27 F. 648 | U.S. Circuit Court for the District of Southern New York | 1886
(orally.) There is no escape from the conclusion that this protest is insufficient. The statute provides that a person who feels himself aggrieved must, by his protest, point out clearly and specifically the, grounds of his objection. The importer of the carpeting in suit protests against paying the duties charged by the collector, insisting that under the tariff act of 1857 his importations aro only subject to a duty of 15 per cent, ad valorem. This is simply referring the collector to the tariff act of 1857. The protest does not point out to the section or the clause upon which the importer relics. There are, in that act, two sections under which the importations in question might bo assessed at the rate of 15 per cent., and the plaintiffs are, even now, unprepared to say upon which they will finally rest their caso. The collector is referred to neither. The protest leaves everything to speculation and conjecture. Tho collector is informed that he has made a mistake, but is left without the slightest information by which to correct it. The law requires more than this of the importer. The defendants’ objection is therefore sustained, and the protests made by Hooman are excluded.
The defendants’ counsel made the same objection to the admission in evidence of the protests made by Haggerty & Go. as was taken to the Hooman protests; but the court held that the secretary’s circular of March 1, 1858, to which these protests refer, must be taken as a part of them, and that consequently it is evident that the grounds of objection taken to the payment of duty at 24 per centum ad valorem by Haggerty & Co. in their protests are that the carpeting in suit is dutiable at 15 per centum ad valorem, under the provision for
• The plaintiffs then produced two witnesses to show that “hemp carpeting,” or “jute carpeting,” as it was sometimes called, was made in 1S57, and as far back as 1846, of one article commercially known as “jute,” and never of anything else; that jute is the fibre of a plant called “jute,” and hemp the fibre of a plant called “hemp;” that in both cases this fibre is the inner bark of the plant; that there is as much difference,- possibly more difference, between jute and some species of hemp than there is between one species of hemp and another; that jute is less woody than hemp, and softer, if by “woody,” “stiffness” is meant; that jute is a product of India, and hemp of Eussia, Sweden and Norway, Italy, India, and other countries; that jute is cheaper than hemp, and in fact the cheapest article grown or produced that could be put into a carpet or carpeting; that originally hemp was used in Dundee, Scotland, and in England; that subsequently jute was introduced, and was and is now used as a substitute for it; that jute and hemp are sometimes mixed in.manufacturing ; that “hemp carpeting” is a species of carpet or carpeting which, like ordinary carpets or carpeting, is spread on the entire floor, or in strips, as the purchaser may fancy. One of these witnesses testified that jute is a species of hemp. But it did not appear, however, from the testimony of either of these witnesses, that jute was ever commercially known in 1846 or in 1857, or at any time between these years, as a species of hemp. Plaintiff also read the definition of “hemp” as given at page 64 of volume 11 of the Encyclopaedia Britannica and in Ures’ Dictionary of Arts, Manufactures, etc.; and section 13 of the tariff act of 1861, and section 9 of the act of 1862, as to hemp and jute carpeting.
The plaintiffs having rested, the defendants’ counsel moved the court to direct a verdict in their favor on the ground that plaintiffs' had not proven facts sufficient to constitute a cause of action.
. Defendants' Counsel. The merchandise in suit has not been proven to be a-manufacture of hemp, and upon plaintiffs’ theory of the case, before they are entitled to recover, such proof must be made. Under Schedule G of the tariff act of 1846, as amended by that of 1857, “hemp unmanufactured” was subject to a duty of 24 per centum ad valorem; under Schedule D “jute, sisal grass, coir, and other egétable substances, unmanufactured, not otherwise provided for,” and “matting, China and other floor-matting, and mats made of flags, jute, or grass, were subject to a duty of 19 per centum ad valorem; and, under. Schedule E, “manufactures of hemp not otherwise provided for,” to a duty of 15 per centum ad valorem. It thus appears that congress has in these acts made a clear and positive distinction between jute and hemp. As congress has made this distinction, this court is bound, in considering these acts, to make the same distinc
Plaintiffs’ Counsel. No inference must be drawn to the damage or detriment of the plaintiffs by reason of the difference between unmanufactured hemp and unmanufactured jute; because, at the very time of the passage of the act of 1857, congress had made several appropriations for the encouragement of the manufactures of what is known as “Russian hemp,” or hemp proper, and contracts were made by direction of congress for the purchase of American hemp in place of this foreign hemp, for the uses then made of it. The whole question in this ease is, was this hemp which was called by the importer “hemp carpeting,” and which was returned by the appraiser as jute carpeting, manufactured hemp? And that all turns upon the question whether or not jute is a species of hemp. If jute is a species of hemp, then the plaintiffs’ carpeting is a manufacture of hemp, and he is entitled to a verdict. That is all there is to it. The plaintiffs insist that there has been evidence enough offered in this case to go to the jury upon the question whether or not jute is a species of hemp. He has the testimony of one of his witnesses upon that question, and he has the authorities in two books that jute is a species of hemp.
The Court, (orally.) I think the counsel for the defendants states the controversy in this case perfectly. The burden is upon the plaintiffs to satisfy the jury that these importations are manufactures of hemp. Unless the plaintiffs succeed in doing so, they are not entitled to recover. Instead of proving that their importations are manufactures of hemp, they have proved beyond any question that they are manufactures of jute. They have, it is true, supplemented this evidence by the opinions of learned gentlemen, t.akeu from various periodicals, that hemp and jute are substantially the same thing, and it is insisted that the proof is sufficient to uphold a finding by the jury to this effect. But the short answer, in my judgment, is that we are construing the tariff acts of 1846 and 1857, where the law-makers have drawn a clear distinction between the two materials. So I do not see how I can leave it to the jury as a question of fact to say whether the two are the same, when congress has said that they are different. Congress, throughout the law, has recognized the distinction between “jute” and “hemp.” ' The two words are repeatedly
As there is no question of fact, gentlemen, you will render a verdict in favor of the defendants.
Such verdict was thereupon rendered..
