11NrrED BTA'D:B>'. DOH 011.
ported goods is properly made upon the quantity actually imported and entered at the custom-house. The tariff acts of 1846, 1851, and 1864 all received this construction; and the importers were not allowed for leakage everi while detained for appraisement. See U. S. v. Southmayd, 9 How. 637; Lawrence v. OaHweU, 13 How. 488; and Belcher v. Linn, 24 How. fiftieth section of the act of October 1, 1890, by the last proviso thereof, makes an exception to this general and well-settled rule of making the, duty chargeable upon the quantity actually brought into the country, by declaring that, "when duties are based upon the weight ofrrierchandise deposited in any public or private bonded warehouse, said duties shall be levied and collected upon the weight of such merchandise at the time of its withdrawal." The appellant's case, as already stated, does not come within this exception, and the whisky imported by it was dutiable, under the general rule,upon the quantity actually imported and entered into bond. The tariff acts of 1883 and 1890 mak-e no provision' for any allowanr.e for leakage or evaporation while imported spirits are in a bonded warehouse, like tbat found in the seventeenth section of the acto! May 28,1880, (21 St. at Large, p. 149.) Allowances for such losses by lefl,kage or evaporation rest upon the express provisions of the statutes; and when not provided for therein the courts can make none, however strong the equity may be. This is the rule laid down recently -by the supreme court of the United States in the case of Thompson v.U. S., 12 Sup. Ct. Rep. 299, (decided at the present term, and not yet officially reported.) Upon the whole case, we are clearly Qf the opinion that the decision of the lower court Was correct, and accordingly aflinn the judgment below, with 00811$.
UNITED STATES 17.
otrmat 'Court, N. D. New
York. November 2O,189L)
A 0blneEie labO\:Elr was arrested for being in the United States in violation of tbe exolusion aots,as amended by Aot Cong·.Oot. 1, 1888. The evidenoe s)lowed tbat be had iJl this country OQntinuously for 22 fears prior to April 1, 1891, but. that be was at lOngston, Cauada, in the last week 0 that montb. He denied having been there, and there was to show bis purpose in going, or bis intention as to returning. Held, tbat he was unlawfUlly in tbe Uuited States, and should be returned to Canada, as the country "wheuce he oame." Wan Shiny v. U. S"l1 Sup. Ct. Rep. 700, 140 U. S. 424, applied; In reAh. 'fie, 18 Fed. Rep. 291, distinguished. 'I. S.um-!4BEAB CORPUB-REvIEW-COMMIBBIONER'S FINDINGS. On habeas COrpU8 to release a Chinaman ordered bya United States commissioner to be returned to Canada, the commissioner's findings of faot oannot be reviewed.
CmNEllE LABORE'!ts-1'EMPORARY ABSENOE-RIGHT TO RETURN.
Petition by Don On, a Chinese laborer, for a writ ofhabea8 corp1Ul. Petitioner and one Lee Sing were tried before Edward L. Strong, Unitild States commissioner for the northern district of New York, for being. unlawfully in the United States, andwerehy' him ordered to be returned
, 'pt · ',' " 1owsng:o Dl0n'l'
wIn 'tenderhlgjiUdg.rneDt .tbecorhmissioner'dplihied .tlie:! folf .
':., ':,c',': '." " "
, werearreslilld under the. ' Chinese ExclusIOn May 2, 1891;.at(iJlay1;oni·N."Y.,;, Theevidencerbefore mellhows,tbali pon On and Lee Sing'are Cll1Qe$\:l J)f tbe and. they c9untrl On ,22 abopt,12 j they coptitluously from that tl me to April;'lS91; ','It fiIrther ,shows that o"the 2d day of Aprll;1891, Lee Sing wasin'TorOtitoi,:Canadll;Rnd'in the of April;18!H,Don On was in KingstoB,Clanada.rrba only question' in this case is". did they depart from the United.States so as,to prevent :tijem· frow coroing:b"ckl' Defen(ian.ts' not lose the right to return to this country, unless. their departed from the t!nited States wltnthe,t#tellt tomake theIr res!4ellceelsewherei that temporarily goingto a foreign country, with no intililtitiilsofstaying there, is not departing from' States, in ,the mearii'J1'g tlf,tbe act!OfoollgresS', passed tooor 1. l1lHs_ 'Sections 4,6: c. 126, 11a"s1882 of thei United States. provide that thecoUector dilltrJct 'S'ball Cbinese laborers ide.Pllrting froDl theUnit!!di and' in order to furnish ,pleDl' with prol?er evid61lIle" their Wio :from' and come to tbe t?ei(lreewill '. SecUon 2, c.1064, Laws 1888, sectloos, and declares thatnocetM,ficlIte shall be Isclldmlttg adldisaiouby virtue thereof, shall not be permitted to! en,tell tlle United: States; It'seems to me: clear' that, the intent of coollres8 was: to;f!ti'e Qbinamen· wll() W/Jrehere. pJ;ipr. Wi 18a2. right to theVnited the necessa,rycertip"ate, reyoltlldpythelaw;of 1888. I think that yiew of. Iflw expressed. by Justice 'SA WYERin Re Okae Chan Ping, 36 18 Fed. Rep. 289: 'Tbe'ilooeven'1>t0V'i'dilB for the:returnof sueJllaboters, leaVing' for ,a temporary period, upon their obtaining certificates of identification.' My attention has been called to the Case of oAk Tie, 18 Fed. Rep. 291. I have carefnlly read Justice FmLD'stiecisienin that case, and particularly that part of bis decision where he says: 'And we should hesitate to say that it would ,be lost by the laborer passing through 8 country in going to different parts of the United States ot tl;Ie though we are told by counsel of the respondent that a Chinese laborer having taken a ticket by the Overland Railroad from. this New ronte. which passed from Detroit to Niagara FallS, through Canada, was stopped at Niagara, and sent back, an4. o,q his attemP,ting to retrace his steps, was again 'BtO}:lped at ,Detroit;.. rrhe 'constructlon. which would jUlltify suell. a proceedi ng 'cllll'nOt fail, brilJg ,odium upon the aotO'lind'lnvite effort!or its repeal. The iM'iSdoifl. by a less re(pellant toOllr..$lInBe of 'Justicellnd ngM.! 'Fllis caB.e hardlycomefli!,Jnder those remarks. deny being in Canada, 0,1', in fact. out of the United . theYc.. b,.e.re yea. a.go; T.hey both. are. 'pOliitiVe.lYideD . tilled as befnglri'Cariada.hl'the ,month of April, 1891. How they got there. what they or hO,wl9ng they expected to remain, or their hi. t.entions were.ofilleturni.ng;,does not ap.pear. From the evidenoebefore me I find that the defendants, Don On and Lee Sing, are unlawfully within the United and that they are not laWfully entitled to be or remain in the United States.::I lberefore:brlier that DonOlfandLee Sing be returned to ;Canada. f/oI tbe Daniel Magtm.e,'ilotpeti'tioner. }tank O. Fer!fU8U1l.,Asst,:U. S. Atty." for the United States.
HAY" 'IODD MA.NtJ'ir'G ,00. !1. VAiN 'DYXE
.:CoXE,DistrictJudge. :The commissioner has found that in the spring of 1891, the petitioner, a Ohinese laborer, was at Toronto, Oanacla, and: thereafter came to this couJitry. This fiqd\ng cannot be reviewed upon this proceeding, and must be taken as an established fact. I· have reexamined the light of these .facta' and am of the opinion that' the case of Wan S1iing v. U. 140 U. S. 424,11 ,Sup. Ct. Rep. 729, is controlling upon all presented upon the argument. I have read the decision of Commissioner STRONG and, ameur with his conclu-' sions. The petitioner was in GanadalLIid could not legally enter this country. Application. denied.
,NoTE. The marshal ml/ode !'eturn tbat he was unable to execute the judgment of tbe court for tbe reason that he had no money witb whioh to pay the "head-tax" cbarged by the Canadian government. Due notioe of hlWing been given to the department of justioe, and no b4Ving been provilied, it was afterwards.,on motion of United Statu district attorney, ordered that the petitiqner, Don On, be dillcharged from CWIt0d7.
HAy & Tonn
Co. ,i. V AN DYKE
Co. et aL
PATBN'l'll POR INVBNTIONa-:-AlifTIOIPATION-LAnIBS
Letters patent No. 857,127, issued February 1, 1887, to, William lI'. Kneip, are for an improvement in ladies' drawers, in whioh each half o.f the garment is composed of two' pieces, one running the whole length, and being (lnly wide enough at its widest part to encircie the leg, and the other.of a strip generally rectangUlar in form, and nttached at one of its longer sides to tbe vertical rear edge, ()f the body portion of the iarger piece. and at its lower end to the front margin, of the main ,tbus giving the fullness in,tbe !'ear rendered necessary by the contour of the tl,gure. 'Held. that tbe pstentwas anticipated by the Bradley patent (No. 198.5OlI) for a eombination garment, the lower portion of which was oonstruoted in substan. tially thl! same manner· Letters patent No. 874.807, iS$ued Deoember 6, 1887, to tbe same person, claims a combination garmllnt, comprising body and leg portions, made continuou$ with eacb other, 1.11e garment being separated at the back to a point above the waist Une, and having strips inserted in the back, and secured, at one of their longer sides, ,to the edges of tbe main part of the garment, at their upper ends to both rear edges of the separated main parts, and at their lower ends to the front edges thereof. The speciftcations state that the upper ends of the strips are tapering, and attacbed at both of their tapered edges to the margins of both adjacent edl/:es of the main parts, and tbat "it is obviously not essential that the top and bottom ends of the inserted pieces sbould be sbaped exactly as shown," and that in practice their form "will be mCldifled to give a desired form to the garment, or to correspond with modifications' in the shape of other parts." Held, that this part of tbe specifications was essentially descriptive of the invention, and as the olaim, thus broadened, would cover the Bradley patent and also the inventor's prior patent, the same was anticipated by them.
.. BAMB-CoMBINATION GARMENTS.
In Equity. Bill by the Hay & Todd ManufMturing Company against" the Van Dyke Knitting Company, John H. Van Dyke, and John H. Van Dyke, Jr., for infringement of a patent. Bill dismissed. Poole & .Brown, for complainant. ' Van Dyke & Van Dyke, for defendants.