This action was brought by importers against the collector of the port of Philadelphia to recover back an alleged excess of duties paid under protest upon certain imported goods claimed by the plaintiffs to be “trimmings,” chieily “used for making or ornamenting hats, bonnets, and hoods.” As to all the articles involved in the suit, upon which there was any controversy beforе the jury, the verdict was for the defendant. The plaintiffs move for a new trial, and in support of their motion assign several reasons. But, in the view the court takes of the case, it is only necessary to consider one of these reasons, which is based upon the fact, that, during the course of the trial statements highly prejudicial to the plaintiffs appeared from time to time in sevеral daily newspapers of large circulation and influence published at the placo of trial; some of these stаtements purporting to have been made to the newspapers by government officials, and all of them calculatеd to bias the minds of the jury, and prevent them from rendering a fair and impartial decision. The general character of all those publications can bo inferred from the following head-linos, which appeared over an" article relating to thе trial, published while it was in progress, namely: “importers and the Government;” “Blocking the Twenty Million Dollars Raid on the Treasury;” “Experts Give Tеstimony;” “'Practical Business Men Como to the Aid of the Treasury, and Help to Shatter the Raiders’ Claims.” Another publication, during the trial, whiсh was a special dispatch from Washington, and purported to quote remarks of the chief special agent of thе treasury department to the newspaper reporter, condemning as unjust, for reasons stated, claims of importers to recover back excess of duties exacted from them, had, in conspicuous letters, these introductory head-lines: “Thе Custom’s Decisions;” “Sharp Attorneys who Prosecute Claims on Contingent Pees:” “Millions of Dollars Recovered from the Government оn Technical Errors in Tariff Laws; ” “Costly Hat-Trimming Oases;” “Tlie Claimant Sometimes Gets 50 per Cent, and Sometimes Even Less.” These striking head-lines are indications of the character of the statements which followed.
But the most objectionable of all these publications was what purported to be an interview between the newspaper reporter and a special agent оf the treasury department, who seems to have had charge of the preparation of the government’s case, and who was present at the trial. This interview, in substantially the same form, appeared on the same day in the issue of two different nеwspapers, and the statements therein contained, as coming from this government official, bear marks of very
It is idle to say that there is no direct evidence to show that the jury read these articles. They appeared in the daily issues of leading journals, and were scattered broadcast over the community. The jury separated1 at the close of each session of the court, and it is incredible that, going out into the community, they did not see and read these newspaper publications. That these published statements were well calculated to prejudice the jury against the plaintiffs and deprive them of a fair trial is a proposition so plain that it would be a sheer waste of time to discuss it. Good ground, therеfore, here appears for setting aside the verdict.
But it.is strenuously urged on behalf of the government that counsel for plаintiffs “waived all right to object to a verdict on account of these articles, because they did not openly call thе attention of the court to the same, enter their objection to further proceeding with the trial, and except to an adverse ruling on the application.” The fact, however, is that, immediately after the earliest of the newspapеr articles appeared, the plaintiffs’ counsel did make an application at chambers to the judge presiding аt the trial for the withdrawal of a juror, and the continuance of the case until the'next term, on the ground that a fair trial had become impossible by reason of said publications. This application was resisted by counsel for the government, and, for rеasons which then seemed satisfactory to the judge, was refused. What more, then, was incumbent upon the plaintiffs? It is true that the artiсles which they brought to the attention of the judge were less objectionable than those which subsequently appeared, аnd to which particular reference has been made in this opinion. But we think the plaintiffs’ counsel had done their whole duty in the рremises, and were under no obligation to renew their application to stop the trial. Under all the circumstances, а waiver cannot justly be imputed to the plaintiff's. For the reason we have discussed, the verdict must be set aside, and a new trial granted; and it is so ordered.
Botler, District Judge, who, at the request of Judge Acheson, sat with him at the hearing of the motion for a new trial, concurs in the opinion and order.