[403] [404] "other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured," or if "incumbered by any lien, whether by deed of trust, mortgage or otherwise," to be so represented by the assured and so expressed in the policy, is to ascertain whether his interest comes within either of these two descriptions, and not to call for information as to the nature or amount of any incumbrances. It is therefore fully satisfied by the statements in the application that there is an incumbrance on the property, and what the amount of mortgage is, and by the expression in the policy making the insurance payWilliams v. Roger Willable to a mortgagee. iams Ins. Co. 107 Mass. 377. By the terms of this policy, and of the application made part thereof, the answers to the questions in the application are doubtless warranties, to be strictly complied with. But this court is unanimously of opinion that, so far as regards either of the matters presented for its decision in the present case, these answers are direct, full and true. The only questions put as to incumbrances Is there any inare, first, the general one, cumbrance on the property?" which is truly answered, "Yes;" and, second, the particular one, "If mortgaged, state the amount," in an swer to which the assured states the principal sum due on the mortgage. The effect of omitting to include the additional sum due for less than half a year's interest is not presented by the certificate of division. The insurers having put no question as to the nature or the amount of incumbrances, otherwise than by mortgage, cannot object that no information was given upon that subject. Phanix L. Ins. Co. v. Raddin, 120 U. S. 183 [30:644]. There was, therefore, no breach of warranty in not disclosing the lien for unpaid taxes, independently of the question whether such a lien was an incumbrance, within the meaning of this contract; and this case does not require a decision of that question. As to smoking, the only question put in the application, and answered in the negative, is whether smoking is "allowed on the premises"-which looks only to the rule established upon the subject at the time of the application, and not to the question whether that rule may be kept or broken in the future. This appears by the language of the question, as well as by the circumstance that it is not, as other interrogatories as to existing precautions against fire are, followed up by compelling the assured to agree that they will continue to observe the same precautions. The jury having found that the assured forbade smoking in the mill, the mere fact that other persons, or even one of the assured, did afterwards smoke there, was not sufficient to avoid the policy. The two cases cited by the defendants from the Illinois Reports contain no adjudication to the contrary. The point decided in each was that smoking by workmen in the mill did not avoid the policy, and the remark of the judge delivering the opinion, that in such a case the assured undertakes that he will not himself do the act, was obiter dictum. Ins. Co. of North America v. McDowell, 50 ml. 120, 131; Aurora F. Ins. Co. v. Eddy, 55 Ill. 213, 219. Judgment reversed, and case remanded to the Circuit Court, with directions to render judg ment for the plaintiffs upon the special verdict. JAMES W. HOSFORD ET AL., Piffs. in [404] Err.. v. HARTFORD FIRE INSURANCE COM- (See S. C. Reporter's ed. 404-405.) Warranty in policy as to incumbrances 1. Where an application for a policy of fire insur"Is there a mortgage, trust deed, lien or incumance contains the following questions and answers: brance of any kind on the property? Yes. "Amount, and in whose favor? $3,000; and the applicant covenants that the foregoing "is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value, ownership, title, incumbrance of all kinds," of the property to be insured.-Held, that this warranty concerning incumbrances includes only incumbrances created by the act or with the consent of the assured, and not those created by law. 2. Therefore the policy was not avoided by the omission to disclose the fact that delinquent taxes on the premises for previous years were due and unpaid, although, by the statutes of the State, taxes are made a lien on the real estate taxed. [No. 264.] Argued April 26, 27, 1888. Decided May 14, 1888. IN ERROR to the Circuit Court of the United States for the District of Nebraska. On certificate of division in opinion, to review a judgment for the defendant in an action on a policy of fire insurance. Reversed. Statement by Mr. Justice Gray: This case was tried, argued and decided at the same time with, and was substantially like, that of Hosford v. Germania Ins. Co. supra, except that no question as to smoking on the premises was presented, that the policy itself contained no provision on the subject of incumbrances, and that so much of the application as related to that subject was in this form: "13. Incumbrance.-Is there a mortgage, trust deed, lien, or incumbrance of any kind, on property? Yes. Amount, and in whose favor? $3,000; I. May. What is the entire value of property incumbered? $21,000." "And the said applicant hereby covenants [405] and agrees to and with said Company that the foregoing and diagram annexed hereto is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value, ownership, title, incumbrance of all kinds, insurance and hazard of the property to be insured; and the same is hereby made a condition of the insurance, a part of the contract and a continuing warranty on the part of assured, for term of policy, or any renewal thereof, of which this survey and application form a part." Messrs. T. M. Marquett and Isham (No counsel appeared for defendant in error.) [45] Mr. Justice Gray delivered the opinion of the court: In this case, I am instructed by the majority of the court to announce its opinion that the warranty concerning incumbrances includes only incumbrances created by the act or with the consent of the assured, and not those created by the law; and therefore the policy was not avoided by the omission to disclose the fact that "delinquent taxes" on the premises for previous years were due and unpaid, although by the statutes of Nebraska taxes are made a lien on the real estate taxed. Judgment reversed, and case remanded to the Circuit Court, with directions to render judgment for the plaintiffs upon the special verdict. Mr. Justice Blatchford delivered the opinion of the court: This is an action at law, brought in the Supreme Court of the State of New York, by Almira R. Clare, as administratrix of the estate of Charles C.Clare, deceased, against the Prov idence and Stonington Steamship Company, a Rhode Island corporation, to recover the sum of $5,000, with interest from June 11, 1880, as statutory damages for the death of Charles C. Clare. The plaintiff is.his widow, and he left four minor children, his heirs at law and next of kin. The complaint alleges that the defendant was the owner of two steamboats, The Narragansett and The Stonington, running between Stonington, Connecticut, and New York City; that, on or about the 11th of June, 1880, the defendant received Clare on The Narragansett for the purpose of conveying him therein as a passenger from New York City to Stonington, for a reasonable compensation paid to it by Clare; that The Narragansett, under the management ALMIRA R. CLARE, Admrx. of CHARLES and direction of the defendant, having Clare on C. CLARE, Deceased. (See 8. C. Reporter's ed. 45-50.) Action for death from negligence-facts-question for jury. 1. In an action to recover damages for the death of plaintiff's intestate from the negligence of defendant, resulting from the collision of two vessels of defendant, upon one of which the deceased was alleged to have been a passenger-Held, there being no evidence to sustain the allegation of the complaint that the intestate was drowned as a consequence of the collision, or as to what caused his death, the question as to whether deceased lost his life in consequence of the collision was at least one for the jury; and that the evidence was not sufficient to warrant, the direction of a verdict for the plaintiff on that point. board as a passenger, and proceeding through the waters of Long Island Sound, met The Stonington proceeding on her way to New York City; that, by the negligence of the defendant, the two vessels came into collision, whereby The Narragansett was so injured that fire immediately broke out on her, and she sank within on his part, was drowned; that the collision oca few moments, and Clare without any neglect curred either in the State of New York or in the State of Connecticut; that section 9, of chapter 6, title 19, of the Laws of 1875 of the State of Connecticut, provides that all damages resulting in death, recovered in an action brought by an executor or administrator, shall inure to the benefit of the husband or widow and heirs of the deceased person; and that section 1, chapter 78, of the Laws of 1877 of the State of Connecticut, provides that, in all actions by an executor or administrator, for injuries resulting in death from negligence, such executor or adfault for such injuries just damages, not exministrator may recover from the party legally to review a judgment by direction of the court, ceeding $5,000, to be distributed as provided in for the plaintiff, in an action to recover dam-section 9 of chapter 6, title 19, of the Laws of ages for the death of plaintiff's intestate. Re-1875, but such action must be brought within versed. one year from the neglect complained of. This suit was brought within the year. [No. 265.] Argued April 26, 1888. Decided May 14, 1888. to biciet of New York, ERROR to the Circuit Court of the United Reported below in 22 Blatchf. 195, 20 Fed. Rep. 535. The facts are stated by the court. Mr. Wheeler H. Peckham, for plaintiff in error: The court erred in directing a verdict for plaintiff below, and in refusing to allow defendant below to go to the jury. McGrath v. Hudson River R. R. Co. 32 Barb. 147; Ernst v. Hudson River R. R. Co. 35 N. Y. 26; Colegrove v. New York & N. H. R. R. Co. 20 N. Y. 493; Metropolitan R. Co. v. Jackson, L. R. 3 App. Cas. 193; Hart v. Hudson River Bridge Co. 80 N. Y. 622; Justice v. Lang, 52 N. Y. 323; Powell v. Powell, 71 N. Y. 71. The unimpeached testimony of an interested witness presents a question for the jury, and the court is not warranted in directing a verdict upon his testimony alone. Gildersleeve v. Landon, 73 N. Y. 609; Kavanagh v. Wilson, 70 N. Y. 177. (No counsel appeared for defendant in error.) By the Code of Civil Procedure of the State of New York, section 1902, it is provided as follows: "The executor or administrator of a decedent, who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued." It is provided by section 1904 that in the case of a trial by jury, "the damages awarded to the plaintiff may be such a sum, not exceeding five thousand dollars, as the jury * * * deems to be a fair and just compensation for the pecuniary injuries, resulting from the decedent's death, to the person or persons for whose benefit the action is brought;" and that, "when final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded interest [46] [47] [48] [49] thereupon from the decedent's death, and in- The action was removed by the defendant into the Circuit Court of the United States for the Southern District of New York, on the ground that the plaintiff was a citizen of New Jersey, and the defendant a citizen of Rhode Island. The answer, put in the circuit court, contains a denial in the prescribed form, covering the allegation of the complaint that the defendant received Clare on The Narragansett for the purpose of conveying him therein as a passenger from New York City to Stonington, for a reasonable compensation paid to it by Clare. It also denies the negligence alleged, and denies all liability to the plaintiff. It also sets up, that it had, by proper proceedings in the District Court of the United States for the Southern District of New York, taken the benefit of the Statute of the United States for the limitation of the liability of ship owners, in respect to The Narragansett, by a transfer of its interest in her to a trustee appointed by that court. Charles, by a ferryboat to New York, to take At the trial before a jury a verdict was, by that there was no evidence that the intestate There has been no appearance or argument or At the trial the plaintiff called as witnesses the sion. The only evidence of the death of the [50] ("Arthur v. Vietor.") his life in consequence of the collision was, at | thur, 95 U. S. 144 (24: 420); Bend v. Hoyt, (38 least, one for the jury, and the evidence was not sufficient to warrant the direction of a verdict for the plaintiff on that point. We express no opinion on the question of negligence in the navigation of The Stonington, contributing to the collision, or on the question of her rate of speed in the fog. Different testimony on these questions may be given on a new trial, from that which was given on the trial now under review. Nor do we express any opinion on the question of the sufficiency of the evidence to show, as alleged in the complaint, that the intestate was a pas senger on The Narragansett, for a reasonable compensation paid by him to the defendant. The judgment of the Circuit Court is reversed, and the case is remanded to that court with a direction to award a new trial. [572] CHARLES E. MILLER ET AL., Exrs. of CHESTER A. ARTHUR, Late Collector of the PORT OF NEW YORK, Piffs. in Err., v. FREDERICK VIETOR ET AL. U. S. 13 Pet. 263 (10: 154); U. S. v. Ullman, 4 Ben. 547; Arthur v. Morrison, 96 U. S. 108 (24: 764); Arthur v. Lahey, Id. 112 (24: 766); Arthur v. Unkart, Id. 118 (24: 768); Arthur v. Zimmerman, Id. 124 (24: 770); Arthur v. Stephani, Id. 125 (24: 771); Arthur v. Davies, Id. 135 (24: 810;) Arthur v. Rheims, Id. 143 (24: 813). Mr. Justice Blatchford delivered the opinion of the court: This is an action at law, commenced in the Superior Court of the City of New York, by Frederick Vietor, George F. Vietor, Carl Vietor, Thomas Vietor, Jr., and Fritz Achelis, against Chester A. Arthur, Collector of the Port of New York, to recover an alleged excess of duties paid under protest on goods entered at the custom house in New York, from April, 1873, to November, 1873, prior to the enactment of the Revised Statutes. The goods were hosiery. The appraiser returned the hosiery in some cases as "knit goods, wool hosiery, over 80, 50, 35, less 10 per cent;" in other cases as "worsted knit goods,' etc. The collector liquidated the duties on the hosiery at the rate of 35 per cent ad val (See S. C. “Arthur v. Victor," Reporter's ed. 572-orem and 50 cents a pound, less a deduction of 578.) 10 per cent. The plaintiffs protested in writing against the liquidation, "because said mer Duties on wool-construction of Act-stock-chandise, being merino hosiery, and similar arings judgment partly wrong. 1. Section 2 of the Act of 1867, which prescribes a duty on "all manufactures of wool of every description, made wholly or in part of wool, not herein otherwise provided for," covers stockings composed of wool and cotton. 2. The words "not herein otherwise provided for," in an Act providing for customs duties, mean not otherwise provided for in the Act of which they are a part. 3. The stockings for which the duty was paid in this case, being manufactures made in part of wool, and dutiable as such by the Act of 1867, were liable to the duty imposed by section 2 of that Act, and were not otherwise provided for in that Act. 4. Where the verdict as directed, and the judgment thereon, are wrong as to part of the goods, judgment will be reversed and a new trial granted. [No 268.] Argued May 2, 3, 1888. Decided May 14, 1888. Court of the United IN ERROR to the Circuit District of New York, to review a judgment for the plaintiffs, in an action to recover an alleged excess of duties. Reversed. Reported below in 22 Blatchf. 39. The facts are stated in the opinion. Mr. G. A. Jenks, Solicitor-Gen., for plaintiffs in error. Mr. Stephen G. Clarke, for defendants in error: When Congress has described an article so as to identify it by a given designation for revenue purposes, and this has been so long continued as to impress on it a particular designation as an article of import, then it must be treated as a distinct article, whether there be evidence that it is so known in commerce or not. De Forest v. Lawrence, 54 U. S. 13 How. 274, 282 (14: 143, 146); Homer v. Austin, 68 U. S. 1 Wall. 486 (17: 688); Reiche v. Smythe, 80 U. S. 18 Wall. 162 (20: 566); Morius v. Ar [573] ticles made on frames, not otherwise provided [574] for, is only liable to duty under the 22d section of the Tariff Act of March 2, 1861, and the 13th section of the Tariff Act of July 16, 1862, at the rate of 35 per centum ad valorem, less 10 per cent under the 2d section of the Act of June 6, 1872, as manufactures wholly or in part of wool, or hair of the alpaca, goat, or other like animal." All of the goods involved contained from 10 to 20 per cent of either wool or worsted, the other component material being cotton. The wool or worsted formed an appreciable portion of the value of the goods. There is nothing in the case to show the value of, or the amount of duties assessed on, the wool and cotton goods, as distinguished from the worsted and cotton goods. show that the articles imported by them, gim The plaintiffs offered evidence tending to The ilar to samples introduced by them in evidence, were stockings, were worn by men, women, and children, and were made on frames. plaintiffs claimed that the goods were dutiable under section 22 of the Act of March 2, 1861, chap. 68, 12 Stat. at L. 191, under a provision imposing a duty of 30 per cent on "caps, gloves, leggins, mits, socks, stockings, wove shirts and drawers, and all similar ar ticles made on frames, of whatever material composed, worn by men, women, or children, and not otherwise provided for;" and section 13 of the Act of July 14, 1862, chap. 163, 12 Stat. at L. 556, which imposed, from and after the 1st of August, 1862, an additional duty of 5 per cent ad valorem on "caps, gloves, leggins, mits, socks, stockings, wove shirts and draw. ers, and all similar articles made on frames, of whatever material composed, worn by men, women, and children, and not otherwise provided for;" and the provision of section 2 of 75] [576] the Act of June 6, 1872, chap. 315, 17 Stat. at L. 231, which enacts that after the first of August, 1872, in lieu of the duties imposed by law upon the articles enumerated in that section, there should be paid 90 per cent of the several rates of duty then imposed by law upon such articles severally, "it being the intent of this section to reduce existing duties on said articles ten per centum of such duties, that is to say: *** On all wools, hair of the alpaca, goat, and other animals, and all manufactures wholly or in part of wool or hair of the alpaca, and other like animals, except as hereinafter provided." The duties levied by the collector, and claimed by the defendant at the trial to have been the proper rate of duty, were assessed under section 2 of the Act of March 2, 1867, chap. 197, 14 Stat. at L. 561, which imposed the following duties: "On woolen cloths, woolen shawls, and all manufactures of wool of every description made wholly or in part of wool, not herein otherwise provided for, fifty cents per pound, and, in addition thereto, thirty-five per centum ad valorem. On flannels, blankets, hats of wool, knit goods, balmorals, woolen and worsted yarns, and all manufactures of every description composed wholly or in part of worsted, the hair of the alpaca, goat, or other like animals, except such as are composed in part of wool, not otherwise provided for, valued at not exceeding forty cents per pound, twenty cents per pound; valued at above forty cents per pound and not exceeding sixty cents per pound, thirty cents per pound; valued at above sixty cents per pound and not exceeding eighty cents per pound, forty cents per pound; valued at above eighty cents per pound, fifty cents per pound; and, in addition thereto, upon all the above named articles, thirty-five per centum ad valorem." At the trial, after the plaintiffs had rested, the defendant offered evidence tending to show that knit goods are textile fabrics composed of a single thread united in a series of loops, corresponding to the old-fashioned hand-knitting process, and that the plaintiffs' importations were so made; and, further, that all fabrics made on frames are knit goods. The defendant then rested. The plaintiffs then offered evidence tending to show that the term "knit goods" used in trade and commerce has no different or other meaning than its meaning among men in general; that there are knit goods known to trade and commerce which were not made on frames, but which were made by hand, and that there are other goods, as caps, gloves, leggins, mits, socks, stockings, and drawers, made in whole or in part of worsted, worn by men, women, and children, which are made on a frame and knit, and which are also knit by hand; that, while the result of knitting by hand, and of the manufacture on a frame of a fabric consisting of a single thread, is the production of a textile fabric composed of a series of connecting loops which are alike in each case, yet the processes by which they are produced are dissimilar; that the result of the process of manufacturing upon frames and knitting by hand is the same, although the two processes are dissimilar; also, that there are no textile fabrics made on frames which are known in trade and commerce, except fabrics com posed of cotton, wool or worsted, silk, linen, or a mixture of these materials. Both parties then rested. The plaintiffs then moved the court to direct the jury to find a verdict in their favor, which motion was granted. To such ruling the defendant excepted. The jury found a verdict for the plaintiffs. The amount was, by agreement of the parties, adjusted at the custom house, and a judgment was entered for the plaintiffs, including costs, for $1,897.96; to review which the defendant has brought a writ of error. We think that it was error in the court to have directed a verdict for the plaintiffs. The Act of 1867 is entitled "An Act to Provide Increased Revenue from Imported Wool, and for Other Purposes." Section 1 of the Act relates to duties on "unmanufactured wool, hair of the alpaca, goat, and other like animals, imported from foreign countries." Section 2 provides for the following duty: "On woolen cloths, woolen shawls, and all manufactures of wool of every description made wholly or in part of wool, not herein otherwise provided for, fifty cents per pound, and, in addition thereto, thirty-five per centum ad valorem." This clause clearly covers stockings such as some of those in the present case, composed of wool and cotton, because they were made in part of wool. The next question is whether they were "herein otherwise provided for," that is, otherwise provided for in that Act of 1867. We have recently held, in the case of Miller. Butterfield, 125 U. S. 70, 76 [31:643, 645] that the words "not otherwise herein provided for," in an Act providing for customs duties, mean not otherwise provided for in the Act of which they are a part. The words in the present case are not herein otherwise provided for," which are identical in meaning. Section 2 of the Act [577] of 1867 goes on to provide for duties on many manufactured articles made wholly or in part of wool; namely, "women's and children's dress goods and real or imitation Italian cloths, composed wholly or in part of wool;" "clothing ready made, and wearing apparel of every description, and balmoral skirts and skirting, and goods of similar description or used for like purposes, composed wholly or in part of wool;" webbings, beltings," etc., made of wool, or of which wool is a component material; and carpets of various kinds and carpetings of wool. The clause of section 2 of the Act of 1867, above quoted, which covers "knit goods," expressly excepts "such as are composed in part of wool;" and the clause relating to duties on "wearing apparel of every description *** composed wholly or in part of wool," made up or manufactured wholly or in part by the manufacturer, expressly excepts "knit goods." It is stated in the bill of exceptions that the stockings in question were made on frames, and that all fabrics made on frames are knit goods. According to the bill of exceptions, some of the goods in question here were properly as sessed by the collector, under the Act of 1867, at the rate of 50 cents a pound and 35 per cent ad valorem, less 10 per cent, and it was improper to direct a verdict for the plaintiffs as to those goods. After the verdict was rendered, on the 10th of December, 1883, and before judgment, |