BERMAN II. ROBERTSON.
881
HERMAN
et al.
f. ROBERTSON.
(Cof,rctt.'tt Court, S. D. New York. December 12, 1889.) CtrsTOI\IS DUTIBS-CL.l8SIl'ICATION-CALlI'-HAIR AND CoTTON CLOAXINGB.
Cloakings made of calf hair and cotton, imported in 1881, were dutiable at 80 per cent., under the provision of Schedule M, § 2504, Rev. St., for "all other manufactures of hair not otherwise provided for; "and, being thus enumerated, could not be held, dutIable under the provision of section 2499, Rev. St., that "on all articles manufactured from two or lXlore materials tile duty shall be assessed at the highest rates at which any of its component parts may be chargeable. II
(SyUab'lt8 by the Vour,t,)
At Action torecover duties.. In 1$81, plaintiffs imported from' :England certaip. cloakings, com:. pqse'dof bait or cow hair arid cotton. ,The goods were c1l18l9ified by the defendant as manufactures of calf hair and cotton, assimilating to manufactures of goats' hair and cotton, and assessed for duty at 20 cents per pound and 35 per cent. ad valorem, under the provision in schedule L, § Rev. St., for "manufactures, of every description, composed whollY,or in part of the alpaca goat or other like animals;" and the simili tude provisions of section 2499, Rev. St. Against this exaction the ltlairxtiffsprotested, claiming that their goods were composed of two materi8Js, and were dutiable only at the chargeab'leon any of the component parts, viz., cotton, at 35 per cent. Upon the trial, counsel for defendant moved for direction of a verdict, claiming that plaintiffs' goods Were Mt non-enumerated, and that therefore neither the collector's classification: nor the plaintiffs' claim was correct; ,that the goods were properly dutiable under the provilrion of Schedule M, § 2504, Rev. St., for "manufactures of hair not otherwise provided for;" and that, as the plaintiffs had not made a claim under that provision in their protest, they could not recover in the suit. Stanley, 'Clarke &: Smith, for plaintiffs. Edward Mitchell,U. a.Atty., and W. WickhamSmith,Asst. U. S. Atty., for defen<lant. LACOMBE, J. In disposing of this case I feel controlled by the decision in Arthur v. Butterfield, 125 U. S. 70, 8 Sup. Ct. Rep. 714, to hold that ·goous are manufactures of hair, and, as such, provided for by the c1liuse;in Schedule M, § 2504, of the Revised Statues, under the phrase, "and all other manufactures of hail', not otherwise provided for, thirty pereelittlm ad valorem." The precise point now raised/viz., whether this grade ofeatUe-hair goods are manufactures of hair: does not seem to have been presented to the supreme court in the three ellrlier cases ",here such goods were before that court, (Arthur v. Herman, 96' U. 8. 141; Arthur v. Fox, 108 U. S. 125,2 Sup. Ct. Rep. 37lj Herman v. Arthur'8 Ex'ra, 127 U. S. 363, 8 Sup. Ct. Rep. 1090j) and therefore, in opinions given in those cases, there is found no discussion of that clause. I shall therefore follow the construction of the similar clause which was approved in the Case. This particular case is then left to be dev.4b.no.14-56
882
FEDERAL REPORWE&,
YQld 1.
termined on the form of protest; and inasmuch as that, in both its clauses, pf tlle i/!rticle 8S one non-enuevidently insisted up()n merated, it is not sufficiently specific to warrant a recovery. Verdict directed for defendant. ' r " " , ' r , \' \'," 1 ," , , ,- ; j ' -
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avery row one. simply to whether these goods are toys. If you any' distin<}tipIj, the differ, will that -distinp,tion, W hen verdict. You have heard tbe evidence, and all that tbere is for me to 40 ip the case in your hands is to give you the definition of tbe word "toy:" a thing use, Qr,purppse Qf wllich i1l: the mind I and evidenqe·. you wiH. determine as! ,to not The burden proof of plait:J,tifJ,. as , ,i,llal1.thes,e . pases. He must satisfy you Jair Jpreponde.rat:J,9c his side of the is made outjotherwisethepresumpJiop. is. tbat the collector, a .
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a,verdict for the
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