The first method is a single process; the second, a double process. If produced under the first method, it might be fairly classed with the round reeds, as being an unmanufactured article; if by the second process, it should more properly be classed with the flat and oval reeds, as being the prod uct of a double process, and therefore a" reed, manufactured." There is no testimony showing how these particular imported reeds were manufactured; but all presumptions are in favor of the correctness of the collector's action; and the burden of satisfying the court and jury as to how they are produced undoubtedly rested upon the plaintiffs. In the absence of any affirmative evidence,therefore, I feel constrained to hold that they are produced in the way in which it must be assumed the col- . lector held" they were, to-wit, by a double process. Verdict directed in favor of the plaintiffs for the round reeds only.
BLYDENBURGH .". MAGONE,
(Circuit Court, S. D. Nt;W York. December 5, 11l89.)
CuSTOMS DUTIES-CLASSIFJOATION-eHlNESB RUSH.
".straw unmanufactured. "
this cOuntry, and therefore free of duty, under the tariff act of March 3,1888, as
Unmapufactured rush, imported from China, cured, but not split or dyed, held to be "straw, " within the common acceptation and definition of that word as used in
At LaW. Action to recover back customs duties. On motion for directionof verdict. This was an action to .recover moneys exacted as duties upon certain unmanufactured rush imported by the plaintiff, Jesse L. Blydenburgh, from Qhina,in the year 1887. The merchandise in suit consisted of small rushes cut from a tall grass or plant which grows in the neighborhood of Canton, on soil along thtl river. There is a regular delta there, and all through that region there are miles of 1jerritory where this grass grow'S wild. It is cut by the natives. In its original state it is a three-cornered grass. The sample of the merchandise in suit representing the impo.rtation showed that it had been cut and cured, but nut split or dyed. When cured, split, and dyed, it is used in China for the manufacture of matting, but it is not so used without being cured and split. It does not bear any grain. It is not f\dible. The defendant, collector of the port of New York, exacted a duty of 10 per cent. on the entry of this merchandise under section 2513, Rev. St. U. S., as a "raw or unmanufactured article not therein enumerated or provided for." The pla!otiff duly protested and appealed against said exaction of duty thereon, claiming the merchandise to be free of duty, under section of March 3,1883,) under paragraph 796, (Tariff Inrlex t 2503, ld., oew,) as "straw unmanufactured," or, under the same section, par. 636 p
of mahtifa:etU:te;"< It:we conceded on toe trial that the article was not the 'in this country; thaHt was, anew article orim. portation 'passage of the'tl'lriff llct of March 3, 188B. Straw, IIlattings',"ho'wever, had been'imported prior to the tariff act -of 1883. read:in evidenoe the following definitions in Webster's dictionaty:IlStraw. The stalk or stem ofcertain species of grain, etc;, chiefly of wheat; rye, oats,barleyj more rarely, of buck·' wheat'and peas;" Leguminous plantsj or theirseedsj as, beans, , "Weed. ;Underbrushj low shrubs; any plant that is useless of'tt'(niblesome." ""Rush; A phmt 'Gf the genusjune'l18,'of'maliy species, growin'g in wet ground. Some species are used in bottomingchaiTsand plaiting mats, and the pith is used in some places for wicks to lamps and rush-lights. The term 'rush' is. however, often loosely applied to various plants having a similar appearance." "Fiber. One of the delicate, thread-like, or string-like portions of which the tissues of plants and animals are in part constitl,lted; as, the p.ber of flax or of muscle. Any fine, substance.'" slender thread, At the close of the evidence defendant's counsel moved for a direction of a verdictforthe;defendant, on the ground that the plaintiff had not proven facts sufficient to entitle him to recover; that the merchandise concededly, not the straw of as known in _ this in, courittyat the time of'the passage .of the tariff act 6fMarch 3, 1883; that it was not "straw,"within the dictionary definition; that the word "straw" only applied to the stalk of such plants as bore grain or seeds used for food; that there was no evidence that this rush bore any grain or seed fit for use' for any purpose'wha:tever; that the tariff act must be construed in relation t? the appellations which the articles of importatioIihad in trade and COIDmerce at'thetime of its enactment, (Rheimer v. MaxweU,8 Blatchf. 124;) that the fuct that what is known as "straw matting" was made from this article after being cured, split, and dyed did not bring it within the free-list as "straw uIiinanufactured," (U. s; v. Goodwin, 4' Mason, 128;) that under the tariff act of March 3, 1883, "grass" was not free of duty, unless used or adapted for the ure of paper, (Tariff Index, 691;) that articles composed of grass or straw are 'dutiable under'the said tariff act, (Id. 395-400;) and that the article in suit was not a "weed," a "stem," or a "fiber," but was a nonenumerated unmanufactured article, properly dutiable at the rate of 10 per cent., as assessed by the defendant O'ollector. Oomat()ck &: BrOTt""" for plain tiff. . Edward U.S. Atty., and Henry O. Platt, Asst. U. S. Atty., for defendant. ,. ' LAcoMBE,.J'.j(oraUy.Y Not without some doubt I feel constrained, by the, dictionary definitions of the words referred to": to hold that'this is "straw," within the use of the word' in the English la:ngtiage as there given, and therefore I shall direct a verdict in favot of the plaintiff.
br condition by refiliingor grinding, or by other process
ilia "crudestate,and not ad;
IN !lE PALLJ.8ER.
(8outhem . mmiot, NtJID York. December. 19,1SSg.)
IlABBAS COBP'l1S-APPLIOATION TO CIROUIT JUDGE-AppEAL. .
The .·ao1Iot· congrees of March 8, 1885, o. 858, (28 St. 487,) JOves an appeal to the United States .supremeoourt inhabea800rpua oases from tlie final decision of the circuit COnl't only, and does not ooverappeaa. where the writ ia rt}turnable before · oiroult judge.
Application for Habeas Corpus to LACOMBE, Circuit Judge, by Charles Palliser, charged With all offense in the district Coimecticut. Roger FOBter, for petitioner. . Edward MitcheU, U. S. Dist. Atty., and DanielO'ConneU, Asst.U. S. Dist. Atty. . , .
LAOO:M:Blll,J. The pointl'aised here by the defendant isa sharp.one. If this were a civil cause, where legislative intent would be largely determinntiveof doubtful phrases, it would probably be held that his objectioQ. is not well taken. Whether or not the same decision would be reached ina crimimil case is another question, which, unless good grounds to the 'contrary' are shown, shoUld he determined in pl'oceedingsconducted the regular and orderly practioe in federal courts, whereby there is, in the first instance, a decision upon the law by the district court, and, if desired;' a review of such decision by theeircuit court, which may,' in a proper case, be constitute,d with two judges; and, if they difthey may certify-any question of difference to the supreme fer court. The petitioner's counsel asks to have the questions raised by him decided upon this application, for the reason that,' as he insists, should the decision be adv-erseto him" he would be able to prosecute an appeal to thesupl"eme court,-a tribunal which he assumes he can reach in no other way. He is in error as to thepracti<Je. The appeal, in habeas corpus cases, which, since the net of March '3, 1885, ma.y be taken to the supreme court, covers appeals only from final decisions of such" circuit court." Walesv. Whitney, 114 U. S. 565,5 Sup. Ct. Rep. 1050. It does not cover appeals in 1w1Jeas corpus, where the writ is returnable before a 825. circuit judge. Carper v. Fitzgerald, 121 U. S. 87,7 Sup. Ct. The present proceeding is before the circuit judge, not before the circuit court, which, in this district, has regularly assigned terms for the transaction of criminal business, and a judge specially designated to hold them. Let the writ be dismissed.
UNITED STATES tI.
(.DIstrict OOUrt, D. OO'llneettcut. December IS, 1889.)
OLBOHAllGARINE-RETAILING WITHOUT LICENSE.
A pel"son having a lioense to canyon the business of a retan dealer in oleomlQlo gariile in the town of W., which does not spaclfythe street or number at which the business is to'be carried on, and wbo has paid the tax, and who peddles oleomargadnel at retail, from a wagonhtbrougb the streets, is not carrying on the business OI a retail dealer, without aving paid the special tax.
Indictment for on the Business of & Retail Dealer in Ole()oo margarine without a License·
Webster k O'NeUl, for defendant.
SHIPMAN, J. The accused is charged with carrying on the business of a retail dealer in oleomargarine, on July 18, 1888, without .having paid the special tux therefor, .as required by the statute. It appears from the pleadings and the ad missions in the case that the defendant had a license to carry;on the business of a retail dealer in oleomargarine in the·town of Waterbury from May I, 1888, to April 30, 1889, and paid the speeial tax of $48 on May 0, 1888; that said license did not specify the street or number where the business WaS to be carried on; and that the defendant. peddled, from a wagon thrQugh the streets of Wl\te,rbury, oleomargarine at retail, under said Jicense. These being the only facts in the ca,se, it does not appear that the defendant is carrying on the business of a retail dealer without having paid th.e special tax., What the legal result would. have been if he had registered with the . the street and number in which he was to do business, or if the license had specified the particular place in Waterbury where he was to carry on his sales, it is not necessary to determine. The facts are insufficient to constitute the offense as charged.