322

FEDERAL REPOnTER, vol.

40.

enough for the to thai the court is not asked to specifically enforce it. It is offered in evidence only as tending to establish the claim of the to the entire'ownership of the real estate.' It contains a reference to the land as " now owned by" Mishael Beadle; but this recital is not, in my judgrnent, sufficient to overcome the proof already referred to, establishing the fact that he did not, in fact, own the whole of said land. Upon the wh61ecase, my conclusion is that all the exceptions to the master's report, by both parties,' should be overruled I and' that the said report should be confirmed and decree rendered as recommended. It is accordingly so ordered. The caseW'll! be recommitted to the master to state an account in accordance with his findings, and with power to take further testimollY touching the matter of the account between the parties.

RoBERTSON ,'II. HEDDEN,

Collector.

(Cih'cuit Court, S. D. New. York. October 24, 1889.)
1. CUSTQMS Dt1'hi!:s-CoTTo:N CLOTH.

a

The term "cotton cloth, " as use,Un' Bchedule I of the tariff act of March 8, 1888, "means anylwoven fabric of cottQn used for garments or ,purposes. Following Ul/lmann v. Hedden, 88 Fed. Rep. 95.
SAME.

',

,

The act of March 8,1888, for countable cottons, neoossarilyimport that the'clothshali be homogeneous, Bothat the number of threads persquare'lnch will notdifler in dlflerent parts of the fabric. Where a cotton cloth has 1igUreswoven in it upon the loom at the sam:e time with the fabric itsel:r, the count must' inolude tile threads of the figure, as well as the threads of the ground-work.
" ,

8.

SAME.

"SAME., "

,

Madras curtain ,goods, made 'ot, cotton, with figures woven ill them ill the loom, , are dutiable, Dot under the countable clauses of Scneduleloftlle tarifl act·of March 8,1888, but under the general provUlion of that act and scl/.edule,for"manufactures 'of cotton not specially enumerated or provided for. II ' , ' , "

'., :

,

'

At Law. . Action to recover duties. Plaintiff imported from Sdotland a class of fabrics generally known as tfMadrasCtirtain Goods.» 'They were composed of cotton, woven in looIps, and *ere figured, the figures beirig woven in the same loom and at the thne as the clotll, alid covering portions 'of the fabric. The collector had classified the goods as cotton cloth, and had assessed duties under the countable clausell' df Schedule I of the tariff act of March 8, 1883, according to the ntimber of threads to the square inch in the ground-work the fabric, a.rid the value per square yard. , Against this assessment plaintiff protested, claiming the goods were manufactures ot'cotton not specially enumerated or provided for, and dutiable at 35 per cent. 'ad valorem. Upon the trial it was shown that the figures were woven in, the cloth in the process of manufacture by means of the Jacquard machine, llnd that, if .the threads of the figure were counted

or

323
with those of, the ground-work, the number of threads per square inch would differ in different fabric; while, if the latter only were counted, the number of threads to the square inch would be uniform. It was further shown thl),t the practice oLthe appraisers was to count the threads of the ground-work only. (Jharles Curie, (Stephen, G. Clarke, of counsel,) for plaintiff. Edward Mitchell, U. S. Atty., and W. Wickham Smith, Asst. U.S.Atty., for defendant. .
LACOMBE, J. These samples are cotton cloth, within the dictionary definition, and within the common,. every-day meaning of the word "cloth," just the, same as was the "penelope canvas," which was befi;>re us in UUmann v. Hedden, 38 Fed. Rep. 95. They are within the definition which was used as the test in that case, viz.: "Cloth: A,woven fabric, of fibrous material, used for garments or other purposes." C9P.gress the paragraph on which the defendant relies,Pl'escribed rates of duty only for those kinds of cotton cloth which. ml;ty: be discriminated from each other by a count of the threads of which they are composed; such count being stated per square inch. That necessarily imports that the cloth shall be homogeneous, so that the nulIlber of threads per square inch will not differ in different parts of the fabric. The contention of the defendant that the threads in the so-called groundwork only are to be included in the count, the figures being regarded as a merely incidental ornament,-as something added to the c16th,seems unsound, in view of the testimony, which shows, without contradiction, that. the figures (which in some of these samples cover fully more than half the surface of the goods) are woven upon the loom at the same time with the fabric itself. They are therefore just as' much cotton cloth as the ground-work is, and the threads composing them as much entitled to a. count. We then have a fabric which is, indeed, a cotton cloth, but which cannot, as a whole, :be fairly classified by use of the test which congress has provided as the sole one for classifying such cloth; and as it cannot, therefore, be put in anyone of the classes of cotton cloth on which. duty is laid as such, it must fall Wilder the general clause. For .thesereasons I direct a verdict for the plaintiff for the full amount claimed,,&983.93.

.DDBRAL BEPORTEB,

vol. 40.

In re

DIETZE.

(DlstTCct Court, S. D. New Yor7c. October M, 1889.,
honGRATION-CONTBAOT LABoR--'HA'BEAB CORPUs-RE-Ex.unNATION.

The petitioner, an frmn Switzerland, arrived at Castle Garden, October 18, 1S89. On examination by the proper officers, he atBted, and signed an affidavit, in substance, that he was engaged by contract to work for a silk manufacturer at Paterson, N. J., which being reported to the coll6<ltor, he was directed to be sent back in accordance with the provisions of the act of Februar;y 23, 1887, (24 St. at Large, p. 414, c. 220.) BeUl that,the proceedings being regular In every respect. the petitioner could not be released on habeas CorpU8, on the mere ground that his statements in regard to the oontract were untrue. Re-examination of facts recommended.

Habeaa Oorym. Robert N. Waite, for petitioner. Edw. MitcheU, U. S. Atty., and Abram J. Rose, Asst. U. S. Atty., for respondent.
BROWN, J., (orally.) This case ia a very plain one, so far as the duty of the court is concerned, which is not to determine the 1act whether the act of 1887 has been violated by the immigrant, but to see-whether the proceedings on the part of the collector or other officers in ascertaining and reporting the facts have been regular or irregular. There is no suspicion that the officers who were charged with the examination of Mr. Dietze were actuated by any malicious or unkind motives. The examination was in the ordinary course of business, and in the performance of their duty. Probably, upon the testimony, as it now appears. there was not any such conti-aetas the acts of 1885 and 1887 prohibit. But, however that may have been, Mr. Dietze, in consequence of hia own suspicions, was led to make to the examining officers exaggerated statements, or, rather, false· stlltements, if there was not any such contract as they have reported.· Upon the testimony before me there is no doubt that he did state to the officers at Castle Garden that he was under contract tqwork for Mr. Staub; in Paterson, at $25 a week. Mr· . Dietze says he was excited, and he cannot remember just what he did say. His answers go far to confirm everything that the officers say, except that the latter are more specific. -It is incredible that, without any sort of motive, they should have written down statements which were in no way authorized by Mr. Dietze, in answer to their questions. Very likely Mr. Dietze, finding himself in an inclosure with other persons who were charged with being paupers, was tempted to make these statements fmm fear of being sent back on the ground that he had no means of sustaining himself here. While he was intent upon avoiding that supposed difficulty, instead of relying upon what now appears to have been the simple fact, viz., that he was merely recommended to Mr. Staub, he untruly stated that he had a contract for employment from him. But his answers to the officers, which I have no doubt were made as they have testified to, fully justified them in reporting him to be re.

UNITED STATES t7. CLARIDa.

turned. They could have done nothing different. Their report was regularly made to the collector, with the affidavit, signed by Mr. Dietze, stating the above contract. Whether it was sworn to or not is immaterial. The report was one which they were required to make in the ordinary course of businesl'l. It thus appeared to the collector that Dietze came here under a contract to work for $25 a. week, and upon this report' the prisoner was liable to be sent back to the place whence he came. Al! that the court has to do with the matter is to see that the proceedings in ascertaining the facts are regular and fair; and it is plain, upon this testimony, that they were without a shadow of irregularity. If the prisoner made false statements to the examining officers, he alone is to blame for the condition in which he finds himself now. It is not possible for me to release him upon habeas corpus. It may be a suitable case for an application for a further hearing hefore the collector. I think it is so. But it will be for the collector to hear any such application in the first instance, and to determine it, not for this court; be-' cause this court is not the tribunal to make an original examination into the facts, but merely to see that the proceedings by the collector or other officers were fairly cdnducted, and legally sufficient. I cannot say that they have been in any respect irregular or unfair; and they were based upon evidence that was the hest that could be obtained, and apparently conclusive. rt is impossible for the court to interfere with the custody of the prisoner. He must therefore be remanded; but with a recommendation to the collector that he authorize a re-examination of the facts.

UNITED STATES

v.

CLARKE.

(DIstrict Oourt, E. D. Missouri, E. D. November 7, 1889.)
L

CRIlIIINAL LAW-VERDICT-ARRESTOl.' JUDGMENT.

II.

Where Bverdict finds defendant "guilty on all the counts contaIned in the mcnt, " tbe fact tbat some of the counts are bad does not warrant an order ing judgnient, where some are good. A count in an indictment, under Rev. St. U. S. § 8892, fpr depositinR' obscene matter in the mail, described the paper deposited as "a certain obscene * * * paper, print, and pUblication, of an indecent character, begin!ling with the words fol. lowing, to wit: 'As long as there is life there is hope,' and then snd there con. tained in a paper wrapper having thereon the address * * * following:'W. E. Deer,Bluff Mills, Indians, via Waveland;' butwhioh paper is so obscene a8,to be offensive, "etc. The paper, when produced, proved to be a form of ciroularprepared by the defendant for ciroulation through the mails. Several dars before the trial' the defendant craved and obtained oyer of the indecent paper 1D question. Held that, under the circumstanoes, the description of the vaper wss suffioient.

OFFENSES AGAINST POSTAL LAWS-DEPOSITING OBSCENE MATTER IX MAIL-INDICTMENT.

At Law. On motion in arrest of judgment, and for new trial. Indictment of Frank D. Clarke for depositing obscene matter in the mails. :B'or on demurrer to indictment, see 38 500. For report of charge to jur,Y, see Id.732.