772
FEDERAL REPORTER,
vol. 31. '
brought here by original process, and the pleadings are to have the same force and effect for every purpose as they would have had by the laws and practice of the state court, if the cause had remained there. Rev. St. U. S. § 639. By the laws of the state court n plea in abatement for defective service which does not negate every manner of lawful service is bad on demurrer. Smith v. Chase, 39 Vt. 89. This plea must therefore be adj udged insufficient here. The motion to dismiss is to be determined upon what appears on the face of the record. Bliss v. Smith, 42 Vt.198. The attachment was good to hold the property, although not sufficient to found a personal judgment upon. R. L. §§ 1404, 1405; Price v. Hickok, 39 Vt. 292; Pennoyer v. Neff, 95 U. S. 714. If the motion should be granted, and the proceedings wholly dismissed, that, right would be cut ofl'. The defendant has notice of the suit, sufficient to found such a judgment upon at least. The plaintiff insists that the defendant could not remove the .cause without becoming a party for all purposes, but that need not now be determined. The motion must be overruled, whether that is so or not. Demurrer sustained, and plea in abatement adjudged insufficient, and motion to dismiss overruled.
PREBLE fl. BATES
et al.
(Circuit (Jourt, D. Ma88acku8etta. March 1S,1889.)
1.
NEW TRIAL-TIME OF FILING-ADDITIONAL GROUNDS.
When a motion for a new·trial is tiled within the two days after verdict, as required by a rule of court, and before its decision another motion is filed on the ground of evidence discovered after the expiratioll of the two days, the latter will. be constrned as an amelldment or addition to the former motion, and both grounds will be considered.
2.
SAME-WAIVER .OF MOTION-TENDER OF BILL OF EXCEPTIONS.
Pending a motion for a new trial, if a party tender a bill of exceptions he will be required to elect whether he will waive his motion so far as it is based on questions of law that might be embodied in a hill. of exceptions. but the presenting· of a bill of exceptions does not itself constitute a waiver of the motion.
At Law.
On motion to dismiss motions for new trial.
B. F. Buaf!l' and L. C. Southard, for plaintiff.
Samu,el Hoar, for defendant. COLT, J. The defendants iIi this case filed a motion for II. new trial within two days after verdict against them under law rule 26. At 8 subsequent date they filed another motion for a new trial, asking that the verdict be ,set aside on the additional ground of newly-discovered evidence. The plaintiff now moves to dismiss these motions, on the ground that the first motion was waived by the filing of the subsequent motioQ, aod that the subsequent motion, is irregular, because not
PBERLE t1. RA'l'EB.
'178
filed within the time allowed under the rule. I think the defendants preserved their rights under the rule by filing a motion within the days allowed, and that the second motion, so called, should be construed to be in amendment of, or in addition to, the first motion, rather than a distinct motion for a new trial. It would be going too far, perhaps, to say that a party must set out within the limited time specified by the rule all the grounds upon which he bases his motion. He may not with the utmost diligence be able to discover within two days every ground he can fairly take. For example, in this case, as I understand it, the alleged newly-discovered evidence did not come to the knowledge of defendants' counsel until some days after the expiration of the time allowed by the rule. The rule should receive a reasonable construction; and ptovided a party has filed his· motion for a new trial within the two days, setting out his reasons in the light of the knowledge he then possesses, he should not be deprived of the right of bringing forward additional grounds, which he could not have known at the time, because the facts were not within his knowledge. I do not think, therefore, that either of the defendants' motions should be dismissed, but that they should be allowed to stand as one motion. The plaintiff also moves that the bill of exceptions to be tendered by the defendants be not signed, on the ground that the filing of the motion for a new trial constitutes a waiver of their biJI of exceptions. I do not understand that the mere filing of a motion for a new trial is a waiver of the right to a bill of exceptions. The most that can be said is, under the decision of Judge STORY, in Cunningham v. Bell, 5 Mason, 173, that the court will require the party to elect whether he will proceed to a hearing on his motion, or, waiving that, proceed. upon his writ of error to the supreme court. The scope of Judge STORY'S decision is this: that where a party means to apply to the appellate court for a final decision of the law of the case, he should do so without delay, and that he should not be permitted to argue the same questions before the lower court. This seems I to be most convenient for the due administration of justice. think this rule should be subject to this qualification: that party has no right to bring forward ina motionJor a new trial any legal questi011 which could properly be embodied in a bill of exceptions, he should not be deprived of the right of presenting to the court in the form of a motion for. a new trial questions which cannot properly be made 'a part of a bill of exceptions; such as that the verdict is against the weight of evidence, or that the party is entitled to a new trial on the ground of the discovery of new evidence. To hold otherwise would be to deprive a: defeated party of taking advantage of all of his legal remedies. Where a verdict is given against the weight of evidence, or where new evidence has been discovered, the remedy of a party is by motion for a new trial. He has no remedy in a court of error. Such a motion is addressed largely to the· discretion of the court, and its decision is not reviewable by the appellate court. Mulhallv. Keenan, 18 Wall. 342; City v. Babcock, 3 240. The supreme court have held that in the absence Of! a rule to the contrary a motion for a new trial was not a waiver ofa writ'
..
f)ashieJ,,:4 WaUd82;U. S. How. 279. is norule of court 011 this subject. The plaintiff Judge. STORY in Cunr:tinghamv. Bell, but I do Qot ,!?hquld recEli ve the broad interpretation contended
Stave(Jo. v. ManuJacturing (Jo.,32 Fed. Rep.822,the facts were In that case the oourt found an express waiver of the e;1!:ceptions., of opinion thattmlier the law of this drcuit a party not be aJloweq. to,plIl,peard motion. for a new trial embracing of law ·which are.embodied, or could properly be ewbodiedj,in4is bill of exceptions,and that under these circumstances the Illotion for. a new trial will not be peard, unless he consents to waive .. At the same time I think a party should be heard, on amotion for anew trial which is confined to. such questions as could not be propeJ;'ly embraced in his bill of exceptions without waiving his tight to 'awrjt of error. In, the present. case, lshall allow the defendants tel, PEl he,ard on their motion for a new trial, if limited to questions whicq Jcop.ld.not properly be raised in their bill of exceptions. The pl/tintitf,'s in this caselj,re overruled, and the defendants may have leaVeJoaulend their 'motionJor a new trial.
In re (Oitrcuit
BRAOMADFAR
et al. CORPus.
York. February 28,1889.)
Imn:GRATION-AcT AUG. 8, 1882-DETENTION ANDRETURN-HA:BEAS
Undel'.section 2 of the act of August S, 1882. (22 St. at Large, 214,) immigrants cannot .be detained or sent back except upon an adverse report made to the collector by the commissioners themselves, or by some person by them an examination and a finding that the persons are within some of the prohibited classes. The report made. by the secretary of the board Upon the action of a subordinate not authorized to act finally in the matter,'and without further authority from the commissioners, or either of them.fsin,Bufficient; and upon habeas corpus, the above facts appearing, and on sub,sequentexamination by olle of the commissioners the immigrants being found Jiot·within either of the -prohibited classes, they ·were ordered to be discharged, and allowed to land. ! .
'i
Writ o'{ IIabeas Corpus for the Release of Detained Immigrants. On the 21fit of February,. 1889, 21 Armenian immigrants arrived. at tl1is port by steamer Leerdam. On the following day the secretary of :the commissioners of emigration sent a Ietter to the collector, statingtllllt he was directed by the commissioners to report these immigrants, naming them, all persons "liable. to become a public charge." The eoUector thereupon directed that the immigrants be not allowed to but returned by the Leerdam. which was intending to sail on her I1ltllrn"oyageJ on the 23d or 24th. .The immigrants were detained in the mean tiD;J,e'atOastle Garden under the regulations of the secretary of the 'trealilury, ;Wllic.h; ,provide that their oustody there shall not be deemed a IllDqin,g frOJ:D.;theship.
IN R:EBRACUADFAlt.
775'
On the 23d a writ,-of habeascoTpUs was issued,' returnable forthwith, upon a petition setting forth that the report had been made without any examination of these immigrants by any of the 'commissioners, and without authority. The writ was addressed to the collector, and to the commissioners of emigration. The return of the collector set forth a report from the commissioners stating that the persons were "liable to,become a public charge," and that they were accordingly held for return, and landing refused. The return of Commissioner Stephenson, on whom the writ was also served, stated that the reporthlld been made without authority of the commissioners, and without examination of the immigrants by any of the commissioners. A traverse was filed' to the return of the collector, substantially to the same effect. Oharles Steckler, for petitioners. S. A. Walker, U. S. Dist. Atty., and W. W. Smith, Asst. Dist. Atty., for the collector. BROWN, (after Slating the fadB as above.) Section' 2 of the acto! August 3, 1882, (22 St. at Large, 214,) under which these imll1igtanta are detai.ried, provides that "it shall be the duty of such state commission, board, ol"officers so designated, to examine into the condition of passengers arriving at the ports within such state in any ship or vessel; or such and for tha't 'purpose all or any of such commissioners or other person or persons as 'they shall appoint, shall be tdgo on board of and through any such ship or vessel; and if, on such examination, there shall be found among such passengt:lrs any convict, lunatic. idiot, or any person unable to take care of himself or herself;without becoming 'a public charge, they shall report the-same in writing to the collector of such port, and such persons shall not be permitted to land;" The report to the collector, made in this case by the secretary of the hoard,' purported to be the act of the board. It was regular upon it's face. Properly it should have stated that the persons were" u!labla to take care of themselves without becoluing a public charge," and· not merely that they were "liable to become a public charge." But, waiving this irregularity of form, which, however, I do not mean to say is immaterial, the report was otherwise presumptively sufficient to require the collector t9 detain these immigrants and not permit them to land. The secretary of the board and Commissioner Stephenson were both sworn as witnesses upon the issue raised by the traverse to the collector's return; and from their testimony it appears that one of the subordinate employes who examined the passengers by the .Leerdam returned a list of these persons, with certain brief affidavits, with his oral. report to the secretary, that he thought these persons ought not to be admitted, and that the secretary's report tothe collect9r was upon this subordinate's report only; that 'the secretary had never been authorized by the board to make adverse reports to the collector until such affidavits taken by the subordinate,with his recommendation thereon,had been fi;rst to, and appro\Tl;ld,'by, one ofthe(::oII1¥1isQeen presioners; and that in the present case no, such examination
776
vol. 37.
vjously made by any of the commissioners, or any authority to report to the collector given. It further appears that Commissioner Stephenson. after the report had been made, did examine carefully into the condition of these 21 persons; that he found them to be able-bodied, healthy, intelligent, and much above the average of immigrants ordinarily allowed to land; 'nearly all with friends city; some with considerable means; a Jew with only a little money in their pockets, but with baggage containing articles designed for tr.ade; and all of them entitled, upon admission; to the further sum of $10 each, which was in the hands of the being a prepayment of their return passage in case they should be refused It landing; and that, in his judgment, they were able to take care of themselves wi,thout becoming a public charge. Upon this testimony it is plain that the intention of the statute had not 1?een complied with at the time the report was made to the collector, and that the report was made by the secretary without authority. The question whether immigrants should be allowed to land, or be sent back, is one·that cannot be allowed to be determined except under the responsibility which the statute imposes. It must be either by the board of commissioners, or by some one of them, or by soine person whom the board of commissioners has authorized to pass finally upon the question. It is sometimes a matter of no small difficulty to adjust the claims of human· ity and justice ,to the faithful enforcement of the law, and to determine justly whether particular persons come within the prohibited classes. The commissioners, as appears from the evidence, have never devolved upon any subordinate the right to determine this question, or whether an adverse report shall be made to the collector. The report in this case must therefore be treated as a nullity; and as a sufficient examination appears to have been made by one of the commissioners to show that the persons ought not to be detained, and no further examination appearing to be needed or desired, they should be discharged, and allowed to land. In re Cummings, 32 Fed. Rep. 75; In re O'Sull'ivan, 31 Fed. Rep.
447.
ZUCKER & LEVETT CHEMICAL Co.
'II.
MAGONE, Collector.
(Oircuit Gourt, B. D. New York. January 31, 1889.)
1.. CUSTOMS
Where two provisions of the tariff act apply to an imported article. the first of which provisions is qualified by the phrase, "not otherwise provided for," while the'second contains no such qualifying phrase, the article is r.roperly dutiable under the second provision. and must be held to be therein 'oth· erwise provided for." so as to take it out of the ope.ration of the first provis'
DUTIES-CONSTRUCTION OF LAWS.
II. SAME-ARTICLES OF VARIOUS USES.
When an imported article is a "painters' color," and also 8 "polishing pow· der, " it is not necessary to show that its predominant use is as a polishing poWder, in. order to make it dutiable all such. It is sufficient if its use for .'that purpose is 8 substantial use.