IN RE CROWLY.
465
from the circumstances of the accident, and from the previous conduct of the winchman when the barrels were broken, either that he was inattentive and careless, or that he was inexperienced, or hard of hearing. The circumstance that the load of cargo by which the plaintiff was injured was lowered contrary to his signal did not necessarily require them to infer that the winchman was deaf or inexperienced. This may have happened as well in consequence of some casual inadvertence on his part,or by his pure negligence, or by some excusable mistake; and the fact that for an hour 01' more previously, while operating the winch, be had heard the signals given by the plaintiff, and had managed the winch properly, gave rise to a presumption of his competency which 'Was as cogent, if not more so, than any presumption against it arising from the fact· of the accident. But if thev believed that the winchman made the statement testified to by the we cannot say that, in conjunction with thil circumstances of the accident, and his previous <:loilduct with the winch when the barrels were broken, there was not something' more than a scintilla of evidence of his incompetency and sufficient to justify the judge in submitting the question to the jury. Railrotid Co. v. Stout, 17 Wall. 657. We regret that we have no power to review the decision of the court below in refusing to grant a new trial, based upon the grounds that the verdict was against the evidence, and was for damages., Persons v. Bedford, 3 Pet. 433, 446; Barredav. Silsbee, 21 How; 146. 167; Insurance Co. v. Folsom, 18 Wall. 237, 249: Railroad Co. v. Fraloff, 100 U. S. 24, 31. The judgment is affirmed.
In re
CROWLY.
(OtrcuU Court, S. D. New York. February 25,1892.) CuSTOMS DUTIES"";GoODS INVOICED AS ENTIRETIES-SEGREGATION.
Certain importations were entered at the port of New York in February and March 18111. cousiljting of goods invoiced as wool robes with silk embroii:ery, silk and metal embroidery, and silk and cotton embroidery, which were in fact combination dress patterns; composed of worsted material separated into two parts. one partoontaining,the embroidery and the other part being plain, the value of each robe, con· sisting of two pieces, as above, being stated on the invoice as an entirety, and the value of each robe being given in francs. Said merohandise was classified for duty by tb,e COllector as "manufactures of worsted embroidered." and duty assessed thereon, at the rate of 60 cents per pound and 60 per cent. ail valorem, under paragraph 898, Schedule K, and the prOViso 'coutainedin paragraph 373 of Schedule J of the tariff act of October 1, 1890. Pr()t,est by the importer, claiming, that, the merchandise was,dutiable under Schedule K, par. 895, of said tariff act; at the rate of 44 cents per pound and'l!O per cent. aavalorem. BeW, that the decision of the board.. of ,values of t\1e robes so as to assess the duty upon the emoroideredand plain partso! each robe separately, should be af· firmed, but'tbat the cduI't would 'not consider the question of the correotness of the general decisi()n all to the rate of duty imposed upon the inasmuch statement of error.s against the d'!cisionof the board of general appraisers had been filed in the olrctllt court by, the Importer. >
V.50F.no.6-30
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,·r;Applieationby thecollectoroHhe po1't of New York, visioms;bfsection 15 9f .the, act oCcongress entitled ClAn lloC,t tQ the daws in relation to the collection!pf the revenues," approved. June a of the board of general appraisers atthiSdp'ort, separating or segregatipg the values Jorduty pf certain merehandiseimported dudng the mopths of FebruafY aml March, 1891, and as entireties as wool robes with silk eOlbroidery, some with silk,and,metal:embroidery, and some with silk and; cotton embroidery, whieBgoods were classified by the epllector for duty as "manufactures of worsted'embroidered,60 /GO/'.. and duty assessed thereon at the rate of 60 cents ipound and GO per ad'IJalorem, under the provisions or8.chedule,K, par. 398"a:nd theprov:.iso contained in paragraph 373 of Bnhed'l'1le J oUhetadihct o,r ,October 1, 1890., Against this ficatiolil importer hadprotested,clllhning that the merchandise was dutiabltLl1&cler Schedule K, paragraph 395, of said tariff act, at the rateoL4hcents per pound and cent. ad valorem.. Testimony was by the .importer before the. board of appraisers, showing: thattha merchandise consisted .of robes 'ol'cqmbipation dress composed .Qfworsted goods em broidered with silk and other materials. ,as mentioneq,:in the invoicf'.s; that each robe ,consisted of about,itO m:etl:lrs, of material. separated. into two parts,-one part, of abotit'21Illeters,.beingembroidered, and the otliel' Part, of 8 meters, being plain, in the case of each of robes. It appeared, also, that for the purposes for which these goods were intended t,he parts could not be readily used or sold, one without the other, while the embroidered piece might be sold separately, as a piece of trimming, especially if the remainder of the robElhad beensp-oiled, although in that case it would be sold at a reduced value from the regular price. It was shown from the invoices offered in evidence that the articles were invoiced at a stated price in' francs fo\:l each robe, and that the parts were not divided, on the into plain and embroidered, but the robes were invoiced asetltireties.'Theboard of general appraisers overruled the protest that the, proviso in paragxaph S73 ,provided tha.t textile fabrics composed 'ofwool, when broidered by hand or be treated for dutiable purposes 'as if they were emhroideries of wool, under paragraph 398, The board furthel' held that the separated parts of the so-called robes should to the vahieslif'theembroidered alld plain were snbjeotto different:ra:tes of duty,and tne"llpprais.ers should )appraised· the value of the respective parts, by lll/W.sh0tlid p8;ve been imposed thereon. and orderedthat.tne· entries '!Jhou,ld .be sc('f,t}}iquidated. The importer took to qp-tirt. triat lnthecircuit court, it wllosargued in benal.foi,tbe. collectora.nd the ,government that as neiimporter nor.'tJ;le' collector .hluf. signified' dissatisfaction .with the appraisement oithe' merchandise as ·entireties according to the in-
1JmTED STATES tI.FORD·
.voices,l1nder section 13. of 'the act of Jl1ne 10, 1890, it was not within the power of .the board of general appraisers to order. a reappraisement of the merchandise, which would be necessary to determine the value of the separated parts, and that for the purpose of such reappraisement the board of general appraisers was only an appellate tribunal. It was further argued that the importer having filed in the circuit court nO statement of errors against the decision of the board of general appraisers, under section 15 of the above-mentioned act of June 10, 1890, the only matter before the circuit court was the determination of the question raised by the collector's appeal, which was only that the board erred in ordering the values of the separated parts of the robes to be segregated for the purposes of duty. Edward MitcheU, U. S. Atty., and Jama T. Van Ren8Belaer, Asst. U. S. Atty. Durie, Smith &: Mackie,. for importer. LACOMBE, Circuit Judge. The decision of the board of appraisers is affirmed, and the court declines to go into the question as to whether they correctly determined that the silk embroidery made the article upon which it was placed dutiable as if it had been embroidered in wool, for the reason that there has been no statement of any error of law or fact complained of, touching such decision, filed in this court, or any application for review thereof in that particular.
UNITED STATES tI. FORD. (Dtstrrct Oourt., E. D. Muaoun, E. D. L OLEOMARGARIn ACT-VIOLATION.
lIa1 8, 189l1.) ,
Act Congo Aug. 2, 1886, I 6, requires retail dealen to sell oleomargarlne 0111, from the original stamped packages, "and to pack it in suitable packages marked and branded lIB the commissioner of Internal revenue, with the approval of the secretary of the trellBury, shall prescribe," and imposes a specific penalty for its violation. .Held that, the required approval of the deparOOlent being merely as to the kind of marks to be used, an indictment may be had for neglect to oonform therewith. U. S. v. Eaton, 12 Bup. Ct.. Rep. 7tl4, distinguished.
.. 8.lJd'B-INDIOTJIIElilT.
In Indictments under section 6 for neglect to properly mark the package of 01.mar/{arine, the regulation covering marks and brands made by the OOmm1BSIOD01' of Internal revenue shOUld be pleaded in aUbstaIlco.
At Law. Prosecution of Anderson F. Ford for neglect to properly mark packages of oleomargarine. On demurrer to the indictment. Overruled. George D. Reynolds, U. S. Atty. D. P. Dyer, for defendant.
THAYER, Distrid Judge, (qrally.) In this CMe the indictment Is under the sixth section oftha oleomargarine act against Anderson F. Ford,. a retail in oleomargarine, for selling oleuwargarine iQ packages with..