OOHN"V. ERHARDT.
747
Glouton. French machines were already in use for the knitting of stock-' ing feet, and it does not appear that the operation of these machines is materially different in the manufacture of the feet and the legs of stockings. Glouton gives it as his opinion that a skillJul workman, (meaning doubtless a skillful knitter,) after a few weeks, could learn to run them. The workman Oliver, who was skilled in English machines, learned to run the Fn!11ch machine without instruction at Northampton. The defendant McCallum testifies that the French machines imported by his firm stood idle from March until Glouton came to operate them; that they were broken when they first came, and required to be put in order, and in the mean time the defendants were attempting to get men to run them. It appears that they advertised in newspapers published in those neighborhoods where knitting is done; that one of their workmen wrote to two relatives in Nebraska, who, as he supposed, could run the machines; and that they were not able to find any person competent' to do the work. It also appears that two of their workmen attempted, without success, to run the machines. On consideration of the whole evidence, I come to the conclusion that the detlmdants have not used such reaaonable efforts to run their rua(;hines as would have disclosed the Jiwt they must resort to foreign workmen; and that such reasonable efforts would have enabled them to discover or to train workmen competent to do the desired work. The defendants are therefore liable to the penalty of the statute.
CoHN
et al. v.
ERHARDT.
(C'/,rcuU Court. ,S. D. New York. December, 1800.) CusTOMS DuTIlls-CJ.A.SSIlI'ICATION-JAPAN:s'ED WARE.
Hooks and eyes manufactured of iron, and coated with a hard, brilliant, black varnish, known as "japan," are dutiable as "japanned ware," under Schedule N of the Tariff Act of March 3, 18ll3, and not as "manufactures of iron," under Schedule C of that act.
At TAW. Action to recover back customs duties alleged to have been illegally exacted by the defendant, collector of the port of New York. The merchandise involved in the present suit was imported by the plaintiffs from Europe in April and June, 1889, and was classified for duty by the defendant, collector, as "manufartures of iron," under Schedule C (Heyl, new, paragraph 216) of the Tariff Act of March 3, 1883. as follows: "216. Manutactures, articles, or wares not spepially enumerated or vided for in this act, composed wholly or in part of iron, steel, copper, lead, nickel, pewter, till, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly ruanulactured, forty-five per centum ad Against this classification the plaintiffs duly protested, claiming that the goods were dutiable under the provision of Schedule N (Heyl,
748
FEDERAL REPORTER,
vol. 44.
new, paragraph 457) of said tariff act as "japanned ware of all kinds, npt specially enumerated or provided for in this act, forty per centum ad wlorem." Upon appeal by the importers to the secretary of the treasury the latter official affirmed the decision of the collector. The uncontratradicted evidence produced by the plaintiffs upon the trial proved that the articles in question were hooks and eyes, manufactured of iron; that they had been coated with a black varnish, known as "Japan," composed of asphaltum, linseed oil, and turpentine, and baked in an oven at a temperature of from 250 to 300 degrees of heat; that this process was known in the trade as "japanning," and that plaintiff's' hooks and eyes were in fact "japanned." The defendant introduced the eVi.dence of witnesses from the" notions" and commission trade dealing in like hooks and eyes, and proved that such trade did not deal in "japanned ware," and did not know the term; that plaintiffs' articles were bought and sold as hooks and eyes, japanned hooks and eyes, or black hooks and eyes. The defendant also produced the evidence of extensive manufacturers of "japanned ware," who testified that what was known in their trade as" jar panned ware " consisted of a great variety of articles used almost entirely in house furnishing, such as tea-trays, toilet-sets, dust-pans, cash and tea boxes, bread and cake boxes, umbrella stands, tumbler drainers, pails of various sizes and descriptions, wash-stands, cuspidors, winecoolers)te!j. caddies, dressing-cases, coal-hods, shovels, and tongs,crumbpans and brushes, and numerous others; and that these witnesses did not peal in goods like plaintiffs' samples at the time of the passage of the tariff act of 1883. On cross-examination these witnesses admitted that there were numerous other artides of various kinds which were japanned, and which were not included in their list of "japanned ware." At the close of the testimony, plaintiff's' counsel moved the court to direct a verdict for the plaintifI's on the ground that the goods were, according to uncontradicted testimony, japanned, and that the words used by congress in the statute were not used in a commercial, but in a descriptive, sense, and that, consequently, the articles were dutiable under the tariff act as "japanned ware of all kinds." The counsel for the defendant movbd the court to direct' a verdict for the defendant, contending that plaintiffs' importations were never known in trade as " japanned ware;" that this term had a distinct commercial meaning in trade and in commerce at the time of t4e passage ofthe tariff' act, and that such commercial meaning covered only the class of goods enumerated "japanned ware" by defendant's witnesses, and known as such in the trade dealing in "japanned ware;" that oongress must be presumed to have legislated with reference to such trade meaning of the words "japanned ware;" and that such trade meaning must be adopted in construing the tariff act. Also that the provision in paragraph 216, "manufactures of iron," etc., was more specific than the provision of paragraph 457, for "japanned ware," since the testimony showed that certain wooden articles were sometimes japanned. Charles Owrie and JJm. Wickham Smith,. for plaintiffs. Edward MitcheU, U. S. Atty., and James T. Van RcnssclaertAsst. U. S. Mty., defendant.
· UNITED STATES V. BROOKS.
749
LACOMBE, Circuit Judge. The articles here enumerated are indisputably "japanned." As such they are within the phrase "japanned ware of all kinds" in the tariff act. To take them out of that clause, trade testimony is all that is relied upon. The extreme extent to which such testimony goes in this case is this: that in a branch of trade which deals in a very large number of articles, those articles which it deals in and which are japanned are called "japanned ware" to distinguish them apparently from the articles in which that trade deals which are not japanned. It appears, however, by the testimony of the same witnesses that there are a very great many other goods which are japanned in which they do not deal. What the particular trade that deals in those other goods calls them does not appear; but that they are "japanned ware," within the ordinary meaning of the term, is plain. It seems, then, that the trade testimony is not sufficient to show that, in the general trade and commerce of this country, the words "japanned ware" have received such an exclusive and peculiar trade meaning that they cover only the articles of tin-ware,or what not, that the witnesses here have told us that they dealt in, and do not cover the other articles of metal,'ofwood, etc., which, it appears, are dealt in in trade, and are japanned, and which .are, in the ordinary use of the English language, very plainly covered by the phraseology "japanned ware of all kinds." For that reason I deny the motion' of the defendant, and direct a verdict for the plaintiffs.
UNITED STATES 'V ·. BROOKS.
(D£strict Court, D. Washington, N. D. December 9, 1890.) {JRIMINAL LAW-BILL OF PARTICULARS-DISMISSAL-EMBEZZLEMENT.
An indictment cbarging .an ex-collector of customs with embezzlement being so indefinite that the Lvurt was unable to understand whether it involved but a single transaction or a series of peculatlOns, the court ordered that a bill of particulars be furnished, and continued the Cllese to allow time to it. At a subsequent term, upon the case being called for trial, the district attorney declared his inability to furnish the bill of particulars, and moved to discontinue the cause. Bela, that the statement of the district attorney was equivalent to an admission of a lack of evidence to sustain the charge, and, as the prosecution must faH, the motion was granted, notwithstanding the defendant's protest and demand for a jury trial. (Syllabus by the Court.)
On Indictment for Embezzlement. Patrick H. Winston, U. S. Atty. A. R. Coleman, for dt'fendant. HANFORD, J., (orally.) The defendant in this case was indicted by a grand jury in the district court of the third judicial district of Washington territory, holding terms at Port Townsend, for the crime of grand larceny, by embezzlement of funds belonging to the United States, alleged to have been received by him in his official capacity as collector ,of customs for the district of Puget sound.. The indictment alleges that