sufficient attention has not been given to the distinction between cases where the creditor is supposed to have relinquished the old liability and accepted a new and substituted liability in its stead, and those where a new and additional liability is created without impairing the old. In the former, his assent is evidently necessary; in the latter, it seems to me it should be presumed, and he should be allowed the advantage of the promise made between third persons for his benefit. And in this view I have at least the countenance of Mr. J. Dillon. ABNER H. BARKER v. WILLIAM S. LADD ET AL. 1. CONTINUATION OF ACTION BY ADMINISTRATOR.-The right of an administrator to prosecute an action commenced by the deceased (1 Stat. 8, sec. 31), is upon the condition that the cause of action survives, and that depends upon the local law-in Oregon, upon sections 365 and 366 of the Civil Code. 2. LIMITATION OF SUCH RIGHT.-Section 34 of the Oregon Civil Code, which limits the time to one year, within which the court may allow an action to be continued by the administrator, applies to actions in this court. (17 Stat. 197, sec. 5.) Before DEADY, District Judge. ON September 11, 1871, Abner H. Barker commenced an action in this court against William S. Ladd, John C. Ainsworth, Simeon G. Reed and Robert R. Thompson, for the recovery of $55,860.96 damages, alleged to have been incurred by him in the sale of his stock in the O. S. N. Co. by reason of the misrepresentations of the defendants concerning the same, while acting as directors of said company, and died on March 14, 1872; and on April 6, 1874, Joseph Simon was duly appointed administrator of said Barker's estate. Upon these facts, on April 16, 1874, said Simon applied for leave to continue the action as administrator of the deceased. 1874.1 Opinion of the Court--Deady, J. Joseph N. Dolph, for the motion. William Strong, contra. DEADY, J. This application is opposed by the defendants upon the ground that it was not made within a year from the death of the plaintiff, Barker. It is admitted that under the law of the State (Or. Code, secs. 365, 366), and section 34 of the judiciary act (1 Stat. 81), that this cause of action survived. The right of an administrator to maintain an action for such a cause is given by the law of the State; and such law, by said section 34, is made "the rule of decision" in this court. Section 31 of the judiciary act provides that upon the death of a party to an action in the United States courts, before final judgment, "in case the cause of action doth survive," the administrator of such deceased party may prosecute or defend, as the case may be. Neither this or any other law of the United States declares what causes of action shall survive; therefore, under section 34 aforesaid, the law of the State furnishes the rule on the subject. Under this section 31 the representative of the deceased party may voluntarily appear and make himself a party to the suit, and if he neglects or refuses to do so, the adverse party may, if he desire it, have a scire facias against him to compel him to do so. No time is limited within which these proceedings may take place. But the law of the State (Or. Code, sec. 37) also provides that no action shall abate by the death of a party; and that "in case of the death of a party, the court may at any time within one year thereafter, on motion, allow the action to be continued by or against his personal representative." This provision in relation to the time within which the application must be made, is a rule of practice, and under section 5 of the act of Congress of June 1, 1872, "to further the administration of justice" (17 Stat. 197), governs the practice in this court. Points decided. It is clear, then, that this motion comes too late and cannot be allowed. While both the law of the United States and the State authorize the administrator to become a party to the action in place of the deceased party, the law of the State goes farther, and in effect prescribes that this right must be exercised within one year, or else it is taken away or barred. It is a statute of limitations upon the right to maintain or continue this action. Under a similar provision in the New York Code (sec. 121), In Matter of Borsdorff, 17 Abb. P. R. 171, it was held that the motion would not lie after the expiration of a year from the death. The motion is denied with costs. THE UNITED STATES v. CARGO OF SUGAR. DISTRICT COURT, DISTRICT OF CALIFORNIA. 1. ENTRY DEFINED.-The term "entry," as used in section 1 of the act of March 3, 1863, must be understood to include the series of acts done by the importer at the custom-house necessary to the introduction of his merchandise into the United States, in compliance with the forms of law. 2. FALSE DOCUMENT OR APPLIANCE.-If in the performance of these acts, and as a means of making the entry, the importer is guilty of any false or fraudulent practice or appliance, or uses any false or fraudulent document, he comes within the law. 3. AGENT.Whether the agent who makes the entry had knowledge of the fraud is immaterial. The guilty knowledge of the owner is sufficient. 4. FRAUDULENT APPLIANCE.- Where charcoal had been mixed with sugar above No. 12 Dutch standard in color, for the purpose of reducing its grade, and making it appear to be below No. 12 Dutch standard in color, and the importer failed to disclose that fact to the customhouse authorities: Held, that the color of the sugar was not thereby altered; it was merely disguised, and the concealment and suppression of that fact by the importer at the time of taking his oath and making his entry, and the oath taken by him, constituted "a false and fraudulent practice and appliance" within the meaning of the law; and this notwithstanding that the law does not require that the color of the sugar be stated in the invoice or entry. Opinion of the Court-Hoffman, J. 5. COLLECTOR DECEIVED.-Whether the collector was deceived by the attempted fraud, is immaterial. 6. MISTAKE OF LAW. -- The belief on the part of the importer that he might lawfully put charcoal into his sugar, and thus alter its grade, and enable himself to lawfully enter them as of a lower grade, and that he might lawfully withhold from the custom-house authorities knowledge of the facts, will be no protection to him. Before HOFFMAN, District Judge. Delos Lake, United States Attorney. Milton Andros, of counsel for U. S. Doyle & Barber, for claimants. HOFFMAN, J., charged the jury as follows: Gentlemen of the Jury: The counsel for the claimants has presented to me instructions, thirty-six in number, with the request that I would give them to you as the law of this case. I have not, according to the State practice, marked upon the margin of each, "granted" or "refused," but they may be all treated as refused, except so far as they are contained in what I am about to say. I approach, gentlemen, the discharge of my duty in this case with a sense of responsibility, not only because of the importance of the proceeding, but because, in the view I take of it, its determination must depend upon the instructions given to you on the matter of law. I have been unable to discern any matters of fact that are seriously controverted, and upon which you are called upon to pass. In the first place, I desire to say that whether the law on which this proceeding is based be harsh or just, is no concern of yours, nor is the disposition that is to be made of the proceeds in case of confiscation, or whether the collector or the consul has acted well or ill, or whether the officers have been animated by a rapacious spirit or simply by zeal to detect fraud and to discharge their duties. All these considerations are wholly foreign to the purpose. You are called upon simply to decide whether certain matters of fact to which by law the consequence of forfeiture of the goods. is attached, have been established by proof. What, then, Opinion of the Court--Hoffman, J. is the law? The section under which this prosecution is brought provides: "If any owner, consignee or agent of any goods, wares and merchandise shall knowingly make or attempt to make an entry thereof by means of any false invoice, or false certificate of any consul, vice-consul or commercial agent, or of any invoice which shall not contain a true statement of all the particulars herein before required, or by means of any other false or fraudulent document or paper, or of any other false or fraudulent practice or appliance whatsoever, such goods, wares or merchandise, or their value shall be forfeited.” You will perceive that the offense to which the penalty of forfeiture is annexed is the making or the attempt to make an entry of goods, wares and merchandise "by means" of any false document, or false practice or appliance. What, then, is an entry? The term entry in the acts of congress is used in two senses. In many of the acts it refers to the bill of entry; the paper or declaration which the merchant or importer in the first instance hands to the entry clerk. In other statutes it is used to denote, not a document, but a transaction: a series of acts which are necessary to the end to be accomplished, viz., the entering of the goods. In the latter sense it is used in this statute. The language is: "If any owner or consignee shall make or attempt to make an entry by means of false. documents, false invoice or any other false or fraudulent appliances." It is the fraudulent use of means in the attaining of an object and accomplishing of a result, to wit, the entry of the goods, which the statute here denounces. The acts which accomplish this result, and which, taken together, constitute an entry, must have a beginning and an end. There is a moment when the entry is attempted to be made or begun; there is a moment when it is accomplished. The entry may be said to be commenced, or attempted, when the merchant presents his declaration or bill of entry. When this bill of entry has gone to the requisite clerks' desks, when accompanied by the certificate of the consul, the invoice and the oath, it is delivered to the collector and accepted by him, then the goods may, in a just sense, be said |