(120 U. S. 268) BANK OF MAYSVILLE . CLAYPOOL and another. (January 31, 1887.) EMOVAL OF CAUSES-APPLICATION, WHEN MADE-18 ST. U. S. 470, CH. 137. An application for a removal of a cause from a state to the United States court, on the ground of citizenship, under 18 St. U. S. 470, c. 137, comes too late wher made after trial and verdict, subject only to a demurrer to the evidence. The law requires the application should be made before the trial. In Error to the District Court of the United States for the District of West Virginia. Benj. H. Smith, for plaintiff in error. J. Holdsworth Gordon, for defendants in error. 99 WAITE, C. J. This is a writ of error for the review of an order of a district court, having circuit court jurisdiction, remanding a cause which had been removed from a state court, under section 2 of the act of March 3, 1875, c. 137, (18 St. 470,) on the ground of citizenship. The record shows a suit begun by the Bank of Maysville in the circuit court of Kenawha county, West Virginia, September 24, 1877, against Claypool, as maker, and Thayer, as indorser, of a promissory note. After a demurrer, which was overruled, a plea was filed November 26, on which the parties went to trial the same day before a jury. After the evidence on the part of the plaintiff was all in, the defendant Thayer prayed judgment, because, on the facts proven, no case had been made out against him. The jury, under instructions from the court, found the amount due on the note, "subject to the judgment of the court on the demurrer to the evidence," and were discharged. Afterwards, on the tenth of January, 1878, the bank moved for leave to amend its declaration so as to show that it was a corporation created by the laws of the state of Kentucky, "and existing in said state of Kentucky. This motion was denied, and the bank then moved for leave "to withdraw its joinder to the defendants' demurrer to the plaintiff's evidence," and that the verdict be set aside, and a new trial granted. While these motions were pending, undisposed of, the bank filed its petition for the removal of the suit to the district court of the United States sitting at Charleston, on the ground that the plaintiff was a Kentucky corporation, and the defendants were citizens of West Virginia. Objection was made by the defendants, on the fourth of November, 1879, to the entry of the case in the district court, but this objection was overruled, and the cause docketed by order of the court November 17, 1880. Thereupon the demurrer to the evidence was argued and submitted to the court. On the sixth of December, 1880, there was filed in this court a petition by the defendant Thayer, sworn to September 13, 1880, for a rule on the district judge to show cause why a mandamus should not issue requiring him to remand the suit. In this petition it did not appear that the court had taken any action in the matter, and it was denied because no application had been made for an order to remand. In the opinion it was said: "We cannot doubt that, if such an application is made, it will be promptly granted, if the facts are as they are stated here. The petition for removal was not filed in the state court until after both trial and verdict, when the law requires it should be filed before or at the term at which the cause could be first tried, and before the trial thereof." Afterwards, May 7, 1883, a motion to remand was made by Thayer, and at once granted by the court. To review that order this writ of error was brought. In the Removal Cases, 100 U. S. 457, which were decided December 15, 1879, it was held that a petition for removal *under the act of 1875 to be in time must be "presented to the court before the trial is in good faith entered upon," and we there said, (page 473:) “There may be exceptions to this rule; but we think it clear that congress did not intend, by the expression before v.7s.c.-35 trial,' to allow a party to experiment on his case in the state court, and, if he met with unexpected difficulties, stop the proceedings, and take his suit to another tribunal. But to bar the right of removal it must appear that the trial had actually begun and was in progress in the orderly course of proceeding when the application was made. No mere attempt of one party to put himself on record as having begun the trial is enough. The case must be actually on trial by the court, all the parties acting in good faith, before the right of removal is gone." This rule was recognized and followed in Jifkins v. Sweetzer, 102 U. S. 179, and Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. Rep. 495, and must now be considered as settled. Clearly, therefore, this application for removal came too late. When it was filed, the trial had not only begun, but it had progressed far enough to get a verdict of a jury, subject only to the decision of the court on the questions presented by the demurrer to the evidence. In this connection it is proper to say that the ruling in the Removal Cases was not probably known to the district judge when his order to docket the cause was made, because the volume of our reports in which those cases are found was not published and generally distributed until a very considerable time after our adjournment for the term in May, 1880. The court did not actually proceed in the case after it was docketed further than to take it on the submission of the demurrer to the evidence made at that time, and the order to remand was granted as soon as a motion to that effect was made by the bank. The order remanding the case is affirmed. (120 U. S. 264) SCHLESINGER and another, Copartners, etc., v. BEARD, Collector of Customs.' SAME v. UNITED STATES. (January 31, 1887.) CUSTOMS DUTIES-" WROUGHT IRON"-REV. ST. U. S. & 2504, SCHEDULE E. Punchings and clippings of wrought-iron boiler-plates and wrought sheet-iron, left after the process of the manufacture of the boiler-plates into boilers is completed, and the ends of bridge rods and beams of wrought iron cut off to bring the rods and beams to the required length, are iron that has been in "actual use," within the meaning of that term as used in Schedule E, ? 2504, Rev. St. U. S., and dutiable as wrought scrap iron under that paragraph. In Error to the Circuit Court of the United States for the District of Massachusetts. L. S. Dabney and W. S. Hall, for plaintiffs in error. Sol Gen. Jenks, for defendants in error. WAITE, C. J. These cases involve substantially the same questions, and may be considered together. One is a suit by Naylor & Co., importers, against Beard, the collector of customs in Boston, to recover back duties alleged to have been illegally exacted, and the other is a suit by the United States against the same importers to recover additional duties assessed on the liquidation of an entry after the delivery of the goods upon payment of estimated duties. The facts are these: In October, 1879, Naylor & Co. imported into the port of Boston, from England, 170 tons of wrought scrap iron, consisting "of the punchings and clippings of wrought-iron boiler-plates and wrought sheet-iron, left after the process of the manufacture of the boiler-plates into boilers was completed, and of the ends of bridge rods and beams of wrought iron, cut off to bring the rods and beams to the required length, and to remove imperfections." When the entry was made at the custom-house, the duties were estimated upon the whole, at the rate of eight dollars per ton. On the payment 'Reversing 14 Fed. Rep. 687. of this estimate the iron was delivered to the importers. Afterwards 263,332 pounds were classified by the customs officers as "new wrought scrap iron," and an additional duty of $1,611.92 charged thereon. For the recovery of this amount the suit in favor of the United States was brought. In November, 1879, the same parties imported from England 200 tons of wrought scrap iron, consisting entirely of punchings and clippings, such as are described above. Upon this entry 280,995 pounds were classified as "old wrought scrap iron," and charged with duty at the rate of eight dollars per ton, and 138,400 pounds as "new wrought scrap iron," and charged at the rate of one cent a pound. The importers paid the duties assessed under protest as to the last item, and then sued to recover back $889.70, the difference between the duties at eight dollars per ton and the amount actually paid. It was agreed that the punchings, clippings, and ends were all waste iron, and incapable of being further used, and that they were only fit for remanufacture. The only actual use to which they had been subjected was in the making of boilers from the plates out of which they had been cut in the process of manufacture, and in the building of bridges of which the rods and beams that had been cut to adapt them to their places formed a part. The importers claimed that all were dutiable as "wrought scrap iron," under Schedule E of section 2504 of the Revised Statutes, p. 466, while the collector claimed that the part classified as "new wrought scrap iron" was subject to a duty of one cent a pound, as "iron less finished than iron in bars, and more advanced than pig-iron," because it had not been in "actual use. ." The court below gave judgment in each of the suits against the importers, to reverse which these writs of error were brought. The provisions of the tariff act on which the cases depend are the following clauses in Schedule E of section 2504 of the Revised Statutes: "(1) [Page 464.] But all iron in slabs, blooms, loops, or other forms, less finished than .ron in bars, and more advanced than pig-iron, except castings, shall be rated as iron in bars, and pay a duty accordingly," i. e., one cent per pound. “(2) [Page 466.] Cast scrap iron of every description, six dollars per ton. Wrought scrap iron of every description, eight dollars per ton. But nothing shall be deemed scrap iron except waste or refuse iron that has been in actual use, and is fit only to be remanufactured." This particular form of provision as to scrap iron, both cast and wrought, appeared for the first time in the act of July 14, 1870, c. 255, § 21, (16 St. 264,) from which it was carried into the Revised Statutes. The earlier statutes were as follows: (1) An act of July 14, 1832, c. 227, § 2, cl. 13, (4 St. 588:) "That all scrap and old iron shall pay a duty of twelve dollars and fifty cents per ton; that nothing shall be deemed old iron that has not been in actual use, and fit only to be remanufactured; and all pieces of iron, except old, of more than six inches in length, or of sufficient length to be made into spikes and bolts, shall be rated as bar, bolt, rod, or hoop iron, as the case may be, and pay duty accordingly." (2) An act of August 30, 1842, c. 270, § 4, cl. 3, (5 St. 552,) which is substantially the same as the act of 1832, excepting only that the duty is reduced to $10 per ton. (3) An act of July 30, 1846, c. 74, § 11, Schedule 6, (9 St. 45,) which places among articles subject to a duty of 30 per cent. ad valorem, “iron in bars, blooms, bolts, loops, pigs, rods, slabs, or other form not otherwise provided for; castings of iron; old or scrap iron." (4) An act of March 2, 1861, c. 68, § 7, cl.g 3, (12 St. 181:) "On old scrap iron, six dollars per ton: provided, that nothing shall be deemed old iron that has not been in actual use, and fit only to be remanufactured." (5) An act of June 30, 1864, c. 171, § 3, (13 St. 205,) which is in the exact language of the act of 1861, except that the duty is raised from six to eight dollars per ton. It thus appears that in 1870 the form of the statutes on this subject was materially changed, and that now the duty is laid upon “scrap iron," without any reference to whether it is new or old, and that all waste or refuse iron is scrap iron, if it has been in actual use, and is only fit for remanufacture. That the iron now under consideration was waste iron is conceded; and, in our opinion, it had been “in actual use" within the meaning of that term as employed in the statute. At one time it formed part of boiler-plates used in the manufacture of boilers, or of rods or beams used in building bridges. In order to fit the plates, rods, or beams to the places they were to occupy in the structures of which they were to form a part these pieces were cut off as useless, and thrown away, or, in the language of the trade, "into the scrap heap." They had become, by the use to which they were put, "scrap iron," in the popular sense of that term, and nothing else. It is true the cuttings and clippings had never themselves been used in the boilers or in the bridges, but they had been used in making those structures, and thus had accomplished the purpose for which they were originally manufactured. The plates, rods, and beams of which they were once parts had been used, and these were the waste resulting from that use. They are not old in the sense of having been worn by use, but they are scrap, and no longer capable of any use until remanufactured, because in their use they have been rendered worthless for any purpose except to remanufacture. In the popular sense, as manufactured articles, they have been used up,-made worthless by use; and this use has been actual, not colorable only. The plates, rods, and beams were made to be used in a particular way. They have been so used, and these cuttings and clippings are the waste of that use. Consequently they are, in our opinion, "wrought scrap iron," and dutiable as such. The judgment in each of the cases is reversed, and the causes remanded, with instructions to enter judgment upon the agreed facts in favor of the importers in the suit against the collector, and against the United States in the suit against the importers. (120 U. S. 260) BEARD, Collector of Customs, etc., o. NICHOLS and another, Copartners, etc.1 (January 31, 1887.) CUSTOMS DUTIES-WOOL ELASTIC WEBBING-HOW DUTIABLE. Under Rev. St. U. S. 2 2504, webbing made of India rubber, wool, and cotton, and known as "wool elastic webbing." to distinguish it from "union elastic webbing," and "cotton elastic webbing," which is used in the manufacture of congress boots, and which would not be adapted to that use without the rubber, is dutiable as "webbing composed wholly or in part of India rubber, not otherwise provided for," at 35 per cent. ad valorem (Schedule M,) and not as "webbing made of wool, • or of which wool is a component material," at 50 cents per pound and 50 per cent. ad valorem, (Schedule L.) In Error to the Circuit Court of the United States for the District of Massachusetts. Action to recover duties paid. Plaintiff had judgment below. Sol. Gen. Jenks, for plaintiff in error. ants in error. Chas. Levi Woodbury, for defend. WAITE, C. J. The single question in this case is as to the duty payable in the latter part of 1878 and the early part of 1879 on "webbing made of India rubber, wool, and cotton," and known as "wool elastic webbing," as distinguished from "union elastic webbing," made of rubber, silk, and cotton, and "cotton elastic webbing," made of rubber and cotton. It is used for gores and gussets in the manufacture of congress boots, and, without the rubber, would not be adapted to that use. In its manufacture it is not wrought by hand or braided by machinery, but is woven in a loom. In the court below. three clauses of section 2504 of the Revised Statutes were brought under consideration, to-wit: First. Schedule L, "Wool and Woolen Goods," (Rev. St. 472:) "Webbings, beltings, bindings, braids, galloons, fringes, gimps. 1 Affirming 7 Fed. Rep. 579. 89Ze cords, cords and tassels, dress trimmings, head nets, buttons, or barrel buttons, or buttons of other forms for tassels or ornaments, wrought by hand or braided by machinery, made of wool, worsted, or mohair, or of which wool, worsted, or mohair is a component material, 50 cents per pound, and, in addition thereto, 50 per cent. ad valorem." Second. Schedule M, "Sundries," (Rev. St. 477:) "India rubber, articles composed of.-Braces, suspenders, webbing, or other fabrics, composed wholly or in part of India rubber, not otherwise provided for, 35 per cent. ad valorem.” Third. Schedule L, "Wool and Woolen Goods," (Rev. St. 471:) "Woolen cloths, woolen shawls, and all manufactures of wool of every description, made wholly or in part of wool, not herein otherwise provided for, 50 cents per pound, and, in addition thereto, 35 per cent. ad valorem." In this court, however, it was conceded by the solicitor general, in his argument for the collector, that, as the third clause does not specifically provide for webbing, and both the others do, that clause would not be relied on here. The precise question to be determined is therefore whether these goods are dutiable as "webbing, * * * composed wholly or in part of Indian rubber,” at 35 per cent. ad valorem, or as “web* made of wool * * or of which wool * * bing * * is a component material," at 50 cents per pound, and, in addition thereto, 50 per cent. ad valorem. The collector exacted the larger duty, and this suit was brought to recover back the difference between that and the smaller one. The court below gave judgment against the collector, and to reverse that judgment this writ of error was sued out. * * ་ In the tariff act of August 30, 1842, c. 270, § 5, subd. 10, (5 St. 555,) was this provision: "On India-rubber oil-cloth, webbing, shoes, braces, or suspenders, or other fabrics or manufactured articles composed wholly or in part of India rubber, 30 per centum ad valorem." In the act of July 30, 1846, c. 74, § 11, Schedule C, (9 St. 44,) this was the language: "Braces, suspenders, webbing, or other fabrics, composed wholly or in part of India rubber, not otherwise provided for." The same provision was made in the act of March 2, 1861, c. 68, § 22, (12 St. 191,) and in the act of July 14, 1862, c. 163, § 13, (12 St. 556,) which increased the duties on these articles 5 per centum ad valorem. In the last of these acts, (section 8, p. 552,) was the following provision: "On manufactures of India rubber and silk, or of India rubber and silk and other materials, 50 per centum ad valorem." These provisions of the acts of 1861 and 1862 were re-enacted in substantially the same language as part of the Revised Statutes. That in relation to manufactures of India rubber and silk, and India rubber and silk and other materials, is found in section 2504, immediately preceding the second of the clauses above referred to. In 1873, while the acts of 1861 and 1862 were in force, and before the enactment of the Revised Statutes, Davies & Co."imported into New York "suspenders or braces, manufactured of rubber, cotton, and silk," and the collector exacted a duty of 50 per centum ad valorem as upon a manufacture of India rubber and silk and other materials; but this court held in Arthur v. Davies, 96 U. S. 135, that they were only dutiable at the rate of 35 per centum ad valorem, as suspenders or braces composed wholly or in part of India rubber, and that they were not "otherwise provided for," as manufactures of India rubber and silk and other materials, because for 30 years before the importation in that case, "and in four different statutes, braces and suspenders, composed wholly or in part of India rubber, had been a subject of duty eo nomine." During the same year Faxon, Elms & Co. imported into Boston from Liverpool webbing which was a manufacture of India rubber, silk, and cotton, known as "Union Gussett," "Union Web," or "Union Elastic Web," and used in the manufacture of the gores or gussets of congress boots. In this case, also, the collector exacted a duty of 50 per centum ad valorem, under section 8 of the act of 1862, as on manufactures of India rubber and silk and other materials, but this court held, at its October term, 1878, in Faxon v. ⚫263 |