216
FEDERAL REPORTER.
Buspension of the intesbte for such non-pn,yment. In Hie hy-laws of the lodge it is provided that "any member failing to pay sucP. assessment within 30 days shall be suspended from his lodge." And it is also provided that notice of such suspension shall be at once given to the grand secretary of the grand lodge. It also appears that the intestate, after the time for the payment of the assesssment bad elapsed, had notice that he was in arrears, by objection in open lodge to his taking part in the business before it on accuunt of the non-payment of the assessment. If the intestate was in fact Buspended by the subordinate lodge for this non-payment of the assessment at the time of his death, the plaintiff is not entitled to recover. The mere non-payment of the assessment does not of itself operate as such suspension; nor does the clerical act of the secretary in so marking the account make such suspension. The suspension must be made by some affirmative action of the lodge, and no snch action appears to have been taken by the subordinate lo(lge. Snch may be waived by the lodge either expressly, or by failnre to act. And it may itself advance the payment to the grand lodge, which appears to have been the fact in this case. Tile defendant lodge, which is alone liable to pay the plaintiff, hall in fact received the amonnt of the as-lessment, and thereby had been paid the consideration for its oblign.tion to pay sald SUIll on the death of the intestate. The motion is, therefore, overruled, and ju(lgmtlm for the plaintiff.
CALIFORNIA DRY·DoCK
Co. v.
AmrSTRONG and
others_
(CircuU Court, D. California. Fcbruary 12, 1883.) 1. GENF.Tl.H, Rm.E Ol" DAMAGES.
'l'he general rule is that no damages can be recovered until they shall have actual I)' u. ,lied; and tlut an RClion cannot ue rnaintainell on a mere I.ahil.ty to .1 · hird party to whieh a p1:lintiII has heen suhjected hy thc act of the defendSill. The plaintiff, in such a ea'c. mnst alJe.!!e and prove that he has Incurred actual damage, by showing the paymeut or other satisfactIOn of such hallllity. LtAmLTTY Oil' CoMMITTING WASTE.
2.
A stranger eummitting c up 'n premisc3 leasert, or held by 1\ particul:1r estate, is I,ahl,' to the tcnant for the injury to the pus"e,sion, and to the lamllord. or revcl">lioner, for thc injury to IhefrcdJOld orinheritanl'e. The riglItof eal'h is d stinct from that of the othcr, sUlI satisfactiun maJe to the oue is no oar to 1111 action brought uy the otlIer. LtAnn.TTY Ol" 'T'1l:NANT FOR 'VASTE, Ay.,"1) rns TITOTtTS AO\TNST 1'rlESPM,sER.
S.
The tenant is answcrnhle to the lanrtlonl, or reveJ"!lioner, for waste done by a stran!!cr. lIe has his re.ncdy overaga,ns\. the stranger, uut 1hc tenant'!' recovery against the strnnger for injnries to thc frech.,ld, or reversion, is dependl'nt on his first having AAtisfled the lanrtlom"s clllim uy payment, or repair of the injured premises; snd, in such case, the stranger is llablu ouly for the payment, or expunse nec(·.'srily incurreJ. Ii"uua v. GtiJlin, 46.N. 11.231, approved and folluwed.
CALIFORNIA. DRY-DOCK CO.
v.
A....MSTRONG.
217
4.
E!<'FECT OF
UPON brPI,TED COVEN\NTS TN A LE-\SE.
Where the parties to a of real property have llxpre,sly covcItantcd repair, it seem, that tbe expo css Covenant the place of tIle implil/d covenant, and becomes the measure of the tenant's liabJity.
5. RrGII'r
OF TENANT AGAINST TUESPASSER WHERE TENANT IIAs COVENANTED TO REPAIR.
It LJeing admitted that in a case in which the tenunt hag expressly covenant-ed to npair, such tlmant has,. right to maintain a.ctiol1 ag:tillst a SI ra'lger committing waste, for injuries done to the hcchold, heM" that such right of action does not accrue in 1avor of a tenant until he llas paid or satisfied his landlord, or rcpalred the premises. S. RAllLE.
FAILING Tv S'fATE SATISFAO'J:IO'N" OR HEPAIRS 1IfADE, IB DEMUR-
A complaint setting forth the fact of a lease containing a covenant by the tenant to repair, and an injury to the freehold by a trespasser, (defendant in the action,) and further alleging that, by reason of the tortious act of the trespasser, the tenant (plaintiff in the action) has become, and is, absolutely liable and indebted to the landlord for the damages resulting from the trespass, viz., the necessary cost of repair, but which fails to aver that the landlord's claim has been satisfied, or that any expenditures in repair have been made by the tenant, does not state facts sufficient to constitute a cause of action.
At Law. TVallace, Greathouse & Blanding, for plaintiff. Andros ((; Page, for defendant. SAWYEr., J. The plaintiff alleges in the first count that it was the lessee for a term of years of certain real estate, partly covered with water, upon which there was situated a marine railway, extending into the water; th3t during the term of said lease, and while the plaintiff was in the possession of the premises under the lease, the ship Alneburgh, of which the dt.fellclants were, at the time, owners, negligently ran upon, and came into collision with, said marine railway, and broke down and destroyed it; that by the terms of said lease "it was expressly covenanted and agreed by and between plaintiff, as lessee, and the lessors," that plaintiff wonhl, at the expiration of the term of said lease, to-wit, on the tenth day of November, 1880, quit and surrender said premises, and every portion thereof, to the s,tid lessors in as good state and condition as reasonable use and ,veat· thereof would permit, (damages by the elements excepted,) and that plaiutiff, under and by virtue of said agreement and covenant contained in said lease, became amI was, on said ninth day of November, 1879, and ever since, continuously, has been, and now is, absolutely liable and indebteel to the said' lessors for the whole value of said marine railway so constructed upon said premises at the commencement of said lease, and for t1;e whole amount of t.he damages resulting from the breaking down and the destruction of the same, as aforesaid, being the necessary cost and expenses of putting the said marina railway in as good state and condition, as it was in on the soid thirteenth day of November, 18;5, reasonable use and wear thareo.f excepteel; that the necessary cost of putting said marine railway in such repair as is required by tbe }?lail1tiff's said covenant
", "FEDERAL REPORTEll.
would b3 $12,000, and that plaintiff ,has thereby been damaged and injnreil to Enid amount, for ,which suni judgment is asked. . There is another count for injuries tot-he plaintiff's possessIOn; not embracing the damages to the inheritance. Defendant demurs to the first count on the gronntl that it does ,not appear that plaintiff has made the repairs, or made satisfaction to the lessors under his covenant for the damages to the freehold; that a mere liability to r Jpair, without first satisfying the liability, gives no ground of action for an injury to the reversionary estate of the lessors; that he is not injured, and sustains no real damages till he actually repairs, or makes satisfaction; that as he may never perform this covenant, the injury and damages may never arise, and that there is no right of action till actual damage and injury arise. There are two estates injuretl here: the temporary estate of the lessee, continuing during his term, and the permanent estate of the lessors, the inheritance.an injury to the possession antl an injury to the land itself; and the owner of each estate has his action against the stranger who commits the wrong or waste, each for the particular injury done to his particular estate. Under the common law the action for the injury done to the lessee's estate would have been trespass, and that to the lessor's, case. 2 Washb. Real Prop. 393; Tayl. Landl. & Ten. § 173; Starr v. Jackson, 11 Mass. 521. CHAMBF.R, J., in Attersoll v. Stevens, 1 Taunt. 194, says: "\Vhere different persons have distinct rights in thesnlJject of a trespass, the compensation must be to each in proportion to the injury receivetl. One of them cannot claim that part of the compensation which belongs to the other; nor (;an the satisfaction marie tO,one be a bar to an aclion brought by the other. It can hardly be necessary to cite cases on this point."
If the tenant is entitled to recover for injury to the estate of the reversioner, it is on the gl'Ound of his liability to the landlortl to repair. It is atlmittetl that the tenant is entitled to recover in such case, when he is under obligation to repair,provided he has in fact repaired, or made satisfaction to the landlord; and the question now is, whether, although liable, he can recover before he has repaired, or made satisfaction. Strange as it may seem, counsel haye been able to find but one case in which this exact point has arisen and been decided, and that is Wood v.. Griffin, 46 N. H. 231. This case bears abuntlant evidence of having been most thoroughly and carefully considered, and the reasoning appears to me to be unanswerable. It presented the precise question which ;vas fully considered and determinetl, and the judgment was reversetl on that point alone. The action was trespass, brought by the tenant for life for waste committed by felling and carrying away timber trees. I cannot do better than quote some passages from the decision. Says the court: "The question is whether the plaintiffs are entitled to i.nclude in their -,-plages the full value of the wood and timLer, upon the ground that they
CALIFORNIA. PRY-DOCK
co; v. ·AR1\ISTROXG.
219
are liable overto:the remainder-men'or reversioner; or whether tIlIey are limited to damages for the injury to their possessory interest. . "There can' be no controversy that the cntting of the wood and timber, by a tenant for life, or a stranger, for the purposes indicilted in the case, is ,,;aste, · (Miles v.lJIiles, 32 N. H. 147; Dennett v.Dennett, 43 N. H. 499;) and it seenls to be equally clear that the tenants are liable to the person having the immediate remainder or reversion for such waste, whether committed by themselves or a stranger, or by a part of such tenants ollly. 4 Kent. Comtl1. *77,85; Co"k v. Champlain 'l'mns]J. Co. 1 Denio, 104; Llttenoll v. Stevens, 1 Taunt. 200; Com. 517, tit. 'Waste,' c. 4; Cruise, Dig. tit. 18, c. 1, §§ 63, 20,54; 'Yashb. Heal P;·op. 116. * * * "It may also be considered as established, that, while. the tenant is answerable to tlll! remainder-man, Ill' reversioller, for waste done l,y a stranger, such stranger is liable over to the tenant.· 4 Kent, Comm. *77, 85; 2 Saund.259, amI cases citeo.. "The precise question, then, is whether, in an action of trespass qnare clausum fregit by the tenant <igainst a stranger, he can recover damages for the injury to his possession, and also for the injury to the inheritance, witholit there having been any recovery against him by the remaino.er-man, or reversioner, or any satisfaction mao.e vy him in any form. * * * "It is clear, from the adjudgeo. cases, that the claims of the tenant and reversioner can be separated; that they are in fact distinct, and that each may maintain a suit for the injury done to hiin; and that both may be pending at · the same time. How, then,' can tIle tenant include i)l his damages the injury to the reversion? If he can in any case, how is the defendant to avail himself of the fact that another action is pending by him in remaillller or reversion? "Again, there is no necessity for arming the tenant with s11ch power. If · he is entitled to reccwer for the injury to the inheritance, whether. he ha:> Ratisfled the reversioner or not, his recovery must be a val' to a suit by the landlord; and still the trespasser might a vail himself, by way of clefense, of a license, or illlmission lJy the tenant, which might, in dfect, defeat the landlord's claim against such trpspasser; ariclbesides, the landlord might find his claim against the trespasser defeated by the result of a snit prosecnted withont his assent, in a manncr opp6.,ed to his wishes, or by his inability to obtain · from the tenant himself the fruits of the suit against slIch tMrd pCl'son. "The fact that the tcnant is answeralJle for the injury does not, we think, furnish an adequate rea,;on for sanclioning snch doctrines. 'i'here waste i3 committell by cutting down timber trees by a strangel', the property in them at once passes to the lano.lonl, and he may take them, or maintain trover for them; ano. there surely can V? no' propriety in holding that the tenant also could have the same remedy,jor he property whaterel' in them. " If the tenant has been .colilp'elled to the landlord for the injury by a third person, he may hareMs remedy over,. but, until then, we think he must be eonjined to damages for the injllry to the possesiiion."
After distinguishing cases of persor..al property others than the owner, the' court says:
III
the hands of
.. But beyond this, the mltllOrities, so fa!: as we ha,e any, are opposed to the claim of the tenant to recorei- dama:;es for an injur!} to the inheritanee, until he has jirst sati.<:fiecl the landlord,. and there is nothing in the state of the law in respect to suits vy agents, carriers, and others in possession of gootls, that - "'ould illlluce us to extent! it to a case like the present:· lYe think. therefore, · thilt on this groltll'l the rerdir:t -lIins f oe aside, unll?ss· plaintiff will reduce the anHJUEt of yenlict n01l1inal
220
In my judgment, also, the tenant cannot recover before repairing, or satisfying the landlord, for the reason that, till then, his cause of action on this ground has not matureu. He has sustained no injury till he has done something by way of repairs, or towards satisfying the landlord for the injury to the inheritance. He may never uo either, and he certainly ought not to recover unless he does one or the other. A recovery by an irresponsible tenant may wholly defeat the remedy of the landlord. The tenant ought not to recover any more than he pays in satisfaction, or necessarily expends in repairs; and if he has in fact repaired, or made satisfaction, he cannot recover more. Should he be unnecessarily extravagant in either, he might recover less. He may compromise at one-half or one-fourth the amount claimed. The extent of the liability should, in some mode, be fixed before he is permitted to maintain a suit. Generally, in the law relating to other matters, where a canse of action arises out of a liability incurred by reason of one's relation to another, the action cannot be maintained until payment, or satisfaction, of the liability; and I can perceive no good reasons for making a distinction in favo! of the tenant in a case of this kind. 'l'hus, in Willson v. JfcE170Y, 25 Cal. 169, it was held, in an action for the breach of an injunction bond, that an attorney's fee, for which plaintiff became liable in resisting the injunct;.on, could not be recovered without having been first paid by the plaintiff. The court observes: "The rule of the common law was, that on a bond to in· demnify against the damage the obligee might sustain, he could recovel only upon evidence that he had sustained actual damage; that com· pensation would only be awarded for actual loss. Evidence showing that he was SUbject to a liability, without showing payment, was not enongh;" citing several authorities. This was affirmed in Pradcr v. G1'imm, 28 Cal. 11, and extended to the expenses of procuring testi· mony. Also affirmed in subsequent cases. So, without actual payment of the deht, although the liability of the surety has attached, he canl10t rocover against the principal. Hayes v. 26 Cal. 543. So, also, where an indemnity bond is given to a sheriff to save him harmless from any damages resulting from any trespass he may commit in executing a writ of replevin or attachment, he cannot recover on the bond, notwithstanding the fact that hisliahility has been established lJy It judgment against him, recovered for the damages resulting from the trespass, unless he has also in fact paid the judgment so recovered. Lott v. Mitchell, 32 Cal. 24:.' In this case the condition of the bond WIlS very broad and should authorize a recovery, if any covenant could do s;), short of providing in express terms that a reem"ery may be had upon incurring the liability before satisfaction. The condition is as follows: That the obligors "should well and truly keep and bear harmless and indemnify the said W. O. Middleton, sheriff, as aforesaid, of and from any and all damages, costs, suits, judgments, and executions, that shall or may at any time arise, come,
CALIFORNIA DRY-DOCK CO. V. ARMSTRONG.
221
or be brought against him by reason of the dotcntion of said property, or the delivery thereof to the plaintiff." The same was held on an indemnity to the sheriff upon the levy of an attachment in Roussin v. Ste/cart, 33 Cal. £11, 212. In De Costa v. Mass. Min. Co. 17 Cal. 616, it was held that "the plaintiff could not recover beyond the injury sustained, and it was imp1'oper to aw{/n! cOlllpensation for an expense which might· never be incurred." This was an action for a nuisance, in digging a ditch on plaintiffs land, and the estimated cost of filling the ditch had been allowed as damages. So, in Burt v. Dewey, 40 N. Y. 285, it was held that a liability established by a judgment against a party canllot affortl It ground of action until paid, as it may never be enforced. The liability sued on in this case rests on the express covenant to repair set out in the complaint, and not upon the common-law liability to repair, and the injury done by the negligence of the defendant. As there is an expre3s covenant, I suppose that it is the measu.re of the liability, the parties having fixed the extent of the obligation on this point by the terms of the contract. At all events, that is the liability alleged in the complaint. So, also, in the several cases cited upon covenants in bonds, the injuries provided against in some of them are trespaRses. Yet in llollssin v. Stewart, 33 Cal. 212, the court says: "There is nothillg in the point that the indemnity is against a t!'llspass." And the same is held in Stark v. Raney, 18 Cal. 622, where the trespflss iR not malicious. I see no good reason why these authorities. and numerous others of a similar character, should not be applicable to this case, as to when the right to recover damages attaches. Whether the liability in this case to repair rests upon the express covenant set out upon implied covenants, or upon principles of public policy, which hold the tenant responsible for a violation of duty to his landlord in failing to protect the freehold, while in his possession as tenant, in my judgment, both upon reason and authority, no recovery can be had until the tenant has made repairs, or mitde satisfaction to the landlord. It is argued that if this rule be adopted, then the tenant may never be able to recover, as he may not be able to agree with his landlord as to the amount to be paid, and he may not be able, for want of means, either to repair or make satisfaction. If ti:lis be so, his damages will never accrue, and lle certainly ought not to recover. That is the very question presented. Clearly, the general rule in all matters is that damages cannot be recovered until they have actually accrued, and I can find no possible good ground for applying a different rule to cases of this kind. It only remains to notice the authorities relied on by the plaintiff, apparently with great confidence. No one of them either presents or decides the exact point. In those relating to real estate, whatever is said bearing upon the precise point is obiter, thrown out in the course of the argnment by the judge without being called for by tbe cnse as preoented in the report. 'rhe observations in each case are
222
FEDERAL RErORTER.
general remarks, which, considered with reference to the facts before the court, are not inconsistant with the views already expressed, but are mere statements of the general rule as to the liability to the tenant. '['he first and apparently the strongest case is Cook v. Champloin Transp. Co. 1 Denio, 92. In this case the question whether tne tenant was entitled to recover u·pon his liability to repair without first repairing, or making satisfaction to his landlord, was not raised by counsel, or discussed 01" evcn ailude(l to by the court. It does not appear whether the tenant had repaired or not. He may have done so, or have made satisfaction,-probably had repaired;. and as there was no question on that point, it was unnecessary to incumber' the record by stating facts not necessary to illustrate the points actually made and determined. If the plaintiff had not, in fact, re'paircd, the Cf>-se is entitled to little weight as authority, because no point was madc upon it; and the distinction not being brought to the attcntion of the court,-as often happens in judicial opinions,· the point was assumed wJhout considering the question. The state·ment by the judge that the plaintiff, in consequence of his liabil· ity to repair, was entitled to recover the whole value of the buildings, · was but the statemcnt of tile general rule upon the subject, and is correct, and as specific a statement of the rule as was called for by the points made. The general rule is stated just as specifically and positively in Wood v. GrWin, 4{' N. H. 238. After stating that the tenant is liable to the remainder-man for ,vaste committed by a stranger, the court adds: "It may also be considered as established, that, ,,-hile the tenant is answerable to the remainder-man or reversioner for 1vaste done by a stml/!leI', such strallgeris liable over to the tenant." And for these propositions the court cites, among others, this very case of Cook v. ClutJilplain Trallsp. Co. Yet the court, subsequently, considered the precise question now in hand, and reversed the judgment on that point. It evidently did not consider Cook v. Champlain 'Tral1sp. Co. opposed to its view in that particular, or as deciding that point; for, although cited as authority upon the general rule, it ,,-as not even referred to as bearing upon the question whether the tenant must repair, or make satisfaction, before he can recover for the waste or inj llry to the freehold. There is another ground upon which the plaintiff was entitled to recover in that case. He was actuall1 the owner of tllO bnildingsand machinery destroyed-of the maclnnery absolutely, and of the buildings till tbe expiration of the term. He erected them himself upon the leased premises for his own purposes, and without any original obligation to do so. They were not there when he took the premises, and, having himself erected them, he was under no obligation to re-erect them when destroyed, at common law. He was only liable on his express covenant, "'hich was that the buildings he should put upon the premises should "revert to and become the property of the parties of the first part [the lessors1 .lchclleccr by the terllls of /Iis indenture they shall come into possession of
CALIFOllNIA DllY-J)OC;;:
co.
V. AnMSrllONG.
223
the premises." Until the premises should come into the possession of the lessors, therefore, the buildings remained the propert.yof the tenant, the plaintiff in the case, and he was entitled to recover their value as owner. So, also, in the case of Walter v. Post, 4 Abb. Pro 382, the question is not raised by counsel, or discllssed by the court. Certain instructiolls were asked, and refused, not presenting the point now involved; and the judge passed upon them as presented; and these were not even asked upon the idea of liabili.ty of the tenant to the reversioner, but upon an entirely different theory, and they were disposed of upon that theory. The judge afterwards remarks: "Had it appeared, however, that by the terms of the tenancy the plaintiff was bound to repair, * * *" then the "defendant was liable to mako good all the injury caused by the trespasses, and enablB the plaintiff to put the building in as good condit,jon as it was wIlE'll the trespass was committed." This is but a general statement of the general rule, and is a dictum made wholly outside the case. He does not say that the tenant could recover without first repairing, or making satisfaction to the landlord; but, on the contrary, in referring to the defects in the complaint, he distinctly intimates the contrary opin. ion. He says: "'1'here is not only no averment that the plaintiff was bound to repair, but it is not even stated th('(t he was Pllt to any expcnsein repairing, or that he made any repairs;" as though this aver-: ment, at least, was necessary. In effect he says "that this essen': tial fact is not even stated," and suggests that when the case goes back this complaint can· be amended in this particular. This case, therefore, so far as it is authority at all, is against the plaintiff on t:.1S proposition. Rood v. New York £f; E. R. Co. 18 Barb. 80, does not present the question at all. It is the case of a purchaser of land in possession under 1';s contract of purchase; Rood, the plaintiff, having purchased of :Maples and gone into possession, and the action being to recover the value of wooel and fences on the land burned up through the negligence of defendant. He was the equitable owner of the land under his contract; and it was very properly held that "the vendee in possession, being the equitable owner of the estate from the time of the contract for sale, must bear any loss which may happen to the estate between the agreement of purchase and the conveyance. * * * The loss in question is, therefore, the loss of plaintiff, and not of ?\Iaples." Pages 83, 84. The case of GOlmliC1' v. Cormac!;, 2 E. D. Smith, does no{; present the question. There is a loose remark on a hypothetical case; that assumes the general rule as to the right to recover in a proper way where there is a liahility to reo pair; but there is nothing touching the question now under consideration. All the other cases relate to the taking and conversion of chattels, which depend upon different principles, and have no relation to the question now presented.
224
FEDERAL REPORTEr:..
Where one wrongrully takes ftom the possession of another any article of personal property, the party from whom it is taken can, undoubtedly, recover the possession, or the value of the property, without reference to the quel:ltion as to who really owns the goods. The title win not even be inquired into, unless the defeudant connects himself with it. It is enongh that one has wrongfully taken goods from the possession of another. He must return them, or respond to the extent of their value. So, in this state, from its first organization, a party who has been dispossessed of land by a party having no title, can recover that possession on his mere pOl:lsessory title and ouster, and the wrong-doer will not be permitted to show an outstanding title, without connecting himself with it. These cases have no bearing upon tbe question now in issue, bnt depend npon other c::msiderations. In TVvud v. G1'Ufin, already cited, the COlirt says: 'This case is unlike the case of gcods in the Irll1ds of carriers, factors, wharfillgprs. ami other agents, who are responsible for tnem to their principals, beeallse of the different rnles that apply to lands and In te.e case of I:ul\ls ill the pol:lsessioll of a tenant, his interest aiM;' the interest oj' the landlord are distiuctly marked and eatil!j separated,. and j'or injuries tf) either, there are appropriate and remedie<, while as to gouds there is, in general, 1/0 SUGh dlstmdion,. and sIlch is the effect !jimn by the [wo to the j'act oj' pos· S,,:1sioh, that either trespass or tro'oer may be maintained against Ol1e who 7JlrDr/!!.fully depri'Ves alia/Iter oj' sitch possession, Illi,' hout 'Iny injllrg to the ultitle. l;'.It lJeyonu this, the authorities, so far as we have any, are oppo,e,z if) the claim vf the tennnt to TeUf)()er dama!Jes Inr an inju1'y to the inhe"itance until he has ,first satisfied the [,mellord,. and there is nothing in the state of the law ill respect to sneh agents. carriers, and others in the posses. sion of goods, that would induce us to extend it to a case like tl,ig." Iu. 240.
I am satisfied that the plaintiff cannot recover for set out in the first count until he bas either repaired, or made satisfaction to the lessors. The demurrer must be sustained as to the first count, and overruled as to the second, which is for inj uries to the estate of the tenant; anu it is so uruered.
Boss v.
FULLER,
Collector, etc. June Term,'1883.)
(C;rcuit Court, N. D. Ohio, W. D.
ta'n Iron which was cla3sifieJ h\" the collector of the port of importation ns "axles," of c. hammel'ed"iron " whether sl1ch cla3sl!ied iron was propel' is a 'luestion of fact, to be tried hy a' jury. and if the jury have any doubts as to whether or.not slIch iron was properly cla3sifiel and eh:\r,ged for:1_ "axles," tl!ey should g1ve plaintilI the heneat of SllCtl UOllut, aUlI find a verdict for h1m.
!n an action to recover the exce,s of tiuty chargcu. for the imp'lrtation of CCI'-
EXCESS.
OF bIPORTATIOXS-ACTfoX TO