of any opinion as to the application of the sections formed and reported by the appraiser. The only question left in the case, then, is whether upon such a statement of fact, in connection with the other facts which it is claimed are shown in this case, and which it is claimed in this case are matter of COmmon knowledge to the collector, he was warranted in forming the opinion that by reason of the prospective damage it was liJ>:ely that the value of these goods would he insufficient to pay the storage on the same if they remained in the public store for the year. That is a question which calls for the exercise of the discretion which was expressly confided by statute to the collector. And in a case of that kind it would take something far stronger, than has been proved here to induce the court to review the discretion which was thus exercised. I do not find, in any of the authorities which I have been able to look at overnight, (and I consulted a number which I do not referto here,) any case where the court has gone to the length to which it is asked to go now in reviewing a dif'cretion confided expressly to a public officer to act upon reported facts. For these reasons I am satisfied that, should I send this case to the jury, any verdict which the plaintiff might recover would be set aside when it reached the supreme court. Verdict directed for the defendant.
February 21. 1889.)
(Oircuit Oourt, S. D. NffUJ York.
1.', CuSTOMS DUTIES-STATUTES-CONSTRUCTION. Words in a tariff act are to be generally interpreted according to their mean· ing in the trade and commerce of the country at the time of the passage of the act. ' 2. SAME-WHAT DUTIABLE. Curry-combs. made of wood and iron. are not dutiable under a provision 1n the tariff act for "combs of all kinds," if at the time of the passage of the act they Were not known in.-trade among merchants as "combs." 8. BAME-'STATUTEB-CONBTRUCTION. Where a clause in a tariff act is ambiguous, and. no light for its interpreta· tion can be derived from provisions of prior statutes relating to the same sub· ject, that construction must be adopted which is most favorable to the im· porter.
The word "saddlery, It in the provision in Schedule N of the tariff act of March 3. 1883, for "coach and harness furniture of all kinds. saddlery. coach, and harness hard ware," etc., is to be taken as a noun, and not as an adjective qualifying "hardware."
This was an action to recover duties alleged to have been exacted in excess of the lawful rate on certain curry-combs imported by plaintiff. The collector had classified them as "manufactures composed, in part of iron,not. spacially enumerated or provided for, "under the provisioq
therefor in Schedule C of the tariff actof March 3, 1883, and assessed them for duty at 45 per centum ad valorem. The importer claimed that they were dutiable either at 30 percent., under the provision of Schedule N of the same act for" combs of all kinds," or at 35 per cent. , under the provision in the same act and schedule for" coach and harness furniture of all kinds, saddlery, coach, and harness hardware." Conflicting evidence wils given as to the meaning of all of these terms ill trade' and commerce at and immediately prior to March 3, 1883.' "HarUey &: Glleman, for plaintiff. Stephen A. Walker, U. S. Atty., and W. Wickham Smith, Asst. U. S. Atty; LACOMBE,:t., (charging jury.) We probably all supposed that we knew what a comb was until we heard the evidence in this case. It is in the light of that evidence, however, that the question tnustbe decided by you.' These tariff acts laying: duiiesupon imports "are concerned with tbe trade and commerce of the country. Theyare emphatically commercial acts, and are intended to lay down rules by which importers and dealers, persons engaged in trade and ;commerce in this Country, are to regulate their business. In usingiwords'in these acts,therefore, congress uses them after an examination into the conditions of trade, and with a full knowledge and appreciation of what those words mean in the trade' of this country. In interpreting,therefore,' these tariff acts, we are to do so in the same light in which congress passes them, and for that reason, is not one of them,) it is proper save in a few exceptional ,cases, (an4 to allow testimony to be introduced; arid it is proper that the jury should consider such testimony, touching the trade meanipg, of the, words which we find in the tariff acts. The plaIntiff here contends, in the first place, that he should have been charged duty upon ,this, importation only: at therattl'1aid' by the tariff actupon "combs of all kinds.'), The ordinary implement which we use every morning, made of orJlorn, or bone, with teeth an inch and an eighth long, and use to disentangle and part the hair, we all understood to be a comb,andthe witnesses called to the stand have testified that as' such is it' known in trade and commerce. The article of adornment, also, which WOmen wear they have gathered their hair up into a roll, fastening it by the insertion ofarl"article of ivory, or tortoise shllll, or or what not, we also understood to be a comb, and the witnesses here testified that in trade and commerce it also is known as such. Now, then, it is fOJ:You to determine whether, besides 'these two kinds of articles, which beyond all dispute are com,bs, was, when this t.ariff act was, passed,any other class of articles which was known in the trade and commerce of this country as "combs." If there was such other class, and this particular article ofimportation was included in it, then your verdict must beJor the plaintiff for theamolirit of the difference between the duty on-combs and the dutyc()llected. Should you, however, reacH the conclusion that there was not at that time any other class or kind of articles recognized as "combs" in the tradeand':cdmmel,'ce of this country, and including this
article. then you are to inquire whether such article is contained within the enumeration to which. also, the plaintiff appeals.. That enumeration "coach and harness furniture of all kinds, saddlery, coach, and harness hardware, silver plated, brass, brass plated or covered, common tinned, burnished, or japanned, not otherwise provided for." The wnrd "saddlery" in that paragraph is ambiguous. Whether it is there as an ad:',' jectivlfqualifying the word hardware, or whether it' is thereas a noun, describing the articles which are properly included in the term "saddlery,",isuncertain from the phraseology of the paragraph itself, and thetincertairity is not solved by any light which I am able to gather frop!, other clauses in the tariff act. That being so, under the familiar principle of law that the property of the citizen shall not be taken on ambiguous and doubtful construction, I charge you that the word is to be taken as a noun, and that the enumeration is to read, "coach and harof all kinds,'saddlery, coach hardware, and harness hardware." If, then, you reach the conclusion that the article imported is llotacomb,you are to inquire whether it is included in the word "saddlery," as that word was used in the trade and commerce of this country at tha tiIrle this act was passed. If, from the evidence, you find that it was an article of saddlery, as that word was used, then your verdict will be for, the plaintiff, covering the· difference behveenthat rate 'and the rate which was charHed. I have received from the plaintiff several requests to charge,of which the fifth is as follows:
"A.cbrnmercial designation of combs as exclUding curry-combs in trades in which curry-combs are not dealt in, does not disprove the commercial designation of curry-combs as included among combs in the trades in which currycombs are if such designation be to exist."
I will not charge the request in those words. You are, however,to determine as to each kind of comb. If there were a d01.en different ofcombs, and there is no one class of business that dealt in all the kinds used, if each class of business knew the articles in which it dealt as combs, then congress, which. is suppposed to know the secrets of all trades and businesses, is charged with the knowledge that they were comas combs at that time; and it is.with that understanding to interpret. Except as qualified, I refuse that request. that. yOll
Verdict for defendant.
vol. 38. Collector.
et al. v.
(Circuit Court, S. D. Neuf York. December 19, 1888.)
CUSTOMS DUTIES"-STATUTES-TRADE NAMES.
Where an importer seeks by reason of commercial designation to withdraw certain goods from the operation of terms of general description in a tariff act, which would in ordinary speech include them, he must show by a fair preponderance of evidence. not only that the A'oods were at the time of the passage of the act known in trade and commerce by various trade names. but also that the terms of general description then had in the parlance of trade and commerce a restricted meaning, which restricted meaning excluded the goods in question.
At Law. The plaintiffs, H. B. Claflin and others, in 1884 and 1885 imported into the port of New York various importations of cotton goods consistknown iIi trade and commerce in ing of articles shown on the this country under the names of "mosquito net, Hamburg net, ham curtain net, taped and not taped, Nottingham pillow shams, Nottingham tidies, and Nottingham bed-spreads." They were classified for duty by the collector of customs at 40 per cent. ad valorem as cotton laces or embroideries, under Schedule I of the act of March 3, 1883. The plaintiffs, on the other hand, claimed that the proper rate was but 35 per cent., under the clause of the same schedule imposing the latter rate on "manufactures of cotton not specially enumerated or provided for in the act," and brought this action to recover the difference. Edward Hartley and Oharles Curie, for plaintiffs. Stephen A. Walker, U. S. Atty., and Macgrane (Joxe, Asst. U. S. Atty., for defendant. .
LACOMBE, J., (charging jury.) One of the witnesses for the plaintiff described,and correctly described, each one of these various articles as "a fabric of fine threads of cotton, interwoven in a net, and sometimes ornamented with figures." The evidence of your own eyes, without the testimony of any experts, of course would show you the same thing. Turning to the dictionary we find that the word "lace" is thus defined: "A fabric of fine threads of linen, silk, or cotton, interwoven in a net, and often ornamented with figures." Had we only the dictionary to refer to, therefore, the articles before us would come within the classification of "cotton laces" or "laces made of cotton." We are not, however, in these tariff acts, confined to the dictionary in determining the meaning of the words used by congress. The tariff' laws impose duties upon importations of goods. Their framers use language that importers would understand; and where things have nam.es, among importers, which they have acquired by usage, different from what would be the ordinary names, (that is, as understood by ordinary individuals,) we are to take the trade names,-that is, the names by which importers know them. In order to bring this case under the application of that