Opinion of the Court.

the goods were invariably bought and sold as "torchons," and not as thread laces, and that thread lace was always hand-made, it was proper to direct a verdict for the defendant, in a suit brought by the importer against the collector to recover an alleged excess of duty.

THE case is stated in the opinion.

Mr. Edwin B. Smith (with whom were Mr. William Stanley and Mr. Stephen J. Clarke on the brief) for plaintiffs in

error.

Mr. Assistant Attorney General Parker for defendant in error. MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an action at law, brought in the Superior Court of the city of New York, in November, 1882, by Siegmund Meyerheim, William Kempner and Henry Strahlheim, against William H. Robertson, late collector of the port of New York, and removed by the defendant into the Circuit Court of the United States for the Southern District of New York, to recover $764.50, as an alleged excess of duties exacted on the importation of certain goods into the port of New York in the years 1881 and 1882. The case was tried before a jury in June, 1888, and a verdict rendered for the defendant, on which there was a judgment in his favor, for costs.

The importation was of certain laces made by machinery out of linen thread, and with them certain laces of the same material made by hand. The defendant assessed duty upon all the laces at 40 per cent ad valorem, under the provision of Schedule C of § 2504 of the Revised Statutes, (p. 462,) which imposed that rate of duty on "flax or linen thread, twine and pack-thread, and all other manufactures of flax, or of which flax shall be the component material of chief value, not otherwise provided for." The plaintiffs claimed that the goods were dutiable at only 30 per cent ad valorem, as "thread lace and insertings," under the same Schedule, p. 463.

After the suit was brought, the Secretary of the Treasury refunded to the plaintiffs all excessive sums exacted upon such

Syllabus.

of the above importations of laces of linen thread as were made by hand, leaving the controversy only as to those laces of linen thread which were made by machinery. All the laces, whether made by hand or machinery, were known, bought and sold as "torchons," and the issue presented was whether or not machine-made torchons were dutiable as "thread lace," or as "manufactures of flax, or of which flax shall be the component material of chief value, not otherwise provided for."

The articles were made wholly of linen thread, and, therefore, of flax. It clearly appeared by the testimony of one of the plaintiffs that he never heard the machine-made goods bought and sold as thread laces, but invariably as "torchons." The testimony on the part of the defendant was to the same effect, and showed that thread lace was always hand-made.

The defendant requested the court to direct a verdict in his favor, while the plaintiffs claimed to go to the jury. A verdict for the defendant was directed, and the plaintiffs excepted.

We do not think there was any question for the jury, on the evidence.

Judgment affirmed.

ROBERTSON v. SALOMON.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 272. Argued April 4, 5, 1892. — Decided April 18, 1892.

Elastic webbings, used as gorings for shoes, some composed of worsted and india-rubber, and the rest of cotton, silk and india-rubber, imported in March and June, 1884, were assessed with duties, the former as "gorings," at 30 cents per pound and 50 per cent ad valorem; under Schedule K of § 2502 of Title 33 of the Revised Statutes, as enacted by § 6 of the act of March 3, 1883, c. 121, 22 Stat. 509, and the latter at 35 per cent ad valorem, as " webbing, composed of cotton, flax or any other materials, not specially enumerated or provided for in this act," under Schedule N of the same section. Id. 514. The importers claimed that they were dutiable at 30 per cent. ad valorem under said Schedule N, (Id. 513,) as

Opinion of the Court.

“india-rubber fabrics, composed wholly or in part of india-rubber, not specially enumerated or provided for in this act." Held, that the assessment of duties, as made, was correct.

“Goring” and “

3, 1883.

gorings" make their first appearance in the act of March

The cases of Davies v. Arthur, 96 U. S. 135, and Beard v. Nichols, 120 U. S. 260, do not control the present case.

The Circuit Court erred in not submitting to the jury the question whether the goods were or were not known in this country, in trade and commerce, under the specific name of goring, and in directing a verdict for the plaintiffs.

THE case is stated in the opinion.

Mr. Assistant Attorney General Parker for plaintiff in

error.

Mr. Edwin B. Smith (with whom was Mr. Stephen G. Clarke on the brief) for defendants in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is an action at law, brought October 15, 1884, in the Superior Court of the city of New York, by Bernard J. Salomon and Samuel Mendel Phillips against William H. Robertson, late collector of the port of New York, to recover an alleged excess of duties, amounting to $288.20, on certain goods imported into that port in March and June, 1884. The case was removed by the defendant, by certiorari, into the Circuit Court of the United States for the Southern District of New York, and was tried there, before a jury, in January, 1888. There was a verdict for the plaintiffs, for $157.08 as to certain of the goods, and for the defendant as to certain others of them; whereupon a judgment was entered for the plaintiffs for $157.08 damages, $46.85 costs, and $6.67 interest, making in all $210.60. To review that judgment, the defendant has sued out a writ of error.

The goods in question were invoiced as "elastic webbings." Some of them were composed of worsted and india-rubber, and the remainder of cotton, silk and india-rubber. The col

Opinion of the Court.

lector assessed duties on the worsted and rubber goods at the rate of 30 cents per pound and 50 per cent ad valorem, and on the cotton, silk and rubber goods at the rate of 35 per cent ad valorem. The plaintiffs paid such duties under a protest, which stated the grounds of their dissatisfaction to be "that under existing laws, and particularly by Schedule N of the tariff act of March 3, 1883, said goods were liable at no more than 30 per cent ad valorem, as fabrics in part india-rubber, not otherwise specially enumerated or provided for." The duties claimed to have been levied and paid in excess of the lawful rate amounted, with interest, in the case of the worsted and rubber goods, to $125.04, and in the case of the cotton, silk and rubber goods to $32.04.

The bill of exceptions states as follows: "To further sustain the issue upon their part, the plaintiffs called witnesses who testified substantially that the goods in question are used to insert in the upper part of shoes and gaiters; that the rubber is an essential part of the article; and that it could not be used for the purpose for which it is intended without rubber. That it is sometimes known as elastic webbings, and that it is also known under the name of elastic goring. That there are webbings in which rubber is not a component part. That there are many kinds of webbings, such as surgical webbings, suspender webbings and upholstery webbings. That all narrow woven fabrics are considered webbings. That the articles in question in this action were woven on the loom. That webbings are always woven on the loom."

The defendant put in evidence which tended to show that the elastic webbing in controversy was bought and invoiced as "elastic webbing," but was sold in the market in the United States as "goring;" that the general trade name for it in the United States was "goring;" that it was never made on braiding machines or by hand; that "elastic webbing" was a term known in trade and commerce in the United States prior to 1883, applicable to goods like the plaintiff's importation; that the term "elastic webbing," applied to goods like those in question, had been known in trade and commerce, as the foreign name, since and prior to 1883, in and among importers

Opinion of the Court.

and large dealers, but that "goring" was the American name, and the article was so called because it was used to make gores of, and formed the goring of a Congress shoe; and that the shoe manufacturer called them gores. It was also admitted at the trial, that all the testimony contained in the bill of exceptions as to trade designation and use was likewise true immediately prior to and on March 3, 1883.

At the close of the case, the defendant moved the court to direct a verdict for him, upon the general ground that the plaintiffs had not established their contention, and specifically as to the goods composed of worsted and rubber, that it appeared from the testimony that they were known in this country under the specific name of "goring;" and that, especially since the word "goring" was inserted first into the worsted clause by the act of March 3, 1883, it more specifically described the goods in question than "fabrics in part of indiarubber." That motion was denied by the court, and the defendant excepted.

The defendant then asked to have submitted to the jury the question whether or not the merchandise composed of worsted and rubber was known in trade and commerce, and among large dealers in this country, under the name of "goring;" which motion was denied by the court, and the defendant excepted.

The court then directed a verdict for the plaintiffs for the respective amounts sought to be recovered by them. To this ruling the defendant excepted.

At the time the goods in question were imported, they were subject to duty under § 2502 of Title 33 of the Revised Statutes, as enacted by § 6 of the act of March 3, 1883, c. 121, 22 Stat. 488.

Schedule I, "Cotton and Cotton Goods," of § 2502, provided as follows (p. 506) in regard to duties: "Cotton cords, braids, gimps, galloons, webbing, goring, suspenders, braces, and all manufactures of cotton, not specially enumerated or provided for in this act, and corsets, of whatever material composed, thirty-five per centum ad valorem."

Schedule K, "Wool and Woollens," (p. 509): "Webbings,