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JOURNAL OF MERCANTILE LAW.

IMPORTANT OPINION ON THE TARIFF-THE QUESTION OF DUTY ON CAUSTIC SODA.

In the United States Circuit Court. Before Hon. Judge SMALLEY. Benjamin H. Field rs. Augustus Schell.

This is an action of assumpsit for money claimed to have been illegally exacted by the defendant, who is Collector of the port of New York, and paid by the plaintiff for duties upon the importation of an article called caustic soda. There were several importations, all since the passage of the tariff act of 1857, and entered as caustic soda, paying a duty of four per cent ad valorem. A duty of fifteen per cent was charged by the defendant, and paid under protest. It was agreed that the article of caustic soda was enumerated either in the tariff acts of 1842, 1846, or 1857. Much evidence was introduced, tending to show that the article in question bore a close similitude in material, quality, and the uses to which it was applied, to soda ash, wbich, under the tariff act of 1857, paid a duty of four per cent, and more nearly resembled soda ash than any other enumerated article. The court, among other things not excepted to, charged the jury that, if from the evidence they were satisfied that caustic soda resembled soda ash in its material, quality, and the use to which it was or, might be applied, or either of them, and raise them to any other enumerated article, that four per cent duty only should have been charged, and their verdict should be rendered for the plaintiff for the excess. The jury returned a verdict for the plaintiff, and the defendant moves for a new trial, on the ground of an alleged misdirection of the court to the jury. Whether there was error in the charge of the court, depends upon the question whether the 20th section of the tariff act of 1842 was repealed by either of the acts of 1846 or 1857. That 20th section was as follows:

That there shall be levied, collected, and paid on each and every non-enumerated article which bears a similitude either in material, quality, texture, or the use to which it may be applied, to any enumerated article chargeable with duty. the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the particulars before mentioned; and if any nonenumerated article most resembles two or more enumerated articles, on which different rates of duty are chargeable, there shall be levied, collected, and paid on such non enumerated article, the same rate of duty as is chargeable on the article it resembles paying the highest rate of duty; and on all articles manufactured from two or more materials, the duty shall be assessed at the bigbest rates at which any of the component parts may be charged.

The 3d section of the act of 1846 provides

That from and after the 1st day of December next, there shall be levied, collected, and paid, on all goods, wares, and merchandise imported from foreign countries, and not specially provided for in this act, a duty of 20 per cent ad ralorem.

The 12th section of the same act reads :

Be it further enacted, that all acts and parts of acts repugnant to the provisions of this, be and the same are hereby repealed.

These sections, considered by themselves, would seem to indicate quite decidedly, an intention to repeal the 20th section of the act of 1812, and if this was an open qriestion, I should have had great difficulty in coming to the conclusion that such was not their design and effect. It cannot now, however, be regarded as an open question. The Supreme Court, in the case of STUART, el ill., vs. Maxwell, 16 How., 150, after an elaborate argument and full consideration, decided

That there was no necessary repugnance between the act of 1846 and the 20th section of the act of 1842, and consequeatly the former did not repeal the latter, and the duty (which in that case was assessed under the 20th section of the act of 1842) was rightly assessed.

The case turned upon that question. It was the only point made or decided, and this court must be governed by it. It was argued by the defendant's counsel that in the case of Stuart, et al., vs. Maxwell, the government sought to avail itself of this 20th section to enforce the payment of a higher rate of duty than it would otherwise have been entitled to, and thus increase the revenue ; and that the decision being in favor of the government, was not applicable to this case. It is very difficult to see why if this 20th section is to operate in favor of the government in one case, to increase the revenue, it should not operate in a similar case against it, although it diminish the revenue. Why the government should be permitted to avail itself of this 20th section for the purpose of increasing the duties, and the importer should not be permitted, under the same or similar circumstances, to avail himself of it for the purpose of diminishing the duties, I am at a loss to conceive. But if there could, at any time, have been a doubt upon that question, it is removed by the case of Ross rs. PEASLEE, 2 Curtis' Rep., 499, in which Justice Curtis (who delivered the opinion of the court in STUART, et al., rs. MAXWELL,) held that this 201h section was iv force, and did operate to reduce the duties wbich in that case were from twenty to fifty per cent. That brings us to the act of 1857. Does that act repeal the 20th section of the act of 1842? There is much less reason for saying that it does, than for saying that the act of 1846 did. There is nothing in the act of 1857 which iadicates any intention to extend the act of 1846, or in any way to change or interfere with the construction given thereto, further than generally to reduce the duties, take certain articles from one schedule and place them in another, and to put others into the free list. The case of STUART, et al., rs. MaxWELL, was decided in 1853 ; and that of Ross vs. Peasles in 1855. Congress, therefore, can hardly be supposed to have been ignorant of these decisions at the time the act of 1857 was passed, and I think it cannot be presumed that, with such knowledge, it intended to alter that important provision of the law, without some defirite expression of that intention. There are no repealing words in the act of 1857, and neither from the phraseology nor the general purpose of the act can I see any reason for supposing that it was designed to have an effect on this 20th section, wbich the courts had decided the act of 1846 did not have. It is clear that the words “non-enumerated articles,” in the 20th section of the act of 1842, not specially provided for in this act in the third section of the act of 1846, and not enumerated in said schedules in the 1st section of the act of 1857. mean the same thing and should receive the same construction. The distinction attempted to be drawn between them by the defendant's coupsel cannot be sus. tained. This view of the subject is fully sustained by Judge Giles, in the Maryland district, in a case precisely like this, and in relation to this same article of caustic soda, (GAMBLE et GAMBLE vs. Mason,) reported in the Philadelphia Law Register for January, 1859. The result is, that the 20th section of the act of 1842 was neither repealed by the act of 1846 por by that of 1857, but remains in force. There is, therefore, no error in the instructions given by the court to the jury, and there must be judgment on the verdict.

P. S.-Since writing this opinion I have submitted it and the case to Judge NELSON, which he has examined, and I am authorized to say that he fully concurs in the decision.

IMPORTANT ACTION ON A COMMERCIAL CONTRACT. In the United States Circuit Court, at Chicago. Judge DRUMMOND presiding. Richard Atkinson rs. Gordon S. Hubbard & Co.

Some time on or about the 4th day of November, 1858, Mr. J. K. FISHER, an extensive produce broker in this city, having several orders from different parties for the purchase of pork, called at the office of Hubbard & Hunt, and ascertained from Mr. HIUBBARD that they had one thousand barrels mess pork, which they would sell at $15 per barrel, February and March delivery, sellers: option. FISHER agreed to buy the pork, and HUBBARD agreed to sell. FISHER then gave Mr. Hubbard at different times the names of several persons as his principal, to each of whom Mr. HUBBARD objected for the reason that he did not know anything about them. Fisher, on the morning of the 6th of November, 1858, (HUBBARD & Hunt having declined each of the names before given them.) gave them the name of the plaintiff, and said he was a member of the firm of Hewitt & Co., of New York, and was in every way responsible, and if, when they wrote to their New York correspondent, (which they volunteered to do,) his reply was not satisfactory, then he was willing to put up security at any time. HUBBARD & Hunt both expressed their entire satisfaction, and said that was all right. Fisher at the time held money in his hands which belonged to Atkinson, and with wbich he was ready at any time to put up the required security.

HUBBARD & Hunt wrote to New York to inquire about Atkinson. FISHER, after allowing a reasonable time for a letter to get to New York and a reply to be received, called upon Messrs. Hubbard & Hunt on several occasions to know if they had heard from New York, and whether they would require him to put up the security, and received a reply from Messrs. HUBBARD & Hunt that they had not heard. He called again on or about the 16th of November to make the same inquiry, and then, for the first time, was told by Mr. Hunt that they had made no contract. Mr. Fisher told Mr. Hunt that it was as fair a purchase as he had ever made, and be should bold them to it. On the 31st of March, 1859, the last day in which Messrs. HUBBARD & Hunt bad the right to deliver the pork, Mr. Fisher called on them and demanded the pork, and tendered them the sum of $15,000 in gold. They declined to receive the money or to deliver the pork. From the 6th of November, 1858, until the 31st of March, 1859, there was a firm feeling and steady advance in the market, and on the 31st of March, pork was worth $16 75 per barrel. Such was in substance the proof on the part of the plaintiff, and upon which he claimed a contract was made on the 6th of November, 1858, and for a breach of which he claimed damages.

The defendants claimed that there was no contract made on the 6th of Novem. ber, 1858, and that they had the right to make the contract or not, as they pleased, on heariog from New York-and introduced evidence to establish their view of the case, which in many particulars, in relation to the inaking of the contract, was conflicting with the evidence introduced by the plaintiffs. Of the amount of pork, the time of delivery, the price to be paid for the same, and the price on the 31st March, 1859, there was no dispute. The court instructed the jury " that if they believed the parties mutually understood, on the 6th of November, that the contract was complete and binding in case the reply from New York was satisfactory, and that in such event nothing further was to be done by either party to complete the contract, then the contract was biuding, and the plaintiff was entitled to recover ; but if both parties did not so mutually understand it, then the plaintiff could not recover."

The jury found a verdict for the plaintiff for $1,750.
The delendants have filed a motion for a new trial.

SHIPPING TO HAVRE. An important decision, and one materially affecting the shipping interest of this country, has recently been rendered by the Tribunal of Commerce, in Havre, from which it would appear that the stowing of goods in vessels' poops, and rendering bills of lading therefor as “under deck.” has been condemned, and all vessels carrying merchandise to that place stowed in their poops, run the same risk as though it was on deck, and consignees may recover damages in all cases wherein it is not so specified in the bills of lading, whether goods are damaged or pot. The case in point was that of two barks from Mobile, with cotton, some of which was stowed in their poops, (not so specified,) and which sustained more or less damage from having got wet on the voyage. The verdict in both instances was in favor of the plaintiff, notwithstanding the fact that on one of the barks the poops was built with the vessel. Shipowners and agents will do well to note these facts, and by scrutinizing the bills of lading a little more closely, may avert the needless expenditure of hundreds of dollars.

COMMERCIAL CHRONICLE AND REVIEW.

TIBOAL YEAR-AGGREGATE BUSINESS-DUTIES-ACCUMULATION OF CAPITAL-TENDENCY OF BX

ON ANGE TO THE ATLANTIC-CONTRACTION-DECREASED QUANTITY-IMPORTS TOO LARGE-COTTON OROP-IARVEST8-EXPORTS OF FOOD-ORAIN-VALUE-RATE OF INTEREST-IIIGIIER ABROADWAR RATES-AVERAGE RATES-NO ENTERPRISE-WAR OLOUDS IN EUROPE-LOANS-FREEDOM OT INDUSTRY-ABUNDANCE OF OC'RRENCY-PRODUCTS OF MINES-RATES OF IXTER RST-NEW LOANTREASURY NOTES-SPECIE BHIPMENTE-RECEIPTS-RATES OF STERLING-REDUCTION OF SPECIE JX THE CITY-MINT-ASSAY-OFFICE-JULY INTERESTS-LARGE PAYMENTS-NEW YORK-BOSTON MANUFACTURING DIVIDEND8-IMPROVED TRADE-DEMAND FOR COTTON-SITUATION OF CROPAQUANTITY CONSUMED-VALUE EXPORTED.

The fiscal year of the federal government closed at the port of New York with the month of June, and the result is a larger business than was ever before transacted in one year. For five years the aggregates have been as follows:1856. 1857. 1858.

1859. 1860. Exports ... 105,806,063 126,606,683 100,667,890 106,443,541 138.036,550 Imports ... 198,214,718 226,184,167 171,473,336 220,247,307 233,718,718

Total.... 304,020,781 852,790,850 272,141,226 326,690,848 371,755,268 Duties... 42,724,000 42,270,000 27,436,000 34,910,000 87,662,000

The imports and exports have been, together. $19,000,000 more than for the great year 1857, and $100,000,000 more than in 1858. This large business has been done with lower rates for money than ever before was experienced in this country during an entire year. The fact shows the great accumulation of capital in this country, and also the want of adequate employment for it in those channels that have hitherto attracted it. While money has been so abundant on the Atlantic border, it has been scarce and high at the West and other in. debted points, whence it has been drained off for the repayments of loans and debts. The same process has, to a certain extent, gone on between this country and Europe, as is manifest in the large exports of specie, which have reached a higher figure than ever before in one year. The course of business during the year has been towards contraction. The first quarter ending with September, the excess of imports over the same quarter of 1859 was $15,000,000 ; in the second quarter it was $10,000,000; in the third quarter it was $5,500,000 ; in the fourth quarter there was a decrease of $17,000,000. The markets bad not warranted the large scale on which business commenced, and the results of importations were not satisfactory. The exports of produce, on the other hand, were large, but on a market that underwent many reactions. The cotton crop was very large, and a good portion of it very poor in quality. The peace of Europe was by no means well assured, and, lastly, the harvests of both England and the continent threatened failures. All these circumstances prevented much commercial activity, and were a drag upon the buoyancy of the markets. Nevertheless, the state of the harvests induced large exports of agricultural food, and in the six months ending with June, 1,488.511 bushels of wheat were exported, against 221,000 same time last year; also, 1,502,776 bushels of corn, against 101,775 corresponding period of the previous year. Of flour, 518,000 barrels went abroad, being an excess of 222.000 over the previous year. The receipts of produce from the interior have been very large in New York, reaching, of all

This repre

grains, 14,800,000 bushels, against 7,700.000 in the previous year. sents an increase of $7,000,000 in remittances in those grains from the West, where the crops are very large, and promise now to come forward in great abun. dance. While the Western and Southern crops have poured abundance into the Eastern markets, there has been no revival of any enterprises which require capital, and the rates for its employment bave not been such as to retain paying capital in face of the state of affairs in Europe, where political uneasiness induces most large houses to keep considerable means in hand. The effect of war upon the rate of interest in the market is fully illustrated in the following summary of the changes produced by the French war of 1859 :

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from 3 to 45 per cent from 45 to 3 per cent Amsterdam,

3 to 3

3 to 3 Paris

3 to 4

4 to 31 Bremen..

3 to 6

6 to 3 London

27 to 47

41 to 2 Hamburg...

2 to 5

6 to 14 It further appears that the following were the average annual rates of discount during the last six years :

1851. 1855. 1856. 1857. 1858. 1859. 1860. Frankfort....... 81 3}

44 31

2 Amsterdam

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31 43 5$

3 Paris, ...

43 5$

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The low rates for money are the result of doubts which prevent people from engaging in trade, and as capital does not cease to accumulate during those doubts, from the efforts of the working many, its value falls. A settlement of the affairs of Italy, and an understanding between the great powers, by removing fears, would induce the greatest activity and be followed by a rise in money. There have been several new loans proposed, to take advantage of the low prices of money. Among these, Russia asks for $10,000,000, and France, it was rumored, proposes a loan of $80,000,000, to lend to manufacturers to enable them to stand the reductions of the duties. Under the prohibitive system their old machinery and materials could be made to withstand competition. If the monopoly is removed, they must use as good machinery as their competitors, and the government proposes to lend them the money to get it. Such a proposition is certainly not borne of war projects. Freedom of industry will widen the markets for American produce, as well food as raw material, and both these promise to become largely in demand for the coming year. Gold has certainly figured high as an export—more baving been sent abroad than the mines have produced—but the supply is still quite sufficient for all purposes of currency, and other capital is quite abundant. Towards the close of June money came to be a little more in demand, and prices were better. The rates, however, did not stand, and they were as follows :VOL. XLIII.--NO. II.

14

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