The instrument in question does not contain any of the elements of a mortgage, as insisted upon by bankrupts' counsel. The idea that it was intended as a security for the ultimate payment of the debts of the vendor, or that a reservation of a right to redeem whenever the vendor should pay its debts was intended, is not remotely suggested by any of the terms of the instrument; in other words, there is no right of redemption reserved. The provision at the end of the instrument, requiring a surplus, if any, to be paid to the vendor, cannot be regarded as such reservation. It is nothing more than an expression of what the law implies. If, after all the property had been. disposed of, and all the creditors had been fully paid and all the expenses satisfied, any surplus remained, it belonged as a matter of law to the debtor, and no formal statement to that effect can change the legal and obvious import of the instrument from a general assignment for the payment of debts to a provision for their security in the nature of a chattel mortgage.

Having disposed of the last question on its merits in favor of the creditors, a consideration of their motion to dismiss the petition for technical reasons is unnecessary. It will therefore be formally denied, and the petition to revise will be dismissed. It is so ordered.

BOOTH V. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. May 3, 1907.)

No. 230.

1. POST OFFICE-USE OF MAILS TO DEFRAUD-CONSOLIDATION OF INDICTMENTS. Rev. St. § 1024 [U. S. Comp. St. 1901, p. 720], authorizes the consolida tion for trial of indictments for using the mails to defraud under section 5480 [U. S. Comp. St. 1901, p. 3696], notwithstanding the fact that such indictments charge offenses not committed within the same six months and which could not be joined in one indictment under the latter section, and in the aggregate more than the three offenses which may be so joined. 2. CRIMINAL LAW-PROCEDURE-CONSOLIDATION OF INDICTMENTS.

The reversal of a judgment of conviction in a criminal case and the remanding of the case for a new trial generally leaves the trial court free to proceed as though the cause had never been tried, and it may consol idate other indictments for trial with those upon which the first trial was had.

[Ed. Note.-Consolidation of and trial of indictments together, see note to Dolan v. United States, 69 C. C. A. 287.]

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

Edward Lynn, for plaintiff in error.

Lyman M. Bass, for defendant in error.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. The plaintiff in error was convicted of having devised a scheme to defraud by sending communications through the

mail, in violation of section 5480 of the Revised Statutes [U. S. Comp. St. 1901, p. 3696], and the assignments of error raise two points:

1. After a conviction and sentence under indictments numbered 315, 316, and 317, which had been consolidated by order of the court below, the judgment was reviewed by this court upon writ of error, and was reversed, and remanded to the court below "for a new trial, and such proceedings as according to right and justice and the laws of the United States ought to be had," and a mandate accordingly was issued to the court below. Subsequent to the filing of this mandate in the court below, a further indictment was found by the grand jury, numbered 366. The latter indictment charged offenses some of which were committed at later dates than those which were the subject of the earlier indictments.

Before the trial the district attorney moved to consolidate the latter indictment with the others. This motion was granted by the court; and against the objection of the defendant, a new trial was had upon all the indictments consolidated, and the defendant was convicted upon all.

We think there was no error in allowing the consolidation of the indictments and the trial upon all the counts. Section 1024 of the Revised Statutes authorizes the consolidation of such indictments, notwithstanding the aggregate offenses are more in number than can be joined in one indictment under section 5480 (In re Henry, 123 U. S. 372, 8 Sup. Ct. 142, 31 L. Ed. 174), and, this being so, it is immaterial that all the offenses charged may not have been committed within the same six months. No more than three, committed within the same six months, can be joined in one indictment, and this is the only respect in which section 5480 infringes upon the ordinary procedure or pleading in criminal cases.

The terms of the mandate did not restrict the power of the court below to the trial of the original issues. They left the court free to proceed as though the cause had never been tried.

2. We have examined the record with care to ascertain whether the evidence, admitted against the defendant's objections, concerning offenses other than those charged in the indictments, related to such as were sufficiently similar in character, and sufficiently related in time to be material as bearing upon the quo animo or fraudulent intention of the defendant in the transactions which were charged as offenses in the indictment, and are satisfied that it was admissible.

The judgment is affirmed.

SMITH V. MARKER et al.

(Circuit Court of Appeals, Eighth Circuit. June 27, 1907.)

No. 2,432.

1. GARNISHMENT-CONTINGENT INDEBTEDNESS WILL NOT SUSTAIN.

It is indispensable to the liability of a garnishee to the plaintiff that the former's debt to the defendant be owing absolutely, so that the duty to pay it is not contingent on the happening of any future event, at the time the garnishee summons is served.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Garnishment, § 83.] 2. SAME.

But it is not necessary, in the absence of a statute to that effect, that the debt be due at that time.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Garnishment, § 78.] (Syllabus by the Court.)

In Error to the United States Court of Appeals in the Indian Territory.

For opinion below, see 90 S. W. 611.

George E. McCulloch, for plaintiff in error.

W. H. Kornegay, for defendants in error.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

SANBORN, Circuit Judge. On July 29, 1904, the defendants in error, Halsell and Bagby, were garnished as debtors of John D. Marker, the judgment defendant. They answered, in effect, that they were not, and would not be, indebted to him before March 14, 1905, and they would not then be indebted to him unless the terms of a certain contract they had made with him were so fulfilled that the second installment of the purchase price of that part of his allotment in excess of his homestead became owing and due. The contract was made on June 9, 1904. It provided that Halsell and Bagby should secure for Marker the priv ilege of allotting 130 acres of land at some place in the Cherokee Nation to be selected by them; that Marker would select the same as his allotment, exclusive of his homestead, and would file upon it; that he would sell this allotment to Halsell and Bagby, and they would pay him therefor $1.400 in two installments, $700 after the allotment of the land upon the delivery of Marker's deed to them, "and the remaining $700 on the expiration of the period when his filing on said land may be contested shall have expired and title thereto perfected in him." The time within which his filing could be contested would not expire until March 14, 1905. Upon the answer of the garnishees, which disclosed ⚫ the foregoing facts, the trial court denied the motion of the plaintiff in error for judgment against the garnishees on January 4, 1905, and dismissed the proceedings against them. The Court of Appeals of the Indian Territory affirmed this judgment, and this ruling is challenged by the present writ.

It is indispensable to the liability of a garnishee to the plaintiff that his debt to the defendant be owing absolutely, so that the duty to pay

it is not contingent on the happening of any future event, at the time of the service of the garnishee summons upon him. But it is not necessary, in the absence of a statute to that effect, that the debt should be due at that time. 2 Shinn on Attachment & Garnishment, §§ 480, 481, 643; Taber v. Nye, 12 Pick. (Mass.) 105. Counsel for the plaintiff in error does not claim that the garnishees were chargeable with liability on account of the first installment of the purchase price which was payable on condition that Marker executed a deed of the land. He insists, however, that the second installment was absolutely owing, although it was not payable until the time for contesting the filing expired and the title was perfected. He argues that the garnishees agreed to secure for Marker the privilege of allotting 130 acres of land at some place in the Cherokee Nation to be selected by them, and that they thereby contracted that the title to the land they should thus select should be perfected, so that they were estopped from claiming that its title might not be perfect. But this construction of the contract cannot prevail, because it imports into it by implication a covenant of title which it does not express and ignores and nullifies the express provision which it does contain that the second installment of the purchase price should become due when the time for contesting the filing expired and the title was perfected. When the entire agreement is read, and all its parts are considered together, as they must be, the contract was that the second $700 should be paid at the expiration of the time for contesting the filing, on condition that the title was then or thereafter perfected. If it should never be perfected, the second installment would never become due or owing.

The existence of the alleged indebtedness of the garnishees was dependent upon the contingency of the perfection of the title to the allotment, and there was no error in the judgments of the courts below. They are, accordingly, affirmed.

TWO HUNDRED AND EIGHTEEN AND ONE-HALF CARATS LOOSE EMERALDS v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. June 5, 1907.)

No. 295.

CUSTOMS DUTIES-FORFEITURE “BAGGAGE"-ARTICLES IN CLOTHING.

Held, that articles in the clothing are "baggage," within the meaning of section 2802, Rev. St. [U. S. Comp. St. 1901, p. 1873], relating to the concealment of dutiable articles "found in the baggage of any person arriving within the United States," and that a package of precious stones found in the pocket of a passenger is forfeitable under said provision.

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

This cause comes here upon writ of error by the claimant of certain loose, unpierced, cut emeralds to review a judgment of forfeiture for violation of the revenue laws. The judgment was entered October 3, 1906, in the District Court, Southern District of New York. Upon completion of the testimony, a verdict was directed in favor of the government; both sides having moved for a direction. Subsequently, upon motion for a new trial, the district judge

filed an opinion, which is reported in 153 Fed. 643. It contains the following statement of acts, which the testimony shows to be accurate :

"The claimant, Suarez, a resident of Bogota, in the Republic of Colombia, South America, arrived in New York on October 3, 1906, on the steamship Oceanic, from England. His native language was Spanish. He could not speak English, but had some knowledge of the French language, although bow much does not clearly appear. On the arrival of the ship, the customs officer, who took the declarations of the passengers, asked him, in French, if he understood French, and he said that he did. He asked him how many pieces of baggage he had, and he answered, "Three.' The examiner testified that he did not seem to clearly understand his questions as to what particular kind of baggage he had. The examiner thereupon drew his pen through the printed form on the declaration for the insertion of the number of trunks, bags or valises, boxes, and other packages, and wrote under the head of Total,' at the end, the figure 3. The officer asked him, in French, whether he had anything to declare, whether he had any gifts for other persons, and whether he had anything to sell, to all of which he answered, 'No.' Thereupon Suarez signed his name at the end of the declaration, and swore to it before the officer. Suarez then left the ship and went on the dock. He had as baggage a trunk, a box, and two handbags tied together. He stated to the customs officer on the dock that he was going to Colombia, that he wished to leave with the collector the trunk and the box, and that he wished to take with him while in this country the two bags. They were thereupon opened. the contents examined, and found to contain nothing dutiable, and were labeled by the customs inspector as being passed. The customs inspector then called another inspector, who spoke Spanish, and directed him to ask Suarez whether he had any precious stones or jewelry upon his person or in his pockets. The inspector did so in Spanish, putting various specific and particular inquiries, and to all of them Suarez answered in the negative. He was then taken on board the steamer and searched, and in the pocket of his overcoat was found a package which contained cut emeralds loose and unpierced weighing 2182 carats, which were thereupon seized by the government, and which are the subject of this suit for confiscation."

Louis J. Phillips, for plaintiff in error.

Henry L. Stimson, U. S. Atty., Winfred T. Denison and Felix T. Frankfurter, Asst. U. S. Attys.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

LACOMBE, Circuit Judge (after stating the facts). The information sets forth four alleged causes of forfeiture. It will be necessary only to consider the second one, which charges a violation of the provisions of section 2802, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1873]. That section reads as follows:

When

"Sec. 2802. (Penalty for concealing dutiable articles in baggage). ever any article subject to duty is found in the baggage of any person arriv ing within the United States, which was not, at the time of making entry for such baggage, mentioned to the collector before whom such entry was made, by the person making entry, such article shall be forfeited, and the person in whose baggage it is found shall be liable to a penalty of treble the value of such article."

The contention of the claimant is that articles of merchandise found on the person of a passenger cannot be forfeited under this section, which deals with baggage only. The district judge, after some reference to the common-law meaning of the word baggage, held:

"That such merchandise may be treated as baggage within the sense of the customs laws. A package carried in the pocket does not differ essentially from a package carried in the hand, and, in my opinion, if it contains duti