inquiry for seven days, to ascertain whether or not the order had been executed? They did not perform their undertaking to ship this car by merely leaving directions with an agent in Indiana to attend to it. The neglect of the railroad agent was their neglect, so far as these defendants are concerned. The plaintiffs might have their remedy against the railroad company, but their contract required that they should deliver the machine on board the cars, or, as applied to the facts of this case, that they should reship from Sedalia to Pilot Grove, to Mackler, as consignee. This undertaking on their part they had not executed on the 9th day of July, when they learned through Mackler that the machine had not reached Pilot Grove on the 7th. They then bestirred themselves by telegram, and not until the 10th of July did the reshipping order reach the agent at Sedalia; and the car did not reach Pilot Grove until the 14th day of July. No reason is assigned, nor a word of evidence offered, by plaintiffs to account for the delay of four days more after the shipping order reached Sedalia before the car was sent to Pilot Grove. It is true that under the contract the machine would, technically, be regarded as delivered to defendants when shipped from Sedalia. But plaintiffs fail to show the date of shipment; and, as the car did not reach Pilot Grove until the 14th of July, a distance of only 28 miles, and the evidence shows that there is a freight train each morning from Sedalia to Pilot Grove, the presumption is that the car was not reshipped from Sedalia until the morning of the 14th. Here, then, was a period of over 2 weeks after the order was given, and 12 days after plaintiffs received it, before it was executed; when, as already demonstrated, 5 or 6 days afforded every reasonable facility and time for its execution. As shown by the evidence, and as must have been known to plaintiffs,—for as much was indicated to them by defendant Mackler's letter of the 7th July,-when this machine left Sedalia the season for threshing grain was two-thirds over, and the main inducement to the purchase was passed. This was not, in the language of the authorities, "within a reasonable time, with an undertaking to do it in the shortest practicable time."

They trusted him to do
His neglect, his delay,

The great mistake which has led to this litigation was the thoughtless security with which plaintiffs sat down after leaving an order with the local railroad agent at Richmond, on July 2d. that which they should have seen was done. cannot be attributed to these defendants, nor exonerate the plaintiffs. Plaintiffs, in fact, seem to have acted with little business sense, conservatism, or prudence, throughout. After being advised, as they were, by Mackler that the machine would not be accepted if shipped after that date, they had two courses open to them,-to have stopped there, and sued defendants for damages consequent upon their refusal to accept, or, after shipping to Pilot Grove, and finding no one to receive the machine, they should have housed it, and sold it for the best price attainable, and sued for the difference in damages. They would neither advise the defendants to house it, without prejudice, nor reship to Sedalia, but abandoned the machine to its fate, to be sacrificed by the railroad for freightage. The exercise of a little common sense, and a spirit of compromise,

to a reasonable extent, often pay better in the end than a swift and ready resort to litigation. In the view thus taken of this case, it is unnecessary to discuss the other fact in evidence, and relied on by defendants, that the machine, when it did reach Pilot Grove, was without a smoke-stack, without which it could not be operated. The first defense is conclusive enough. It follows that the issues are found for the defendants. Judgment accordingly.

FARWELL v. SEEBERGER, Collector.

(Circuit Court, N. D. Illinois. July 18, 1889.)

CUSTOMS DUTIES-CLASSIFICATION-WOOLEN DRESS-GOODS.

Women's and children's dress-goods, which contain no cotton, except about 6 per cent., carded into the wool from which the warp is spun, come within the description of goods composed in part of wool, and are dutiable at 5 cents per square yard, and 35 per cent. ad valorem, under Act Cong. March 3, 1883, (Heyl's Arrangement, cl. 365, pars. a, b,) though the cotton was used for the purpose of securing a lower classification.

At Law.

Action by John V. Farwell against Anthony F. Seeberger, collector of customs, to recover excessive duty alleged to have been levied on certain goods.

Shuman & Defrees, for plaintiff.

W. G. Ewing, U. S. Atty., and G. H. Harris, Asst. U. S. Atty., for defendant.

BLODGETT, J. Plaintiff imported a quantity of women's and children's dress-goods, composed mainly of wool, and weighing less than 4 ounces. to the square yard, upon which the collector imposed a duty of 9 cents per square yard, and 40 per centum ad valorem, under paragraph e, clause 365, Heyl's Arrangement of the act of March 3, 1883. The plaintiff, insisting that said goods were composed in part of wool and part cotton, and dutiable, under paragraphs a and b of said clause 365, at 5 cents per square yard, and 35 per centum ad valorem, paid said duties under protest, appealed to the secretary of the treasury, by whom the action of the collector was affirmed, and brought this suit in apt time to recover the excess of duties so paid. The proof shows that the goods in question are women's and children's dress-goods; that they are composed mainly of wool; that there is about 6 per cent. of cotton carded into the wool from which the warp of said goods is spun; and that there is no cotton in the filling of the goods. The proof also shows that this mixture of cotton in the warp of the goods was made purposely to secure the classification of the goods as composed in part only of wool. There is proof in the case also tending to show that the mixture of the cotton with the wool in the warp adds to the strength and firmness of the goods, and makes them less liable to shrink; but my conclusion is that one of the v.40F.no.9-34

witnesses for the plaintiff honestly and frankly stated the facts in the case when he said, from the witness stand, "that he understood the object of mixing the cotton with the wool was to secure a lower classification for the purpose of assessment for duties." The goods contain no separate threads composed entirely of cotton, or other material than wool, but all the cotton in the goods is carded into and made a part of the yarns composing the warp. The collector, in classifying the goods, evidently assumed that the purpose of mixing the cotton with the wool was to secure a lower classification, and assumed also that so small a quantity of cotton would not materially change the character of the goods as merchandise, when offered for sale to consumers, and therefore looked upon the contention of the plaintiff for a lower classification as an attempt to defraud the revenue, and accordingly imposed the higher duty, under paragraph e of the same clause of the customs act. Congress having made special provision for a lower rate of duty upon goods, when composed in part of wool, without naming how much of other material should enter into their composition in order to secure such lower rate of duty, I am of opinion that manufacturers and importers have the right to adjust themselves to this clause of the tariff, and to manufacture these goods mainly of wool with only a small percentage of cotton, for the purpose of bringing them specifically within paragraphs a and b of clause 365, and making them dutiable at the low rate contended for. The policy which dictated the revision of the tariff laws by the act of March 3, 1883, was evidently to secure a reduction of duty upon many articles, and to that end this clause was adopted specifically, making low-priced goods, composed only in part of wool, dutiable at a lower rate. The court has nothing to do with the policy of congress further than to construe their acts, as far as possible, according to the intention of the legislators, as it can be gathered from the law itself; and it seems very clear to me that the purpose in enacting this provision was to admit certain grades of woolen goods, with any mixture of material which should cheapen them, at a lower and reduced rate of duty. The proof shows that the goods in question contain so small an amount of cotton that the ordinary dealer in them and the ordinary examiner would not detect the cotton without a close and careful examination, but I do not see that this changes the legal right of the plaintiff to bring his goods within the operation of the clause invoked by the admixture of even a small percentage of cotton, if he can do so; and I cannot see why goods made of 94 per cent. in bulk of wool and 6 per cent. in bulk of cotton do not fairly come within the description of goods composed in part of wool. I am therefore of opinion that the collector should have classed these goods at the rate of duty contended for in the protest.

CASTRO v. SEEBERGER, Collector.

(Circuit Court, N. D. Illinois. July 18, 1889.)

1. CUSTOMS DUTIES ACTION TO RECOVER EXCESS - PURCHASER PENDING APPEAL TO SECRETARY OF TREASURY. Under Rev. St. U. S. § 2931, which provides for an appeal to the secretary of the treasury, by the owner, importer, consignee, or agent of the merchandise, from the decision of the collector in ascertaining the duties, and makes the decision on appeal final, unless suit shall be brought within a certain time thereafter, a person who purchases merchandise of the importer, while in bond and pending an appeal, may sue for the excess of duties claimed to have been paid.

2. SAME-CLASSIFICATION-SCRAP TOBACCO.

Tobacco composed of fragments broken or cut off in the manufacture of cigars, and known to the trade as "scrap tobacco," is dutiable as unmanufactured tobacco, under Tariff Act March 3, 1883, (Heyl, cl. 251.) Following Cohn y. Spalding, 24 Fed. Rep. 19.

At Law.

Action by Daniel Castro against Anthony F. Seeberger, collector of customs, to recover the excessive duty claimed to have been levied on certain tobacco imported by the Roper & Baxter Cigar Company, and sold to plaintiff.

Shuman & Defrees, for plaintiff.

W. G. Ewing, U. S. Atty., and G. H. Harris, Asst. U. S. Atty., for defendant.

BLODGETT, J. The Roper & Baxter Cigar Company imported into the port of Chicago a quantity of tobacco clippings, being the ends cut off, and pieces of leaf broken from, cigars in process of manufacture, upon which the collector assessed a duty of 40 per cent. per pound, as "manufactured tobacco," under clause 249 of Heyl's Arrangement of the act of March 3, 1883. The importers insisted that said tobacco was dutiable at 30 per cent. ad valorem, as “unmanufactured tobacco," under clause 251 of Heyl, protested, and appealed to the secretary of the treasury, by whom the action of the collector was affirmed. After the assessment of duties, as aforesaid, and pending such appeal, the tobacco remained in bond, and while the appeal was pending plaintiff purchased the tobacco from the importer. After the decision of the appeal plaintiff paid the duties so assessed in order to obtain possession of the tobacco, and brought this suit in apt time, after the decision of the appeal, to recover the difference between the duties assessed and paid, and the rate contended for by the importer.

The question as to the classification and rate of duty upon tobacco clippings, like the goods in question, was fully considered and decided by this court in Cohn v. Spalding, 24 Fed. Rep. 19, and I see no reason for changing the ruling there made.

But it is further contended in behalf of defendant that as plaintiff did not import this tobacco, and was not the owner, consignee, or agent of the goods at the time they were classified, and the duties imposed upon them by the collector, and did not take the appeal to the secretary of

the treasury, he cannot maintain this suit to recover the excess of duties claimed to have been paid. Section 2931 of the Revised Statutes provides for an appeal to the secretary of the treasury by the owner, importer, consignee, or agent of the merchandise, if dissatisfied with the action of the collector in the ascertainment and liquidation of the duties; and the contention is that, as plaintiff was neither the owner, importer, or agent of the goods at the time the duties were assessed, he is not one of the persons allowed to bring suit, under the law, to recover the duties so paid. It seems to me that a liberal interpretation of this provision of the statute authorizing a suit to test the legality of the collector's action in the matter of the assessment of duties should be given so as, if possible, to bring all cases which may occur in the course of business before the proper tribunal for adjudication. In the case before us there is no doubt but that the importer of the goods, who was also the owner at the time they were imported, entered, and the duty assessed, took the proper steps to question before the courts the action of the collector. A protest in due form was made, and an appeal to the secretary of the treasury taken from the collector's action, and pending such appeal the importer sold the goods, which still remained in bond, to the plaintiff, and after the decision of the appeal the plaintiff, having become the owner of the goods, paid the duties exacted, and against which due protest had been made. The purchase by him virtually places him in the shoes of the importer. He takes the goods with the contest upon them, and it seems to me he has the election to continue the contest, which the importer had commenced by the protest and appeal, by asking the judgment of the court in regard to the validity of the classification and assessment for duty made by the collector. I cannot see how any harm can come to the government or to the collector from this construction of the law. The only objection that is seriously urged to it is that it would be in the power of the importer to split an importation up into many cases, by selling the goods in bond to different persons, and allowing each of them to maintain a suit for the duties paid upon the portion so purchased; but this is not so serious an objection as would be a ruling which should prevent a sale by the importer pending a contest as to the validity of the collector's action. If the owner or importer who has appealed can only bring the suit, an importer or owner would be compelled to hold the goods, perhaps greatly to his loss, until the contest is decided by the secretary of the treasury, or submit to the exaction of the collector's assessment, and if a purchaser who has paid the duties, properly protested against, cannot maintain a suit, then no one has any remedy. I am therefore of opinion that the objection taken to the right of the plaintiff to maintain this action as to the Roper & Baxter Cigar Company tobacco is not well taken, and that the plaintiff is entitled to 13cover as to all the tobacco in question in this case.