Where one wrongrully takes ftom the possession of another any article of personal property, the party from whom it is taken can, undoubtedly, recover the possession, or the value of the property, without reference to the quel:ltion as to who really owns the goods. The title win not even be inquired into, unless the defeudant connects himself with it. It is enongh that one has wrongfully taken goods from the possession of another. He must return them, or respond to the extent of their value. So, in this state, from its first organization, a party who has been dispossessed of land by a party having no title, can recover that possession on his mere pOl:lsessory title and ouster, and the wrong-doer will not be permitted to show an outstanding title, without connecting himself with it. These cases have no bearing upon tbe question now in issue, bnt depend npon other c::msiderations. In TVvud v. G1'Ufin, already cited, the COlirt says:
'This case is unlike the case of gcods in the Irll1ds of carriers, factors, wharfillgprs. ami other agents, who are responsible for tnem to their principals, beeallse of the different rnles that apply to lands and In te.e case of I:ul\ls ill the pol:lsessioll of a tenant, his interest aiM;' the interest oj' the landlord are distiuctly marked and eatil!j separated,. and j'or injuries tf) either, there are appropriate and remedie<, while as to gouds there is, in general, 1/0 SUGh dlstmdion,. and sIlch is the effect !jimn by the [wo to the j'act oj' pos· S,,:1sioh, that either trespass or tro'oer may be maintained against Ol1e who 7JlrDr/!!.fully depri'Ves alia/Iter oj' sitch possession, Illi,' hout 'Iny injllrg to the ultitle. l;'.It lJeyonu this, the authorities, so far as we have any, are oppo,e,z if) the claim vf the tennnt to TeUf)()er dama!Jes Inr an inju1'y to the inhe"itance until he has ,first satisfied the [,mellord,. and there is nothing in the state of the law ill respect to sneh agents. carriers, and others in the posses. sion of goods, that would induce us to extend it to a case like tl,ig." Iu. 240.
I am satisfied that the plaintiff cannot recover for set out in the first count until he bas either repaired, or made satisfaction to the lessors. The demurrer must be sustained as to the first count, and overruled as to the second, which is for inj uries to the estate of the tenant; anu it is so uruered.
(C;rcuit Court, N. D. Ohio, W. D.
ta'n Iron which was cla3sifieJ h\" the collector of the port of importation ns "axles," of c. hammel'ed"iron " whether sl1ch cla3sl!ied iron was propel' is a 'luestion of fact, to be tried hy a' jury. and if the jury have any doubts as to whether or.not slIch iron was properly cla3sifiel and eh:\r,ged for:1_ "axles," tl!ey should g1ve plaintilI the heneat of SllCtl UOllut, aUlI find a verdict for h1m.
!n an action to recover the exce,s of tiuty chargcu. for the imp'lrtation of CCI'-
OF bIPORTATIOXS-ACTfoX TO
SAME-BuRDEN OF PnOOF-PLAINTIFF' TO RAVE BENEFIT OF DOUBT.
In such a case, as in all other civtl caSCi, the case is to ue deeiueu by s preponderance of proof. The hurtlen of proof to show that the articles were dntiaLle is Oil the gO\'ernment; and the government, by a fair preponderance of proof, must estaLlish what they cmim in that regard.
3. SAME-DEGREE OF PHOOF'.
If tIll' articles were in fact" axles," such as named in the statute, less prOOl would Le requ:reJ to sh ,w that they were unlLrstuod to be so in commercial tra:lsactions; but if th,'y were not In flet "axle;," gre"tcr evidence would Le. rCllui[cd to show that they were un lerstood to he axles in the commerce and tmoe of the country, and so recognized. 4. i::l..U fE-N.UfES OF' hiPOIITA'I'IONS IN TAHIFF' LAWS-(JONSTRUCTfON. The names given to the d,lIerent articles in the tarilI laws are to be nnderstooo and construed to mean what they were u:Hlerstood tu m"an in the CUIllmerce and trade of the country, and among 1hose engagcd in trale and commerce at the time of the pas:;age of the acts, aud as reeugnlzld by the CustOIllS department at the same tuue, and not at pcriods since the passage of the law.
The commercial charactcr of import:ltions does not depend upon the mcre fact that they were or were not .tin. ,,-'/.I·d Itxles, but whether they were understood and recognized in cummerce and the husinl'3S of tmle as axles, ur those l'ngnged in such trade. at the time of the passage of the bw.
S.um-MI£AsUHE 010' DAMAGES.
If the jury find for the plaintiff they should render a verdict in his favor for (hc diliereuce the rates of dutyelmrgl'd a.,rJ. the pl'Opcr charge, with intere3t from the time the sum of money was p:lld unLil tlltl tirst day of tbo term at which the case is triccl.
At Law. Storck cf; Shuman, for E. II. Egglestun, U. S. Dist. Atty., for defendant. WELKER, J., (chI1T!Jing jury.) The plaintiff, bemg a dealer in all Barts of iron at the city of Chicago, imported from LiverpOOl to the city of Toledo, to fill a contract with a car-manufacturing company of Lafayette, Indiana, 1,OUO pieces of iron, formed in a shape and size .to be used as car a:::les, in the manufacture of railroad cars by the car company. They were called in the shipment "iron forgings for axles." When they arrived at the port of Toledo the collector reqnired him to pay the duty provided by law to be charged upon "axles," being cents per ponnd. 'l'he plaintiff claimed he was only to be charged the duty required to be paid on bars of "rolled or hammered iron," being but It cents per pound. The plaintiff paid the collector, under protest, the sum of cents per pound, and this suit is to recover from the defendant, under the provisions of the statute, the difference between these rates of duty; being the sum of $3,ti77.IO, and interest thereon from the different times at which the sums were paid. The statutes of the United States, (section 2504:, in Schedule E,) after describing various forms of iron manufactures, and fixing the duty on each class, provides that on "all other de8criptions of rolled or hammered iron, not otherwise provided for, one cent and onefourth per pound." Afterwards, and in another part of the section, after also various forms of iron manufactures, provides v.17,no.3-15
that on "blacksmiths' hammers and sledges, axles and parts thereof, and malleable iron in castings not otherwise provieled for, two and one-half cents per pound." In this suit the plaintiff claims that he should have been cha1'ged with only It cents per pound, and that the articles should have been classed and rated as "hammered iron," under the statute; and the defendant claims that he was to be charged the duty provided upon "axles," and should be rated under that provision of the law. The question for you to determine from the evidence is, to which of these classes of importations the articles imported by the plaintiff belong. Were they axles within the meaning of the law, or were they only bars of "hammered iron?" This is a question of fact that you must settle from the evidence you have heard on the trial of this case. Much of the evidence consists of that of experts engaged in making and trading in iron and manufactures of iron in various forms. This evidence is to be considered by you. Its weight and l'eliability always depend very much on the capacity and knowledge of the witness as an expert,-his experience and means of enabling him to form opinions upon the subject about which he may testify. Our tariff laws undertake to regulate our commerce with foreign couutries by fixing rates and duties upon Sallie articles of trade used in commerce, and placing others upon what is called the "free list," and it is intended by them to name and cover all articles that may enter
into our commercial trade, either on the duty list or on the free list. . The names given to different articles in these laws are to be understood and construed to mean what they were understood to mean in the commerce and trade of the country, and among those engaged in trade and commerce at the time of the passage of the acts, and as recognized by the customs department at the same time, and not at periods since the passage of the law. The commercial character of these importations does not depend up·on the mere fact that they were or were not finished "axles," fit to be used without anv other labor upon them in the construction of railroad cars; but whether they were understood and recognized in commerce and the business of trade as "axles" by those engaged in such trade at the time of the passage of the law. If they were in fact "axles," such as named in the stat11te, than less evidence would be required to show that they were so undel'stooel in the trade. If not in fact such axles, then greater evi-
dence should be required to show that they ,,-ere so understood to be "axles" in the trade of the country, and so recognized in such trade. Now, gentlemen, it under the wllole evidence there be douhts as to the construction of the statute as to the character of the articles imported, it is your duty to give to the importer, the plaintiff in this case, the benefit of those doubts. So that the eyiclence ought to satisfy you, by a fair preponderance of proof, that these articles were properly scaled and scheduled in tbe charginC! or dnties; but if you are not so satisfied, the presumption shollhl U8 in of tl1:s plailltiff,-
in favor of ,this claim. :Tf,you find that the articles were axles under the lalV, as I have stated, then your verdict should be for the defendant. If, taking these general principles, from a fair examination of the evidence you are satisfied that they were properly 'classified by the custom-house officers as axles, then your verdict should be in favor of the defendant, because then the collector had properly charged the duty. lfyou find from the evidence thr,t they were not properly classed, then they would come under the class of "hammered iron," and your verdict should be for the plaintiff for the 'amount of the difference between the rates of duty before stated, with interest thereon from the time the sum of money was paid. I believe the sums were paid in two different installments. The petition .states the amount. You will count interest on the aillount to the iirstday of the present term of court.
Verdict for defendant. Motion for new trial 0"'0 1'1' nled, and exceptions taken by plaintiff to the charge of the conn, and refusal, to instruct as requested by the plaintiff.
SEIDENBERG and others..
(Circuit COllrt, S. D. Florida.
A reweighing of goods made by the collector and the regular wei'Thers, at 'Whieh a dilference from the original weights in favor of the was found, but of which no notice or order was given, and no record made, was not a rcliquidation of the dut ie" on said goods. See article 361 of the Treasury RegulatIOns. 21 OF ACT OF .J01m 22, 1874, (18 ST. IVO,l-REV. ST. 2785271111. The' ntry allurled to in section :n of the act of congress approved twentysecond June, 1874, (18 51. is the original entry provided for, regulated and defincd by sectiolB 278;) to 2 7 SO, inclusive, of the Hevised Statutes. '
On 'Yrit of Error. This was an action of debt in the district court, on five warehouse bonds, for the balance of duties alleged to be due the United States on tobacco imported by defendants. On two of the bonds there is no contest. . (1) On the eighth of October, 1877, 589 bales of tobacco were imported anel entered for warehouse, the tobacco weighed, and bond Ko. 3DD executed. Withdrawals of Lales of tobacco covered by this bond .were made in October, November, December, 1877; January, Fehruary, :Jlarch, June, and July, 1878; and the duties paid on each withIHeported brJoseph P. Hornor, EST, of tIJe Xc\\' Orleans bar.