NlOHOLS 11. BEARD.
utes, c. 11, § 12, nor tho statute of 1878, c. 189, § 2, authorizes the assessment, to an executor residing out of the state, of an annual tax upon, 01' by reason of, personal property which is. part of the estate of his testator, and is held by him in trust to pay the income for life to inhabitants of the state, but is not shown to be itself within the state; and that the whole object and effect of. the later statuteare to amend the earlier one in the.l:linglepoint, that, after the expiration of threl _years from the appointment of the executor,the property, whether distributec10r not, should be assessed 8.9cording to the provisions of the fifth clause of the General Statutes, c. 11,§ 12; and by that clause property held by an executor residing out of. the state, in trust to pay the income to persons .within the state, is taxable to the latter only. Demurrer sustained, and judgment for the defendant.
D; Massachusetts. January 81, 1888.)
CUSTOMS DUTIEs-MEAsUREMENT 0-;' LIQUIDB.
All importations of liquids, includ.ing ale and porter, are to be estfmllted lI.Qcording to the standard of the gallon of commerce, containing cubic ,. , inches of measurement.
In Equity. Samuel W. Oreech,Jr., for plaintiff. GeorgeP. Sanger, Dist. Atty., for defendant. NELSON, J.. This is an action against the collector of the port. of Boston to recover back duties paid under protest. At the trial by the court without a jury the following facts were proved or admitted: The in February, 1880, plaintiff, a merchant and resident of New imported into the port of Boston, from Liverpool, a quantity of. ale and stout otherwise than in bottles; measuring 6,200 wine gallons of 231 cubic inches each, or 5,300 beer gallons of 282 cubic inches each. In the invoices and entry by the plaintiff the number of gallons was given in beer measure. The collector, taking the wine gallon as the standard of measure, assessed a duty of 20 cents a gallon on 6,200 gallons, and exacted the same from the plaintiff, who, claiming that the dl'ltyshould have been assessed up OIl only 5,300 gallons, the number of gallons according to beer measure, protested a.gainst the payment of ,the duty upon the 900 gallons mel.lleSS of the
of beer gallons, and paid the duty thereon-$180-under protest. He seasonably applied to the secretary of the treasury, and in due time, after an adverse decision of the secretary upon his appeal, brought this action. The proceedings 0.1; the custom-house \lera in due form of law. The only gallon of liquid measure authorized by the treasury department, and distributed to the custom-houses for use therein, is the wine gallon of 231 cubic inches, which was adopted as the standard of liquid measure by the department in 1832. Bya resolution of congress, approved June 14,1836, providing for the distribution of weights and measures, the secretary of the treasury was direoted "to cause a complete set of all the weights and measures adopted as standards, and now either made, or in the progress, of manufacture, for the usE! of the several custom-houses, and for other purposes, to be delivered to the governor of each state in the Union, or such person as he may appoint, for the use of the states respectively, to the end that a uniform standard of weights and measures may be 6stablishedthroughout the United States." The only gallon of liquid measure distributed to the states by the secretary of the treasury under this resolution was the wine gallon. The wine gallon of the treasury department has, for many years, been the statute standard of liquid measure in most, if not in all, of the states. No other gallon than the wine gallon was ever used in the custom-house at Boston. In the New Yo,tk custom.house, prior to 1871, the wine gallon was used in all Jases, except that ale nnd beer were returned 011 the, basiS of the beer gallon. But in that year the attention of the secretary of the treasury having been called to the practice, he instructed the collector at New York, ih a letter dated January 5, 1871, as follow,s:
, "Youroommunioation of the fourteenth instant has been received, inclosing a letter from the surveyor, stating l;haUt i,s the praoticA at your port to retul'll and in reply you are informed the measure of imported ale in that the departmeI),t lias this day decided, on the appeal of J. D. Richards & Sons, at Boston, that such practioe is incorrect, and that al1liquors SUbject to duty by the gallon should be returned' on the basis of wine liqUid gallons. This decision is the more readily arrived at in view of the repeal of the 103d section of the act of 1799, Which originated the said practice at your port, and also by reason· of the general commercial usage of the oountry in estimatmeaS1,lre." ing. allliqtlids by wine or
Since the date of this letter the wine gallon only has been used at the New Y()rkcustom-house. The sale of ale and beer in this country, at retail, has for a long period of time been by wine measure.
lilICHOLS t1. BEABD.
Prof. Alexander D. Bache, United States superintendent of weights and measures, in his repol·t to the secretary of the treasury,' dated December 30, 1856, says that "the standard of liquid capacity measures should be the gallon containing 231 cubic inches." See Senate Ex. Doc. No. 27, 34th CQng. 3d Sess. Uuder the word "gallon," in Worcester's dictionary, it is said that the wine gallon of 231 cubic inches is the government or customs gallon of the United State,s; in Webster's dictionary, that the standard gallon of the United States contains 231 cubic inches; in Appleton's Cyclopedia, that the gallon of the United States is the standard or Winchester wine gallon of 231 cubic inches. Bouvier, in his Law Dictionary, defines a gallon as "a liquid measure containing 231 cubic inches, or four quarts." Heyl, U. S. Import Duties, Part 3, p. 53, states that "theUllited States standard gallon is to, the British imperial standard gallon nearly as5 is to 6,"which gives our standard gallon as 231 cti'bic inches. By Rev. St.§2504-, Schedule D, this duty is imposed "on a.le" por· ter, and peer, in bottles, 35 cents per gallon; otherwise than in bot· tIes, 20 cents per gallon." The question in the case is whether, under this clause, the duty is to be estimated on the wine gallon or on the beer gallon. Words and phrases found in the custom laws are to be understood in their commercialseDse, and are to be interpreted according to the known usages of trade and business. This is the uniform rule in the construction of this' class of statutes. 2000hests of Tea, 9 Wheat. 430; U. S. v. 112 Casks of Sugar, 8 Pet. 277; U. S. v. Bt'eed, 1 Sumn. 159. The. act must therefore refer to the gallon of commerce. That this is the wine gallon is sufficiently evident from the facts found in the case; as well as from the known usages of the country, of which the will ta,kenotice. This is in ac· cordance with all the authorities. No authority has been produced, and it is believed that none exist8, to show that the old beer gallon is the standard of liquid measure in any part of the Muntry, whether in the measurement of ale and beer, or df any other liquids. The practice in the New'¥orkcl1stom·house prior to 18n,seems to have had its origin in the act of March 2, i 799, § 103, (1 St. 262-,) which enacted that no beer, ale, or porter should be imported into the country "except'in casks or "'essels, the capacity,dfwhichshaU not be less than fortygallonsheer measure, orin pa6kages eofitain;, ing less than six dozen bottles." But whatever sanction WltBgiven by tbisprovision to the practice, was removed by its repeal by'the act ofeigbteenth July, 18'66,'§ 43, (14 St. 188.)
The plaintiff relies upon the aot of first Maroh, 1879, § 21, (20 St. 351,) whioh enacted that' 'gallont' whenever used in the internal.revenuelaw, relatirlg to ;beer, ale, porter, or other similar fermented liquors, shall be held and taken to mean a wine gallon,the liquid measure containivg 231 cubic inches." But this act was plainly declaratory;. of the law as it then existed, and was not intended to e3tablish anew standard of measurement in the customs and excise departments. Its object was to put a stop to an erroneottBpractice then prevailing in the internal-revenue department, of estimating domestic malt liquors by beer measure, and to require it to conform to the reorganized standard of the customs service and of the mercantile community. We are of opinion that the collector was right in estimating the plaintiff's importation by the wine gallon, and assessing the duty thereon accordingly. The point was determined in the same way by Mr. Attorney General DEVENS, whose learned opinion is reported in 16 Op. A.tty. Gen. 859.· 'We fully concnr both in' his reasoning and conclusion. Judgment for the defendant.
UNION NAT. BANK Ol" CHICAGO, ILLINOIS, 'lJ. CARR
(OircuiHlo'U'I't, B.D. IOtDu, U. D.
OPTION CONTRAc'rs-VALIDITY OF.
Option contracts are not necessarily illegal, and the incident of putting up margins amounts to nothing unless the contract itself is illegal. The validity of such contracts depends upon the mutual intention of the parties as to the actual sale and delivery of the property, or a pretended and fictitious sale. to. be settled upon differences,
OD Exceptions to Master's Report., Lehmann et Park,. for complainants. E. J. Goode, for defendants. LOVE, J. There seems to be no.serlOUS question made in this case. except that of the legality of the contracts, which lie at. the basis of the controversy. It is insisted that the contrl:1-cts in. question wel'e illegal because they were "()ption" contracts, and ,because the defend. ant was charged with certain losses, by reason of his failure to put up "margins;" etc. The evidence, however, falls far short of what is necessary to, establish illegality incQntracts of this kind. All "option" contracts are not illegal, the of up