!88 cipal use to which they arf' devoted, that would not change any under.;. stan.ding and designation of them; they would still be something else than cigars, and snbject to a tax under'another clause of the act. "(2) If you believe, that the rolls of tobacco, commonJ:Y called ·Jumbo Cigars,' are made of smoking tobacco of any description. and are composed of tobacco I'educed into a condition to be consumed, then they are manufactured tobacco, within the meaning of section 4 of the act of March 3,1883, and the tax is eight cents per pound, and the plaintiff is not entitled to recover."
I am inclined to think that that is the proper classification. If they are not cigars, they are manufactured tobacco, according to the act of congress, reduced in a condition to be consumed, and are therefore subject to taxation under another clause. "(3) Your verdict in this case should be for the defendant."
I disll.ffirm that point. This whole question is the single and simple within the meaning of the act of congress as it question, is this a was used by congress framing this law? If they are, the plaintiff is entitled to your verdict for $436.03; if they are not, then he is entitled to recover back only the amount which was paid by mistake under the assessment of the tax, $161.78. Take a box of these things out with you, look at them, and exercise, to some extent, your own judgment as to what they are.
,JESSUP & MOORE PAPER Co. (Cirawlt Court, E. D.
11.
CA.DWALA.DER, Collector. April 2,1890.)
CUSTOMS DUTIES-CLASSIFICATION-OLD RUBBER SHOES.
U the commercial valueo! old rubber shqes is due solely to tbe rnbberwbich tbey contain, and not to the preparation or manU,facture which they had undergone, they are exempt from duty as crude rubber.
At Law. This was a suit brought by the Jessup & Moore Paper Company to recover certain customs duties alleged to have been unlawfully exacted iIi an itllportation of old India-rubber shoes, entered by the importers as scrap rubber. A duty was estimated as upon manufactures of India rubber at 25 per cent. ad valorem, and protest made that the merchandise was entitled to free entry under Tariff Index, (New,) par. 724. and seetion 2499, Rev. St., inasmucb as it was in a condition suitable only to be remanufactured, and therefore similar in material, quality, and texture and use to crude rubber, and unenumerated. It was shown on behalf of the plaintiff thll.t the rubber,which was one of the constituent parts of the article in question, was by chemical process reclaimed, and that the product assimilated in matelial, characteristics, and uses to crude rubber. The article as imported was first ground into a powder, and then put into a vulcanizer and subjected to a high temperature to drive off the sulphur used in the original vulcanization, and then
JESSUP & MOORE PAPER CO. fl. CADWALADER.
flheeted out and'manipulated like Crude rubbef, and when- reclaimed was worth more than some qualities of pure rubber. The verdict wasdi-i rected in favor of the plaintiff, subject to a point reserved, and subsequently the defendant moved for judgment non obstante teredicto, but the motion was refilsed, and judgment entered in favor of the plaintiff. James Collins Jones and Edward L. Perkins, for plaintiff. William Wilki7i8 Carr, Asst. U. S. Atty., and JohnR. Read, U. S. Atty., for defendant. McKENNAN, J., (charging jttry.) The plaintiffs have presented the following points: (1)" Articles composed of India rubber, within the meaning of the existing tariff laws, (section 2502, Rev. St., schedule N,) are articles prepared or manufactured from India-rubber, of which the preparation or mailUfacture constitutes some portion of their commercial value. If, therefore, you find that the commercial value possessed by old rubber shoes, upon' which the plaintiffs in this case allege that' the duty in thisillstance was improperly imposed, was due sulely to the r,ubber they contained, and not to the preparation or manufacture which t.heyhad undergone, they were not' articles composed of rubber,' within the' meaning of' the tariff law, as at present in force." This. I affirm. (2), "If you find that the' old rubber shoes' in in this suit were notcomposed of within the meaning of the tariff law, and if you find that said 'old rubber shoes' were similar in material, quality, texture, and the use to which they can be applied, to crude rubber, your verdict must be for the plaintiffs." This point is affirmed. (3) "Under all the evidence your verdict must be for the plaintiffs." This point is affirmed. The defendant has presented the following points: (1) "If you believe that the importation in suit is composed of India-rubber, not speCially enumerlited or provided for in the act of Ma..rch 3, 1883, your ver:lict should be for the defendant." Refused. (2) "Hyou believe that tpe importation in suit bears a similitude in material, quality, texture, or the use to which it may be applied, to an article composed of Indiarubber, thenyour verdict should be for the defendant." Refused. (3) "Eten if the importation in suit be used for the purpose of reclaiming, by chemical process, the rubber contained therein, yet, if the product is inferior in material, quality, and texture to crude rubber, then if is' not such a similitude to cruderubber as it is necessary, under section for the plaintiff to prove to entitle him to reco\'er, and your verdict should be for the defendant." Refused'. (4) "YOUI' verdict in this case should be for the defendant." Refused. If the plaintiffs' first point is sound, they ale entitled to recover., I will instruct the jury pro forma, for the purpose of enabling them to find a verdict, that the law is correct, as stated in their first point, and that the plaintiffs are entitled to recover, but reserving the right to enter a veris not correctly dict for the defendant if it should be found that the stated in that poip.t. This action turnsaItogether upon a,question of law on theconsttl:wtion's which are given to the act of congress, and, as v.43F.ll0.4-19
.tQl fUf,t1;J.fill'( time of, this ·!lAd lJ,Eg:tlmant,before,the fu11 ,bench.upon, the subject, I instrJlct you: th, ow tas ,in t,he Plain,t,iffi,f:i' first point, is a correct sta,'tem,e,nt, of: the ll\w, and in that view under the facts here, the plaintiff$are entitled j)()fl, verdict for the'llmount ,of duty exacted in excess of what should have been Qharged. This, will be subject to consideration by the and'the,coJlrt rese,rVleS the, ,right ,to enter a verdict for the defendant in case it should be satisfied that the law is not as stated in this point. ' 1't"I ... (
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I 'i
SQHW-TZ v., CADWALAJ)ER, ,Collector. .,
;,
(Ommit Ob'U?'t; E. D,
Pen7l.sYh'anm.
Apri114, 1890.) ,, ' ,.
I,'
WhE!ther an importation cit SUlphate of potash is to be used expressly tor manUre " or not, determines whether it is free, or subjeot to 20 per oeht., duty. · '. ; :, ; " , ", ·· ' l! ',,:, " ;
QF P O ' r A . . I \ J I . "
All substanoes, whetherf;!sl'E!olally provi<ied f,or eo nomine, or covered . any lan , age,descn,ptive of 'their origin 'or quallties, whioh subserve' the pur' .polle;ot eli the soil, are free, under paragraph 505¢ tM free-list. ,, " S. OF '. " ':' " In rel$tion to each other, paragraph 70 or So11edule A, Aot 1888 is general, aOO'p&ragril.:flh 501) inpeoifioj:as di1J'eren1liatll:lg from the larger olass of artioles, deof il0tash,) "the BIqallerportioQ, used as manure. "
,. with reference t,o Schedule A, par. 70, Tarifftndex, (New,) of the tariff act of 1883, whereby a duty of 20 per ceQt. ad ,vais upQl1sl,llpqll.te o( ;potash, while, in the free-list, guano, manure, expressly, used for, mfl,nure, are, free .from duty by Henry R. Schultz, to customs duties alleged to been unlawfully ex"manure salt" per ship Cuba, acted upon :fl.p iJl1portaHon of It, was cqntended by the government that it entered was sulphfl,te9f IX>tash, and liable to a duty of percent. ad valorem. The testimony. produced upon tpe, tri/1l that the article was in :&,ct Rought,)!old, llnd Used in trade:;t+,nder that name, but that the im-, pqrtatiqn ,. ;'n. mall,u(acturer of, and, the vel'-: dictw¥ favprlo! tl1.ep1aintiff. ':." , . , " E,qw{krffJ;L. ferlpins R,nd Jame8 ,OpUi'M for plaintiff. , , U. s. R. Read, u. s. Atty., for defendant. ". ,; ".. , '," ." ., Jury.) "This suit is brought to recover duo(gqods, as without au-. ties e."lCacte,d, upon I ,in. Jaw:.. ,A, .suIIlJ;1ateofpotash, discharged,. at this port, andduti!"s./llssessed. upon it",anf! to ,the ,without ,as claimed, on ,Part, to exact ,the duties SO paid. circuit 90urt ,qLthe United, 'states the
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