'7i4 not caused by the theplaibtHt. ""Hoffman v. GortUm, 15 Ohio St. 215. Thisbeingthe character of the pleading, it needed
"
no reply', and might properly ha;ve been stricken from the answer as redundant. The m.otion is denied. ' , 4 ), I
(Jowrl, ,8. D., N_, York-April 18. 18891).
l.
'0 ,
Where there are two distinct provisions of a tarl! aCt, either'of which mfghl apply to an imported article; ,it must be held dutiable under that one of the two ,ia Jqpllt IIpepiJ;lp in ita character.
Oll"
,.'
, " Where no aufficient e.idence Is giVen upon the trial of an action that words in a statute im,posing"du,tiea on, imp,orte"d, artic,les have a,ny, special or pe,culiar meaning I.n ,"jie ,they mW't be interpreted according to their J d ,.. ,' , common WDE MEANpre.
SAMlt.
,
'(,,",
..
Proof that foreign fruita. presetvellin sugarsyrtip anllmolasses. which t , come .in "sllI1!tlcles oflmportatiQu; and,which plaintiff has deaItin, come,gen: p\'Pkagllll, "nd dried do not , ' handle frufta preserved in Ilugar in air-tIght PSC.kllges. isuot sufficient toeatablblh a, trade meaning of the 1:8r)11 "fruits preaerved in 'sugar. " ii,
.. 8.urE-EvmENcE Oll'
dried, is ,properly .dutiabloat 81i per cent.' 'all palorem. 'iIqder. tbeprovision in Schedule .G of the tariff act of 'March'8,l88S,'Jfor "conHltfi'. or fruitS preserved in sugar. spirits. syrup, or,molasses, not 0tMrWise1JPocllled or proviclejiforin this act," and is notl , i Ilnde,rthe provillion in the free list of, the same act for ''fruits ". green, or dried. nohpeciall1 or provided for in this acto"
.
i. 8.,. ci,trOI1-
Leiw; Ori. motion for direction of verdict. ' Action .agaiIl$t a former collector of the port of New York, to 1'ecover duties paid upon certain "oandiiedcitron" imported by plaintiff. The goods in question were'showrl'by;evidence upon the trial to, be the fruit 'i}f:the citron tree, boiled in.8ugMl,an9. then dried and packed for shipment. The collector hadJempted35per cent. duty on the goods the provision in Schedule G ofthe tariff act of March 3, 1883, for "comfits; sweetmea:t!!, or fruits preserved in sugar, spirits, syrup,or molasses, flDot speCified or provided for in this act. " The importer claimed -that the goods were. eJl;eitIptfromduty by virtlie of a provision in the free list of the same act for" fruits. green, ripe, or dried, not specially ,enumerated or provided .Evid ence was given on behalf of the plain.tHfthat all brokel'A and dealers in foreign dried fruits dealt in the article in question; :that in trade .papersand mercll.ntileprioes currentitwaa aliwaysclassed among. foreign dried! fruitsj that plaintiff had boughtimd 'csoldfruitspreservedin.sugar,i.snnp, spirits; and molasses, which were done up in air-tight packages, and that dealers iIi dried fruits did not -deaJ,in fruitspreserved"inisngaror syrup which came in air-tight packi,'.ag.es.. 11 ;iJi :!'.: ;uJ .i. _,.'
i ;At
2l'emain"& Tyler,' for 'plaintiff:, . . . ," Stephun,A., Walker, Atty.,and W. ;Wi\:kham. Bmith,Asst.'U;S. Atty., for defendant. . '[ I : ' . LACOMBE, J.,(&rallychargingjury.) Thisarticle-citron-isconcededly a fruit. Thus far we are all in accol'd. ,The plaintiff 'clAims that it comes within the designation of subdivision 704 of the tariff act of1883, as, "fruit dried." Whetheritis to be included in that designation by vir.. tue oUhe fact that it is a fruit, and is iIi fact now dried, or because itis commercially known as "fruit dried," we may, for thedeterl11inationof the preSent motion, assume that, if the paragraph referred to read simply "fruit, green, ripe, or dried," this would appropriately berfound within it. That is not all oftbe paragraph; however. It is CI frui t; grelm; ripe, or-dried, not specially' enumerated or provide,d for in this act;" That is to say, having provided for the general family of fruits, and vided for' them quite comprehensively by describing their condition, whether green, ripe, or dried, congress provided that,though this family should: :be free, such members as were specially provided,forinthe act"-i-should pay the rate of duty covered,·by such spechiJ.;particular enumeration. Some of the artieles whichordhlarily would be dried fruits" such Rsalmonds, are provided for specifically by name elsewhere in the act. It,is contended by the defendant thata'sinall group,-s sub-grollp of this general family offruits,--w...wit, thblie wh'ich are not only dried, but are also preserved with sugar, has been excepted from the operation of the paragraph on which the plaintiff relies. In support of that contention defendant refers to paragraph 302, which provides for the rate of duty which the collector has here assessed, on Cl comfits, sweetmeats, pres{jrved in eugar; llpiritl1,SJrrup, or molasses. It Now, a comfit, according to the dictionary, is a dried sweetmeat; any kind of fruit or root with sugar and dried. A sweetmeat is a fruit preserved with sugar, but not necessarily dried. What would be becomes a comfit if it is not only preserved with sugar): but a is also dried. Upon the testtmony in this case it appears-First, concededly, that this is a fruit; second, from the inspection of the article itself, that it is pre-; served. Jt has not, as an article, become destroyed through lapse of time,and there is nothing·in itS. present appellirance to indicate that it is likely to be destroyed by being kept longer; and the trade testimony as to the fabt that in its present shape it is bought and sold, inuicatesthat in,its present shape it has, as a fruit, been preserved. The return of the appraiser fi!n'ds'thllt there is in or with this fruit, sugar,-not some other saccharine substance, but. sugar. That being so, there s¢ems sufficient evidence in ,this case (and in fact I do not recall any evidence to the con':' trary) that it is,a fruit; that it has been preserved; that it is dtied; and that it hail been preserved with sugar. Now, it is verytruEf that words in a tariff act: are used in tbeact with the same meaning which they have in trade a.nd' commerce, and:I anticipated at one period Of thiseilsethat there mighti.be q. large body ,of testimony as to what the trade meaning
716
FED$RAL REPORTER,
vol. 38.
of the words II comfit, sweetmeats, or fruits preserved in sugar" was; an.-J., had there be,en a conflict of testimony upon that point, I might have had to send it to you, gentlemen of the jury, to determine as to the meaning in trade and commerce of those terms, because, although the sub. group of fruits preserved in sugar and. dried is taken out of the general class, still, if it appeared that that sub.gflJup in trade and commerce did not cover some particular and specific article, it might be fairly urged that that particular article was not taken out of the general class by the use of the desigllation used for the other articles of the sub-group. But I do not find in this case any sufficient testimony to warrant sending the case to you upon that point. All.that appears upon that branch of it is the statement of certain dealers in dried fruits that they themselves do nothandlefruits preserved in I3Ugar in air-tight packages; and the further statement iii! th(t plaintiff that fQreign fruits preserved in sugar, syrup, and molasses, which come in as articles of importation, and which he hiJ;nself has dealt in, come generally in air-tight packages. That is all testi:r;nony in support that there is a trade meaning .to Qa given to the words "comfits, sweetmeats, or fruits preserved in sugar, syrup,and ·molasses," different-from the meaning which they would have in ordinary language;liuid which the. dictionary gives for the wor,ds employed. I do thinkthllt the testimopyis sufficient to war..ant, a submission of that poiht to the jury. Verdict-directed for defendant., ,;
LAMB
ef al.
t1. RoBERTSON,
,,'
Collector.
(Circuit Oourt, So D. 1. .
York. April 4. 1889.)
9;
Oertain manufactures of jute, less than 40 inches in width, sized, andbavfng a patent selvedge, found by the jury to be "paddings" or "canvas," and not ,"burlaps, " as known in the trade '311d commerce of this c.ollntry at and prior ,te, March 3, 1883. SAME.
CuSTOMS DUTIES-OJ,ASSIFICATION-!f:ANUFACTURES OF JUTE.
The terms "burlaps" and "paddfngs,' as in Schedule J of the tariff act of March 8. 1883, are 'eommercia1'terms, and to be construed accordingly,:
, The phdntiffs, the firm of Lamb & Griesbach, in 1884 imported into port of New York certain manufactures ofjute; varying in width from 18 to 24 inches, which they claimed to be liburlaps," dutiable at 30 per valorem under Schedule J of ,the tariff act of March 3, 1883, (T. 1. but which the defendant collector assessed at 35 per cent. ad 'lJq,lrqem the same schedule, (T. 1. 334) asf'canvas, paddings, r, or other manufll·ctures oUlax'jjute,'or hemp, or of ,which flax, or hemp shall be the compooont material of chief value, not spepilllly, enulilerated or provided for." The plaintiffs' evidence tended to merchandise in suit was known as "bllrlaps" in,trade and C ' ' "