illegal, and propose to show the same by new and extraneous proof, I can find no law that authorizes the register and receiver, or the commis· sioner, to institute or direct a "proceeding" to hear and determine the matter, and therein set aside or cancel the entry and certificate. The subject is no longer administrative in its character. It ceased to be so, sofar;1il:l the, register and receiver are concerned, when, upon the final proof,llifternotice to the world of the settler's five years' residence and culti\l',ation" 'the certificate was issued to him. , Admitting the power of the commissioner to disallow an entry for reasons appearing on the face of the return made by the register and re. ceiver the same, thereafter and otherwise, the validity and effect of the certificate as evidence of the right of the settler to the land described therein can only be impeached in a judicial proceeqing: If, lipon inquiry, the land-office finds that' throtigh fraud or mistake a was a suit should be .brought in the 'propercourt to set aside and canoel the same. Such guiteas simple 'and inexpenshieas a hearing in the land department, and, muqh more likely to be attende<l with' correct and satisfactory results.. ' " 'The allegation iinbi/3 defense that thedefendatit took peaceable pos· pf 'the premi'ses, 'lird still holds them so, thechto notping more than. an admission tIi,at ,the defendant en· , 'upon possessionoqhe premises, forceorvi?lenc,e, ,and. sHll hold's them so. ' Thls is not an action of Iorcible entry and de. tainer, lin <1 , althollP;h alleges that the defendant entered ,'H Unlawfully' and of an unlawful entry and holding S\1ppbtt the action; ,".' , ' , ' , The ,lemlirrer to this defense is sustained. ' . , defense consi13ts ,si6:hRy of the allegation 'that by " 'his having had the'liellefit of the was not en· f.o. settle upon apd 'the title to tlle ulider sai<la.ct. , , This also, oy implication; a<l!Dits that Alex,awler .. the possession of WeIand under the 'ner therem 'provideq, and that ,the defendant, witbouteven a'claim of or interest iti the premises, thereon, and the plairitifl' of the alleged inthe cori:iplidnt. " The : ' demurrer to t"this defense is also sustained. '. 1
1·,;" · "....
FEDERAL REPORTER, vol. 40. WEED SEWING-MACHINE CO.
(CiJrcuf.t Court, E. D. Mi88OU'li.
The legal title to certain land was in one F. subject to the equities of J. Plainti:lrs brought suit to quiet title li\gainst, F., and obtained a decree, to which J. was not a party, though he was in possession at the time the suit was brought, claiming as purchaser from F. Held, that J. was not in privity with F., and was not bound by the decree against hiPl, and the decree did not vest the legal title in plaintUr as againstJ. ,
Action in ejectment.
Daniel DiUm, for plaintiff. Dryden & Dr'lJden, for defendants.
MCCRARY, J., (orally.) In this cause the parties.waiveda jury, and have ,had a hearing upon the ments before the court. The action is ejectment, to recover certain real estate within the,district. The facts, so far as it is necessary- to state them, are as follows: Prior to the commencement of this suit the plaintiff had recovered in this court a decree in chancery against the defendants Franklin Baker James Baker, (but not against defendant John Baker,) quieting title to the land in question in the plaintiff... It is admi,tteu that prior to that decree the legal title was in Franklin Baker,subject to the equities of the defehdanfJohn Baker, who a partyto the decree, and who was in possession at the time of the commencement of the chancery suit, and is still in possession, claiming an interest as.purehaser from Frankthe decree as sufficient evidence of his lin Baker·. The plaintiff title and right to possession as against all the defendants. The defendant John objected, and OIl his behalf it is insisted that' he is not bound by the decree, no party to it; and, further, that the plaintiff' callUot recover as against him upon that proof alone. The plaintiff insists that the decree is sufficient to vestthe legal title in it, and that the claim of defendant J,ohn Baker upon the, land is necessarily equitable in its character, and tberefore such as cannot be setup as a defense to an action of ejectment this court. It is very clear that no one cali be bound bya judgment or decree unless he be a party, or in privity with a party. This, for the reason that he has had no opportunity to be heard, to cross-examine witnesses, or to offer evidence in furtherance of his rights. It is therefore held' that, while a decree may be admissible in evidence to prove the fact of its rendition, with all its legitimate consequences, it cannot affect in the least the rights of any but parties and privies. A party in possession of land, claiming an interest as purchaser, or under a contract to purchase, is not in privity with his grantor. On the contrary, his claim is adverse to his grantor, and it must follow that he is not bound by a decree against the latter in a case to which he is not a party t and rendered.
Fublicatiou aooideutally omitted.
in· a suit commenced after he purchased and took possession. Those principles, I think, apply with all their force to this action in ejectment. The plaintiff in the decree against Joseph W. and Franklin Baker acquired the legal title only as against them and those in privity with them. It is not a violation of the rule that the legal title must prevail in an action of ejectment to hold that the legal title is not established in the plaintiff as against the defendant John Baker. The case will be missed, unless the plaintiff elects to take a nonsuit.
VANACKER u. SEEBERGER, Collector.
(Circuit Oourt, N. D. nZinotB. July 18, 1889.)
CUSTOMS DUTIES-CLASSIFICATION-RUBBER BAGS FOR
Toy BALLOONS. Sma.ll India.-rubber ba.gs, with a sma.ll neck or inlet, which a.re intended to be inflated with gas, and closed, so as to make them buoyant, and then sold as a child's plaything, are "articles composed of India rubber not specially enumerated or provided for," and assessable under act of March 8, 1888, (Heyl, 454,) and not under clause 42li as" toys, "as they do not become" toys" until they are inflated by the addition of another material. '
At Law. Action to recover an excess of customs duties. Shuman &- Defrees, for plaintiff. W. G. Ewing, U. S. Dist. Atty., and G. H. HarriB, Asst. U. S. Atty., for defendant. BLODGETT, J. Plaintiff imported a quantity of small India-rubber bags, which the assessed for duty as "toys," under clause 425 'Of Heyl's Arrangement of the Act of March 3, 1883, and assessed there'On a duty ()f'35 per cent. ad valorem. Plaintiff, insisting that the goods were "articles composed of India rubber," and not "toys," and dutiable at 25 per cent. ad valorem, under dause 4q4 of Heyl, paid the duties so imposed under protest, and appealed to the secretary of the treasury, by whom the artion of the collector was affirmed, and now brings this suit in apt time to recover the duties so claimed to have been paid in xcess. The proof shows that the goods in question are small Indiarubber bags, with a small neck or inlet, which are intended to be inflated with gas, and closed, so as to make them buoyant, and then sold as a .. child's toy or plaything. It seems to me that the goods, as imported, cannot be said to be "toys." They are not completed as such. They <10 not become toys until they are inflated by the addition of another material, and closed so as to prevent the escape of the gas, which involves a further manufacture or finish of the goods from their condition when imported. It is very clear to me they come specifically within the description of "articles composed ofIndia rubber not specially enumerated or provided for," and, as such, should have been made dutiable at 25 per cent., ad valorem. The fact that the gas is a volatile sub-
stance, and' that but a slight amount of labor is necessary in order to inflate the bags, and prepare them for sale, does not, as it seems to me, essentially chnnge the qttestion in this Case. The gas is orie of the component mll:terials of the completed article. Without the addition of the gas 'they are not usable for. the purpose intended, and they can only be said to be Ii completed article when inflated and closed, so as to become buoyant, lind attractive as a plaything. I am therefore of opinion that the collector erred in the classification of thesegpodsJand that the plaintiff is entitled to recover.
Court, N. D. IlZinO'lB. July 18, 1889.)
TILEs. Hard,baked, hard.bodied, glazed tiles, which are used for hearths, wainscoting, and on the :floors of vestibules, entrance halls, bath.rooms, and oonser.vatories inpri. vate residences, and sometimes as a borde!' in the fioor of rooms, I!>nd which differ from the ordinary paving tilein that they are glazed,are fpr duty at 20 per cent. ad vaZorem, under customs act March S, 1883, Schedule B, oL 7, as "pavlUg tiles."
,.':" . " :
Glazed tiles made of' clay} Cornwall stone.; and :flint, which 8.re. ·mad.e peron.s, and of a white or light-colored Dody, so as to mQre readily receive the glaze colors, and which are usl!d for chimney fronts, and to BOme extent in hearths, and for borders in fioors,' and'for vestibules and bath·rooms,',are not "paving tile&," too brittle in structure and soft in material for such purpose. So, als0l tiles of the same materials, which are of irregular shapes, some being in toe form of an ogee moulding, others a longitudinal; segment of a cylinder, and which are intended to take the. place of wood base-boards and chair-rails, cannot be classed as "paving tiles, "under the similitude clause, all they are manifestly intended for other purposell' nor are they manufactured articJ.eSDot otherwise enu.Dot spemerated, as they clearly fa ii within the description of glazed cially enumerated, under clause 4 of Schedule B. ' '
SAME-SKIRTING, MOULDING AND SUlIFAOE TILES.
At Law. Action to recover excess of custom.s duties. P. L. Shuman, for plainti[s. ' . W. G. Ewing, U. S. Diat. Atty., and G. H. Ha1'T'W, Asst. U. S. Atty., for defendant. ; BLODGETT, J. Plaintiffs imported into the port of Chicago a quantity of glazed tiles, skirting,' moulding, and surbasetiles, which the collector classified and assessed for duty, a part thereof as decorated enware,uuder the second clause of Schedule B of the customs act of March 3, 1883, at 60 per centum ad valorem, and a. part thereof as glazed earthenware, under the fourth clause of said ScheduleB, at 55 per centuniad valorem. Plaintiffs protested against such classification and assessment for duty, insisting that said goods should have been 88sessed ata duty of 20 per cent. 'ad '/:alorem, under the seventh clause of saidScheduleB, as "paving tiles'," and·under section: 2499 of said act, aamostresembling pavingtiIes in the material of which composed, and