'bisOWD personal consumption, but the tradebetweeh the large dealers in and importers of the articles. Second, in this particular case the 'use: to whioh the articles are put is wholly material, and need not be taken into consideration by you at alL And siIniJarly the adaptability of the articles to use need not be considered by you. It is a question wholly of trade names. The use, therefore, to which the article is put is immaterial., The name abroad is also of no materiality whatever. It is the business of this country with which we are concerned. Also thennme stamped upon these goods, or others like them, at anytime is immaterial. The only question here is this: What was the commercial name of these articles when congress passed this tar.. iff act? If the committee of congress, having these articles before them Ilt the time, had turned to the trade of this country and said: "Gentle.. men, what name must be used to,include these artioles inourtariffact," what would have been the answer given them? If,from the evidence, yon are satisfied that known in trade as "burlaps," tbenyour verdict must be for the plaintiffs. If, on the contrary, you are satisfied that they were at that time not so known, but were known as "CiJ,nvas," 61' "paddings," then your -verdict must -be -for the defendant.
Verdict for defendant.
, . (Dinnct (JOU'l't, NdJ. Illinoy.
May B. 1889.)
A:t Law. 'Action by-D. H; Figk againstA. F · Seeberger,to recover back oustoms;dttties piid ,under: Protest.
FISK t'. SEEBERGER.
P. L. Shuman. for plaintiffs. Graham H. Harris, Asst.U. S. Atty., for defendant.
BLODGETT, J., (charging jury.) You are all of you iIi a general way familiar with the rule that the jury only find the facts in the case under the testimony. The court instructs you as to the law of the case; and such instruction is obligatory. You are to determine these questions of fact from the weight and satisfactory character of the testimony which is adduced ill the case by each party. The suit is brought.by the plaintiffs to recover back duties which they paid under protest; under the claim that the collector should have assessed these goods for duty under clause 448 of HeyJ's Compilation: of the Customs Laws, as materials for , making and ornamenting hats, at a'duty of 20 per cent. ad valorem. The pmintiffsprotested against the assessment made by the collector, pldd · the duties ,under protest, and took an appeal to the secretary of the treas"ury, ,where the action of the collector was affirmed; whereupon they brought this suit, as by law they are allowed to do; in order to test tbe , legality of the collector's action. It is a method provided by law, by, which an importer can have corrected any error which the collectorn1aY make,in the classification or assessment for duty of the goods which he "imports., The law fixes the duty arbitrarily t under certain classifications .or del;lcriptions, and [email protected]
den of proof. They are obliged to satisfy you by a preponderance of testimony, or by satisfactory testimony, that these goods are, and only are, material for making and ornamenting hats, bonnets, and hoods. The burden of proof,-the laboring oar, so to speak,...,.-is with the plaintiffs. I make this observation here because one of the best and most satisfactory pieces of evidence which can be adduced here in order to enable the jur); and. the court to fully understand just the character of these goods, and possibly to have some idea as to what their use and classification should be, is the production- of samples of the goods themselves; and with reference to the goods now left before you for consideration there is but one sample produced. That is the sample No. 146,289, which purports to be a sample of the goodsknQwn in the invoice as "metal laces." I will say further that if yon feel yourselves unable to determine whether these goods are or are not material for making or ornamenting hats, then you would have a right to find a verdict for the defendant, for insuffioiency of testimony on the part of the plaintiffs. If, when you go to your room, ·you are left so much in doubt of the character of these goods from the testimony which is adduced befora you in the absence of samples, that .you are unable to determine whether they are properly hat trimmings, and nothing but hat trimmings, in ordinary parlance, then you would be justified in finding a verdict for the defendant generally, because of the unsatisfactory nature of ,the testimony adduced by the plaintiffs. . " . I have allowed the plaintiffs to proceed and offer such testimony to "you as they had at control; it being conceded that the plaintiffs have lost their samples, or are unable td produce them, and the government having none. 'I'hen the testimony on the part of the plaintiffs tends to show that all'.these goods described in the various invoices of August 31st, ofAugust 25th, of September 7th, and September 15th, which are noW' in question before you, are materials for making or ornamenting hats, bonnets, and hoods. The testimony on the part of the plaintiffs tends to show this. You are to say whether you are satisfied from that testimony. I may say further that the mere fclet that a dealer in millinery goods has imported these goods is not the controlling fact at all. The question is, what use are these goods' adapted to, and what is the principal or predominating use to which they are applied? You are all of you far enough along in the experiences of life to know that a commodity may be made specially for one use, and yet be found to be equally as well adapted to many other uses. And if these goods, although made expressly for the purpose of being used by milliners in making and ornamenting hats, bonnets, and hoods, have become applicable to other uses extent that you can llay that the making and ornamenting of hats is not their chief and principal use, then the. plaintiffs will fail in their case. But if the plaintiffs' testimony hsesatisfied you that the principal use of these goods, the purpose for which they are dealt in by all classes of dEialers,-not dealers in millinery goods alone, but all classes of dealers in this kind of goods,-is Ifor the making and ornamenting of hats, then you will find the.issue for the plaintiffs. This is a question
FISK V. SEEBERGER.
of fact that is somewhat complicated, and I think it may help you sonle· what if! pass over the different classifications of goods that are still left for your consideration, and call your attention to them. The first group is in the invoice of August 31, 1887, and they are numbered 6,347, 6,410,6,244,6,347. They are invoiced as "trimmings." The testimony of Mr. Botsford, as you will remember it,-and I may here say that neither what I read from my notes nor what I state to you as the testimony should necessarily be accepted by you as the testimony; you must be governed as to what the witnesses said from the witness stand by your own recollection, and not by my statement of my recollection. But, in a general way, it may be said that the witness, Mr. Botsford, stated that he had no sample of the goods; that they were for hat and bonnet trimmings, and used in their business solely for that purpose. They were goods, as the namell would indicate, that were what might be calleq "textile fabrics;" that is, that they were braided, netted, or woven of cotton .or silk. If they were made of silk, and silk was the component rnatel'ial of chief v$lue,.,--that is, if they were made of cotton and silk combined, but silk wall the material of chief value,-then they were properly dutiable as silk goods, and not, under clause 448, as material for bats, bonnets, So that, if the testimony of Mr. Botsford satisfies you that and these goods were composed of enough silk to say that silk was the componentmaterial of chief value, then they were properly classed for duty as goods composed of silk. And if the evidence of plaintiffs' witness leaves the matter in doubt as to the material of chief value in the goods, then the presumption would be in favor of the action of the collector, as the plaintiffs have the burden of proof. The testimony of the witness, you see, leaves it uncertain. He says that they were composed of silk or cotton, and Some of them were perhaps all silk. That is illY recol. lection of his testimony. They were classed as "manufactures of metal," and the inference.,--although Mr. Botslord does not describe them-the inference would seem to be that they were some kind of a textile fabric made of a silk cord or silken thread, or cotton cord or cotton thread, with a tinsel or metal wire woven in with them, to make them ornamental. They were not classed as silken material, bat as a manufacture of metal. Mr. Botsford testifies unequivocally that they were used only for the purpose of trimming hats, bonnets, and hoods; and it is for you to say whether that position is established. . The next question arises under the invoice of August 25th, as to the ,articles numbered 1231 and 1211, described as "steel embroidery" and "embroidery." There is no sample of the goods produced, but Mr. Botsford's testimony is unequivocal that they are used only for trimmings for hats, bonnets, and hoods. There is no proof further than the name as. to what they are composed of, whether it is steel wire or steel beads embroidered upon something else. They are called simply "steel embroidery." Our own common klilowlpdge, perhaps, might prompt us to say that they were probably illanufactured by working steel beads into, or knitting them into, some sort of fabric, either of cotton, linen, silk; or woolen, as the case. might be. Then the next question in the same in· v.:18F.no.9-46
voice--that is, the invoice of September 25th.....;.;is· in. regard to certain pieces of gaH06n" .. -There were no samples produced of these. They are numbers 1,·281 and 1,286, and Mr. Botsford's testimony is the same as to these. The next articles in questioD are from the invoice of September 15th, and one·ofthe articles is· the one numbered 5,927, which Mr. Botsford stated is "jet tulle." It is a net on which beads are put, but his testimony tends to show that it is not strong enough for dress trimming. I infer, and I suppose you will, that this was some kind of a net-work upon which jet beads were worked, and used for a hat trimming, and bot adapted, as Mr.B<>tsford said, for dress trimming, because it was not strong enough. As one of the dressmakers or milliners explained when on the sta.nd, it was not heavy enough to stand the abrasion and rubbing and friction to which is subjected. Then we come to the in"\1'oiceof September 7, 1887, and l the articles entered and described in the as "metal laces, " giving numbers 19,. 055, 19,054, 19,028, 19,027, 19,042, 19,025, 19,047, 19,028 again, .19,052, 19,074,19,062. These goods were classed as a manufacture of metal not, otherwise' provided: and the duty assessed at 45" per cent. ad valorem; " The witness, Mt.Botsford, testified that they were all similar to the sample which he produced, matked"J. H. W.,"146,289. That,asyo'tl 'ivillperceive, isa silk or silk and cotton cord woven into a · then the interstices tor meshes between the cords. filled .up 'with a wire netting. They were classed as a manufacture of metal." On ·that basis it must be presumed' that the appraiser-considered the metal as · the component of chiefvaluej'andas such the cOl.ltrolling element! in the ·goods themselves, and at that duty:, The sample which is beforeyau$p.eaks for itself. You know nothing, however, from. the testimony as to whether this meta:l cost mbre than theqsilk or cotton, or 'both, whicll'isiu the g06ds,or not. I will not say that it was part 'olthe plaintiffs' case to have shown whether or not metal was the com'ponent of chief value in these goods, because only contention is that ·these were nothing bnt material for makingandbrnamenting hats; and 'iftheywerenothing but there is no provision for them.inany 'other partofthecustomslaw,..-that is, iftht?y areMt provided for in ·any other paragraph of the 'law they should' be claBsed, as claimed ;by the plaIntiff, as material for making and ornamenting hats. But if it was made to appear that they were a manufS:cture composed partly of metal and partly of silk or cotton, and that the metal was the component of -chief value, then they would come under another clause of the law, ·and the oollector maaeno. mistake in not passing them as material for -trimming hats and bonnets. So'th.at it is for you to say, in reference to aU these goods which are by comparison tothis sample, whether the plaintiffshavemadeout·a oase to satisfyyo\i that the only Use of :these goods is for hat trimniing; that they do not properly come within -·the" clause whic-hassesses a duty upon manufactures of metal, br Ofwhich ,tnetal is "the component part 6f:ehiefvalue, Thew-itnese, ·Mr. Botsford, states that they were oommonlyknown" to the trade as II millinery1aces." As I ramambel." it;. that was ·thename by which.they,were,\i8uaI1y de-
scribed. If he wished a particular pattern he would have to transmit a sample, but that was the ordinary commercial designation. They were known "as millinery laces," and, as they speak for themselves, composed partly of metal and Pllrtly of textile material. Then, in the same invoice, there isa series of goods numbered 6,244, 6,347, 6,409, 6,211 repeated four times, 6,408, 6,211 repeated five times,and 6,409, which were also classed as a manufacture of metal, and duty at 45 per cent. ad valorem. Mr. Botsford had no sample of these, but testified, however, in substance, that they were all used for hat and bonnet materinl and trimmings, and for no other use. We now come to Nos. 221, 237, 240, 236, 236, 236 again,a11gogds in the same invoice; that is, the invoice of September 7th,which are entered on the invoice as "fancy ornaments." The witness testified tllat they were a kind of chenille; that some of them, as IremeOlberthetl;lstimony, were, if not all of them,silk chenille. You perhaps are familiar enough, if you have wives and daughters, to know that chenille is a sort of cord from which threads are cut, making a description of round,velvet cord; that is, the threads are cut 80 tha:t theyproject:from the sides of the cord in a horizontal direction, and they are cuHltgreater or lesslength,according to the uses to which the)" are to be put;ti> make a fringed cord. This fringe goes all around it. Mr. Botsfurd testified in regard to, these goods that they were trimmings for hats, bonnets, etc. They were assessed by the collector as a manufacture of at a duty of 50'per cent. ad 'Valorem. There is DO proof here as to the'quimtity of silk. In the absence of any proof upon that sub'ject, I think that the collector's classification, as goods composed ofsilk, or of 'T.b.ichsilk was the material of chief value, must be ,considered as binding, unless you are Satisfied that they have no other use whatever than that ,of a 'trimming for hats, bonnets, and hoods. If the chenille has any other use, then the plaintiffs have not made out a case. Then there were four kinds of.ornll.mentstbat were Classed as "a manufacture of The witness describE's them as silk bands, with embroidered " IIesays'tbey were used for hat-bands, or trimming for hats; the embroidered ends being allowed to hang loose. If they were in iiwt silk bands, then they were properly classified as silk, although they might have been used for ornamenting a bonnet or hat. Thil"gentlemen of the jury, is the case as far as the details are concerned, and it is for you to say whether any, and, if so, how many, ·of these goods are shown to you to be strictly materials for making and. 01'namentinp: hats, on which no duty was otherwise provided for; and also for you to say, as I have already ::laid, whether the plaintiffs have satisfied· you that the goods are such as were used only for the" general purposeoHrimmingand ornamenting hats, bonnets, and hoods.
FEDERAL REPORTER. vol. 38. VVALKER d al. v. SEEBERGER.
(District Oourt, No D. illinois. May 6',1889.>
Chenilles, made of a warp of silk threads laid close together with cross· threads or filling, so as to make a woven fabric, and then cutting it into strips of the width of several of the warp·threads, and then raveling out the threads on the edges of the strip, thus making a cord with a nap or burr extending around it, are, though used only for working into embroideries, dutiable under Heyl's Revenue Laws, c1. 383, as articles not specially enumerated. "made of silk, or of which silk is the component material of chief vallie," and not, under clause 381, as "thrown silk in gum, not more advanced than singles, tram, organzine, sewing silk, twist. floss in the gum. and spun silk, silk thread, or yarns of every description. " SAME.. . '.' , Though goods are used chiefly or solely In. the manufacture and ornament· i!;lg of hats, bonnets. etc., if they are bead ornaments, or' are composed of silk or of metal, they are dutiable under the specific clauses relating to such ar· ticles. . SAME-ARTIFICIAL FLOWERS. The tariff act contains no specltlc duty upon artificial flowers as such; but section 2499 proVides that "there shall be levied and collected on each' and every non-enumerated article which bears similarity eitber ill material, qual· ity, texture. or the use to w/lieh it may be applied, to any article enumerated, * * * the same rate of duty which 1s levied and charged on the enumerated article which it most r/lsembles," etc.' 'A specific, duty is imposed on of whatever material. for millinery use, "artificial flowers and parts, and not specially enumerated. ", Held, that artificial flowers, stuck into a little stand or box, and salable as ornaments. and nbt good enough for milli· nery uses, but resembling flowers so used more than any other article, are dutiable under the last clause quoted. SAME-PROTEsT-GROUNDS. Where duties are paid under protest, on the that the goods should have been classified as material for makingot ornamenting hats, bonllets, and !;lot otherwise provided for, it cannot be object!ld, to defeat the collector's classification. that the goods might more properly have been put into some other specific class than that designated by the collector. SAME-ACTION TO RECOVER BACK-BURDEN OF PROOF. In an action to recover back duties paid under protest, the burden of proof is on theplaintif'fs to show by a preponderance of testimony that the goods did not properly belong to the class to which they were assigned by the collector, and that they were dutiable only as claimed in the protest.
At Law. Action by James F. Walker et al. against A. F.Seeberger, to recover back cnstoms duties paid under protest. P. L. Shl/,man, for plaintiffs. Graham H. Ha'l"T'is, Asst. U. S. Atty., for
BLODGETT, J., (charging jury.) This suit is brought to recover back duties which the importer, the plaintiff' in thiscase,paid to the,collector of this port under protest. It is a method allowed by the statutes of the United States, by which an importer can test the legality of the collector's classification and assessment of goods which he imports. It does not involve any personal controversy with the collector, but is merely a means by which the importer is able to have a judicial determination as