ZEH t'. CADWALADER.
such pursuit or vocation as he will probably be able to fill, then you should allow for such loss of earning capacity a sum sufficient to compensate bini for such loss.· You may also, in estiniating the amount of compensation due plaintiff, take into consideration the mental suffering, if any, naturally resulting from the injuries received. This is a case, gentlemen, naturally appealing to our sympathies; and I therefore feel it proper and prudent to remind you that the rights of parties in courts of justice are to be determined upon well-defined pririciples of law, and not upon the impulses of generous hearts, however well prompted. I need not, T am sure, say more to insure to both these parties a full, fair consideration of their rights, and to receive from you. a just verdict according to the law and the evidence. Take the caSe,· gentlemen, and make such a finding as your conscience will approve.
Verdictfor plaintiff for $6,000,
J Circuit JUdge, by in vitation of District Judge. sat with the latter tq bear motion for new trial, which, after full argument, was denied. Judgment rendered on verdict for $6,000 and costs.
ZEH et al.
(Circuit Court, E, D. Pennsyh,ania. October 10, 18ll9.)
CUSTOMS DUTIES-CLA.SSIFICATION-DECORATED EARTHENWA.RE.
If decorated china earthenware is bought, sold, and used under the name of "toys," it ls to be classified for duty, under paragraph 4-25, at 35 per cent" and it is unimportant whether the articles are used for playthings for children or for household p u r p o s e s . · . SAME-Toys. The term" toys" used in the tariff 001 is to receive the signification ordinarily attributed to it in common speech, unless evidence shows that it has a different trade signification,-that is, that it .is diffeJ'ently used and understood when applied to such merchandise by those engaged in commerce respecting it, and had such dif· ferent signification at the date oUhe statute in 1883.
At Law. This was a suit brought for the recovery of certain cllstoms duties alleged to have been unlawfully exacted upon certain earthenware, mugs, cups, saucers and plates claimed by the plaintiffs to be dutiable at the rate of 35 per cent. as toys, under paragraph 425, Tariff Index, (New,) the appraiser having returned them as decorated earthenware at 69 per cent. under paragraph 125, Tariff Index, (New.) The samples produced upon the trial of the importation consisted of ABC cups and plates, sa.-called tea muffins, decorated and fancy mugs, and plates, Opon the trial, the testimony of the plaintiffs tended to show that ticles in question were bought, sold, and used in the trade as toys, a.nd were known by that name, while the testimony of the defendant tended to prove that the chief use to which they were put was not as playthings
tq, arq.Jlse children, but for. ordip.ary, It .was also QQutended on behalf Qfthedefendantthat under section 2499, as amended, should hEl for the d,efendant, inasmuch as where two or more the artii:le)s dutiable at the htghestof such rates. The verdict waa for the defendant. Fra'ftlc P. Pritchard,forplaintiff. , ..' , Wilkins Oarr, Asst. U. S. Atty., and John R. U. S. Atty., ' for ,qefelldant.
,J. ,(charging jury.) ',defendant asks' the <;l()urt to charge you Qll, l:1ertainpoin,ts,the first of whichis as follows: "l.If you beHeve the'goQHs in question are boug!:lt, sold, apd used ,as ,earthen, stone, or cropkery ware, and notaa' toys, then your verdict be for the defendant." That is correct. "2. If you believe the articles in question on March 3, 1883, and prior thereto, were commercially known and designated 'as earthenware, and if you believe that they were not at that and 'designated as/toys, then iti'i:l they have'sinhe been' know-nand designated, f!,nd your be for This statute was passed in 1883, and if the defendant." That is there is a trade designation it is the designation ofthat time and not subsequently that governs. "3.. If you believe the articles in question are known as earthenware in the trade, and are chiefly used as other articles of earthenware, stone and crockeryware are used, and are not chiefly used as playthings for children, then your verdict should be for the defendant." We cannot so charge you. If they were denominated toys, by the trade,atthilttime referred to, it is unimportant how they were article in question may possibly used. II 4. The. circumstance that be used ,[or purposes other than househ<)ld. purposes, is not controlling, sometimes they are, used by children' as playthings, your'verdicfshould be for 'the defendant; if you is for household purposes;. and that they are believe that their thetra4i'l." That is' tr1;le; . If they were,not known by the' trarl:e.. :astoys, then' it is true that it is not important that they may have l)'een used M playthings" if theirqhief use was for hqusehold purposes; but if they were known in the trade as toys, then it does not ma.ke any odds how they were used. "5. If you find that there is no tra,de ,Msignation of these ,articles as toys, then the q\W$tipn becomes is the predbmil1ating use purely and simply. oneoE fa.ct, viz. to which,:,1be1W articles are ,devoted, ap.d ,if you believe that they are not chiefl.y playthings for children, then your verdict shquld be for the defeJ;ldant. .That is correct. The court affirms. that. This assertion, isl\1lpredicated upon your not finding that they are known to the 'brade.Ju, 'toys. "6. yo,u believe that the iuqufJtition are l\qcls()ld under. the names of a cup. saucer, and plate, and not under ,Ilameof ,toya,t1;len your verdict should be fOr tQe defendant." 'fhat. probably ,means thing.' ,If they are pot designated by and know;ntoth;etradEl.as toys, hut are kllown silllply as cups, saucers, properly classified,. alld your verdict should plates, etc.., then ',they
be for the defendant. 117. A I toy' is an article used exclusively for the amusement of children, and if you believe that the articles in quelltion are chiefly used by children; otherwise than as playthings, then ·they are not toys within the meaning of the tariff act, and your verdict should be for the defendant: provided the word 'toys'has' no special trade meaning." Here·again.is the same thought. What is asserted in the'point is predicated upon your not finding that the word "toys?' has a special trade meaning, and the point is therefore correct. I shall have more to say that will be found applicable ro it in a few minutes,when· I come to define :the distinction between the meaning of the w0ro J1tbys" as used in c'onimon speech, and when; used as a trade desig:nation, ifit iel a trade designatiot!:;: the evidence in this case, the term" tOys' should not be gi ven iany' technical or particular or commercial 'meaning, but shouldreceh'e itsproper signification and natural imtiort; and if the articles inq,uestian8re not 'toys' in the popular and general the term, but .use<:1' for ordinary household purposes, like sense other articles of earth-enware; and ifsuchuseis predominating andnot-exceptional, then your verdict sh(}uld be for the defendant." 'rhis is true. :But it is proper to bear' in mind that it ispredicate.d: on the idea, al·though not:ao stated,thatyoudo;not find this term "toy" to have aetrade signification. The ninth point raises 'ft question oflaw, which for the present, the court must rule against, the defendant. I would pl'efet' to reserve it,but it contains the word "if;" and while there is no. qttestion how the case should"be decided, if the :point is right" the are not such as will enab16·the oou:rt10 reserve it, 81nddirecba judgment for the defendant, notwithstanding the verdict, if the court her:eafter be with the defendant upon the point-in the absence of an agreement between' the parties respedtingit, and therefore the point,tnuatbe · regarded: as denied. Having thUs disposed of the poiilts I will now state the case, andtny views respecting it, in a connected form. . The plaintiff having imported the merchandise involved-consisting of cups, saucers, plates, and mugs-it was classified by the'customs officers as earthenware, and subjected to the duty imposed.by the statute on this class:ofttlerchandise-to-wit, 60 percent. The plaintiff olaimsthat it should have been classified as "toys," and subjected to the duty imposed by the statute on this .class, .to-wit:-35 per cent. He therefore seeks in this suit, to recover the difference between 35 and 60 per cent.,· which' he paid; The term "toys," used in the statute,. is .to receive the'sjgnification ordinarily attributed to it in comm:on speech, unless the evidence shows that it has a different trade signification,that is,that it is differently used and understood when applied to such: merchandise, by those engaged Ul commerce respecting it, and had differentsignification at the date of the stattite, 1883. The signification of the term in common speech, embraces only such things as are primarily intended for, the amusement of children. It does not matter that they may be susceptible of othertlses; if the pXlildominating design and use is such amusement .and entertainment, the articles fall within the signification of the term" toys" as employed in
ordinary speech. If the predominating use is not to amuse, although the articles may be suitable for, and be applied to! this purpose, they are not toys within the common signification, as before stated; that is within the meaning of the term as employed ill common speech. If therefore you do not find from the evidence that the term "toys" has a different .trade signification, as before explained, the criterion just indiguide you in determining whether the articles here involved areC'toys.',' If, however, you find that it has such different trade signification, then the statute must be understood as using .the term in this sense, its ordinary signification inJcommon speech before explained, willceaseto be of any importance in :disposing of this case. That it has trade signification; the evidence seemE! to put beyond a' daubbThewitnesses an both sides, testify that tbeterm"toy" (at the date oftpestatute, arid far many years before) was in common use among those branch of commerce. They (the witnesses) differ only as l'especta the scope of its application., The question of fact for your conaideration therefore, seems to be narro\\'ed to the ililquiry : What is the scope:of ,the term as thus: used, or,; rather, what was its scope at the date ,of the statute?, 10 other words, what ,was then embraced within ;the signification of the term" toys as emplayed ,by mercqants engaged in thisbrilnch of commerce? Did it include the articles involved,? The plain'tifi"s witnesses, merchants, engaged in this trade, testify that it did, embrace them. These 'witnesses ,ate numerous, and have had large experience in the trade. If' yoU: believe them-if their statements are reliable; they settletbe questionjand the articles must therefore be'classified as "toys," and a verdict rendered for the plaintiff in the amount of his claim. On the other hand a number of witnesses were called ,byihe defendant who testified 1hat the terroas used in the trade did not, :at the time referred to, and does not now, embrace thes arti' cles. That its scope was and is narrower-as they describe. Whether ' their experience and intelligence respecting the question ar as great as that af the plaintiff's witnesses, and whether their testimony is as reliable and v&qable, you must judge. The plaintiff has also placed before you numerous trade circulars or price-li&tscontaining information On the subject,'From this evidence, and any other you may,find in the oouse bearing on the question, you 'Inust decide whether the term "toy" as used in ,the trade at the date 'of the statute, did or did not. embrace these articles. If you find it did, your verdict will be for the plaintifras before stated. If you do not so find, your verdict will be for the defendant. There, is no place here for sympathy or prejudice. If you find that the terl11 in question has a well-known trade signification, (had at the date of the statute,) and that these articles fall within it, your verdict must' be fot the plaintiff, no matter whether the trade designation seems t6you to be reasonable, or not. If you do not so find, your verdict must be for the defendailt.
LEMAIRE FEEDER CO., Limited, v. CADWALADER, Collector.
(Oircuit Oourt, E. D. Pennsylvania. October 15.1889.)
CusTOMS DUTIES-CLASSIFICATIOlQ"-HOOKS FOR CARDING-MAOHINES.
Iron hooks. used in the man'ufacture of feeders for wicker cards in a cardingmachine. sharpened after being set in the cylinder, but first hammered up in the iron then struck in a die, and known to the trade, as hooks, and not as iron forgingS; are a manufactured article. within the meaning of the tari1l act, and liable to duty under paragraph 216, Tarifr Index, (New.)
At LaW. This was a suit brought by t!:-e Lemaire Feeder Company, Limited, to recover certain customs Q.upes alleged to have been improperly exacted in an importation of iron hooks used in the construction of carding,ma<'bines. They were returned as manufactures of metal, and the duty assessed-under paragraph 216, Tariff lQdex, (New,) Schedule C, in.acwith the Treasury Decisions 6798,7668, .and 8323; and the , }>laintiffprotested that they w,ere dutiable as forgings of iron at two and a haH cents per pound under paragraph 167, ld.But, upon the trial, witnesses called upon his behalf testified that the article was not known in traqe iron forging; that it was first hammered out of the iron, and afterwards pressed in a die, and subsequently sharpened, after being placed in a carding-machine by a finishing process; and that they were sold- under the name of·"hooJrs." FrankP. Prikhartj, for plaintiff. William Wilkins Carr, .Asst. U. S. Atty. , and Jofvr" R. Read, U. S. Atty., for defEmdant. By direction of the court" (BUTLER, J. ,) plaintiff suffered a nonsuit.
HEMPSTEAD et al. v. CADWALADER, Collector.
(Circuit C01.lln, E. D. Penn81/lvania. April 7, 1890.)
CUSTOMS DUTIES-ENTRY WITHOUT INVOIOE-STORAGE CHARGES.
'Where merchandise is entered hy appraisement without invoice. and the entry is·incomplete for want of particlilars t and is taken into the custody of the collector of the port and conveyed to a warenouse, the charges for storage and labor are legaL
At Law. This suit was brought to recover charges for cartage, storage, and labor, alleged to have been improperly collected by the collector upon certain importations of merchandise under the following .circumstances: Goods were brought to the port of Philadelphia, and entry made for immediate . consu:mption, together with an application under Rev. St. § 2859, (article 32&, General Customs Regulaiiousof 1884,) under oath to cmter v-.!2F.no.10-34 '