ruling that one maybe discharged after verdict against all, and the oth. ers held, may be lawful enough under some circumstances; but a court acting impartially towards all parties must feel a Sense of its injustice when it appears that neither in the declaration, the pleas, the arguments of counsel, nor the charge of the court were the jury invited to give their consideration to that subject, and that they rendered a verdict ing, as they might do, that all were to share its burdens, if all were able to do it. It is too much like a verdict by the court than one by the jury to take advant!lge of these technicalities by refusing two of the defendants a new trial which is given to the other. Another jury will vindicate the plaintiffJust as surely as this has done,· if the facts and the law entitle him to the vindication he has received at the hands of this jury, whose enforcement of the right of exemption from wrongful arrest and imprisonment is in every way to be commended, and whose verdict is set aside most reluctantly for no fault of theirs. But the court will be better satisfied that such vindication comes from the verdict of a jury,' with full knowledge of all the facts, than from 11 ruling of the court, however technically correct, that imposes. upon two a liability the jury intended that three should bear. New'trial granted.
In re WILMERDnqG et .al.
(Oircull Coun. 8. D. New York. March 9,1899.)
OUSTOM DtJTIBB-TARIllT ACT OJ' OCTOBER I, 1890-CBABH OR C A N V A S . '
OJoash oroanvae, 15 and 17 Inches in width, respectively, made of flax tow, and of from 1 to:3 per cent. of cotton, and conJ;alning less than 100 threads to the square inch,oounting both warp and filling, is not dutiable at 40 per cent; ad vaZorem; as manUfactures of other vegetable fiber except flax, or of which other vegetable fiber except:llli'Xls ·the oomponentmaterial of chief value. under the provision for such manufactures contained in paragraph 874 of the tarifr act of October I, 1890, (chapterl244-,'26U.. S. Sr.. p.1i67.)
At by importers from decision of the board of United States·general appraisers. During the year 1891 the firm of Wilmerding & Bisset imported from a foreign country into the United States at the port of New York certain merchandise, consisting of crash or canvas. This merchandise, having been returned by the local appraiser as manu1actures of flax and jute, flax chief: value, not exceeding 100 threads to the square inch,was classified for duty as manufactures of flax, under the provisions for such manufactures contained in paragraph 37lof the tariff act of October 1, 1890, (chapter 1244, 26 U. S. St. p. 567,) and duty at the rate of 50 per centum ad valorem, as provided by that paragraph, was exacted thereon by the collector of customs at that port. Against this classification and this exaction the importers protested, claiming that this merchandise, having, as its component material of chief value, tow.
was dutiable at the rate of 40 per centum ad valorem under the provision for "all manufactures of jute, or other vegetable fiber, except flax, hemp, or cotton, or of which jute, or other vegetable fiber, except flax, hemp, or cotton, is the component material of chief valtle, not specially provided for in this act," .contained in paragraph 374 of the same tariff act. The board of United States general appraisers, 'to which the invoice and all the papers and exhibits connected thereof this with, were transmitted by the said collector pursuant to section 14 of the administrfltive customs act of June 10, 1890, (chapter 407,26 U. S. St. p.131,)aftertaking evidence, (September 17,1891, § l1,882,G.A. t, 73,) found that this merchandise was crash or canvas, 15 and 17 inches in width, respectively; that it consisted mainly of flax tow, and, in the case of one portion thereof, 1 per cent of cotton; of another portion, H per cent. of cotton; and of still another portion, 2 per cent. of cotton; that it contained less than 100 threads to the square inch; that tow was the coarse and broken part of flax; that, by specific provision of the aforesaid act, such portion of flax, when imported in bulk, was dutiable at one-half of 1 cent per pound; that textile fabrics, however, woven of this substance, become a manufacture of flax, and are subject to the rate of duty applicable thereto, when imported into the United States; and that the atoresaid classification of the collector was correct. From this decision of the board the importers appealed to the United States circuit court for a review of the questions of law and fact· iuvolved therein. Thereafter the board made its return, and upon the same the case was tried. " W. Wwlcham Smith, of Durie, Smith tf Mackie" for importers, argued, in substance, that, as tow of flax was specifically,provided for by paragraph 359 of the aforesaid tariff act, the merchandise in suit was therefore not a manufacture of flax, within the meaning of the provision for such manufactures contained in said paragraph 371; but was a manufacture of a vegetable substance other than flax, and dutiable as such, under the provision for such manufactures contained in said paragraph 374; citing, in support of this contention, the remarks of the supreme court as to "shoddy" found in the case of Seeberger v. Calm, 137 U. S. 95-97, 11 Sup. Ct. Rep. 28. . Edward Mitchell, U. S. Atty., and ThomaB Greenwood, Asst. U. S. Atty., for collector.
LACOMBE, Circuit Judge, (orally.) I shall affirm the decision of the board of United States general appraisers in this case, upon the ground that I cannot find that this article is composed of any other vegetable fiber except flax; and therefore I do not find that it is withb the designation of the particular paragraph referred to by the importers. Whether or not it is a manufacture of flax I do not now decide. I cannot see that it is a manufacture of some vegetable fiber other than flax. 'Decision of the board of United States general appraisers affirmed.
"mn SCHEFEBdal· 'OQUft. 8. D. ;New ,:March .0,1899.)
EMBBOIl)ERJU)· .Wolilted8hawia, emoroldered with·' Bilk, are dutiable a8 worsted shawls under -.·Schedulll K, Pl"'. actot October 1, 1890; and not as. embroideries made of _ in paragraph 878, Schedule J, and paragraph I all$, BobedUleK, of said tarift aet. .. ·. . .
'.! i) '<
Applicatienby tbe importers under the provisions of section 1.6 ·dBbe Mtof cotlgress,entitled "An act to simplify the Inwe in to· the collection o.t tbe revenues, II approved June 10, 1890, for a. review 'by ,the !United States circuit court· of :the decision ofthe board of United Statesgehetalapl>lll.isersat the port of New York, affirming the demsititl ofithe-collector'oD the classification for duty of certain merchan-; dise lmportedinto said port in the· month of 18910 The mer" .in/question donsisted of so.cnlled shawls, being manufactures of 'Worsted embroidered with silk. They·were returned by the United States appraiser as "·worsted shawls, embroidered, 60/60;" and duty was the collector at the·rate of 60 :Cents per pound, and 60 per centum ad valmem under the provisions of paragraph 398 of Schedule :K,andtheproviso contained inpallagraph 373, Schedule J, of the tariff act of ObtOber 1, 1890. Said· paragraph 398, omitting the pro. visions immaterial td this case, as follows: and embroideries ... ... ... wrought by hand "On webbings, ... ... ... · made of wool, worsted, the hair afthe or braided by'tn.ohinery, camel, goat, alpaca, or other animals, '" '" '" the duty shall be sixty cents per pound" ,.nd in aqditlon sixty per centum act val01·em.." The pr(jV'isobi paragraph 373 is as follows: . "Protided tbat articles of wearing apparel, and textile fabrics, when em. broidered by blind'or macbinery,·and whether specially or otherwise provided for in this aet,ahall not .paya les8 rate of duty tbanthat fixed by the respeot· ive paragraphs·and upon Of tbe materials fJr. Wl,1ich they.a.re resPllctlvelycl>mp08ed." . Against this classification the importers. protested, claiming (1) that the goods wete specifically' provided forin Schedule K, paragraph 392, of the act of October 1, 1890, and, being worth over 40 cents per pound, were dutiable at 44 cents per pound, and 50 per centum ad valoremj or (2) that the sha:wlswere dutiable as wearing apparel 'umierparagraph 396 of Schedule Kaf said tariffactj or (3) that the goods were not at and prior to October 1, 1890, commercially known as "embroideries." Said paragraph 392 1 asfarasapplicable,provides as follows: ·. valued at above forty "On woolen or: worsted cloths. shawls,. . cents pet·pound. the,dlltyper. pOllnd.ahall be fourtlJ:II.es thlil duty imposed by ,thJaaot,on unwRshed w.ool of the class, an<!.lp addition thereto, fifty per centum: 'Oalorem. '; . .. . . '. The board of United States general appraisers affirmed the decision of the collector, and the importers thereupon procured the return of the