LEGG t. HEDDEN.
LEGG tI. HEDDEN, Collector.
((Jircuit Oourt, 8. D. New York. February 4, 1889.) 1.
CUSTOMS DUTIES-RIGHTS OF IMPORTERS-PROTEST-DIFFERENT CLAIMS.
A protest against the exaction of duty is sufficiently distinct and specific tG satisfy the requirements of section 2931, Rev. St. U. S.· notwithstandinK it contains a number of different, and perhaps inconsistent, claims. An importer cannot recover in an action against a collector on any ground not fully and distinctly set forth in his protest.
Where an importer claims in his protest that his goods are dutiable as nonenumerated manufactured articles, under the provisions of section 2518, Rev. St., but also makes statements and allegations of fact in the protest which are calculated to mislead the collector, and relying upon which the collector finds the articles to be enumerated by virtue of the provisions of section 2499. Rev. St., for articles composed of two or more materials, he cannot recover in the action by proving facts which, while they tend to show that the articles imported are non-enumerated. are inconsistent with, and in contradiction of, the allegations of the protest on which the collector relied. Where an importer has alleged in his protest that articles imported by him are "composed of crude feathers or downs, feathers the component material of chief value, " and claimed that they are dutiable at 25 per cent.· under sec- , tion 2499, Rev. St., and Schedule N of the act of March 3, 1883, as a manufacture of which crude feathers or downs are the component materials of chief value, and has also separately claimed them to be dutiable, as non-enumerated manufactured articles, at 20 per cent., under section 2513, Rev. St., and it appears upon the trial that down IS the component material of chief value. the importer cannot recover upon the ground that down, the component material of chief value, is on the free list, and his articles are therefore non·enumerated, as that claim is inconsistent with the allegations of his protest.
This was an action against a former collector of the port of New York, to recover duties alleged to have been exacted in excess of the lawful rate on certain feather trimmings imported by the plaintiff. . The collector had classified the goods for duty under the provisions in Schedule N of the tariff act of March 3, 1883, for "feathers dressed, colored,or manufactured." The importer, protesting against the exaction of this rate of duty, served upon the collector a notice of dissatisfaction, in the following form: "NEW YORK, DeC. 2, 1885. "HO'n. Edward L. Hedden, Oollector of Oustoms, New York-8m: We hereby protest against your decision and assessment of duties as made by you on our importations below mentioned, consisting of certain feather trimmings, other than mUlinery, composed of crude feathers or downs fastensd, with a gluish substance on strips of cotton cloth, imitating fur. feathers the component material of chief value, claiming said goods are not man ufactured feathers in the meaning of the law, and are dutiable--First, as a non-enumerated manufacture, undpr section 2513, act Mal'ch 3, 1883, at only 20 per cent. ad valorem,' or, second, at only 25 per cent., as a manufacture of which crude· feathers or downs are the component materials of chief value, under section 2499, anll Schedule N, of said act; or, third, at only 30 per cent., under said sectipn and schedule, as imitation of fur; or.fourth, at no more than.
the highest rate chargeable on any of its component parts, viz., cotton cloth, under Schedule J of said sectiotrof'saiQact, and not at 50 per cent. aa valorem, as manufactured feathers, or as charged by you. "CHAS. [Signed] "44 Exchange Place, N. Y. "For LEGG & Co.",
" At the beginning of the trial, plaintiff's counsel announced his intenupon the claim his article wns' a non-enumerateu tion of manufactured article, dutiable at 20 per cent. under the provisions of section 251'3, Rev. St., without waiving or relinquishing any of the other claims of the protest. He also announced that he should base not specifically enu, this claim, upon the fact that feather. merated in the tariff act, and that its component material' of chief value was down, which was on the free list. The plaintiff then adduced evidence tending to show that the goods in question consisted of soft turkey down glued' on strips.of cotton cloth,' and that the down was the component matElrialof chief valu,e. 'fhe defendant coIled several witnesses who had manufactured goodssimilllr to plaintiff's in1portilfions, and who testified that they were made of turkey feathers, from which the quill had been cut away, leaving the soft outer part of the feather, which had been glued on the cloth. The court submitted to thejury for a special verdict the question whether the plaintiffs importations were made of fimtherS ot of downs. The jury found that they were madEi of downs. Counsel for defendant thereupon moved for the direction of a verdict in favor of defendant on the grounds: (1) That the protest relied on by plaintiff'didnot distinctly and specifically set forth the ground of plain- titf's objection to the action of the collector in assessing duty, within the meaning of section 2931 of the Revised Statutes, for the reason that it contained four different and inconsistent claims, and showed that at the time of its service the importer had been himself unable to determine what provision of the tariff applied to his goods, or under which he should claim. (2) That as plaintiff had in the protest informed the collector that feathers were the component material of chief value, aud that the good!! were composed of crude feathers, or downs, (obviously using these as synonymous terms,) provided for in Schedule N of the tariff act, (where feathers are provided for and downs are nowhere mentioned,) he could not now be heard to claim that the component material of chief value was on the free list, thus rendering his article a non-enumerated manufacture, because such a claim was not made in his protest, but was inconsistent with, and in contradiction of, the averments of the same; that no Buch claim had ever been brought to the attention of the collector; ,and that plaintiff could not now shift his ground, and recover on a claim not distinctly and specifically made in the protest.. Charles Curie, /::Jtephen G. Clarke, and Edwin B. Smith, for plaintiff, cited: Elliott v. Sw(t1'twout,10 Pet. 131; Barney v. Watson, 92 U. S. 451; Oary v. OurUs, 3 How. 236;' Thompson v. Perkins, 57 Me. 290; Nichols v. U. S., 7 Wall. 130; Wright v. Blakeslee, 101 U. S. 179; (}1'eely v. Burgess, 18 How. 413; Swanston v; Morton. 1 Curt. 294; Ohrist v. Marrnoell, 3 Blatchf. 129; Converse v. Burgess, 18 How. 413: Boker v.·Bronson, 4 Blatchf. 472: Mason
v. Kane. Taney. 178: Arthur v. Morgan, 112 U. S.49:>.:> Sup. Ct. Rep. 241; Oberteujfer v. Robertson. 116 U. S. 516, 6 Sup. Ct. Rep. 462.
Stephen. A. Walker, U. S. Atty., for defendant, cited:
and W. WickhamSmiih, Asst. U. S.
Sadler v. Ma:moell,3 Blatchf.134; Davies v. Arthur, 13 Blatchf. 34,96 U. S. 148: Smith v.Schell, 27 Fed. Rep. 648; Oummins v. Robertson, ld. 654; TlJ,omson v. M(J$Well, 2 Blatchf. 392; Stalker v. Maxwell, 3. Blatchf. 138; Swanston v. Morton, 1 Curt. 294: Kriesler v. Morton. Id. 413; Bocke v. Lawrence, 2 Blatchf. 508: Orowley v. Maxwell, 3 Blatchf. 404: Ourtis v. Fiedler, 2 Black, 461; Burgess v. Oonverse, 2 Curt. 223. .
LACOMBE, J., (orally.) The jury having found that the goods in suit are composed of downs; and the evidence showing that the downs in them are the component material of chiehalue; and it further appearing from the. tariff act that downs are on free list, the articles imported, under the decision of the late chiefjustice in Hartranft v. Sheppard, 125 U. S. 337, 8 Sup. Ct. Rep. 920, are dutiable. properly at 20. per cent. ad valorem, under section 2513, as a non-enumerated l!.rticle.. To the registration pf such a verdict, however; the defendant makes two objections, spriQ?;ing from the form of protest: 1. That it is. multifarious. I appreciate fully the force of the argument, and the difficulties which will undoubtedly su;rround the entire subject, if multifarious protestaare to be recognized by the law. If aman may state in the alternative two separate paragraphs, and claim that the article is dutiable under either, he may, if, for instance, thereis any silk in it, every single. one of the silk paragraphs in the statute, and claim that itisdutiableunder some one of them. But I donotfiuc! in language of the statute itself any express provision that the party prf)testing, or giving his notice of dissatisfaction, must restrict himself to lj,ny one partlculal' rate of duty which he may claim that his goods should Nor do I find that any. of the authorities go to the length of holding that he shall do so. Under those circumstances, to stamp the protest void because it is multifarious, would seem to be legislation, rather than a construction of the statute. 2. The other objection, however, is more serious. The position of the case is now (and of course that was the position of the case aU the time) that the article is not to be taken as enumerated in any of the sections preceding section 2513, because its component material of chief value is on the free list. That is the only fact by reason of which it can be claimed that this was a non-enumerated article, and therefore open to the operation of section 2513. Now, the question is, did this protest, when fairly interpreted, set forth that as the ground of objection to the collector's ruling? Did it express such an opinion in such plain and intelligible terms as would call the collector's attention to it? These documents of course are, as has been held many times, business documents. They are not prepared by lawyers, and they are not to be construed with the strictness that a legal document might be. It is to be assumed that they are prepared by the
merchants themselves; and that they are such documents, couched in such plain language, as would be used by a layman of intelligence, and of business capacity, to express the grounds of his objection. Per eantra, they must be expressed in such terms that the collector, who is also a layman (for the statute does not require that he shall be a lawyer, although it happens that he frequently is one) will be able from them to gather plainly what the meaning of the protestor is. The rule has been best expressed in one of the latest casesI-that of Arthur v. Morgan, 112 U. S. 495, 5 Sup. Ct. Rep. 241,-where it is said that the protest need not be made with technical precision, but it is sufficient if it shows fairly that the objection afterwards made was at the time in the mind of the party. and was brought to the knowledge of the collector, to the end that he might ascertain the precise facts. Looking at this protest I am unable to reach the conclusion that it plainly expresses, or, in the language of the court, that it shows fairly that the objection made was that because the component material of chief value was on the free list it was a 'non-enumerated article, and therefore open to the operation of section 2513. It is true that it uses the word 1I downs" in three or more places; but it always is as the altt:rnate of the word "feathers." "Down" is nowhere referred to as the antithesis of 1I feathers;" nor is the circumstance that downs are on the free list in any wise indicated as operating to make the article non-enumerated. I do not think that the collector at that time, knowing all that we know now, on receiving such a protest as this, would fairly draw from it the conclusion that the real objection of the party on the other side was that, because the component material of chief value was a free-list article, therefore the operation of the component material clause of section 2499 would not apply; and that in consequence the article would, at the conclusion of the tariff paragraphs, remain unenumerated, and therefore open to the operation of section 2513. I therefore, despite the answer of the jury to the question, shall direct a verdict for the defendant.
SCOTT t1. MEAD.
et al. l
(District .oourt,S. D. New York. February 19, 1889.)
BANKRUPTcy-FRAUDULENT CONVEYANCES-HuSBAND AND WIFE.
The bankrupt, M., in 1866, some years before his insolvency, had a judg· ment recovered against him by default by one L. Before that he had dealt in real estate in his own name, and then held some property on which the judgment was a lien. Thereafter, he continued and extended his real-estate business, making all contracts and obligations in own name, but taking titles in his wife's name. In 1867 he bought several lots, paying for them out of his own mellns, taking title in his wife's name. In 1870 and 1871 he built five valuable houses thereon, doing all the business in his own name, and sub· sequently cqllecting the rents in his own name, and using them at his discretion. Relit (1) that, there being no fraudulent intent us respects subsequent creditors at the time of the purchase of the lots, the wife, under the New York statutes, should retain the money invested in the lots, less the then existing judgment of L. (2) That the title taken in the wife's name was designed as a cover only for the husband's business; that the buildings were not within the same protecting statute as the lots; that they were not intended as a gift to her, and, if they had been, the gift was not reasonable in amount, as reo spects existing or subsequent ,creditors, and was invalid as against existing creditors and also as ,against subsequent creditors misled by the husband's apparent possession and ownership of the property
EQUITy-CONVEYANCE SUBJECT'TO LIEN OF JUDGMENT-MARSHALING ASSETS -RELEASE.
M. having conveyed a house and lot to the lien of L.'s judgment, but without any agreement on the part of the grantee to pay it, it appeared that the amount of the judgment was neither deducted from the consideration nor part of the price. Beld, that M. had no equity to require the grantee to pay L.'s judgment, and that the land did not become the ,primary fund therefor; aud that L.'s subsequent release of that property did not prevent· his recourse against the houses and lots in suit; the same as regards his release of other property at M 's request.
B. CREDITORS" BILL-WIFE'S EQUITY-RENTS AND, PROFITS. Upon decree charging the property with payment of the bankrupt's unse· cured debts, held, (1) wife first entitled to the proceeds of a house and lot previously settled upon her in good faith, the proceeds being probably used by the husband in payment of debts incurred in the new buildings; (2) wife answerable for such rents and profits only as came to her hands.
In Bankruptcy. Creditors' bill. For facts, see decision on demurrer to amended complaint, 9 Fed. Rep. 91. Nelson Smith and Coleridge A. Hart, fi>r complainant. MiUer, Peckham & Dixon, for defendants. BROWN, J. The complaint was filed in August, 1880, by John H. Platt, assignee in bankruptcy of Abraham Mead, to have applied to the benefit of the estate five houses and lots on the corner of Fifty-Fifth street and Sixth avenue, the title to which had been taken in the name of Sarah J. Mead, the bankrupt's wife, alleged to be in fraud of creditors. Upon the death of Mr. Platt, Mr. Scott, the succeeding assignee, was substituted as complainant. The general facts as charged in the bill are stated in the decision on the demurrer to the amended complaint, (9 Fed. Rep.
by Edward G. Benedict,Esq., of the New York bar.