:324
FEDJimAL REPORTER ,voL
41.
:LAcoHBE,J. ,grandfather, Abraham Cargill, created a test:am.en,tary trust of $5,000, the income of which was payable to Sarah .C. Davenport, plaintiffs' mother; the fund at her death to belong to her childreil.. Defendant's father. was the executor and trustee under the .Cargill will, and held the said fund. Subsequently, and upon his death, the' defendant himsel f became and. acted as the trustee of the fund. Sarah C.Davenport died March 1, 1877, leaving three children, viz., these hv6:plaintiffs and Charles E.Davenport, each of whom thereby became entitled to one-third of said fund. Charles E. Davenport has since died. The complaint alleges that "defendant was guilty ofcarelessness and negligence. in and about the management, investment, and collection ofthe-Jund and of the income, whereby the plaintiffs have wholly lost theirinterests and shares, as well as interest from March 1st, 1877." For their of this fund, witp interest from said March 1, 1877, plaintiffs demartd judgment. . This is an action at law,(Robert.fv. Ely, 118 N. Y. 128, 20 N. E. Rep. 606,) and the question raised by the demurrer must be settled in oonformityto the state practice. The grounds of demurrer are, that causes of action have been improperly joined, and that there is a misjoinder of parties plaintiff. Practically. these grounds are merely alternative statements of the same' objection, namely, that, inasmuch as each plaintiff:has a separate cause· ofaction for the loss or conversion of his or her individual share,theyrhaynot join as plaintiffs in a single action. The Code of Oivil Proced UTe, however, provides that all persons having an interest in the subject of the action, andin obtaining the judgmay be joined as plaintiffs. Section 446. It further provides that 'judgment may be given for or against one or more plaintiffs, and for':or against one or mOl'edefendants, and that suchjudgment -ma;y determine the' ultimaterightsiof: the parties on the same Side, as between themselves. Section 1204. The effect of these provisions seems to be that those who have several interests in a common fund may join in an action at law affecting that fund. Loomis v. Brown, 16 Barb. 325; Brett v. Society, 5 Hun, 149, affirmed, 64 N. Y. 651; Bliss, Code Pl. §§ 74-76. The demurrer is overruled with leave to answer.
UNITJl:D.
STATEs '"·. SEMMER. February 12, 1800.)
(C:crcuit Oourt,B. D. Nff.II)York.
L
CUSTOMS DUTIEs-CLASSIFIOATION-MANOFAOTURES OF GLASS.
state it is an unfinished product in the manUfacture of polished plate-glass, but was, according to some of the testimony, an article known to the trade and commerce of the United States at and prior to the date of the passage of the tari1f act Of March 8, 1883, as "ground-glass, "and used, although to a very limited exteIit, as such, is
to and inoluding the process of grinding and smoothing On both sides, in which
Plate-glass, which has passed through the various processes of manufacture up
UNiTED STATES
e.
SEMMEL
dutiable under Schedule B of said act, (Tari:fl'Index, new, 148,) "porcelain andBohemian glass, ohemioal glassware, painted glassware, stained glass, and all other manufactures of glass or of which glass shall be the component material of chief .. value, not speciallyenumerated or provided for in this act, 45 per cent. ad and not under the same sohedule (Id. 140) as "cast polished plate-glass, unsilvered, " . .
9.
SAME-ENUMERATED AIi.TICLEB-SIMILITUDE.
The" similitude clause" (section 2499) of the statute has no application, inasmuch as the term" manufactures of glass" is an enumeration in the tariff act.
At Law. Action to recover a balance of unpaid duties. The defendant imported the goods in question from England, and entered them at the port of New York, September 9, 1889, and paid the estimated duties at 45 per cent. ad valorem, as "window glass, manufactured," whereupon the merchandise was all delivered to the defend'ant. The entry was thereafter duly liquidated by the collector, and the goods classified as "polished plate-glass. unsilvered," at 50 cents per square foot,. under schedule B of the tariff act of March 3, 1883, (Tariff' Index, new, 140.) The defendant duly protested against this classification by the collector, and duly appealed to the secretary of the treasury. The protest limited the defendant to the proof that his tion was" manufacture ofglass, (ground-glass.)" On the trial it was shown that the goods in suit were sheets of plate-glass, varying in size· from 51 to 79 and a fraction square feet each. The expert witnesses in the manufacture testified on the part of the plliintiff that at and prior to March 3, 1883, plate-glass was a material formed of sand, soda, and other ingredients fused in pots or crucibles; that the molten mass was then poured upon metal tables, and, when intended to be finished as polished plate, was usually cast half an inch thick; that, while still red hot, the; sheets were placed in annealing ovens, where they were kept ppt, and gradually allowed to cool during four or five days; that they were then "squared. up trim ," and placed upon the grinding-machines; using sand and water, first on one side and then on the other; until the glass was reduced to about one-half its original thickness; that the sheltts were then carefully washed to remove the sand, and were next submitted to the smoothing process, done upon different machines, in which ery of various grades of fineness was nsed; that this precess was contin. ued until the glass reached the "smoothed" condition, in which all the roughness of the grinding was remo.ved from both sides, rendering the glass translucent, and fitting it for the next process of" polishing, "---'-'80 gistinct operation, done upon still other .machines, using felt polishers, with rouge (red oxide of iron) and water, by means of which the already smoothed surfaces of the glass were burnished or polished, and thereby rendered transparent. It was shown by these witnesses that the sample of glass in suit was in the condition known in the manufacture as "smoothed," and that the final process of polishing was a compara.. tively small part of the totalmanutilCture of polished plate-glass. There 'V\'as ·conflict of testimony as to whether plate-glass, in the condition of defendant's importation, was known in the trade and commerce of the United States in 1883; but there was evidence introduced by the de-; . fendant to shoW. that it was so known as "ground plate," or "ground
FEDERAf.r REPORTER
:41·
·lii:Ld plate-glasg, Il in' siies as llirge" as' defentIant's and ,'that it was used purposes, principally for illuminated clock,dials. The dAfendant, ,in' gi;ving his evidence qn the witn,ess .stand, admitted, on that he imported the glass in suit for the purpose of finisbing it into polished plate, and that .for the purpose of 'hisnianufactoryHwlis raw material. At the close ofthe testimony the United states attorney moved the court to direct a verdict in favor of the plaintiff, on the ground that the defendant had not proved that theglass in suit was a "nlanufacture of glass,"within the terms of the tariff act; and <lited,Heyl, (Tariff Index, new,) pars. 166, 167, 154,179; U.S.v· .PO-U8,S Cranch, 284; Lawrence v. AUen, 7 How. 794; King v. Smith, 4 Chi,; Leg. iN. 281; Kennedy v. Hartranft, 9 Fed. Rep. 24; Jiltazee v.MoJf'itt; 18 Fed. Rep. 584; Arthur v. SWJ8}ield, 96 U. S. 128; Watch Co v. 19rFed. Rep.All; Wolff v. Spalding, 26 J!"ed. Rep. 609; 'Brewi'fl,g Co. v. Whitney, 29 Fed. Rep. 780; Hartranftv. Wiegmann, 121 .U. So 609, 7 Sup: Ct. Rep. 12f.1:0. ·The counsel for the defendant moved the court to direct a verdict in favor of his client, claiming that the mer.chandise in suit was shown to be a "manufacture of glasA." The court d.enied both motions., i Edward Mitchell, U. S. Atty., and James T. Van Rensselaer, Asst. U. Si:Atty. , Stephen.G. Clarke and A.LivingstonNorman, for defendant. LACOMBE, J., (oraUy charging jury.) The question for your uon upon the evidence in this case is whether the article imported here is a .manufacture of glass, otber than rough or rolled plate glass. Fortu,nately we have a very clear definition of the word "manufacturell'given us by the supreme court ina recent case. I refer to tbe case of Hartranft Y. Wiegmann, 121 U.S. 609, 7 Sup. Ct. Rep. 1240, in which the court states that. the mere fact of the application of labor to an article, either by bando! by mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in the tariff laws, .unless tbe application of such labor is carried to stich an extent that the article suffers a species of transtormation, and is changed into a new aud different article, having a'distinctive name, character, or use. Of course, the tariff laws dealwitb tbe commerce of the country; and in iuterpreting tbem we continually revert to the usages of trade and commerce,' and constantly have upon the stand commercial llleu' to enligbten us as to that trade andoommerce. So this very distinCtion .whichthe supreme court has pointed out is to be taken. by you, and applied in a commercial sense; that is, the labor bestowed. upon the article is to be continued to such an extent as to transform it into a,new. and different article commercilllly, having a distinctive name in ,commerce, having a distinctive charaoter commercially, or having a distinctive commercial use. It makes no difference whether you or I 'would have any particular use for the article as a different article from that from. which it was made.' The question is whether the trade and commerce of. country have: a different use for the article,-
other and different ftondhat which they have for the article out of which it was made. Take an illustration or two. From certain materials found in nature man gathElrs a proper proportion, and places them in a crucible or melting pot,' and by the application of heat fuse's them. The result of that fusion is a substance known ns "glass." If the melting pot were taken off the fire after the fusion is completed, and allowed to cool, the solid lump which would be found in it, as the result of the chemical union of the constituents which were placed in it, would be the substanc.e known as"glass, "":"'crude glass, the crudest glass conceivable. It is a manufacture. The component materials are transformed into a new substance. Now, that same glass may be, by the application of labor, transformed from the molten state, by a process of blowing and cutting, into an article which is known as cylinder or window glass, which is a manufacture ofglass, because it is of a distinctive character, and has a distinctive name, and a distinctive use, from the <lrudeglass out of which it was made. And so, by a different process of manufacture, this same crudegla.ss, when poured upon a table and pressed with a roller, becomes what is known 'in trade and commerce as rough or rolled cast plate-glass. That, also, is a manufacture of glass. That, also, has a use, character, Or name distinct from the use, character, or name of the crude glass iu the crucible out of which it was made. It also appears here, with regard, ill the poHshed plate-Il:lass, that by various and by the application of a great deal oflabor, this rough or rolled plllteglass is eventually transfoI'med into polished plate-glass. It needs no witnesses to tell us that polished plate is a manufacture of glass, within the definition of; the supreme court. We need only to walk up and down Broadway to see that acres of it are applied to a use to which rough plateglass is not applied: It also is, therefore, a manufacture of glass. It is claimed in this particular case that the article Exhibit S, the subject of importation' here, has been. subjected to such an amount of labor (that is, that lahor has been applied to it to such an extent) that, it has obtained in commerce a distinctive name, and has a different commercial character, and is commercially applied to a different use from that of the rough plate-glass which it was before the .labor was applied tait; and whether his claim is sound or not is the only question which comes before you for your determination. That it was rough plateglass originally, I charge you. That rough plate-glass is a manufacture of glass I also charge you. But, inasmuch as the defendant has. by his protest confined himself to. the claim that it is a manufacture of glass not enumerated in the tariff act, and the tariff act does enumerate rough plate-glass, he must satisfy you (for the burden is upon him) bya fair preponderance of proof that it is a manufacture of glass other than rough plate-glass. If he has succeeded upon the proof in satisfying you upon that pointj-thatit is rough. plate-glass advanced to such a stagejby the· application of labor, that it has been transformed cOIpmercially into a new and different article, with a distinctive commercial name" character" or use from that out of which it was made,-then he is entitled to your verdictj otherwise your verdict must beror the plaintiff. '
328
FEI)Ji1RAI, REPORTER,
vol. 41.
, Reference has beenm,ade by cOUllseIto the intended use of this partieQlar importation. That is of no particular concern in this case, Where <longress has not ,chosen to fix a tariff according to the specific use of a particular article .imported, (and that is the case here,) it, is of no con<lem to what particular use that particular article is to be applied. The question is, what are the commercial uses of the article, if there are sev of them, or what is the general commercial use if there is only one, ral and riot for what particular use did this individual importer bring in this specific lot goods? The same duty is to be laid upon the,c1ass of goods, irrespective of the individual who imports them, 01' of the use to which they are put. The plaintiff also insists upon the similitude which it claims the evidence shows to exist between thifl and polished pl,ate-glass. The sinlilitude clause upon which the plaintiff relies, however, applies only to articles which are not enumerated in the tariff law. This article, by one name or the other, either as rough glass, or as a manufacture of glass, is enumerated in the tariff act, and thereforethe similitude clause does not npply. (After ruling upon various requests by both sides, the court proceeded:) Among the other requests asked by the plaintiff,is this: "To find that the goods are a 'manufacture of glass,' the jury must be yinced by aiair preponderance of proof that they are made in a shape for use as a finished product, wilhout being afterwal'ds material1y changed in form, and are not merely an unfinished product of Pllrtially manufacture'd plateglass, suitable only to be used in the nature of raw material. in a convenient form for finishing Into a complete article. The application of labor to an article, either by hand or by mechanism, does not make the article necessarily a manufactured article, within the meaning of that term as used in thetarHf A part of that proposition I have already charged you. The rest I now charge you; calling attention, however, to the phraseology, of the request. You must be, no doubt. cOlwinced l by a fair preponderance Qfproof, that the goods which are claimedto be manufactures are made in a ahape for use as a finished product, without being afterwards materially ohanged in form. But it is not a material changein form to cut, for instance, 30 yards of carpet off of a running piece of stair carpet; and it iii not a change in form to out 24 square feet of glass to be used for the lighting of a show window, 6 feet by 4, out of a sheet which may happen to contain 28 or 30 square feet. So, too, while in order to find that the goods are a manufacture of glass you are to, be satisfied that they are not merely an unfinished product of partially manufactured plate-glass, suitable only to be used in the nature of raw material, you are yet to give due heed to that word "only." If they subserve some other use than that which the plaintiff insists they subserve to-wit, raw material,-.-material partially advanced, which, by further steps, by further labor, becomes something else,-if, I say, they subserve some other or different use iIi commerce,-then you are entitled, so far as that branch of the case iii concerned, to find them a manufacture of glass. ' The jury rendered a vel:dict for the defendant.
PATUREL fl. ROBERTSON.
829
PATUREL
v.
ROBERTSON,
Collector.
(OwcuU Oourt. 8. D. New York. October 28, 1889.) L
India rubber bags or pouches, not inflated, Bnd used chiefly for making rubber balloons, are dutiable at 25 per cent. ad 'lJal.orem. under Schedule N of thE! tariff act of March 3.1883, (Tariff Index, 425,) as articles "composed of india rubber, not spe. cially enumerated or provided for. " 2. ButE....DuTIABLE CONDITION· . Duty is to be assessed upon iJp.ported articles in the state Or condition in which they ai'e when imported. . ,
CUSTOMS DUTIES-CLJJlSIFIOATION-INDIA RUBBER BAGS
At Law. Action to recover duties. . The plaintiff, in 188.5, imported into the port of New York certa1I1 goods, consisting of India rubber bags or pouches, upon which the defendant, then collector of the port of New, York, assessed a duty qf.35 per cent. ad valorem, as "toys," under Schedule N of the tariff act of March 3, 1883, (Tariff Index, 425.) The plaintiff duly protested against the assessment of duty at that rate, claiming the said articles were prop.. erly dutiable at 25 per cent. ad valorem, under another paragraph in the same schedule of said act, (Id. 454,) as "an article composed of India rubber, not specially enumerated or provided for," and duly appealed to the secretary of the treasury, who affinned the decision of the collector. The testimony tended to show that the goods in suit were composed ·of India, rUb.ber, and were bought and sold in the condition in whicp t11e)' werejulported; that they were generally sold by the importer to or dealers; that they were then inflated, by means of a machine, with a gas made from zinc and sulphuric acid, and after inflation the prEldomr :inating use was as a toy for children known as the "gas balloon.". The 'imported articles are occasionally soldtp colleges in tbis country;rottrying the depression of gas, and they are also used for advertising when inflated. They a1'e eheap,and of trifling value, and are imported in all <.lolors, to make them attractive to children; There is no substimce in the· merchandise but India rubber, except the dye to give it color, and. they are manufactured in France.' In the condition in which they are imported, they are not generally known as toys, but they aregenerally used and adapted for that purpose after inflation with gas. Hartleg & Colenw,n, for plaintiff. Edward MitcheU, U. S. Atty.., and !Ienry O. Platt, Asst. U. S. Atty.? .lor defendant.
4conE, J., (oraUy charging jury.) We are concemed to-day with two paragraphs of the tariff act. Paragraph 425 provides for a. On .toys of 35 per centUID ad valorem; and paragraph 454, for a duty on ticlel;l composed of India rubber, not lilecially enumerated or provided for ili fhe act, 25 per centum ad valorem. Of course, the different paragraph,S of these tariff acb are to be construed together, read with each other, and interpreted by tbe light WhiCh each clause throws on the other. When so read, it is found that in the case of articles such as these-,-ar-
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ticles composed" ofIndia rubber-congress has imposed a duty of 25 per t4at,if they are not necescentum ad valorem",bllt.ha,a saries, but simply 'playthings; such ainhe dolls and tOy8, intended for the amusement of children; then they,snuU pay ,at a higher rate, to-wit, 35 per centum ad valorem., " , ,',' ' , , " , ",', " composed, wh.ollyof India for you'ta the cbnditibn lnWhICh tney>are Imported by the plamtIff, ,for that IS the condition in which they are when they are called upon to pay duty, they 'at0 /dOl}$"oT'toys; In'detmrtlhing' tbatquestion, uIld.ei' the which you have, you are to take into consideration the predominant use to which they are put, and their to that uSrl evithe'way in which tbeyare han(}led,after .. ' , ' ," " ,. I 1.,J;., "I
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Qftloer. of,l!o!\ vrtt!1., tlle ballet-box, and' sUblltltutiilg another in its plaoe, or perpl.1ttmg it to be done t a fed1I ), , era!' supervis'ol','Whose cbaraeter'for 'teraoltY;was iniIieaohed,testitl.ed' tlilil:t tne bal"r J ; lpj;-q.ox dljJ,."jng. the dipnet, hourt:lvhiqh was, 'lie,Q.led by the , "Itwo superVisors of -election, ;ily the two olerks of electiojl, by The \' II eaiii& Witness :testifl.e'd','aria: 'llill'1\estimdn!ywiIl'corroborated; that at dinner-time 'he e, ,qut.',01,th,,!l "<lo,m, W"ller/t<. b,allPtcl)Qlt, waske, 1oA" i,'ustb!!,fore voting, w,$8 resumoo,he was caHed to the door of the room' that dUring, the dinner bourhe asked s'evaralof:defendants wanow him W look into tM'llel1JHvheretheballot:.box was placed by one of defendants on for dinn!'1:,bv.1;t1)at ,they refused. .' .f{eld',insu1liciellt to ,warrant c?n,'vie,tion.·, ' ," " j '... '!
On indictment of the officer and judges of election for violation of the electionlaws, in committing, or permitting to be committed, offenses prohibited by such laws, show when" how, or what precise manner or , the Pr:osecution is not requireq ri ;: alIegedioffellSeB were committed, but,onljr to, J:latisfY,the iUt'y;be10ild a that iIl,tact , ," .-J;;
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