914
92 F.EDERAL REPORTER.
debts Is to be determined thereafter by tile court in which the bankrupt may be sued upon the debt, should' the bankrt1pt in that suit interpose the discharge as defense. Inre Elliott, 2N. B. R. 110, Fed, Cas. Ko. 4,391; In re Rathbone, 1 N. B. R. 324,2 Ben. 138, Fed. Cas. No. 11,580; In re Rosenfield, 1 N. B. R. 575, Fed. Cas. No. 12,058; In re Wright, 2 N. B. It. 41, Cas. No. 18,070; In re Stokes, 2 N. B. It. 212, Fed. Cas. No. 13,476; In re 2 N. B. R. 298, Fed. Cas. No. 14,124; Chapman v. Forsyth, 2 How. 202."
As to the other grounds attempted to be specified herein, the specifications do not state grounds here available, under the condition of the estate. As before stated, abundant opportunity has been given for examination of the bankrupt at the first meeting of creditors, and the time fixed for filing appearance in opposition to discharge. The creditor did not avail herself of these, and no facts are specified which will justify refusal of discharge, under the statute. Therefore the objections to discharge, as specified, must be overruled, and discharge granted. UNITED STATES v. H. B. CLAFLIN (Circuit Court of Appeals, Second Circuit. No. 49. CUSTOMS DUTIES-SILK FABRICs-INTERPRETATION OF STATUTE.
co.
)larch 1, 1899.)
Tariff Act July 24, 1897, par. 387, reads: "·Woven fabrics in the piece ... ... ... weighing not less than 1% ounces per square yard and not more than eight ounces per square yard, and containing not more than 20 per cent. in weight of silk, if in the gum, 50 cents per pound, and if dyed in the piece, 60 cents per pound; if containing more than 20 per cent. and not more than 30 per cent. in weight of silk, if In the gum, 65 cents per pound, and if dyed in the piece, 80 cents per pound; if containing more than 30 per cent. and not more than 45 per cent. in weight of silk, if in the gum, 90 cents pel' pound, and if dyed in the piece, $1.10 per pound: if dyed in the thread or yarn and containing not more than 30 per cent. in weight of silk, if black ... * *,75 cents pel' pound, and if other than black, 00 cents per pound; if containing more than 30 and not more than 45 per cent. in weight of silk, if black ... * *, $1.10 per pound, and if other than black, $1.30 per pound; if containing more than 45 per cent. in weight Qf silk, or if composed Wholly of silk, if dyed in t):J.e thread or yarn and weighted in the dyeing so as to exceed the original weight of the raw silk, if blacl;: * *, $1.50 per pound, and if other than black, $2.25 per pound; if dyed in the thread or )-arn, and the weight is not increased by dyeing beyond the original 'Yeight of the raw silk, $3.00 per pound; if in the" gum, $2.50 per pou"i:ld; if boiled 6ff, or dyed in the piece, or printed, $3.00 per pound; if weighing less than 1% ounces and more than % of an ounCe'per square yard, if in the gum, or if dyed in the thread or yarn, $2.50 'per pound; if weighing ounces and more than % of an ounce per square yard, if boiled off, $3.00 per pound, if dyed or printed in the piece, $3,25 pet: pound; if weighing not more than !AI of an ounce per s'quare yard, $4.50 per pound." Held, that the lastnamed percentage of the silk per yard (more than 45· per cent.) was to be carried forward, and applied to the subdiVision relative to fabrics weighing Jess than 1% ounces and more than % ofan ounce per yard, and that where the weight of the fabrics was not lllo're than % of an ounce per yard.
Aweal from the Circuit Court of the United States for the Southern District of New York.
UNITED STATES V. H. B. CLAFLIN CO.
915
This cause comes here upon an appeal from a decision of the circuit court, Southern district of New York, reversing a decision of the board of general appraisers which affirmed a decision of the collector of the port of ='I"ew York touching the classification for dut,r of certain importations under the tariff act of JuI,r 24, 1897. Frank Lloyd, for the United States. Everit Brown, for appellee. WALLACE, LACOMBE, and SHIPMA='I", Circuit Judges. LACOMBE, Circuit Judge. The merchandise in question consists of certain woven fabrics known as "silk mull" and "tinsel gauze," composed in ehief value of silk, but in part of other materials; said fabric weighing over;} of an ounce and under 1} ounces per square yard, and containing less than 20 per cent. in weight of silk. There is no dispute that unless it is induded within the provisions of paragraph 387, under which the collector elassified it, the merchandise is dutiable under paragraph 391: "All manufactures of silk, or of which silk is a component material of chief value .. .. .. not specially provided for in this act .. .. .. fifty per centum ad valorem." Paragraph 387 reads as follows: "887. 'Woven fahrics in the piece, not speeially provi!l('{l for in this act, weighing not less than one and one-third ounces per square yard and not more than eight ounces per square yard, and containing not more than twenty per centum in weight of silk, if in the gum, fifty cents per pound, and if dyed in the piece, sixty cents per pound; if containing more than twenty per eentum and not mOl'e than thirty per centum in weight of silk, if in the gum. sixty-five eents per pound, and if dyed in the piece, eighty cents pel' pound; if containing more than thirty pel' centum and not more than forty-five pel' centum in weight of silk, if in the gum, ninety cents per pound, and if dyed in the piece, one dollar and ten cents pel' pound; if dyed in the thread or yarn and containing not more than thirty pel' centum in weight of silk, if black (except selvedges), seventy-five cents pel' pound, and if other than black, ninety cents per pound; if containing more than thirty and not more than forty-five per centum in weight of silk, if black (except selvedges), one dollar and ten cents per pound, and if other than black, one dollar and thirty cents per pound; if containing more than forty-five per centum in weight of silk, or if composed wholly of silk, if dyed in the thread or ;yarn and weighted in the dyeing so as to exceed the original weight of the raw silk, if black (except selvedges), one dollar and fift;y cents per pound, and if other than black, two dollars and twenty-five cents per pound; if dyed in the thread or yarn, and the weight is not increased by dyeing beyond the original weight of the raw silk, three dollars per pound; if in the gum, two dollars and fifty cents pel' pound; if boiled off, or dyed in the piece, or printed, three d01lars pel' pound; if weighing less than one and one-third ounces and more than one-third of an ounce per square yard, if in the gum, 01' if dyed in the thread or yal'll, two and one-half dollars per pound; if weighing less than one and one-third ounces and more than one-third of an ounee per square yard, if boiled off, three dollars per pound; if dyed 01' printed in the piece, three dollars and twenty-five cents per pound; if weighing not more than one-third of an ounce per square yard, four dollars and fifty cents per pound; but in no case shall any of the foregoing fabrics in this paragraph pay a less rate of duty than fifty per centum ad valorem."
This curious illustration of the confusion which may result from undertaking to build up sentences of such inordinate iength is susceptible of two constructions. The board of appraisers held that there are three subdivisions of it, in the first of which varying per-
'92FEDlmAL REPORTER.
centageso.f silk in the fabric are covered by varying rates of duty, and in the second and third of which no such variances are provided for. The board paraphrases the section as follows:.
First Subdivision. Fabrics 'Weighing not Less than 111::1 and not More than 8 Ounces, Per Square Yard. And containing not lUore than 20% in weight of silk, if in the gUill, per lb , , .. '" ..·....·......··.......·.· $ 50 If dyed in the ·piece, per lb " " . . .. .. . . . . . 60 If containing over and not o,er 30% in weight of silk, if in the gum, per lb............................................................ 6ri If dyed in the piece, per ib :. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . 80 If containing more than 30% and not more than 45% in weight of silk, if in the gum, pel' ill. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 90 If dyed in the piece, per lb " .. " " '" 1 10 If containing not more than 30% in weight of silk, in the thread or yarn, if black (except selvedges), per lb ...·................. '" .. .. · 75 If other colors, per lb " , .. . . .. . . .. .. . . . . .. . .. .. . . .. .. . . . . . 90 If containing more than and !lot more than 45% in weight of silk, dyed in the thread 01' yarn, if lliaek (selvedges exeC'pted), pel' lb. . . .. . 1 10 If other than black, per lb , , . . . . . . . . . . . . .. 1 30 If containing more than 45% in weight of sm:. if dyed in the thread or yarn, and weighted ill dyeing so as to exceed the weight of the raw silk, if black (selvedges excepted), per lb ..........·............ , 1 50 If other than lliack, per lb " , 2 25 Same, if dyed in the thread or yarn, and weighted in dyeing so as not to exceed the weight of the raw silk, per lb. .. .. .. .. .. .. .. .... ... .. ... 3 00 If in the gU1ll, per lb " . . .. . . .. .. . . .. .. . . .. .. .. . .. 2 50 If boiled off or dyed in the piece, or printed, per lb. . . . . . . . . . . . . . . . . . .· :3 00 Second Subdivision. 11:\ of an Ounce Per Square Yard. If in the gum, or ;if dyed in the thread or yarn, per lb 50 If boiled off, per lb , . . . . . . . . . .. ;; 00 If dyed or printed in the piece, per Ill ....··.......·...·.....·..... '" 3 25
If Weighing Less. than 11/ Ounces and More than 0
Third SUbdivision. If weighing not mo·re than
$4 50 Provided, that in no case shall any of the foregoing fabrics in this paragraph pay a less rate of. duty than 50% .ad valorem.
1Js of an ounce, per square yard, per lb
No reason is assigned for accepting this interpretation. If this was what the draftsman had in mind, he would have expressed his idea with a better conception of English grammar by breaking his overgrown sentence into three. But neither mere awkwardness of expression nOr imperfect punctuation are of much weight in the construction of tariff .acts. The importer contends that, since various qualifications of the fabrics in question appear in the paragraph, the logical way of readdown .ea-chqualification until a Mw one of the same ing it is to' kind is speCified. .And, in snpportof this contention, attention is called to the circumstance that the government concedes "that the specification as to weight mentioned at the beginning, namely, between Ii and 8 ounces per square yard, affec1ts all the paragraph until a new weight per' square yard is mentioned, and that· this, in turn, affects succeeding clauses until the third and lowest weight
917
per square yard is mentioned." It is also "concededly true that the first percentage in weight of silk, namely, under 20%, affects each succeeding clause until a new percentage in silk is mentioned, and that in turn until a new one is specified,and so on down to the point in dispute." The importer contends with much force that the "same system prevails throughout the paragraph," and submits a paraphrase or tabulation as follows: 'Voven Fabrics in the Piece, N. S. P. F. Weight Per Sq. Yd. IVa to 8 oz. do. do. do. do. do. do. do. do. do. do. do. do. do. do. Va to H;{ oz. do. do. Under Va oz.
I
Percentage of . Silk by Weight. Under 20% do. 20% to 30% do. 30% to 45'10 do. Under 30% do. 30% to 45% do. Over 45% do. do. do. do. do. do. do. do.
Condition.
Duty Per Lb. $
In the gum. Piece dyed. In the gum. Piece dyed. In the gum. Piece dyed. Yarn dyed, black. do. not black. do. black. do. not black. Yarn dyed, weighted, black. Yarn dyed, weighted, not black. Yarn dyed, not weighted. In the gum. Boiled off, or piece dyed, or printed. In the gum or yarn dyed. Boiled off. Piece dyed or printed. All.
50 60
110 90 1 10 13O 15O 2 25 3 00 2 50 300 2 50 3 00 3 25 4. 50 7fj
65 80 90
Provided, that none of the foregoing shall pay less than 50% ad val.
lIanifestly, the paragraph is susceptible of this construction, and we are inclined to accept it as the true one. It harmonizes better with all earlier tariff acts, in making the percentage of silk in the article an important factor in determining the duty on all fabrics of the kind covered by the paragraph, instead of malting the mere weight of the article per square yard of mixed goods the controlling criterion. It will be observed, also, that before we proceed very far in the paragraph the percentage of silk changes from "under 20%" to between '(20)£ and 30,%'," and so on; and nowhere subsequently in the paragraph is there any return, in words, to a percentage "under 20,%." Therefore, when the first-named characteristic (as to weight) is carried forward through the first part of the paragr'aI)h, it is coupled with a constantly changing percentage of silk; and when the weight changes it must either carry forward with it the lastnamed percentage, as the importers construe the paragraph, or else must part company with such last-named percentage, as the board of appraisers construe it. The ditTieulty with this latter construction. however, is that in dropping the percentage we drop the silk; and
918
92 'FllltrERAL REPORTER.
we have the result indicated in the para.phrase adopted by the board,. viz. that the second subdivision proviaes for "fa.brics weighing less than Ii ounces and more than i of nn ounce, per square yard," but does not indicate of what materials such fabrics are composed. And the third subdivision indicates a like' result. Of the two suggested interpretations, therefore, we are in.clined to accept the one presented by the importer. The decision of the circuit court is affirmed.
ERHARDT v. WINTER
(Circuit Court of Appeals, Second Circuit.
1, 1899.)
No. 123. CueTOMs DUTIES-VOLUNTARY PAYME:<1T.
'Where an importer pays the duty estimated by the collector on several packages of merchandise, and receives all but one of the packages, which is sent to the public stores for examination, and executes the usual bond for return thereof if required, payment of the additional duty on all the packages as returned by the appraiser, without which, or a deposit thereof, the importer could not, under treasury regulations of 1884 (article 358), obtain possession of the examined package, is not voluntary.
In Error to the Circuit Court of the United States for the Southern District of New York. Jas. T. Van Rensselaer, Asst. U. S. Dist. Atty., for plaintiff in error. VV. Wickham Smith, for defendant in error. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. PER CURIAM. This is a writ of error to review a judgment of the circuit court for the Southern district of New York in an action at law against the cpllector pf the port of New York, which was entered upon a verdict rendered for the plaintiff by direction of the trial judge. It is conceded that the plaintiff entered at the port of New York, on May 2, 1889,certain merchandise contained in six cases; that the defendant, as collector of the port of New York, estimated the duties upon the merchandise contained in these cases, and such estimated duties were paid by the importer at the time of making the entry; that case NO.6-one of the cases of merchandisewas designated and sent for examination to the public stores on or' about the date of the entry, and all the other five cases of merchandise were thereupon delivered to the importer before the payment of any additional duty thereon, the importer executing the usual "ten-day bond"; that the appraiser of the port appraised and returned the goods as flax and jute, at 40 per cent. ad valorem, and returned the invoice to the collector on May 8, 1889; that the entry was liquidated on May 16, 1889, and was subsequently reliquidated on May 21, 1889; thatthe amount of increased duty was the sum of $77.25, and this increased duty was paid by the importer May 22, 1889. The importer received from the government, on "Ma;y 23, 1889, the case' No.6, which had been sent to the public stores for examination.,