it before he purohased of Sparrow and Bush. We think, however, that all that the plaintiffs oan be oalled upon to do is to bring home to Smith information of their title at any time before he took his deed. They are not driven to the impossibility of proving that he had not forgotten that information, and even if he had it was a mistake for which -he should answer and not the plaintiffs. ' A judgment will be entered in favor of the plaintiffs for twentyfour twenty-fifths of the land in question.
and another v.
Oirouit Oourt, N. D. New York. February 1,1882.
1. CUSTOMS lJUTIES-REV. ST. § 2516-IHl'ORTED HAY. Hay is a raw or unmanufactured article, and snbjeot to a duty of 10 per centum ad valrYrem only. 2. SAME-PROTEST-REV. ST. § 2931. When the collector has liquidated the duties on hay at 20 per cent., under Rev. St. § 2516, a protest" against any greater rate of duties being charged upon hay shipped, «< «< «< than at the rate of 10 per centuma.a valrYrefh, for the reason «< «< «< that no higher rate than 10 per centum can laWfully be charged, or hay imported under the laws of the United dtates concerning duties on impClrts," is sufIlcient under Rev. St. § 2931, (Al,'"t of Julie 30, 1864,
BLATCHFORD, J. This is a suit against the oollector of oustoms at Rouse's Point, to recover back duties paid on hay in bales, imported from Canada into the United States. There is no duty on hay by name, but section 2516 of the Revised Statutes provides as follows:
.. There shall be levied, collected, and paid on the importation of all raw or unmanufactured articles, not herein enumerated or provided for, a duty of ten per centum ad valorem; and on all articles manufactured in whole or in part, not herein enumerated or provided for, a duty of twenty per centum ad
Kelley ci; Ma,cRae, for plaintiffs. Martin I. Townsend, Dist. Atty., for defendant.
Hay is not otherwise enumerated or provided for. The oollector imposed a duty of 20 per oent. on the hay, as a manufactured article. The plaintiffs protested and appealed to the secretary of the treasury. The ground of the appeal was that the duty should have been only 10 per cent., because, under section 2516, hay was a raw or unmanufactured al·tiole. The deoision of the collectl)r was affirmed. This suit was thon brought. At the trial the plaintiffs had a verdict for $1,976.86, and the defendant now moves for a new trial on a billof exceptions setting forth all the testimony taken on the trial. 1. There is an exception by the defendant as to the sufficiency of
FRAZEE V. MOFFITT.
the protest. The protest was "against any greater rate of. duties being charged upon hay shipped to or by us from Canada to the United States, entered with you or at the customs office at Rouse's Point, than at the rate of ten per centum ad valorem, for the reason and on the grounds that no higher rate than ten per centum can lawfully or properly be charged on hay imported under the laws of the United States concerning duties on imports." There was also a notice that an appeal would be taken in case of an adverse decision. A proper protest, as well as an appeal, are prerequisites to the right to sue. Section 3011 Rev. St., as amended 'by the act of February 27, 1877, (20 St. at Large, 247.) The protest must set forth "distinctlyand specifically" the gronnds of objection to the decision of the collector as to the rate and amount of duties. Section 2931, Rev. St. This provision was made by the act of June 30, 1864, § 14, (13 St. at Large, 214,) and is substantially the same as that in the act of February 26, 1845, (5 St. at Large, 727,) which required the protest to set forth "distinctly and specifically" the grounds of objection to the payment of the <;luties. It is contended for the defendant that the protest in this case does' not comply with the statute, in that, although it objects to paying more than 10 per cent., it states no ground except that no more than 10 percent. ought to be paid; and it states only a conclusion of law, and leaves the defendant to find out as best he can why it is the at law. But the protest was made in view of a liquidation of 20 per cent., which is the "greater rate of duties" referred to in the protest. The liquidation at 20 per cent. was under section 2516. No other provision of law than that section could possibly apply to hay. With section 2516 and the protest before him, the collector could not fail to understand from the protest that the rate of 10 per cent. claimed in it to be the proper duty was the rata of 10 per cent. named in section 2516. A mere protest against the payment of the duty exacted is not a compliance with the statute. This protest is not a mere protest the duty charged. It is a protest against that, with the further statement that only 10 per cent. should have been charged on hay. Hay not being enumerated or provided for anywhere, if not in section 2516, and the 20 pir cent. and the 10 per cent. being put in contrast both in the protest and in section 2516, and the collector having acted under section 2516' in imposing the 20 per cent., the language of the protest fairly referred the collector to the 10 per cent. clause of section 2516. A protest is a commercial document, usually made in the hurry of business, entitled to a liberal interpretation, and not requiring technical precision, while at the same time it must show fairly that the objection afterwards made at the trial was in the mind of the party and was brought to the knowledge of the collector, so as to secure to the government the practical advantage which the' statute was designed to secure. Swanston v. Morton, 1
Curt. C. C. 294; KriesleTv.Morton, ld. 413; BU1'ges8 v. Converse, 2 Curt. C. C. 216. . The case oiSteegman v. Maxwell, 3 Blatchf. C. C. 365, is nearer like the present case than anyone I have been able to find. The plaintiffs imported articles known in commerce as "thread laces," composed of linen and cotton. The oollector exacted 25 per cent. duty on them as "cotton laces," under Schedule D of the act of July 30, 1846, (9 St. at Large, 46.) "Thread was named in Schedule E, which was a 20 per cent. schedule. The protest was against the payment of the 25 percent., and claimed that the "thread laces" were liable to a duty of only 20 per cent. The court held that the protest was a notice to the COllect')r, adequately distinct and specific, of the grounds of objection to the payment demanded, and satisfied the provisions of the statute. The protest did not say that the ground was that the article was provided for by name as "thread laces," in Schedule E, but it named,the 20 per cent. and protested against the 25 per cent·. ScheduleE immediatelyfollowed Schedule D, in the same act. In tha present case the prote,st names the 10 per cent. and protests against the 20. The only ,suggestion against it is that it does not say that hay is not an article manufactured in it is' a ,raw or unmanufactured article. whole or in part, and But these provisions are in the same section. 11,1 the case above was complied with, alcited it was expressly held that the though the protest did not designate the particular schedule and name under which the importation should be ranked. The principle of the foregoing views is sanctioned by the supreme court in Converse v. Burgess, 18 How. 413, where it is said, in regard to the protest act of 1845: "We ar,eoot, therefore, disposed to exact any nice precision, nor to apply any,strict rule of consGruction upon the, notices required under this statute. It is sufficient if the importer indicates distinctly and definitaly the source of his complaint, and his design to ,make it the foundation for a claim against the government." The protest in this case must be held to have been sufficient. 2. At the Qlose of the, evidence tqe ,defendant asked the court to direct a verdict for the defendant"Qnthe ground that the undisputed evidenceshowed. that hay was a manu,factured artiQle, and by the law subject to duty of 20 per cent. ad. valorem. The motion was nied and the fl,nQ,the case was submitted to the jury, which found for the plaintiffs. The defendant contends that a verdict. for the defendant should ha,ve been directed. The hay was pressed bales ready marlret, 'and not chopped up: fj.p.e. Itwa,S):nostlytimothy hay, used for feed. The usual process in ,to the. hii,y the grass· and scatter, it by a tedder to enable It to dry,. and*en-rake it up and put it into cocks, and ,let the cocks remai:p. in. the field overnight, and the next day open that day.. While out the cocks to dry., and then' put it in the
in the cocks the hay sweats. After it is put in barn, it must remain there a month before it is dry eri:ough to be pressed and baled. The grass must be cut while green to make good hay. If left to dry uncut it becomes worthless. When the grass is cut green it contAins starch and gluten. After it is cut the heat of the sun and the oxygen in the air convert the starch into sugar before the hay becomes dry. The defendant contends that, on this evidence, hay is a manufactured article, under section 2516; that hay is a new article transformed from grass, as much as sugar is from the cane ,juice or the maple sap, or as salt is from the saline brine; that the heat of the sun, and the air, and human skill and labor, manufacture the grass into hay; and that the verdict forthe plaintiffs was not only without evidence, but against the evidence. I am of opinion that nothing that was done or occurred to the grass which became this hay, caused it to 'be other than a l'aW or unmanufactured article, or to be an article manufactured in whole or in part, under section 2516; that the jury were justified in finding the verdict they did; that the direction to find a verdict for the defendant would have been erroneous; that a verdict for the defendant would have been erroneous; and that it would have been proper to direct a verdict for the plaintiffs. If hay is a raw article it is liable to only 10 per cent; duty. }4:any articles are properly called raw which have undergone Rome manipulation. Co'tton is picked from the bolls, and cleaned by ginning, and baled. Yet it is raw cotton in the bale. Wheat is cut, and the grains are threshed out, and then subjected to a cleaning machine, and then bagged. Yet it is raw whent in the bag. So with other grains. The cotton D,nd the grains undergo such change and prepara.tion,as exposure to light, and natural or artificial. beat, and air, and the manipulation they receive, produce or 'allow, be it more or less. 'Yet neither the cotton nor the grains would be said to be manufactured. Salt and sugar are new articles. Cotton 'and grains are the same articles they were when on the plant with its roots in the earth. So bay is the same article it was when it was stalks of grass with roots in the earth. It is dried, to be sure; but the drying and anyconversion of starch into sugar are mere incidents of the necessary cutting to enable it to be stored for food in .latitudes where grass cannot be found all the year round. Where it can be so found no hay is stored. Dried apples would not be called a manufactured article, though the apple is peeled and cored and sliced, and dried by exposure to the sun and manipulation. The substance of dried apples is still apples. grass.. Change of name The substanc,e of dried grass orbity and manipulation do not necessarily coustitute manUfacture, within the meaning of section 2516. Each case must be decided according to its own circumstances. The verdict of, .the jury in tl;lis case was a correct one, urider the foregoingviewB, and,the ·motion fora new trial is denied. .,'
NEW HAVEN STEAM-BoAT CO.
'District Court, S. D. Neu;' York.
1. JURISDIOTION-COSTS ON DISMISSAL.
November 22, 1883.)
The settled practice of the federal courts, upon dismissal for want of jurisdiction, has been to disallow costs on the ground of want of power. 2. SAME-REV. ST. §§ 823, 983: Whether this rule is an.r longer applicable, and any want of Dower can b'l deemed to exist under the express provisions of sections 823, 983, of tho Re· vised Statutes, qUlEre. 3. SAME-CIVIL RIGHTS AOT-COSTS-REv. ST. § 975. Where an action was brought to recover a penalty under the civil rights act of March 1, 1875, and the same is discontinued, upon the recent decision of the supreme court holding the act unconstitutional, held, that the defendant was entitled to costs. under section 975. Held, also, that, independent of that section, costs could not be denied through any want of jurisdiction, since this court has jurisdiction of thesubject.illllotter, and the determination of the question of the validity of the act.
Action to Recover Penalty. Alexander & Ash, for plaintiff. Owen d Grall, for defendant. BROWN, J. This action was brought by a colored person to recover a penalty of $500 for being expelled on account of his color from the dining-saloon of the defendant's steam-boat Continental on the fourteenth of February, 1879, in violation of section 2 of the act of March 1, 1875, (18 St. at Large, 336,) commonly known as the civil rights act. The defendant interposed various pleas, including a plea to the jurisdiction. The case being called on the calendar of this court for trial, plaintiff's counsel stated that the case seemed to be covered by court in Robertson v. Memphis & the recent .deJision of tpe O. R. 00. 3 Sl:lP' Ct. :ij.ep. 18, hoJding that the act in question was unconstitutionl;tl, and. that he would discontinue the action, claiming the right to do so without costs, on the ground that the court, through the unconstitutionalHy afthe act, was without jurisdiction of the subject-matter. The defendant claimed the rightto costs upon discOlltinuance, and the question ,been submitted to the, court for its decision·. 1. It has long been the settled in the federal not to grant cQstsin a cauSe which is,discontinned or dismissed on the ground thltt the court no jurisdiction of the This has generally been pla:ped on ground of want in the Homthall v. The court. The M.dyor v.Oooper, 6 Wall.. 241, .. cited; Abbey v,.'.('he Stevens, Oollector, 9 WaJl. 560, 22 How. Pr.. 78, 86;, The'McDo'J,ald, 4 Blatchf. v. A Oargo, etc., 15 FED. BEl;'. 285,288;' Burnham & M. 417, 424.. , , , , " In many ot the state trij:mnals costs in such ca.ses are giveu to the prevailing party, where there is jnrIsdiction of the plaintiff,e.vep in