,one fuere'in :ebntnined,: or' theoneirl paragraph 636i, "bulbsandhulbous 'roots not edible; but in a crude state, and not advanced 'by refining or grinding,or'byother process of manufacture?" In common speech what!everismedicinal is fairly to be considered aEi non-edible; but it does follow that whatever is non-edible must be medicinal. I 'incline therefore to the opinion that paragraph 405 is ofthese two the more specific, andshal:l therefore directa:verdiot for the defendant.
flt al. V.HEDDEN,
Oourt, B. D. N'etO York. October 8O,l88t.,
S. SAME-EvIDENCE-BIAS OJ' WITNESSES. , "I'iiwelghing the of witnesses as to trade usage, the jury should consider"the,exwntto which any of the witnesses may have an interest in the resultof ',the litigation which might color their evidence.
8.'SAMt-CLASSIFIOA'l'toli':":OIL OF PETIT GRAIN-OIL NEROLI.
" ",The ,trade usage whi<ihis to detertriine the meaning of a word or words In the tariff , be,a well.known and: general one.
ClrSTO"6fli:DtrTIES"":CONSTRUOTION OJ' LAws-TIU.DE USAGE.
00 of petit grain, distUled from the leaves, tWigs, and hnmlliture fruit of the orallge tree·.was found b,v the jury to have been /ienerally kn.own alld recognized in tMUe and commerc,e in'l883 as one of the subdiVlsionsot oil neroli, (mentioned in ; the free,-list.) OPllrt.)
Action to recover duties. Pla"ntiff imported at the port of New York quantities of an essentialoll called" Qilof petit grain." This oil was distilled from the leaves, twigs, Mct in;llnature fruit of the orange tree. The colleotor assessed it for duty at cent., under, the' provision in Schedule A of the tariff act of March 3, 1883, for "all preparations known as' essential oils,' not speoiallyenumerated or provided for in this aot." The importer claimed it ,to be frl:le of duty under the provision in the free-list of the same aot for "oil nerolior flowers." There was a confliot of testimony as to whether this latter term in trade. and commerce included oil of petit grain.. , Arnoua:. Ritch &: Woodford and Stephen G. Olarke, for plaintiff. Edward Mitchell, U. S. Atty., and W. Wickham Smith, Asst. U. S. Atty., for defendant.
If there were no evidence in this case, if we had nothing here but the tariff Rot. aUd the meaning whioh the dio,tionary gives to the word" neroli," namely, that it is the essential oil 'obtained from the flowers of the bitter orange, I should have to in.stroot you to find a verdict for the defendant, because it appears that the 'article imported by the plaintiff is not distilled from orange flowers. ,Thereis.:evidence,hoW]6ver, which was introduced under a general prin" LACOMBE, J., (charging,jury.)
to-wit, that inasmuch l1i'l'they
deal 'with "traete Rnd commerqe, it, js supposed that their
of all these
they used words and phrases, used the same with the meaning which traders and commercial men give to them. For thatreasont.estimouy was introduced touching the trade meaning of the words "oil neroli," and also touching the trade designation and recognition of the article here imported. The question, therefore, which comes to you to be determined as a question offact, is whether prior to March 3, 1883, oil such as was imported by this plaintiff (that is, oil made not from the flowers, but from the leaves, twigs, ahd immature fruit of the orange tree, generally described as "petit grain") was generally regarded and recognized in trade and commerce in'this couritrY as "oil neroli." That is the question of fact to be determined by, you. In determining that question there ,are certainsuggestit>ns which should be made to you. In the first 'place, we start with the presumption that the collector knew what his duty was,and did it; in other words, we star,twith the tion that COllector's determination, was a corr,eet That is a presumption which the plaintiff must overcome pl;oof. 'As the law expresses 'it,he has ,the burden of proof to' shc:Hvthat the government's agent made a mistake in assessing duty upon this particular article. He must overcome that presumption, byaffirm'ative proof. He must:Batisfy,xou bya fair preponderance of that the collector was , lfhe does 11otso satisfy you, or if he e:ven, brings the scales just even, alid leaves you in such a frame of mind, that you are unable to decide whether he has shown the collector to be wrong or not, thenbe has not borne the burden of proof which the law lays upon him, and has not out his case. In weighing the testimony 9t witnesses in all caseS, proper for the jury to take into consideration whatever interest it may appear f;rom the evidence that they may have in the oftheJitigation in whIch they are testifying, with a view to determine what probable or possible billS may be operating upon the mind of a witness to (unintentionally, perhaps) color his evidence. That isa matter appropriate for the jury always to take intQ consideration. Lastly, the trade usage which is to be determinative ,of the question must be a general one.,Itis not determined byfindiQg out how an article is occasionally called by individual firms, or how' it may be in some few particular localities, or even by some branch of the trade, if that branch is only one of the many branches of the trade which deal in the article,arid the other brallches of the trlj,de, do not, know it by the same designation. ' Of course, congress, in providing these tariff acts, considers the country at large llndtrade lit large; and, in order to deterwhether an article is oris not a trade designation, you must. be satisfied that the trade usage, ",ith regard 1;0, the use of the' term Rnd the dassification of the article. :a w!",ll-known. general 1,lsage. , With suggestions thequestiqll iss1,lbmittedto you to detel'lnine what the the fact and, if you, find that the article hnporwdhere is petit grain, Iilf!ode froq) ,the Ieaves,tw;igs, immature fruit. ,ol'ange tree, and and ,recognizediJ:!, the pHhis,
fietoU; 'then your country wise your verdict Inust be for
must be for the'plaintifr;·
The jury found ,a verdictforthe plaintiff.
Court, E. D. Missouri, E. D. May 21, 1890.)
L.!NTllIBSTATE COMMEROE-ExPRlllSS COMPANIES.
An indictment which charges that ,an express company is"acorporation and common carrier engaged in the transportlLtion of property by railroad from one state to other states, » but which does 'not show that, such company is a mere adjunct or bureau of a railroad company or ,combination of railroad companies, does ,not tiring such express company within the purview of said act.
,At Law. On demurrer to indictment. Indictment of Herman A. Morsman for alleged violation of the interstate commerce act as the agent of the Pacific Express Company. George D. Reynolds, Dist. Atty., fdr plaintiff. A.O. Davis and W. W. Morsman, for defendant.
THA YER, J, In the Case of the EJJpress Companies, 1 Int. St. Com. R. 349, the commission decided, after a very full and careful review of the provisions of the interstate commerce law, that express companies, independently organized as corporations or joint-stock companies for the .transaction of the express business on their own account, are not subject tQ the provisions of the interstate cotnmerce law, but that when a railroad company. by itself or in combination with other railway companies, by means engages in the express business, arid transacts such of its ordinary staff, it must conform to the provisions of the interstate commerce law in the management of that spechl1 department of its business. as 'Well as in the management of its ordinary freight traffic. The reasons assi'gned for such decision by the commission, if not entirely conclusive, Rre at least satisfactory; and it is quite probable that since the decision in question all independent organizations engaged in the express business have acted on the assumption that their business is not subject to the provisions of the act. This is a sufficient reason for following the decision, unless it is clearly erroneous. , Many provisions of the act, as pointed out by the commission, clearly indicate that, in fram,jng the act, congress only had in view those common carriers, ordinarily termed "railway companies," that are engaged in the transportaticin'business over lines of railroad by them or operated. At the time the act was passed, the' express business of the