Sivut kuvina

upon the assistant district attorney said: “I did not mean to refer
to it in that light, and I do not intend to refer in a single word to the
fact that he did not testify in his own behalf.” To which counsel for
defendant again excepted. Judgment being given against the de-
fendant, and the case being brought here by writ of error; Held,
(1) That the exceptions and the writ of error properly brought the
matter before this court; (2) That the judgment below should be
reversed. Ib.



1. The action which § 3011 Rev. Stat., as amended by the act of February

27, 1877, 19 Stat. 240, 247, c. 69, authorizes to be brought to recover
back an excess of duties paid, cannot be maintained by a stranger,
suing solely in virtue of a purchase of claims from those who did not

see fit to prosecute them themselves. Hager v. Swayne, 242.
2. Tomatoes are “vegetables” and not "fruit,” within the meaning of the

tariff act of March 3, 1883, c. 121. Nix v. Hedden, 304.
3. The language of commerce, when used in laws imposing duties on

importations of goods, and particularly when employed in the denom-
ination of articles, must be construed according to the commercial

understanding of the terms employed. Hedden v. Richard, 346.
4. This rule is equally applicable where a term is confined in its meaning,

not merely to commerce, but to a particular trade, and in such case,
also, the presumption is that the term was used in its trade signifi-

cation. 16.
5. In an action against a collector to recover an excess of duties paid under

protest, the defendant is entitled to show that words employed in a
tariff act have a special commercial meaning in the trade, and to have
it submitted to the jury whether the imported goods in question came

within them. Ib.
6. Old india-rubber shoes, invoiced as “rubber scrap" and entered as

“scrap rubber,” were exempt from duty, under the similitude clause,
$ 2499, of Title 33 of the Revised Statutes, as enacted by § 6 of the
act of March 3, 1883, (22 Stat. 491,) as being substantially crude
rubber, under $ 2503, they having lost their commercial value as
articles composed of india-rubber, or india-rubber fabrics, or india-
9. The case Robertson v. Edelhoff, 132 U. S. 614, cited, distinguished and

rubber shoes. Cadwalader v. Jessup & Moore Paper Co., 350.
7. Imported articles, commercially known as ribbons, composed wholly or

partly of silk and chiefly used for trimming hats, bonnets or hoods,
are dutiable at twenty per centum ad valorem, under Schedule N of
the tariff act of March 3, 1883, 22 Stat. 488. Cadwalader v. Wana-

maker, 532.
8. The case of Hartranft v. Langfeld, 125 U. S. 128, cited and ap-

proved. 16.


approved. 16.
10. Trimmings of various styles and materials, some composed entirely of

silk, some chiefly of silk, some chiefly of metal, and some being a com-
bination of both silk and metal, used exclusively or chiefly for bat or
bounet trimming, and not suitable for, nor used to any appreciable
extent for any other purpose, are dutiable under Schedule N of the
act of March 3, 1883, (22 Stat. 512,) at the rate of twenty per centum
ad valorem and not under Schedule L at the rate of fifty per centum;
as articles composed wholly of silk or of silk as their component
material of chief value; or under Schedule C, at the rate of forty-five
per centum, as articles composed chiefly of metal. Walker v. See-

berger, 541.
11. Whether the goods in question were trimmings used exclusively or

chiefly in the making and ornamentation of hats, bonnets or hoods was
a question for the determination of the jury and it was error in the

trial court to instruct otherwise. 1b.
12. Piece goods, commercially known and designated as “chinas" and

“marcelines,” which are chiefly used for lining hats and bonnets are
dutiable at the rate at twenty per centum ad valorem under Schedule
N of the tariff act of March 3, 1883, as materials “ used for making

hats, bonnets or hoods." Hartranft v. Meyer, 544.
13. The word “liquors ” is frequently, if not generally, used to define

spirits or distilled beverages, in contradistinction to those that are
fermented. It is so used in Schedule H of the tariff act of March 3,

1883, 22 Stat. 505, c. 121. Hollender v. Magone, 586.
14. The word “liquors” as used in that section is obviously the result of

misspelling, liqueurs" being intended. Ib.
15. The multitude of articles upon which duty was imposed by the tariff

act of 1883, are grouped in that act under fourteen schedules, each with
a different title, and all that was intended by those titles was a general
suggestion as to the character of the articles within the particular

schedule, and not any technically accurate definition of them. Ib.
16. Generally speaking, a “sound price” implies a sound article. It

appearing that the cost of the beer in question at the place of export,
was equivalent to 1770 cents per gallon, and that upon being exain-
ined in New York much of it was thrown into the streets as worthless,
that but little of it was sold, and that for three cents per gallon, it
may be assumed that it was a sound article when shipped at the place
of export. 16.


1. When a grantor makes an absolute deed of real estate, for a money

consideration paid by the grantee to the grantor, and the grantee at

the same time executes and delivers to the grantor an agreement under
seal, conditioned to reconvey the same on the payment of a certain
sum at a time stated, and there is no preëxisting debt due from the
grantor to the grantee, and no testimony is offered explanatory of the
transaction, it is for the jury to determine whether the parties intended
the transaction to be an absolute deed with an agreement to reconvey
or a mortgage. Teal v. Walker, 111 U. S. 242, distinguished from this

case. Bogk v. Gassert, 17.
2. Wallace v. Johnstone, 129 U. S. 58, held to decide that, in the absence

of proof, in such case, "of a debt or of other explanatory testimony,
the parties will be held to have intended exactly what they have said
upon the face of the instruments.” Ib.

See EQUITY, 6, 7.

1. Specific performance will not be decreed in equity without clean and
satisfactory proof of the contract set forth in the bill.

Dalzell v.
Dueber Watch Case Mfg. Co., 315.
2. Where, at the hearing in equity upon a plea and a general replication,

the plea, as pleaded, is not supported by the testimony, it must be

overruled, and the defendant ordered to answer the bill. Ib.
3. Courts of equity in cases of concurrent jurisdiction, consider themselves

bound by the statutes of limitation which govern actions at law.

Metropolitan Bank v. St. Louis Dispatch Co., 436.
4. A suit in equity to enforce a mortgage of the plant and good will of a

newspaper published in Missouri, and of the accompanying member-
ship in the Western Associated Press, which is commenced eight
years after the right of action accrued, during which period the prop-
erty had changed hands, and the original plant had been used up and
new matter put in its place, is barred by the statute of limitations of
that State, so far as it rests upon the theory of conversion of the prop-
erties by the defendant; and, so far as it proceeds upon the theory that
the plant, the good will and the membership ought on equitable prin-
ciples to be held subject to the lien of the mortgage, a court of
equity must decline to assist a complainant who sleeps so long upon

his rights, and shows no excuse for his laches. Ib.
5. A contract creditor who has not reduced his claim to judgment has no

standing in a Circuit Court of the United States, sitting as a court of
equity, upon a bill to set aside and vacate a fraudulent conveyance.

Cates v. Allen, 451.
6. A demurrer lacking the affidavit of defendant and certificate of counsel

is fatally defective, and a decree pro confesso may be entered unless
something takes place between the filing of the demurrer and the


entry of the decree to take away the right. Sheffield Furnace Co. v.

Witherow, 574.
7. The filing of an amended bill after a demurrer, without first obtaining

an order of the court therefor, and the withdrawal of it by the com-
plainant's solicitor in consequence, without paying to the defendant
the costs occasioned thereby and furnishing him with a copy with
proper references, do not take away such right. Ib.

RAILROAD, 1, 2, 3, 4.

See TRUST, 2.

1. When one party has been permitted to state his understanding of the

contracts which form the subject of the litigation, there is no error in

giving a like license to the other party. Bogk v. Gassert, 17.
2. In an action by A., a cotton broker doing business on the New York

Cotton Exchange, against B. for moneys claimed to be due for ad-
vances and commissions on account of various transactions for B. in
selling as his agents cotton for future delivery, it was not error to
admit in evidence the statutes of New York under which the said
Cotton Exchange was organized, together with the rules and regula-
tions of that body in pursuance of which the transactions in question
were conducted, it appearing that B. knew that A. & Co., when acting
as his agents, would transact the business through that Exchange, and

in accordance with its rules and regulations. Bibb v. Allen, 481.
3. Sundry objections to testimony are held to be without merit. Union
Pacific Railway Co. v. Goodridge, 680.
See JUDICIAL Notice;


1. An exception cannot be taken to “ a theory announced throughout” an

instruction of the court. Bogk v. Gassert, 17.
2. A general exception to a refusal of a series of instructions, taken

together and constituting a single request, is improper and will not be

considered if any one of the propositions be unsound. Ib.
3. A bill of exceptions signed after the final adjournment of the court for

the term, without an order extending the time for its presentation, or
the consent of parties thereto, or a standing rule authorizing it to be
done, is improvidently allowed; and when the errors assigned arise upon
the bill, the judgment will be affirmed. United States v. Jones, 262.

See Postmaster GENERAL.



LOCAL LAW, 3, 4.

By a contract in writing, A and B agreed that certain lands, for the sale

and conveyance of most of which A held agreements of third persons,
should be purchased for the mutual interest of A and B, and the legal
title taken in A's name, and conveyed by him to B; that B should
advance to A the sums required to pay the purchase money, as well as
other expenses to be mutually agreed upon from time to time, and
be repaid his advances, with interest, out of the net proceeds of sales ;
that A should attend to preparing the lands for sale, and sell them,
subject to B's approval, at prices mutually agreed upon, and retain a
commission of five per cent on the gross amount of sales, and, until
B was reimbursed for his advances, deposit the rest of the proceeds to
B's credit in a bank to be mutually agreed upon; that, when B had
been so reimbursed, “ then the remainder of the property shall belong
sixty per cent to B and forty per cent to A”; and that the property
should be prepared for sale by A or assigns" within a certain time,
unless extended by mutual agreement. A fraudulently obtained from
B much larger sums of money than were needed to pay for the lands,
procured conveyances of the lands to himself, and refused to convey
them to B. Held, that, whether the contract did or did not create a
partnership, (and it seems that it did not,) the equitable title in the
lands, after reimbursing B for his advances with interest, belonged
three fifths to B and two fifths to A ; and that A's fraudulent miscon-
duct, while it deprived him of the right to the stipulated commissions,
did not divest him of his title in the lands. Shaeffer v. Blair, 248.



1. Under a statute of frauds which requires the consideration of a promise

to answer for the debt of another to be expressed in writing, a
guaranty by a third person of the payment of a negotiable promissory
note need not itself express any consideration, if written upon the
note before it is delivered and first takes effect as a contract; but

must, if written afterwards. Moses v. Lawrence County Bank, 298.
2. The statute of frauds of a State, even as applied to commercial instru-

ments, is a rule of decision in the courts of the United Stated. 16.
3. The defence of the statute of frauds cannot be set up against an ex-
ecuted contract. Bibb v. Allen, 481.



See EQUITY, 5.

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