gum, two dollars and fifty cents per pound; if boiled off, or dyed in the piece, or printed, three dollars per pound; if weighing less than one and one-third ounces and more than one-third of an ounce per square yard, if in the gum, or if dyed in the thread or yarn, two and one-half dollars per pound; if weighing less than one and one-third ounces and more than one-third of an ounce per square yard, if boiled off, three dollars per pound; if dyed or printed in the piece. three dollars and twenty-five cents per pound; if weighing not more than one-third of an ounce per square yard, four dollars and fifty cents per pound; but in no case shall any of the foregoing fabrics in this paragraph pay a less rate of duty than fifty per centum ad valorem." This curious illustration of the confusion which may result from undertaking to build up sentences of such inordinate length is susceptible of two constructions. The board of appraisers held that there are three subdivisions of it, in the first of which varying per |