4t4
.
I'EDER,AL REPORTER,
vol. 38.
. COLT. JiUnderthe agreed statell1 ent offacts itappears that the plaintiff, between February. 1887, imported into the port of Boston, from ltiUy,l,800 boxesof,castile,soap; .that the soap, after its arrival and entry at the custom-house, was submitted to an examination by a weigher in the service of thecustoni:-house, who reported the weight to be 70,286 .pounds, whereas the invoice made at time of the shipment of the soap from Italy shows the weight at the time of exportation to have been 72,983 pounds. The plaintiff.claimed that the duty should be exacted only upon the value and amount as shown by the weigher's return to have been actually imported, but the defendant exacted a duty upon the entire value and amount of soap as stated in the invoice to have been shipped, and declined to make any allowance for loss of weight due from the voyage. This'!uit is brought to recover the excess of duties so exacted by the collector. It seems to. me tbat the courts have determined this question in favor of the importer. In principle, I cannot distinguish this case from Marriott v. Brune, 9 How. 619; U. S. v.Southrn.ayd, Id. 637; Austin v. Peaslee, 20 Law Rep. 443; also reported in full in Boston Daily Advertiser".of Sept. 30, 1857. In Marriott v. Brune it was held that the true construotion of the law is to assess duty only upon the quantity of sugar and molasses which arrives in port, and not upon the quantity which appears by the invoice to have been shipped. This doctrine was affirmed in:U..S. v. Southmayd and in AtMtin v. Peaslee. The last paragraph of section 2900, Rev. St., the assessment of duties upon an amount less than the in'\toice value, is snbstantiall.y the same as the proviso contained in section 8 of the act of 1846, (9 St. at Large, 43.) In Marriottv. BrUne it is held that the'decision is not inconsistent with the proviso in section 8 of the act of 1846, because the proviso refers only to'the price, and Dot to the quantity. Such being the construction put upon the law by the supreme court and the circuit court for this circuit, the collector should have assessed duties only upon the quantity of soap which arrived in port, and not upon the quantity which appears by the invoice to have been shipped; and the plaintiff is entitled to a judgment for the excess of duties so exacted. JUdgment for plaintiff.
SYKES
,Ii. MAGONE. -'
'(Circuit (Jourt. 8. , ',"'" " .
.. . . , _ .York. ,.'
April 8.1889.) ,
1.
The similitude either in matcrial, quality, texture. or the use to which it appjie.d: that a !!lao must bear to an ,i.. eonmeifatlid artIcle chargeable wlthdlity m order to subJect the former article to the same rate of duty which is levied aud charged on the latter article, must be a substantial similitude, not merely an adaptability to sale 8S a substitute for the latter arti<;le, but representiugeiihl,ll' its employment, or its etIects in producing a result. ,.';. .
CusTOMS DUTms-MANUFACTUREB-NoN-ENUllERATED ARTICLEB-SrMIUTUDE.
SYK:E:S, V. MAGONE.
495 ," ,
2.,BA¥B. . ..' . . ,
., Such' 81110 must be the resEmiblance that a Don-enumerated manufactured article must equally bear to two or more enumerated articles on which durerent of duty are chargeabie in order to subject the former artiole to the same rate of duty as is chargeable on the one of the latter articles which it reSembles paying the highest duty, If 8 non'enumerated manufactured article bears no substantial similitu4e to aD enumerated article, or no substantial resemblance to two or more enumerated articles, chargeable with duty, and is not provided for under any of the other catch-all clauses of the tariff act. it is dutiable under the general provision for non-enumerated 'manufactured articles
',,' ,
8.
BAQ-NoN·ENUMERATlIlD ARTICLES-GENERAL PROVISION.
At Law. plaintiff on the 3d and 12th of February, 1886, made two importations of "carmine of Persian berry These importations were classified by the collector as non-enum,ernted manufactured articles, dutia'9le at the rate of 20 per cent. under the .tariff act of March 3, 1,883, and duty at that rate was duly thereon. Against this classification alld this exaction plaintifl'protested, claiming that these importations were dutiable at the rate of 10 per cent. ad1Jalorem, on the ground that they. were extracts and decoctions ofdyewoods, or berries,advanced in value by manufactm;e; or,that they assimilated either to such extracts, lIind decoctions, or to such berries. This act (Heyl, par. 84) provides that "logwood or other dyewoods, extracts, and decoctions of" s\lbject to a duty of 10 per centum ad valorem. This act (Id. par /ilso provides that "all barks * * * berries * * "'used expressly for dyeing, which are not edible, but which have been advanced in value or condition by refining or grinding, or by other process qf manufacture, not. specially enumerated, or provided for in this act." shall be subject to a duty of 10 per centum ad valorem. This: act (!d. par. 87) further provides that" colors and paints, including lakes, whether dry or mixed, or ground with water or oil, and not specially enumerated or provided for in this act,"s4all be subject to a duty of25 per centum ad valorem. This act (Id. para. alsOlfurtherprovides that "there shall. levied, collected, and on each llndevery non-enumerated llrtic1e ,which bears a similitude, either in material, quality, or the use to which it may be applied, to any article enumerated in this ,title as with duty, the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the ,particulars before mentioned; and if any non-enumerated article equally resembles two or more enumerated articleRon which different rates are chargeablr-,'there shall be levied, collected, and paid on such non-enumeratedarticle the same of duty as is chargeable on the article which it resembles paying the highest duty; and on all·articles manufactured from two or more materials the duty shall be assessed ,at the highest rates at which the component material of chiefvalue may be. chargeable. J;f two .or more rates of duty ,should be applicable to any imported article; it shall beclassifiedfof duty under the highest of such 'rates: provided.," etc.. This act still provides (ld. par. 837) that" an
4.96
ll'EDERALREPOltTER,
articles manufactured in whple or in part not herein enumerated or pro'vided, for" subjecttoa duty of 20 per centum ad valorem. At ·the trial of the case, plaintiff's testimony tended to show that the" carmine ·of Persian berry extract" was Illade from "Persian berries" with a metallic base, such as salts of tin, but that it was not a "lake;" that a "carmine of Persian " lake" anli a," carmine "were different for printing calicoes and wall 'berry extract "was used for , paper and making paints; that extracts and decoctions of logwood and other dyewoods were used for dyeing, and with a metallic base ,could be used for printing. Defendimt's testimony tended to show that" extract of Persian herries" wll:s first made froUl "Persian berriesj" that " the carmine of Persian berry extract" was made from such extract by adding generally the salts of .tin, because that gives the brightest results, precipitates theoolor, and changes it to a soluble color; that in this ,country, on March 3, 1883, and prior thereto, "lakes" were 'made from extracts ,and decoctions in the same way as the "carmine of Persian berry extract;" that "carmine of Persian berry extract" was used for £alico printing,andsometimes for pridting wall paper; that the" exj tract of Persian berries "could used for dyeing, and extracts and ·decoctions of logwoods and other dyewoods were used for' dyeing and · making" lakes;" but that neither of these last two mentioned extracts and.decoctions, as such, were generally used for printing; and that "carmine of Persian berry extract," as such, could not be used for dyeing. At the close oithe case plaintiff abandoned his claim that the importa:tions ih suit were dutiable under the provision for berries contained in the.aforesaid'paragraph 94: ' Edward Ha,f'tley, for ,plaintiff. " Stephen A; Walker, U.' S. Atty·· and Thomas Greenwood, 'AsSt. U. S. ,Atty., for defendant·. ' , · .' LACOMBE" (ora71ychargmg the jU1'y, after stating the facts a8above.) There are a of articles as to ":,hich noduty is to be paid. Those figure on the free Jist.· With regard to abouteverythirig' else which comes here, congress has undertaken to prescribe the specific'rate of duty ';which it shall pay. Of course to do this by a verbal enumeration of .every known article, whether a: natural growth or a product of manu1facture, would.be practically impossible. So, after enumerating with !greater or less detail, and by special or general terms, such articles as j]toccurs to them to enumerate in that way, the framers' of these tariff acts have devised various catoh-all clauses, in order to prevent any articles, which should in their judgment pay duty, from slipping through. 'Oneof these catch-all clauses is known as the" Similitude Clause." It 'provides that if an artiole is brought to one Of our ports of entry, which is not enumerated by general' or special name anywhere in the .long lists of dutiable articles, then inquiry shall 'be made as to whether !itbef!,rsa similitude; either in quality, texture, or 'the use to which it may be applied, to any article'enumerated in these several lists. Further, the same section provides that'ifthe artiCle be found to equall,r
SYKES'll. MAGONE.
497
resemble two different articles on these lists, bearing different rates of duty ,then ,the rate of duty assessed upon the article shall be that which is assessed on the higher of the two articles to which it bears a similitude. Finally, in,case all the other catch-all clauses (for there are others, to which I need not refer) should fail to hold the article, there is a general provision that upon every manufactured article not enumerated or otherwise provided for in the act there shall be a duty of 20 per cent. That was the duty which the collector imposed in this particular case. Now, the, question before you will be determined by the application of this similitude clause, or by your finding that it cannot be applied to toe case in hand. The similitude, which the act refers to. is a similitude either in material, quality, texture, or the use to which the article may ,be applied. You will understand that the similitude referred to in the act must be a substantial similitude, not merely an adaptability to sale as a substitute for the article to which it is said to be assimilated, but representing either its employment or its effect in producing results. Nor is it enough that the imported article bears more resemblance to one enumerated article than to another, because it might not bear any substantial resemblance to either. The two clauses in the tariff act to which it is contended by one side Or the other that this article bears a substantial resemblance are those providing, the one for logwood, and for extracts Rnd dedoctionsof logwood, and other d,yewoods, and the other for colors and paints, including lakes, whether dry or mixed. The definit.lle dictionary with regard to these three words should perhaps be read. :to you, for, in the absence of any testimony as to a specific and peculiar meaning in trade and commerce, it will be assumed that the words are used in trade ,with the same meaning as that in which they are used in every day speech; and for that meaning when we are at a loss for it, we usually consult the dictionary. According to the dictionary,a'''de'coction'' is "an extract prepared by boiling something in water.'" An "extract" is "anything drawn from a substance by heat, solution, distillation. or chemical process, as essenc{'s. tinctures, and the like." A "lake" is" a compound of animal or vegetable coloring matter and a metallic oxide." Besides these definitions you have had testimony :from those in the trade, and from chemists. as to the use to which this imported article is put, and as to its chemical composition. From that testimony, bearing these definitions in mind, you are to determine, in the first place, whether it bears a substantial resemblance to either of these groups of articles,-that is, either to extracts. and decoctions of logwood and other dyewoods; or to colors and paints, including lakes, whether dry or mixed. Of course you will have to be satisfied that the resemblance that it bears is a substantial one; and you will feel under no constraint in finding a resemblance where you have doubt as to whether 'or not it exists, in .order that the article may not escape payment of 'duty; because, as I have said before, there is another and final clause which provides for all manuJactured articles not covered by the earlier clause. Therefore, you will determine. in the first place, whether it , bears· a substantial ,resemblance to either. If you come to the concluv .38F .no.6-32
498
FEDERAL R:El'(,RTER,
vol. 88.
sion that it ..sa substantial resemblance to extracts and decoctions of logwood; land not to lakes, your verdict will be for the plaintiff. Should you,on thebther hand, reach the conclusion that it bears a substantial resemblance to colors and paints, including lakes,whether dry or mixed, and not to dyewood, extracts, and decoctions of logwood, then your verdict will be for the defendant. If you reach the conclusion that it bears a substantial resemblance to both, but are unable to determine as to which it resembles most,'-'in other words, if it resembles both equally, or has a: sUbstantial resemblance to both,-then again your verdict must be for the defendant. Finally, should you reach the conclusion that it bears a substantial resemblance to neither, then again your verdict must be for the defendant, because the article in the latter case will becovered by the final clause as a manufactured article. The jury rendered a verdict for, the defendant.
UNITED STATES 11. BUTLER.
(Diltrict (Jov,1't, B·. D. Miohigan. April 29,1889.)' ' " , , PERJOltV-PLEA 011' ,PRIOR ACQ'!H'M'AL... .'
A defendant, who had been acquitted upon an indictment for selling-liquors, without payment of the special tax required by law, was subsequently put upon trial for perjury. in: swearing, upon his preliminary examIDation before a commissioner that lIe did not so sell.. Held., that a plea of prior acquittal was bad, as the two indictments were not for the SRme transaction, nor sustained by the same evidence. ADJUDICATA.
S.
Held.,I'U'I'ther, ,that his acquittal for selling liquor was a conclusiveadjudication in his favor upon the subsequent trial for perjury, and that the government could not show that his oath was false. '
(Syllabu8 by the (Jourt.)
At Law. On plea to indictment. Defendant was indicted for selling malt liquors without payment of the special tax required by law, and also for perjury, in swearing before a United States commissioner, upon his preliminary examination, that he did not so sell. Upon his trial for selling liquor he was acquitted, and thereupon pleaded to the indictment for perjury autreJoia acquit. a. P. Black, U. S. Atty. D. A. Straker and Sylve8ter Larned, for defendant. BROWN, J. It certainly strikes one as an anomaly that, after anacquittal for a criminal offense, a party may be put upon trial for perjury, in swearing that he W9.Snot gUilty of that offense; but I do not think a plea of former acquittal is the proper way' to take advantage of it. To make such a plea effective it must appear that the same evidence will sustain both indictments, and that they relate to the same