·. :m BE .
sbUll.LIlfci·
. . . ·In reSCWLLINGetaL
rriIE' AMSTERDAM. (mrcuft Oourt, B. D. Net» l'or7c. December 8. CuJroxa Dt!'rJB8-CLA8snnCATION-"SWJIlBTIIDD CHOCOLATII." . .
.
"SweEltened chocolate" graph 819 ot the .tariff act of 1891>,
to duty ....manufactured 00008," un4er para-
At Law. Appeal by the collector of customs a(New York from the decision of the general appraieersoonceming certain merchandis, imported by Schilling, Stollwerck & Co. Reversed. Edward Mitchell, for collector. Curie, Smith. &; Mackie, for importers· .:4AOOMBJ1l, Circuit Judge. "Crude oocoa" is on the (ree-list. "Coooa manufacturad," which is. apparently a very oomprehensive term, is C()Jltainedin paragraph 819·. Cocoa, 8coording to the testimony, ill manufaptured into a substance known as "prepared oocoaj" also into a substance known as "chooolatej" and of chocolate we have information here of two varieties,...-chooolate oonfectionery and sweetened chocolate. As manufactured cocoa, all, these articles-prepared ooooa, chocolate and its. varieties-would be included in. the phrase" oocoa manufactured." "Cocoa prepared" is expressly provided for in paragraph 319. "ChoCQlate confectionery" is expre881y provided for in paragraph 238. "Chocolate" itself1 excepting the confectionery and the sweetened chocolate, is specially provided for in paragraph I find no provision in the tariff act fc;r "sweetened chocolate," except in a parenthetical phrase, where it is excepted in the enumeration of chocolatej and therefore I think it should be classified under" manufactured cocoa," as covered by paragraph 319. The decision of the board of general appraisers is therefore reversed, and the merchandise in this case should be classified by the coUeQtor u cocoaman.tured,(paragraph 819.) and duty imposed
accordinall·
FEDERAL ,REPORTER,
vol. 48.
ARt1ALJ, V. SEYMOUR BIERMAN · ',.' " , .' ... ,,' ..', . ' ·
et aI.
et al.
tI. SAME. . "', ,.', -: f "-:, \
(O£rcuit Oourt, S. D. Iowa, O. D. May, 1888.) 1.
a.' BA.id::m-INTIlllVlIlNING At Law. MCCRARY,
" a autb,orizes the mortgagee totlike possession lit lIl1y''time, " the fact that he does not record it for over 80 days, an\l allows the mortgagor to remain in possession for about 70 days, selling' from the stock in the usual course of business, does not avoid the mortgage as to prior existing creditors, in the absence .of4oIly,fraudulent int:el\.t·..··.. . 'Buta-sto,sprior creditor, whoex'tended the tUne of payment while the mortgage was unrecorded, the mQrt;gageis VOid, ' , CRlIlDITOlis.
FBAtlDULlIlNT CoNVlIlYAN01IlS CORDING. '.'
CHATTlIlL MORTGAGlIlS >
CUNGB Oll' POSSESSION -
RB-
Proceeding in garnishment.
J., (orally.) These cases are before me, having been subthe answeroNllEfgarhishee and other testimonytakehbpon the issue joined thereon, by stipulation of counsel jury being waived. Thep:tdcaeding is one Toy, as garnishee; and the 'Claim of the plaintiffs in the. several cases-I believe there are a numberof them, all to be determined by the ruling upon these two-is that Toy , as garnishee, is responsible to certain judgment creditors of,A . W. Seymout' 'for the value of the stock of goods which Mr, Toy,took under a chtlttel'mOrtgage, and 'caused to'be sold, receiving the proceeds:' Seymour,was a merchant in the town of Alta, in the nortMl'opart of this state, carrying on a retailestltblishment.· Being indeb'ted to Mr. Toy for mone;y'advatlcedby Toy:to him in order to enable him to pay eertaindebts'{he executed a chattel mdrtgage uponhis stock of goods. dated on"the30th of September, 1881'.·' It was not filed foFrecdrduntil tl?;e3d"ofNoveniber, 1881, a. period' of about 30 'fossession was' not' until the 12th 1881. Durii'ig!-fh'e"period from'tW; the of 'the hlortgageuntil the the mortgagor, SeymoUr, reIIlained in 'pos8essU;H:'6f1hestoCk.af.goods;iandcontihued' todem' Mth sales therefrom in the ordinary course of business. There ion in the mortgage authorizing him to retain possession and continue to make sales; but he did so, with the consent, undoubtedly, of the mortgagee, and that was the understanding and purpose, as clearly appeared in the proof. The claims of these plaintiffs, with one exception, to which I shall presently refer, all, so far as I am advised, antedated the execution of the mortgage. In other words, none of them, with the exception to be noted, contracted with the mortgagor after the execution of the mortgage and before its record. The rule laid down in the case of Robinson v. Elliott, 22 Wall. 523, is recognized as establishing this proposition: A mortgage of chattels, which provides that the mortgagor may retain possession of the property and continue to deal with it as his own by selling therefrom from time to time, is at least constructively fraudulent as to creditors, and therefore void. That case went no further than that. It held that, where d