.. , : '
,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
MARSH t1. SEEBERGER.
"Fe.athers, * * * .when dressed, colored, or manufactured, including dressed and: finis,hed birds, fOl' millinery ornaments, and artillcial and ornamental feathers and flowers, or parts thereof, of whatever material composed, for millinery use., not specially enumerated or provided for in this act. fifty (50) per centum advalol'em." The assimilating clause in section 2499 is as follows: "There shall be levied. collected. and paid on each and every unenumerated article which bears a similitude either in material. quality, texture. or the use to which it may be applied to any article enumerated in this title as chargeable with duty, the same rate of duty that is levied and charged on the enumerated articles which it most resembles in any of the particulars above mentioned; and, if any unenumerated article equally resembles two or more enumerated articles on which. different rates of duty are chargeable, there shall be levied. collected, and paid on such unenumerated articles the same rate of duty as is chargeable on the article which it resembles paying tha highest duty." The importer claimed that the goods in qUestion should have been classed as for ornamenting hats, bonnets, and hoods," and charged with 20 percent, ad valorem, under clause 448 of Reye!. The duties charged were paid under protest, an appeal taken to the secreta.ry, of the treasury , by whom' the action of the collector was affirmed, and this suit brought in apt time to recover the excess of duties so paid under protest. The only question in the case is whether there is a speCific duty chargeable upon these goods, or whether they were properly classed as "millinery ornaments," under clause 429. The proof in the case shows that the goods in question are only used for trimming or ornamenting ladies' hats and bonnets, and are kept and dealt in as hat and bonnet trimmingsandomaments. The appraiser seems to have been of the opinion that, as these goods are similar in their use to millinery ornaments, they should be classed and charged a duty as such,but I am very clear they come within the description of "trimmings or ornaments for hats. bonnets, and hoods,"and are specifically within the description of clause 448, which reads as follows: "Hats, and so forth, materials for,-braids, plaits, fiats, laces, trimmings, tissues, willow sheets and squares, used for making or ornamenting hats, bonnets. and composed of straw, chip, grass, palm-leaf, willow, hair, whale-bone, or any other substance or material, not specially enumerated or prOVided for in this act,-twenty (20) per centum ad valorem." The.segoods seem to be manufactured and adapted solely for the ornamenta,tion or trimming of some article of apparel, and the proof shows that they are only used for hat and bonnet trimmings; that they are kept with the hat and bonnet trimmings, and sold and dealt in as such; and I am therefore of opinion, that they should have been classed for duty under clause 448, and duty assessed upon them at 20 per cent. ad valorem. . Clause 448' does not require that trimmings for hats, in order to be strictly: dutiable at 20 percent. ad valorem, shall be composed of any particular:materiaI. The use for which they are intended, and to which they are applied, seems to be the criterion by which the duty is. to be
assessed;aild where an article like this, by the Uses to which it is adapted, and fOf which it is dealt in, comes within the scope of this clalise, it seems to me the specific duty only should be assessed, and resort need not be had to the assimilating clauses fortha purpose of analogous classification. The issue is found for the plaintiff, and Judgment may be entered for the amount of the excess of duties paid. .
COlrcult Oourt, No
March 14, 1887.)
.. Hair-clippers" used by barbers in cutting hair close' or short should be rated as "cutlery," and. (lharged duty at 85 per cent. ad flalorem.
2. SAME-CRrrERION-NAME---:-MACHINES-,-USE. The name of an imported article is 'not the sole gui4.e by which
to classify it for duty; Its uses, especially when it is new, and II substitute for other articles, be considered.
At Law. Action to recover excess ofduties paid under protest. P. L. Sh1JlTlULn. for plaintiff. W. G. $'W'i:ng, U. S. Dist. Atty., for defendant.
BLODGETT, J. The plaintiff imported an invoice of"hair-clippers." used by barbers in cutting hair close or short. A duty of 45 per cent. ad valorem, was assessed against them under the last .clause of Schedule C in the act of March 3, 1883, (clause 216, Heyel's New Tariff Index,) as "a manufacture composed wholly orin part of steel, not otherwise enumerated or provided for." The plaintiff claimed the goods should have been classed as "cutlery," under clause 197, Heye1's Index,' and charged duty at the rate of 35 per cent. ad, valorem. The duty as. assessed was paid under protest; an appeal taken to the secretary ,of the treasury, who affirmed the action of the collector; and this suit was brought in apt time to recover back the alleged excess of duty so paid. The implements in question operate upon the same principle as shears or scissors, having fingers which run close to the skin, and gather and hold the hair where it can be clipped off by the reciprocating action of the cutting blades upon the fingers, and are intended to take the place of shears and scissors in the work of trimming and cutting hair and beards.' The proof shows that ,these goods are soJd and dealt in as "cutlery," and kIiown by that name to the trade. These implements, in their stl'ucture and use, are most analogous to shears and scissors; but I find no speoific duty upon shears and and it is admitted that they are classed as cutlery for the purpose of assessing duty; which woul4 seem to be the rule from the tenor of treasury decision 3195,