, :POLLI1'Z V. SCHELL.
which, rol' certain pnrposes, concededly existedjif it could take by this action what it could not have obtained if the acts complained of had not path of success would be less difficult. But the complainant' qoesnot and cannot ()ccupy such a position. The conclusion formellyreached, that the relief prayed for cannot be granted in an action ofthis cbaracter, must be adhered to. The Illotion is denied.
SCHELL and others.
(Oirc,uit Oowrl, 8. D. New York. March 19,1887.)
Where, on the trial ofa cause, defendant obtains a verdict for costs, which plaintiff pays, this constitutes an acquiescence in the verdict, and a renunciation of the right to further prosecute the claim adjudicated in that suit, and will bar another action thereon, even though no formal judgment be entered on the verdict.
ADJUDICATA-PAYMENT OF COSTS.
Where plaintiff obtains a verdict for a sum, the right to recover a part of which is barred by a former adjudICation, the verdict is wrong, and cannot be set aside in part, and allowed to stand for residue. In such a case the motion to set aside the verdict will be granted, unless plaintiff remits the amount awarded on the barred claim, and denied if he enters such remittitur
At Law. Acthm to.recover excess of duties. Almon W. Griswold, for plaintiffs. Stephen A. U. S.. Dist. Atty., and TIwrooa Greenwood, Asst. U. S. Atty., for defendants.
. ' WHEE.LER, J. T'hiscause was tried by jury January 13 and 14, 1886, in October term, 1885, and the .trial resulted in a verdict for the plaintiffs for $4,017.61, of which $3,890.99 was for excess of duties and gauger's fees, and interest thereon, exacted by Augustus Schell, defendants' testator, as collector of the, port of New York, on an importation of wine made by the plaintiffs from Malaga, Spain, by the brig Gideon, September 1, 1857, and $126.62 was for an excess of duty likewise exacted on an importation of hemp by the brig William Frederic, October 14, 1859. have moved to set aside the verdict because they say The that on the trial of a prior suit in favor of the plaintiffs against their testator in this court on the twentieth and twenty-first days of May, 1859, a verdict was rendered for the defendant on these same claims for excess of duties and fee.s.on the importation by the Gideon, and that the defendants' costs of that suit were taxed and paid. The records of the court show that there was such a suit; that these claims, arising out of the importation by the Gideon, were included in itj that a verdict for the defendant was rendered therein May 21, 1859, but that no formal judgment was entered on the vernict. It is made to appear otherwise
.. , : '
,that the defendants' of-that slJit. w:ere paid by This .payment of the 'defendants' costsiu that action was an acquiescenoe in the ,a renunciation ,of the to the clai/ns further, alldequivalent to a jwlgment on the verdict as a conclusive bar of the claims.' Catlinv;. ,Taylor,J8 Vt. Armstrong v. GJlby, 47 Vt. 359. In the changes of district atto,rneys, the fact of this verdict and payment of costs was lost from sight' in the district attorney"s office, and from lapse of time and other circumstances escaped the memory of the plain,. tiffs' attorney until after the verdict in this case. All appear to have acted in good faith, and theplaihtiffs' counsel does not insist that the plaintiffs should recover the amount allowed on the importation by the Gideon, but has not aDJ' remittitur of that amo1.p:l.t, nor taken any steps to relieve the defendants from the effect of tne verdict in this respect. The verdict is wrong as it no.w is, a.nd is for one entire sum covering all the claims involved, and cannot be set aside in part, and left to stand for the residue. The,only remedy appears to be a remittitur of the amount covered by the former verdict, or setting aside the verdict . altogether, and leaving the plaintiffs to a new trial. Motion to set aside the verdict granted, unless the plaintiffs, within 10 days, enter a remittitur of $3,890.99 of the amount thereof, and denied if such remittitur is so entered.
(OVrc'Uit Oowrt, No D. IUinoia. March 14,1887.)
CUSTOMS DUTIES-TRIMMINGS FOR BONNETS. ETC.-ARTIFICIAL FRUITS.
Artificial fruits, with artiticial stems and leaves, used only for trimming and ornamenting ladies' hats and bonnets, are "trimmings for hats, bonnets, and hoods, " within clause 448 of Heyel's Index of the New Tariff, and subject to duty at 20 per cent. ad 'lJalorem.
2.' SAME-C;RITElUON-MATERIAL-USll;. Clause 448 of Heyel's Index of the New Tariff does not require that trimmings forhllts, in order 'to be strictly dutiable at 20 per cent. ad 'lJalo1'em, shall be composed of any particular material. It is the use for which they are intended, and to which they are applied, that furnishes tl,le .criterion by which the duty is t,? be assessed.
At Law. Action to recover excess of duties paid under protest. P. L. Shuman, for plaintiff. W. G. Ewing, U. S. Atty., for defendant.
BLODGETT,J. Plaintiff importfild an invoice of artificill.l fruits,most, if not all of which, had.artificial stems and leaves. A duty of 50 per cent. advalore,'rn :was assessed against them under clause 429, Reyel's Index of the. New Tariff, and the assimilating clauses of section 2499. so far as applicable to this case t as follows: Clause