Indian Resen'ation,» theretofore set apart. In setting apart these four reservations without including the Klamath reservation, he necessarily exercised his discretion, and,by implication at least, excluded them. As they were not retained by the future and further action. of the president "for the purposes of Indian reservations," "under the provisions of the preceding sections of this act," the reservation, by the terms of the act itself, abolished or abrogated the prior reservation. This necessarily follows from the provision requiring these lands not embraced in the reservations made by the action of the president under that act to be cut up into lots of suitable si7.e and sold, as provided in the act. It is true that they were not thrown generally into the general system of public lands, to be disposed ()f to pre-emptors and others according to that system, but they were to be disposed of under special provisions as in the act provided. The lands ceased to be an "Indian reservation" and they, certainly, were not "Indian country," within the meaning of section 2133 of the Revised Statutes, under which the libel in this case was filed. I concur with the district court in the views taken as reported in this case, 3.5 Fed. Rep. 403. The decree of the district court dimissing the libel must therefore be affirmed, and the libel dismissed; and it is so ordered.
CusTOMS DUTIES-WHAT SUBJECT TO.
The classification of imported goods is to be determined by their chief use.
B,UlE-ACTION TO RECOVER-BURDEN OF PROOF.
Plaintiff in an action to recover an alleged excess of duties has the burden of proving that the chief use of the goods is such as to bring them within the SChedule under which he alleges they are dutiable.
At Law. Action by W. H. Hagedon against A. F. Seeberger, collector, to recover an alleged excess of duties collected by defendant. Pe:rey L. Shuman, for plaintiff. DiBt. Atty. Ewing and A88t. DiBt. Atty. Harris, for defendant. BLODGETT, J., (charging jury.) This suit is brought to recover certain. moneys paid. by the plaintiff to the defendant as collector of custums of the port of Chicago, which the plaintiff claims were illegally assessed by the defendant as such collector upon goods imported by the plaintiff. The plaintiff entered these goods as "materials for making and ornamenting hats, bonnets, and hoods," and as such subject to a duty of 20 per cent. ad valorem, pursuant to clause 448 of Heyl's CompilaLaws, which I.will read to you: tion oithe United States "Hats, etc., materials for; braids, plaits, flats, laces, trimmings. tissueS, willow sheets and squares, used for making or ornamenting bats, bOllnets, V'.38F.no.5-26
and hoods, 'composed ,of straw, chip, grass, palm leaf,willow. bair.,whalebone. or any other lilubstance or material not especially enumerated or provided for in this act, 20 per centum ad valorem." You all know, in a general business way, what 20 per centum ad va;. lorem means; it means 20 per centum computed upon the value of the goode as shown by the invoice, or fixed by the collector, The collector classed these goods as gimps, braids, galoons, ribbons, bead-work, etc., and aBsessed duties upon them at from 45 to 50 per centum ad valorem, according to the chief material of which they are composed; that is, those which were mainly silk he assessed as goods composed ofsnk, or of which silk wag the component material of chief value, at 50 per centum ad valorem j those whichwere com posed largely of metal wires in various forms, or metal tissue or tinsel, were assessed as manufactures of metal, or of which metal was the component material of chiefvalue, at 45 per centum ad valorem. The plaintiff paid the duties so assessed under protest, and now brings this suit-as he is allowed to do by law-to recover the e:lCcess duties so, as he claims, illegally exacted from him; and the question raised is whether these goods should have been assessed for duty at 20 percent. advalnrem. 'These goods in question form parts of several invoices, and samples of them are in evidence before you, each sample be able to take up each class of goods properly ticketed, so that and consider the evidence applicable to it in a methodical and systematic manner. The sale question in theclllse is, are these. goods materials for making and ornamenting hats, bonnets, and hoods, and as such liable only to a duty of 20 percent. ad valorem' It is not'itt all a queStion whether the collector erred in assessing under some one or two other .claqses of;t!'\e .}aw,btlt whether it was his duty under the law to have passed these g<;l0ds as material for making and, ornamenting 'hats, 'and assessed them r:,at 'fl. duty of; 20 per,' cent. ad va101'em'Tbe testimony' on' the part of the plaintiff tends to show that the, goods in question' are chiefly used as materials for making and ornamenting hats, bonnets, and hoods. Sample No. 239, which is the broad piece of ribbon which is in evidence here, -the testimony ohme witness orily tends toshow'is,millinery or hatmaterial; theother witnesses, >if I remember, both for the plaintift' and the defendant, all testify that it is what is known in the trade as a "sash ribbon." AUGLsample No. 32 A,all the witnesses concur, is a bonnet trimming, or used exclusively for that purpose, it being composed of straw and metal wire or metal tinsel; while on the part of the defend. ant the proof tends to show that the goods represented by these other samples are not used chiefly for hat, bonnet, and hood materials or orna. ments, but. that they are much more largely used for trimming and ornaJmenting ladies' dresses,cloaks, jackets, etc.; that is, that the predominat\ing or chief use to which they are put is not in the making and ornamenting of hats, etc., but that they have other uses to such a cOl:)trolling extent as to take them out of the hat material clause, It is your pro,vince'to weigh this evidence, and say whether the proof satisfies you othatall or any part of the goods represented by the samples are goods,
the chief and predominating use of whichis in the making and menting of hats, bonnets, and hoods. Your, own experience and common knowledge will teach you that there is hardly any article, however specific and exclusive may be the use for which it was designed and made, but what may, under emergencies, or from caprice, be applied to another use or uses; but the question here is, what is the main, ordinary, natural use for which these goods were designed and intended. Are they aU, or any of them, designed or intended so exclusively for hat, bonnet, and hood materials and ornaments that you can say from the proof that they were not equally adapted to and intended for dress material and trimmings, or for other uses than hat material and ornaments? If you find from the proof that the chiefand predominating use of the goods in question, or any part of them, is for the making and ing ot' hats, bonnets, or hoods, then it was the duty of the collector to have classed them under this clause 448, and assessed them only at 20 per cent. ad valorem duty, and your verdict should be for the plaintiff to the extent of your finding in that regard. While, if the proof satisfies YQU that the chief and predominating use was not for matetials and ornamerits for hats, bonnets, and hoods, but that they were also as gen., erally used for trimming or ornamenting dresses, or, in fact, applied to any other use thun for making or ornamenting hats, bonnets. or hoods, then you should find the issues for the defendant, as far as the proof justifies you. Much of the controversy heteis in regard to the ribbon goods represented by the samples numbered, I think, from 504 to 515. These goods, or most of them, as I: remember the testimony, are largely, as the testimony tends to show, composed of silk, or silk is the material of chief value; and the testimony also tends to show that Buch ribbons have many other uses than for materials and ornaments for hats. bonnets, and hoods; and ifthe proof satisfies you. that their chief use is not for hat material and trimmings, and also satisfies you that they are manufactures of silk, or tbat silk is the material of chief value, then you should find for, the defendants as to those goods. While, on tbe contrary, if you find froin ,tbe proof that their chief, and, as I may say, their popular and general, use, is as a hat material, then you should find for the plaintiff as to those goods.' Bear in mind, gentlemen, that it is not the person who imports or sells these goods that determines their dutiable classification, but it is the chief use to wqich they are adapted and put, and whileit may be true that goods sold from the stores of dealera in millinery goods, like this plaintiff, would be more generally used for making or ornamenting hats, bonnets, and hoods, yet the question under the proof in this case is whether these arenotso generally sold and dealt in by merchants for other uses as to destroy the claim that they are such hat or bonnet material only as come within the provisions of clause 448. 'l'he plaintiff in this case has the burden of proQf. He is nQt entitled to recover he satisfies'you by a preponderance of the evidence that the chief and predominating, use of these goods js for. hat material and
ornaments; and, if the proof fails to so satisfy you, your verdict should be for the defendant. If, after considering the proof applicable to each sample, you find that any of these goods should have been passed by the collector as material for making and ornamenting hats, bonnets, and hoods, then you should find the issue for the plaintiff as to such goods; while, if you find that all or any of these goods ought not to have been so classed as material for making or ornamenting hats, bonnets, and hoods, then your verdict should be for the defendant to the extent of sU()h finding. For example, if you find from the proof that the ribbons in question are not so exclusively used for making or ornamenting hats as to make that their main or predominating use, then you should find the issue for the defendant as to such goods. If you find, under the evidence, that all the goods in question are hat trimmings, then your verdict should he for the plaintiff as to the whole case. If you find that none of these goods from their chief and predominating use, hat materials, then your verdict should be for the deferidant. If you find that part of the goods only are hat materials, then your verdict should be for'the plaintiff as to such as you so find, and as to the remainder it should be for the defendant.
T6:lJaa. February 18,1889.)
POST·OFFIOE-RoBBERY OF MAIL CARRIER-WHAT CONSTITUTES OFFENSE.
Under the United States statute punishing "any person who shallrob any carrier, agent, or other person intrusted with the mail," the is com· mitted where it is shown that the mail. or any part thereof. is taken ,vIolently from the possession of the carrier, against his will, by violence, or putting him in fear.
To constitute the crime of robbery by putting in jeopardy the life of tl1e person having the custody of the mail, by the use of dangerotis weapon\l within the meaning of the statute, it is sufficient if the acts of the offenders, created in the mind of the person the mail in his. custody a, well· grounded apprehension of danger to his life in case of resistance or refusal to give up the wall. . A "dangerous weapon, " within the meaning of that provision, .fS one likely to produce qeath or great bodily harm. and procuring its commission, it becomes immaterial whether he actually en· tered the car containing the mail or not, as he is to be regarded as ia pdnciL pal, and convicted 8S such. ..' ,
If the accused was present on the occas,ion of the robbery. aiding"advising.
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"SAME-WIlO ARE PR[NCIPALS.
6, BAME-ATTElIIPT.. . .. , . ' .. Under the statute punishing an "attempt torobtbe IDan by o,ssaulting,tbe person the custody thereof," the attempt means an endeavor to accomplish it,carrJe<l beyond mere preparation. but falling shortGf the ,ultimate design. The attempt must also be to rob the mail. and.not merely 8naU/lmpt to rob the express car, or the passengers on .the train: carrying s'uch'