60 F. 592 -

'FEDERALBEPORTER,vol. 60.,

<

quest lab exception was dilly t!;lken. The court theteupon properiy charged, in ,confortnity with Howardv. Daly, 61 N. Y. 362, and Costiganv. Railroad 00., 2 Denio; 609, that the plaintiff's duty (if he was improperly discharged) was to use prompt and reasonable to procure' other employment of a similar character, and ithus reduce the damages; and that, if the jury found that the plain,tiff 'c!lid' not conform to tbis duty, they could mitigate the damages to the extent of the compensation which he might have received by proper: effort in seeking employment. Upon the whole case, we ithi!llkthat no error of }tbw was co-mmitted whereby the defendant waa prejuclliced, and the judgment is affirmed. v. HALBERSTADT.
No. 62.

'MQ8JGAN

, ;'(Cb:ctUt Court of Appeals,Second, Circuit. March 13, 1894.)

1.

i ,

;WberElithe' purport 'of ,the publication complained of Is plain and unam,bigqqrnl, th'e question, Ina civn action, whether It Is a libel or not, Is for
,i

FOR OOuRT.

",'

"

2.

,,'

3·. 'Ac'l,'IOJ!i's-

'alleged libel charged that defendant, lUl agent of an Inslll1Lllce company, 'was short in his accounts. and that he had "boasted of the mawe:r:'in ,'which he had helped himself, to the company's' money." It that t)le agentli Qf the company "had been given unlimIted opportunities to swindle the policy, holders," and stated that Its rea,ders were familiar "with the methods and extent to which the have availed themSelves of their opportunities." tHeld, that ;.there W8.SJlO such ambiguity therein as to make a. question for the jU17,." "'i," ,
U

·ASSOCIATION.

FOR JURY.,

"

, ,

'

,

N. Y.,. 1919, provides that any action, that may be m!lilltaineliag'ainst an' unincorpo-rated association may be brought agaitl'st Its 'president; ,and section 1921 provides that a judgment In all adi(i)B"so brought shall be satisfied out of the property of the associati0 Il , shall not authorize the issue. of execution a.gainst the president. ,'1Ielilthat,when the action has been bJ;'ought against the president, an amendment to the complaint, substituting the association Itself as , defend,anti does not introduce a new party to the action.
pJ;OC.

4.

WaNESS-CRIMINA'l,'ION-PRIVILEGE-WAIVER.

In ll,n action against an unincorporated association the defendant can,not objE!¢(,toincrimlnating testimony given by one of the associates, iWitnel1s ,himself fails to assert his privilege.

1»' Errof'tQ Circuit Court of United States for the Southern))istrict of New York. This was an action bySigismundo E. Halberstadt against Henry of the New York Times, for libel. There ,wlU} a verdict fpr plaintiff for $15,000 damages, and judgment ·tlieretin,ahdL defendant brings error. .; ;Einstein, f6rplaintiff in' error. RObertH. p'riffin, for defendant in errol'. Before, WALLAOE OircuitJudges.

MORGAN V. HALBERSTADT.

593

LACOMBE, Circuit Judge. The complainant sets out four causes of action, based on separate articles, which appeared in the defendant's newspaper on September 5, September 30, October 10, and November 1, 1891, respectively. The- ,first of these is as follows:
"This is the situ3.tion in the Beers' Mutual Admiration Society at Broadway and Leonard street. Everything is done to avoid publicity and to screen the truth. Not one of the twenty men composing the board of trustees, save those two or three who hold executive offices, knew of the Merzbacher defalcation until the Times exposed it. Not one of these men-these alleged guardians of trust funds-knows that Halberstadt, Beers' Mexican agent, is short in his accounts $28,000; and yet this same Halberstadt, while standing in the barroom of the Hoffman House, early last March, surrounded by such men as Merzbacher and Dinkelspiel, boasted of the ma.nner in which he, was helping himself to the company's funds."

The second is as follows:

"The policy of the New York Life with reference to its defaulting agents in Spanish America furnishes another explanation of the distrust with which the companv has iong been regarded by the policy holders in Rio. 'l'he career of John Davis, for instance, is familiar to everybody in the tropics who takes an interest 'in insurance matters. Davis, it will be remembered, handled a business of $9,000,000 a year in Mexico. He led a fast life, and when he disappeared one day his accounts were found to be short $30,000. No attempt was made to arrest him. The career of the two agents who immediately preceded Davis is equally notorious In the tropics. These agents, or one of them at least, owed his appointment to the defaulter Merzbacher. Their shortage was found to be $60,000. Neither of them was arrested. The case of the intemperate German agent, who was found to be short in his accounts $12,000, in Chile, and who was subsequently transferred to MeXico, is another familiar story. This agent was not only not punished, but he was transferred to another agency. Then came the defaulter Merzbacher, with a shortage of $700;000 standing opposite his name. The news of his defalcation was received In Brazil with astonishment."

The third is as follows:

"The notoriously bad character of the agents whom Mr. Beers employs to do the work of the New York Life Insurance Company is a theme that constantly presents new features and new attractions. Dinkelspiel, Merzbacher, 'Vebber, Stoddart, Moore, Halberstadt, Davis, and Vanuxem are names that stand at the head of the list of Mr. Beers' warm personal friends and admirers, and to each of these men he had given valuable appointments, with unlimited opportunities to swindle and deceive the policy holders. The readers of the Times are entirely familiar with the methods and the extent to which the agents named have availed themselves of those opportunities."

, The fourth is as follows:

"Since the preS<.!nt feeling of distrust of the company's management arose efforts have been made to enlighten a deceived lot of policy holders concerning the abuses of various sorts committed by Messrs. Bl'ers, Ml'rzbacher, Dinkelspiel, Sanchez, and others, but, notwithstnnding all that has been said, It is evident to those who, like myself, are acqnainted with the management of the Spanis-h-American department, that there are details of an important natur!' lacking. It is a fact that the most immoral methods of doing business prevail In that department, and that the arch conspirator who. next to Beers, is responsible for these immoralities, Is Sanchez himself. · · · He and his subagents have made use of all sorts of exaggerations and deceits in Spanish America, where the insurance public Is completely ignorant of life Insurance, and where the most improbable stories as to conditions of policies, and the results that will accrue from them, may be told with perfect safety. · · · S. E. Halberstadt is another one of the com-

v.60F.noA-38

594

FEDERAL REPORTER,

vol. 60.

pany's tOwhODl must be drawn if'the COJllPl,Uly's afl'airs in Spanish America are to be thoroughly exposed. This maujs said to have been a defaul;ter while in the employ of the New York Life in Peru and Chile. He has been for some years the company's' representative in Mexico, where his accounts have steadily run in arrears, as he himserf boasted one night at the Hoffman House, in this city. The entire staff of the Spanish-American department have been witnesses to the scandalous quarrels that took place between Merzbacher and Halberstadt in the former's private office in this city. One of the most remarkable things about this man's career is the freedom with which he talks about the officers of the company, notably President· Beers, and his son-in-law, Berthelot. Halberstadt was a candidate for fderzbacher's position, but he has not obtained it yet. Another agent who has stolen the compatly's money in SP-RIlish America was until very recently manager at Buenos Ayres."

ThlR'e was evidence showing that the plaintiff was the person referred to by name, and, in the second article, as "the intemperate German agent." 1. Plaintiff in error .assigns error in the instructions to the jury, in that the circuit judge charged as follows:
"The articles In the New York Times are charged in the complaint to be each and every, one libelous. The explanation (or, as it is called in legal given in the complaint of the meaning of phrase, the innuendo) which the article represents that. the articles were libeloUs. In my opinion, genfact Ubelous." tlemen, ea.ch article was

---To which charge defendant duly excepted. The very authorities cited by the plaintiff in error abundantly sustain this part of the' charge. They hold that the language used must be given its ordinary meaning; that the test is whether, in , the mind of an intelligent man, the language naturally imports a criminal or disgraceful charge; that the language is to be understood by the court in the' sense in' which the world generally would unders1llnd it, giving to the words their ordinary meaning; that the language is to be understood in the ordinary and most natural sense; and that, when the writing complained of is plain and unambiguous, the question in a civil action, whether it is a libel or not, is a question of law. Hayes v. Ball, 72 N. Y. 420; More v. Bennett, 48 N. Y. 472; Williams v. Godkin, 5 Daly, 499; Weed v. Foster, 11 Barb. 203; Snyder v. Andrews, 6 Barb. 43,-to which list of authorities may be added Rue v. Mitchell, 2 Dall. 58, holddng that "the sense in which words are received by the world is the sense which courts of justice ought to ascribe to them" on the trial of actions such as this. Plaintiff dn erroI' apparently concedes upon his brief that the court correctly construed the language of the second and fourth articles, but contends that the first and third were ambiguous, and should have been left to the jury. The contention is frivolous. No intelligent man reading these articles could fail to understand that the author of the first one charged an agent through" whose hands moneys of a corporation passed, not only· with being short in his accounts $28,000, but also with openly boasting of the manner in which he was helping himself to the company's funds. Nor could the intelligent reader fail to understand that the third article, charged that Halberstadt had been given unlimited opportunities to 'Swindle and deceive the

MORGAN fl. HALBERSTADT.

595.

policy holders, and had availed himself of such opportunities. If these excerpts do not charge the crime of embezzlement, they do certainly charge disgraceful conduct, exposing the party assailed to odium and contempt. And there is no ambiguity about the language used. Defendant's counsel asked the court to charge that the words in the first article, "Halbel'Sltadt, Beers' Mexican agent, is short in his accounts," do not necessarily impute dishonesty. The court charg;ed that "these simple words do not necessarily and of themselves, without anything else in the case, impute dishonesty;" but added that "the entire article, as set forth in that clause l)f the complaint, is libelous." This was all defendant was entitled to, for the article must be considered as a whole; and if, as a whole, it is libelous, the circumstance that it contains some innocuous statements will not relieve defendant from responsibility for its publication. The exceptions to this part of the charge are therefore un. sound. 2. The plaintiff in error further contends that the circuit judge erred in refusing to charge, as requested by defendant's counsel, that the "words of the article of September 30th [second article], 'who was found to be short in his accounts $12,000 in Chile,' are justified by the evidence." This request was made after the court had charged the jury. They had already been instructed that, in accordance with the accounts between the company and the plaintiff, the plaintiff appeared to owe the company various sums of money, which the court enumerated, aggregating over $22,000. Their attention was also called to the explanation of this indebtedness proffered by the plaintiff, viz. that these several amounts were foo:- trav· eling expenses, and excessive expenses in the business of the company in entering upon new fields of labor, and were to be repaid to the company out of plaintiff's commissions as they might mature; and it Wail left to them to find whether, in view of the explanation, the plaintiff was, as between himself and the company, short in his accounts, implying embezzlement by failure to account and remit. Having already told the jury that the face of the accounts showed the plaintiff to be indebted to the' company as stated, the court was under no obligation to repeat that statement in the precise words of defendant's request. 3. Plaintiff in error further contends that the circuit court erred in allowing plaintiff to amend his complaint. Upon the trial, motion was made to amend the fifth paragraph of the complaint so as to read: "That on the 5th day of 1891, the defendant.
the said joint-stock association known aB and for the New York Times, of which the said Henry A. Morgan is president, maliciously

published in the said New York 'rimes," etc. (the words inserted by this amendment are those in italics)-and to similarly amend the several averments of the complaint under each cause of action. De· fendant objected to the amendments "as, in effect, introducing a new party to the action," and reserved an exception. The summons and complaint were entitled "Sigismundo E. Halberstadt vs. Henry A. Morgan, President of the New York Times," and the complaint

voL averred thiat "the New York Times was, and still.iS; antmincorporated jointl-stock association, consisting ofsevenormol'e associates, having its principal place of business in the city of New York," and that "the defendant, Henry A. Morgan, was, andno'W is, the president of said association; the said association being engaged * * * in the business of publishing, circulating, and vending a daily newspaper known as and called 'The New York Times,' the said association being * * * a citizen and resident of the state of New York." It is provided by section 1919 of the New York Code of Civil Procedure that"An action .. .. .. may be maintained against the president or treasurer of such an association .. .. .. -for any cause of action, for or upon which the plaintitrmay maintain such an action .. .. .. against all the associates."

And section 1921 of fue same Code provides thatit is brought does not authorize an execution to be issued against his property or his person; nor does the docketing thereof bind his real property or chattels real Where such a judgment is for a sum of money, an execution issued thereupon must require the sheritr to satisfy the same out of any personal property belonging to the association."
"In such an actil)n .. .. .. a judgment against the officer against whom

The amendment, therefore, is not obnoxious to 'the objection taken by defendant. It did not introduce any new party, since, under the operation of these sections, Morgan was only the nominal defendant, the real defendant being the association. Bank v. Van Derwerker, 74N. Y. 234. 4. Uponthe trial the plaintiff called as a witness Gilbert E. Jones, who testified that he was, and during the period covered by the complaint had. been,·· a shareholder in the New York Times Association, l}Jld also its treasurer. Against the objection of defendant's counsel, he further testified that such association at the times referred to was engaged in publishing a newspaper known as the "New York Times;" that its place of businesS' was in New York city, at Park Rowand Spruce street, in the building known as "The Times Building;" that its newspaper had been published for several years; that its circulation was large; and that during the timehe knew it its publication had not been discontinued. The grounds of the objection, as stated on the record, are that "the witness is privileged from answering, the object of the questions put to him being to try to prove the publication of a libel; and the witness, being a shareholder in the New York Times Association, is privileged from answering." Defendant's counsel also asked the court to instruct the witness that, Uhis answer to the questions would tend to criminate him, he had the right to refuse to answer. The court held that his answers would not tend to criminate him, and directed him to answer. The record does not show that the witness himself asserted any privilege, and he did answer. Exceptions were duly reserved, and the rulings of the circuit court are assigned as error. It is a sufficient answer to the contention of plaintiff in error to refer to the well-settled principle that such privilege belongs exclusively to the witness. The party to the suit has no right to insist upon it, except when he is himself the witness. And if

STOKES 11. UNITED STATES.

597

tlle witness waives his privilege, or the court disregards it, and requires him to answer, the party has no right to interfere or complain of the error. Cloyes v. Thayer, 3 Hill, 564; Southard v. Rexford, 6 Cow. 255; Ward v. People, 6 Hill, 144; People v. Carroll, 8 Parker, Or. R. 73. 5. The testimony of Jones remaining in the case, the exception to the admission of copies of the New York Times newspaper is manifestly unsound. Judgment affirmed.

STOKES et aI. v. UNITED STATES. (CIrcuit Court of Appeals, Fifth Circuit. February 27, 1894.)
No. 174CmCUITCoURTS OF ApPEALs-JURISDIcTIoN-mAMOUs CRIMES-USING MAILS TO DEFRAUD.

I 5480) being punishable by imprisonment in a state penitentiary not

The use of the mails for promoting a. scheme to defraud (Rev. St.

exceeding 18 months, is an "infamous crime;" and hence a convIction thereof is reviewable on error in the supreme court, and not In the circuit court of appeals. Judiciary Act March 3, 1891, §§ 5, 6.

In Error to the District Court of the United States for the Southern District of Alabama. Indictment of J. T. Stokes, Abram Kendrick, A. J. Kendrick, E.:a Cook, Samuel H. Mixon, Morgan Mixon, D. J. Morgan, J. D. Pinkerton, and B. S. Lane. Defendants, having been triedJ convictedJ and sentenced, sued out a writ of error to this court. J. D. Burnett, for plaintiffs in error. J. N. Miller, for the United States. Before PARDEE and McCORMICK, Circuit Judges. PARDEE, Circuit Judge. the United States provides: Section 5480 of the Revised Statutes of

"If any person baving devised or Intending to devise any scheme or artifice to defraud, or be effected by either opening or Intending to open correspondence or communication with any other person, whether resident within or outside of the United States, by means of the poSIt-office establishment of the United Statea, or by inciting such other person to open communication with the person so devising or intending, shall, In and for executing such 8cheme or artifice, or attempting so to do, place any letter or packet in any post-office of the United States, or take or receive any therefrom, such person, so misusing the post-office establishment, shall be punishable by a fine of not more than five hundred dollars, and by imprisonment for not more than elgohteen months, or by both such punishments. The indictment, Information or complaint may severally charge offenses to the number of. three when committed within the same six calendar months; but the court thereupon shall give a single sentence, and shall proportion the punishment especially to the degree in which the abuse of the post-office establishment enters as an Instrument into such fraudulent scheme and device."

For conspiring to violate this statute,J. T.Stokes, Abram Kendrick, A. J. Kendrick, E. H. Cook, Samuel H. Mixon, Morgan Mixon, D.·T. MorganJ J. D. PinkertonJ and B. S. Lane were indictedJ triedJ and

698

I'lIlDERAL BEPORTElt, vot 60.

convicted, and upon conviction were sentenced as follows: Each of them to pay a .fine of '100, with the costs· of the prosecution; and 1I0tgan Mixon and Abram Kendrick to be imprisoned,in the county jail of Oonecuh county for a period of 6 months; E. H. Oook and Samuel H. Mixon to be ilnprisoned in said county jail' of Oonecuh county for a period of 8 1D0nths; A. J. Kendrick and B. 13. Lane to be impriMned in the state penitentiary at Anamosa, Iowa, for a pepod of 15 months; and J. T. Stokes, D. J. Morgan, and J. D. Pinkerton to be imprisoned in said penitentiary at Anamosa, Iowa, for a period: of 12 months. All of the said parties sued out this writ of error. We are of the opinion that it must be dismissed for want of jurisdiction in this court to review the case. The fifth section of the "Act to establish circuit courts of appeals and to define and regulate In certain cases the jurisdiction of the courts of the United States and for other purposes," approved March 3, 1891, declares that "appeals or writs of error may be taken from the district courts or from the existing circuit courts direct to the supreme court in the following cases: · · · In cases of conviction of a capital or otherwise inlam,Ous crime, ·.· ··" The sixth section of s\tid act gives "jurisdiction to the circuit courts of appeals in all cases other than those provided for in the preceding [fifth] section of this act," etc. .The then, is whether the in error were convicted In the court below of an infamous crime. An infamous c'rime, withIn the meaning of the fifth amendment to the constitution, has been clearly defined by the supreme court of the United States in Ex parte Wilson, 114 U. S. 417-429, 5 Sup. Ot. 935, as follows: "Our judgment is that a crime punishable by imprisonment for a term of years at hard labor is an infamous crime, within the meaning of the fifth amendment to the constitution," and in Mackin v. U.s., 117 U. S. 348, 6 Sup. Ct. 777, as follows: "A crime punishable by imprisonment in a state prison or pendtentiary, with or withov-t hard labor, is an infamous crime, within the provision of the fifth amendment to the constitution." According to these cases, the test is· whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. These decisions have been followed in Ex parte Bain, 121 U. S. 1-13, 7 Sup. Ct. 781; Parkinson v. U. S., 121 U. S. 281, 7 Sup. Ot. 896; U. S. v. De Walt, 128 U. S. 393, 9 Sup. Ct. 111; and in Re Mills, 135 U. S. 263-267, 10 Sup. Ct. 762. All these decisions were rendered prior to the passage of the act of 1891 establishing the circuit courts of appeals; and therefore the words "infamous crime," in the fifth section of the act of 1891" had a fixed and definite meaning, declared by the courts at the time the law was passed, and thrut meaning Inust be given effect in construing the statute (The Abbotsford, 98 U. S. 440; Logan v. U. S., 144 U. S. 263-301, 12 Sup. Ot. 617), even if it were not apparent, as it Is, that the words "capital or otherwise infamous crime" were used with reference to the fifth amendment to the constitution. In the case In hand the punishment, ,in addition to a fine which the court was authorized to impose, was imprisonment not exceeding: two years in a state penitentiary. See Rev. St. U. S. § 5440, as ",mend-

IN BE SMITH.

691:1

ed (21 Stat. 4), and Rev. St. U. S. § 5541.

We are therefore com· pelled to hold that the plaintiffs in error were convicted of an in· famous crime, and that no writ of error lies to this court to review such conviction. Dismissed.
In re SMITH, Surveyor.

In re RHEINSTROM: et at.

(Circuit Oourt, S. D. Ohio, W. D. March 81, 1894:.)
No. 4,555'OVSTOHS DUTIES-CONCENTRATED CHERRY JUICE.

Cherry juice so concentrated that five gallons, In Its natural condition, are reduced to one gallon, the entire amount of acidity and coloring matter being retained, and the bulk ot the water eliminated, is dutiable as cherry juice, under paragraph 339 ot the tarl1f act ot 1890, and not as an alcoholic compound, under paragraph 8.

At Law. Appeal by Amor Smith, Jr:, surveyor, etc., from a decision of the board of general appraisers in favor of Rheinstrom Bros. John W. Herron, U. S. Atty., and Henry Hooper, Asst. Atty. Jacob Shroder, for Rheinstrom Bros. SAGE, District Judge. Rheinstrom Bros. imported what they to be cherry juice, subject, under paragraph 339 of the tariff act of October 1, 1890 (Supp. Rev. St. U. S. [2d Ed.] p. &35), to a duty of 60 cents per gallon, it containing not more than 18 per centum alcohol. The appraiser at Cincinnati liquidated the im· ported article as an alcoholic compound, under Schedule A, par. S, SUl'P. Rev. St. U. S. p. 813, dutiable at $2 per gallon and 25 per centum ad valorem. The board of general appraisel's reversed his action, and liquidated the importation as cherry juice, under Schedule A, par. 339, or as under section 5 of the act (p. 857 of the Supplement), which provides that each and every imported article not enumerated in the act, but similar either in material, quality, texture, or the use to which it may be applied, to any article enumerated in the act as chargeable with duty, shall pay the rate of duty levied on the enumerated article which it most resembles in any of the particulars above mentioned. From the testimony it appears that the cherry juice in question is so concentrated that five gallons, in its natural condition, are reduced to one gallon; the entire amount of acidity and coloring matter being retained and concentrated, and the bulk of the water eliminaJted. It is claimed for the surveyor that the resulting fluid is not the cherry juice described in the act known to the trade to-day. So far as appears, Rheinstrom Bros. are the only importers of it; and, according to the testimony of one of the firm, it was made at his suggestion. It is insisted that "extracts,'" as the term is employed in the pharmacopoeias, result from the evaporation -of the solution of vegetable principles, obtained either by expoSiing .a dried drug to the action of a 8olvent, or by expressing the juice

600

FEDERAL" REPORTER,

\vol. 60.

from afresh plant. U. S. Dispensatory (16th Ed.) p. 586. But this claim omits the qualification that the extracts described are de- . clared in the text to be solid preparations, being reduced to at least a pilular consistence. On pages 587 and 588· of the same work, under the head of "Extraction of the Soluble Principles by Expression," the author refers to a greenish precipitate formed by heating the juice of the plant to about 160 0 Fahr. He says that this precipitate may be incorporated in the juice when that is reduced by evaporation. to the consistence of syrup, and that in this way the juice of belladonna has been kept more than 10 years, and at the end of that time found to yield an extract equal to that obtained from the fresh juice. Under the bead of "Extract of Aconite," there is an account of the process fol' inspissated juices, These references make it clear that concentrated juices are not fegarded as extracts. Moreover, it is expreSsly stated on page 594 that extracts are prepared' in two different degrees of soft, so that they may be readily made into pills," and hard, that they may be If we turn over to page 596, where fluid extracts are treated of, we find that they are made by the use of the powdered drug or extract, and never by condensation of the juice of the plant or fruit. The general formula is described at page 597. The required number of grammes of the powdered drug or extract is moistened with a certain quantity of menstruu'm or solvent, and enough menstruum added to saturate the powder," and leave a stratum above it. The lower orifice of the percolator is closed when the liquid begins to drop, and the percolator is closely covered to prevent evaporation and permit maceration for a specified time;· additional menstruum is poured on, and percolation continued until the drug is exhausted. Reference to the. formulas for the different fluid extracts described in this book shows that, without exception, they are prepared from the powdered extract. The same is true of the fluid extracts, the formulas for which are given in the Pharmacopoeia of the United States of 1890, including formulas for fruit extracts and for extract of wild, cherry. The formula for fluid extract of wild cherry is 1,000 grammes of No. 20 powder, 100 cubic centImeters of glycerin, and of alcohol and water a sufficient quantity. Taking, therefore, the authorities cited for the surveyor, they establish conclusively the proposition exactly opposite to that claimed, and make it clear that the iinported article, in this instance, is not an extract, but is nothing more than concentrated cherry juice. There is not a formula given in either of the books referred to in which a fruit extract is prepared from the juice of the plant or fruit. In every inSItanceitis prepared from the solid powder or extract. The objection that the importers, by the condensation of the cherry juice, succeed in escaping four-fifths of the duty, is immaterial. They accomplish this without evading or violating any provision of the tariff act. That act does not prescribe what shall by importbe the strength of cherry juice. If Rheinstrom ing condensed and concentrated juice, could avoid the payment of duty, they had· a perfect right to do so. The authorities estab·

MARINE

v.

GEORGE E. BARTOL '" CO.

601

lish this proposition beyond question. Hartranft v. Wiegmann, 121 U. S. 616, 7 Sup. Ct. 1240; Seeberger v. Farwell, 139 U. S. 611, 11 Sup. Ct. 650; Magone v. Luckemeyer, 139 U. S. 612, 11 Sup. Ot. 651; U. S. v. Schoverling, 146 U. S. 81, 13 Sup. Ct. 24; Merritt v. Welsh, 104 U. S. 694. Even if the avoidance of the payment of duty were the only reason for ordering the concentrated juice, it would not affect the case. But it is apparent upon a moment's consideration that, by concentrating at the rate of five gallons into one, they save four-fifths of the expense of casks or barrels, and four-fifths of the freight or cost of carriage. The presumption that the condensation was simply and only to avoid the payment of duty is not warranted. The only remedy for it is by so amending the tariff as to ratably incre'dse the duty on the condensed article. The decision of the general appraisers is approved, and will be confirmed.

MARINE, Collector, v. GEORGE E. BARTOL & CO., Limited. (Circuit Court, D. Maryland. March 14, 1894.)
CUSTOMS DUTIES-CLASSIFICATION-SULPHATE OF AMMONIA-MANURES.

Sulphate of ammonia, though made exclusively from bone, is dutiable as such at half a cent per pound, under para/,'l'aph 10 of the tariff' act of October 1, 1890, and cannot be admitted free of duty, under paragraph 600, as a substance "expressly used for manure," even when imported and actually used for the manufacture of fertilizers. Magone v. Heller, 14 Sup. Ct. 18, 150 U. S. 70, followed.

This was an appeal by William M. Marine, collector of the port of BaltJimore, from a decision of the board of general appraisers classifying for duty 470 bags of sulphate of ammonia imported by George E. Bartol & Co., Limited. John T. Ensor, U. S. Dist. Atty. Robert H. Smith, for Bartol and others. MORRIS, District Judge. The importation in this case consisted of 470 bags of sulphate of ammonia, manufactured in England, exclusively from bone, and the question is whether it should be classified under paragraph 10, as "sulphate of ammonia," at a duty of one-half a cent per pound, or should be admitted free of duty, under paragraph 600, which admits "guano, manures, and all substances expressly used for manure." It is proved that the article was imported. for the purpose of being sold to manufacturers of fertilizers, and was before arrival actually sold to one, and was in fact afterwards used for that purpose, and, in combination with other substances, was manufactured into a fertilizer. It is also proved that the suhstance is known in commerce as "sulphate of ammonia," and that sulphate of ammonia is a commercial article, large quantities of which are used for making aqua ammonia, anhydrous ammonia, alum, nitrate of ammonia, and many ammoniacal compounds, as well as in making ammoniated fertilizers; much the larger quantity being used, not for fertilizers, but in the arts.