UNITED STATES v. CHIN SING. (District Court, D. Oregon. April 8, 1907.) No. 4,803. ALIENS CHINESE EXCLUSION ACTS-MINOR CHILDREN OF CHINESE MEB CHANT. The fact that a Chinese person, who as shown by the uncontradicted evidence entered the United States in 1898, when a minor 14 or 15 years old, his father being at the time a merchant engaged in business in San Francisco, did not have a certificate under section 6, Act May 6, 1882, c. 126, 22 Stat. 60, as amended by Act July 5, 1884, c. 220, 23 Stat. 116 [U. S. Comp. St. 1901, p. 1307], does not raise any presumption that his entry was unlawful, no such certificates being then required under the decisions of the Supreme Court to entitle the wives and children of Chinese merchants residing in this country to entry. [Ed. Note. For cases in point, see Cent. Dig. vol. 2, Aliens, §§ 75, 81.] James Cole, Asst. U. S. Atty. R. B. Sinnott, for defendant, WOLVERTON, District Judge. This is an appeal from the judgment of the United States commissioner directing the deportation of 'the defendant, a Chinaman, as not being entitled to remain in the United States. The cause has been submitted upon the evidence. It is shown by Chin Sing, the defendant, and one other witness, Chin On, that the defendant entered the United States in the year 1898, and that at that date he was 14 or 15 years old; that his father was a Chinese merchant, engaged in the hardware and Chinese provisions business on Washington street, in San Francisco, and was such merchant, and a resident of San Francisco, at the time the defendant came into the country. The father continued to engage in such business for three years, when he failed, and the business was closed up. The defendant worked in the store after his arrival as a helper, in the way of making sales, wrapping parcels, etc. Later, about 1902, the defendant and Chin On left San Francisco together, and came to Portland, where they have lived ever since. The defendant states that he came in on a paper furnished by his father, and that none was given to him personally to show his right to enter the United States. The testimony of these witnesses is not discredited in any way, except that the defendant made some statements to the Chinese inspector in charge at this port, at the time of his examination when arrested, in some respects contradictory of his present testimony. Mr. Barbour testifies that prior to 1900 it was the practice of the customs officials to require the wives and children of Chinese merchants to procure certificates, under section 6 of the act of 1882 (Act May 6, 1882, c. 126, 22 Stat. 60 [U. S. Comp. St. 1901, p. 1307]), as amended in 1884 (Act July 5, 1884, c. 220, 23 Stat. 116), showing their right of entry, thus creating the inference that the defendant, having never been furnished such a certificate, had somehow gotten into the country unlawfully. By reference to the authorities, however, I find that it was held, as early as 1890, in this court, that no certificates were required for the wives and children of Chinese merchants residing in this country to entitle them to entry. In re Chung Toy Ho and Wong Choy Sin (C. C.) 42 Fed. 398, 9 L. R. A. 204. The doctrine of this case has been reiterated and affirmed in the case of United States v. Mrs. Gue Lim, 176 U. S. 459, 20 Sup. Ct. 415, 44 L. Ed. 544. The stipulated facts in the latter case are almost exactly as the facts have been developed in this case. The fathers were merchants residing and doing business in the city of Walla Walla, state of Washington, and had sent for their sons to come from China to live with them, and the question arose whether the sons were entitled to enter without first procuring certificates as required by section 6 of the act above specified. It was held directly-the court making special reference to the opinion of Judge Deady in the Chung Toy Ho Case-that the sons had that right, and hence they were discharged from the order made for their deportation. So that, while it may be that the practice existed as asserted by Mr. Barbour, yet a nonobservance of it was not an evasion of the law, and it is quite probable that the defendant came to the United States in the way he has explained. The defendant's contradictory statements are only apparent when read in the light of his explanation. It is required that a Chinese person who is charged with being unlawfully within the United States shall establish, by affirmative proof, to the satisfaction of the justice. judge. or commissioner. his lawful right to remain. Considering the evidence which has been adduced, I am satisfied that the defendant came to this country while a minor, and that, being the son of a resident Chinese merchant, he is lawfully entitled to remain here. The defendant will therefore be discharged from the order of the commissioner directing his deportation. THOMAS V. F. B. VANDEGRIFT & CO. (Circuit Court, E. D. Pennsylvania. No. 48 (1,553). February 21, 1907.) CUSTOMS DUTIES CLASSIFICATION-BOILER TUBES-FLUES-FURNACES. Held, that so-called arched Purves furnaces are not commercially known as furnaces, and that, therefore, they are not dutiable as such under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 152, 30 Stat. 163 [U. S. Comp. St. 1901, p. 1641], but under the provision in the same paragraph for boiler tubes or flues. [Ed. Note.-Interpretation of commercial and trade terms in tariff laws, see note to Dennison Mfg. Co. v. United States, 18 C. C. A. 545.] On Application for Review of a Decision of the Board of United States General Appraisers. These proceedings were brought in the name of C. Wesley Thomas, collector of customs at the port of Philadelphia, to secure a review of a decision of the Board of General Appraisers, which had reversed the collector's assessment of duty on certain imported articles. These articles were invoiced as "arched Furves furnaces." The importers contended that they had been improperly Classified under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 152, 30 Stat. 163 [U. S. Comp. St. 1901, p. 1641], as "welded cylindrical furnaces, made from plate metal," and that they should have been classified under the further provision in the same paragraph for "lap welded, butt welded, seamed, or jointed iron or steel boiler tubes, pipes, flues, or stays." The board found that the articles were not furnaces, but tubes used in making furnaces, and sustained the importers' contention. Jasper Yeates Brinton, Asst. U. S. Atty. (J. Whitaker Thompson, U. S. Atty., on the brief), for collector. Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for importers. HOLLAND, District Judge. In 1892 this same article of importation was before the district court in Delaware county, in the state of Delaware, in this circuit, and it was then held: "So far as inventors, manufacturers, and importers can fix the designation of an article under the revenue laws, it has been done in the present case through letters patent, invoices, and advertisements. An English patent, No. 3,722, dated March 23, 1885, was issued to David Purves for 'a new and useful improvement in boiler flues,' and he subsequently obtained letters patent for the same invention from the United States, No. 372,487, dated November 1, 1887. This flue has acquired a high reputation among scientific writers and practical steam engineers, and is known as 'Purves' ribbed flue,' as 'Purves' ribbed furnaces,' and as 'Purves' ribbed boiler flue.'" In re Whitney (C. C.) 53 Fed. 237. In that case the classification assigned to the imported article was under the unenumerated iron and steel clause of the act of October 1, 1890, and duties assessed under the provisions of paragraph 215, Schedule C, § 1, c. 1244, 26 Stat. 582. The importer protested against this classification, insisting that the article was not a furnace, but was a "Purves' ribbed boiler flue," and the District Court sustained the decision of the board in this view. Since that time there has been other legislation, and it is true that under Act July 24, 1897, c. 11, par. 152, § 1, Schedule C, 30 Stat. 163 [U. S. Comp. St. 1901, p. 1641], "welded cylindrical furnaces made from plate metal" are dutiable at two and one-half cents per pound. But at the time this legislation was enacted this article of importation was not, by a definite, uniform, and general usage, commercially designated as a furnace. 1 Fed. St. Ann. C. When first made, they were known as "flues," and then as "flues or furnaces," and are becoming more and more referred to as "furnaces," but they are still known in the trade, to some extent, as "flues." In view of the fact that the court has passed upon this question and the article is known by both terms in the trade, and the further fact that the Board of General Appraisers has uniformly required the articles imported to be classified as flues when the matter was before them, we are not convinced that the government in this case has established that the commercial name of this article is a furnace. The decision of the Board of General Appraisers is affirmed. DAIGNEAU v. GRAND TRUNK RY. CO. (Circuit Court, D. Massachusetts. May 8, 1906.) No. 72. 1. DAMAGES-PERSONAL INJURY-FUTURE CONSEQUENCES OF INJURY. In an action for a personal injury, the plaintiff is entitled to recover damages for future consequences of the injury only with respect to such consequences as the evidence shows are reasonably certain to ensue. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Damages, §§ 69, 70.] 2 COURTS-FEDERAL COURTS-NEW TRIAL-CONDITIONS ON GRANTING NEW TRIAL-REDUCTION OF EXCESS OF RECOVERY. Where a verdict awarding damages for a personal injury returned in a federal court is excessive, the court has power in its discretion to require a remittitur of a stated sum as a condition to the overruling of a motion for a new trial. At Law. On motion for new trial. Wm. D. Chapple and Charles W. Bartlett, for complainant. BROWN, District Judge. I am of the opinion that the jury in arriving at a verdict of $6,500 in this case must have made a very much larger allowance for prospective damages than is warranted by the proof. According to the strong preponderance of evidence, the plainiff. within a comparatively short time, will recover entirely from the wrenching and bruising of his back, and will recover in a very great degree from his nervous condition upon the termination of this litigation. The plaintiff is entitled to recover for such future consequences of the injury inflicted as the proofs showed are reasonably certain to ensue. Kennon v. Gilmer, 131 U. S. 22, 26, 9 Sup. Ct. 696, 33 L. Ed. 110; Thompson on Negligence, 7205. The plaintiff has the burden of proof. Evidence which leaves the matter entirely in doubt, or estabishes a mere possibility of future damages, does not satisfy the rule which requires proof that future consequences are reasonably certain to ensue. When the verdict was returned, it struck me as excessive, and a careful consideration of the case confirms this opinion. I have hesitated whether to grant a new trial unconditionally, or only in the event that the plaintiff shall not file a remittitur. While there is force in the objection that the court cannot order a remittitur without itself passing upon the question of damages, the practice is so well estabshed and so convenient that I shall adopt it. Arkansas Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 458, 32 L. Ed. 854; Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, 646, 6 Sup. Ct. 590, 29 L. Ed. 55; Hansen v. Boyd, 161 U. S. 397, 16 Sup. Ct. 571, 40 L. Ed. 746. A new trial will be granted on the question of damages, unless, within 14 days, the plaintiff shall remit the sum of $2,000, and consent to judgment for the plaintiff for $4,500 and costs. 153 F.-38 UNITED STATES v. COURTIN & GOLDEN. (Circuit Court, S. D. New York. No. 4,261. CUSTOMS DUTIES-NONIMPORTATION-ROTTEN FRUIT CONDEMNED BY HEALTH AUTHORITIES. Before being unladen, but after being free from customs supervision, certain imported fruit was condemned by local health authorities whenever a considerable portion of any crate appeared to be decayed, and the entire contents of such crates were condemned, and required to be dumped in the sea, no portion thereof becoming a subject of commerce within the United States. Held, that such condemned fruit should be treated as nonimportation, and as not dutiable. On Application for Review of a Decision of the Board of United States General Appraisers. For decision below, see G. A. 6,356 (T. D. 27,324), affirming the assessment of duty by the collector of customs at the port of New York. D. Frank Lloyd, Asst. U. S. Atty. * * HOUGH, District Judge. Certain pineapples in crates having been brought into the United States by the appellees, a considerable por tion of the same were destroyed by a representative of the health de partment of the city of New York as not being "fruit * sound wholesome and safe for human food." Sanitary Code of New York City, 42. The method of condemning the fruit was to examing each crate, and, if a considerable portion of the contents thereof ap peared to be decayed, the whole crate was condemned, and the shi upon which it was found required to convey the same again to sea and dump it overboard. This condemnation took place while th goods were being unloaded, and after a "tropical permit" for th unloading thereof and delivery to the importers had been granted b the custom house. This appeal raises the point whether any rebate o reduction in duties should be allowed to the importers, inasmuch as th pineapples in question were freed from custom supervision by th granting of the tropical permit above referred to. The evidence leave it undoubted that no portion of the condemned goods ever passed in the actual control of the importers or became a subject of commer within the United States. The action of the health department of this city clearly was a lay ful exercise of police power, and in my opinion this case is entire within the doctrine of Lawder v. Stone, 187 U. S. 281, 23 Sup. 79, 47 L. Ed. 178. The facts in that case were indeed quite differe but the doctrine as interpreted in Stone v. Shallus (C. C. A., 4 Circuit, T. D. 27,133) 143 Fed. 486, 74 C. C. A. 506, is direc applicable. In the Shallus Case the importation was of oranges boxes, and "the shortage by rot was not discoverable or discover until those boxes were opened under the supervision of the governme inspector." I think it makes no difference whether the rot was d |