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for duties on hair-cloth known as "crinoline cloth," and "on all other manufactures of hair not otherwise herein provided for;" and not under act of March 2, 1867, (14 St. 561,) relating to duties on women's dress goods composed wholly or in part of wool, worsted, hair of the alpaca, goat, or other like animal.

In Error to the Circuit Court of the United States, for the Southern District of New York.

Sol. Gen. Jenks, for plaintiffs in error. George Bliss, for defendants in

error.

FIELD, J. This action was brought by the plaintiffs below to recover of the late collector of the port of New York certain sums of money alleged to have been illegally exacted as duties on goods imported by them. It was tried in the circuit court of the United States for the Southern district of New York, where the plaintiffs recovered a verdict; and to review the judgment entered thereon the executors of the collector, since deceased, have sued out this writ of error. The complaint describes the goods imported, in general terms, as manufactures of hair. There were 14 importations between the 24th of January and the 25th of June, 1874. Upon the goods, which were styled "goat-hair goods," the collector assessed duties under provisions of the act of March 2, 1867, (14 St. 561,) "to provide increased revenue from imported wool, and for other purposes," relating to women's and children's dress goods, and real or imitation Italian cloths, composed wholly or in part of wool, worsted, the hair of the alpaca, goat, or other like animals, at 6 cents a square yard and 35 per centum ad valorem upon such as were valued at not more than 20 cents a square yard, and at 8 cents a square yard and 40 per centum ad valorem upon such as were valued at more than 20 cents a square yard. The plaintiffs contended that this assessment of duties was erroneous; that the duties should have been assessed under the twenty-first section of the act of July 14, 1870, "to reduce internal taxes, and for other purposes," (16 St. 264,) as the goods were, within its terms, "manufactures of hair not otherwise provided for;" and that a reduction thereon should be made of 10 per centum, under the act of June 6, 1872, (17 St. 231.) That section provides that "after the thirty-first day of December, eighteen hundred and seventy, in lieu of the duties now imposed by law on the articles hereinafter enumerated or provided for, imported from foreign countries, there shall be levied, collected, and paid the following duties and rates of duties; that is to say: On hair-cloth of the description known as 'hair-seating,' eighteen inches wide or over, forty cents per square yard; less than eighteen inches wide, thirty cents per square yard. On hair-cloth known as crinoline cloth, and on all other manufactures of hair not otherwise provided for, thirty per centum ad valorem." By the joint resolution of January 30, 1871, this clause was amended by the insertion of the word "herein," between the words "otherwise" and "provided." 16 St. 592. The reduction of 10 per cent. under the act of June 6, 1872, was made upon such of the invoices as were produced, but most of the invoices had been mislaid. It was not, therefore, shown that such reduction had been made upon all of them. On the trial, it appeared that the "goat-hair goods" are fabrics manufactured of cotton, and the hair of the angora or other goat, the warp being cotton, and the woof being goat's hair; that their chief use is for women's dresses; that they are known in the trade under such specific names as "brilliantines," "lustrines," "alpacas," and "mohairs;" that the goat's hair of which they are composed in part constitutes 80 per cent. of the whole value, and the cotton 20 per cent. It also appeared that crinoline cloth is made of cotton and hair, the long hair being from the tail or mane of the horse, and woven into a cotton warp, the width being governed by the length of the hair, and that it is used for ladies' underwear; that hair-seating is a similar fabric to crinoline cloth, the only difference being that it is more closely woven, and is used mainly for upholstering purposes. Evidence was offered by the defendant tending to show that the

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goat-hair goods are generally known in the trade and commerce of the country under the name of "women's dress goods;" but on this point the evidence was conflicting, some of the witnesses stating that they were known by their specific names as "brilliantines" and "alpacas," and some that they were at the time of importation known as "women's dress goods. It was stipulated, for the purpose of the trial, that, if the jury should render a verdict for the plaintiff, it should be subject to adjustment as to formal requisites and amounts at the custom-house, under the direction of the court; and, to raise the questions involved, it was also stipulated, as to one of the importations, that the plaintiffs had paid the duties assessed, and in due time filed their written protest, appealed to the secretary of the treasury, and brought this action. When the evidence was closed, the court was requested to direct a verdict for the defendant on the ground that such goat-hair goods were (1) women's dress goods, composed wholly or in part of the hair of the alpaca, goat, or other like animal; (2) that they were not manufactures of hair, but were manufactures of mixed materials, and by the similitude clause were liable to duty as manufactures of cotton, the latter being assessed at a higher rate of duty than that prescribed for manufactures of hair; and (3) that, under the act of 1870, the terms, "all other manufactures of hair not otherwise provided for," meant other manufactures of hair, like those enumerated in the same section, namely, crinoline cloth or hair-seating, and that there was no evidence that the goathair goods were like them. The court overruled the motion, and the defendant excepted. It then instructed the jury in substance as follows: That under the act of 1867, which remained in force until 1870, there was assessed a certain duty on women's and children's dresses composed wholly or in part of wool, worsted, hair of the alpaca, goat, and other like animals; that in 1870 the law was changed, in some respects, so as to make the duty assessable on hair-cloth known as "crinoline cloth," and all other manufactures of hair, at a less rate; that the goods upon which the duties were assessed in this case were manufactures principally of hair; that the principal value of them was of hair; that, according to the evidence, 80 per cent. was of hair, and 20 per cent. of cotton; that the general language of the act of 1870 would control and guide in the assessment of duties upon them, unless they had, before the passage of the act, come to be specifically known as "dress goods" among merchants and importers; that the question, therefore, was whether they had acquired such a name in the trade and commerce of the country as to be specifically known by it, instead of the general name of "manufactures of hair;" that if they had not acquired such specific name, and were not known by it, they would come under the general name of "manufactures of hair," and the plaintiffs would be entitled to recover; and that, on the other hand, if they had acquired such specific name, and were known by it in trade and commerce, the defendant would be entitled to a verdict. The defendant tock various exceptions to this charge, and in this court presents anew the questions raised upon the instructions refused.

The instructions were, in our opinion, properly refused, and the case was presented to the jury as fully as was required for their appreciation of the question involved. The goods were composed of 80 per cent. of hair; and there is no provision of law to which our attention has been drawn that takes goods thus composed, not having a specific commercial designation, from the general designation as "manufactures of hair." The finding of the jury is conclusive that they were not known in commerce, among merchants and importers, as women's and children's dress goods. It is well settled that a designation of an article of commerce by merchants and importers, when clearly established, determines the construction of a revenue law when that article is mentioned. It was so held in Arthur v. Morrison, 96 U. S. 108, and in many other cases which are cited in the opinion of the court in that case. In Elliott v. Swartwout, 10 Pet. 151, the court said that "laws imposing duties on im

portations of goods are intended for practical use and application by men engaged in commerce; and hence it has become a settled rule, in the interpretation of statutes of this description, to construe the language adopted by the legislature, and particularly in the denomination of articles, according to the commercial understanding of the terms used. This rule is fully recognized and established by this court in the Case of Two Hundred Chests of Tea, reported in 9 Wheat. 438." The fact that 20 per cent. of cotton entered into the composition of the goods, and only 80 per cent. of them are of hair, does not change their character as manufactures of hair, within the meaning of the act of 1870. Crinoline and hair-seating, both of which are in that act specifically designated as "hair-cloth," have also cotton in their composition. The designation of a cloth, as hair, silk, or cotton, depends on the predominance of such article in its composition, and not upon absence of any other material. The twenty-first section of the act of 1870 having been, as mentioned above, amended in 1871 by the insertion of the word "herein" between "otherwise" and "provided," the clause of the section is to be construed as though its language was that "after the 31st of December, 1870, in lieu of the duties now imposed by law on the articles hereinafter enumerated or provided for, imported from foreign countries, there shall be levied, collected, and paid the following duties and rates of duties; that is to say: * * * On hair-cloth of the description known as 'hair-seating,' eighteen inches wide or over, forty cents per square yard; less than eighteen inches wide, thirty cents per square yard. On hair-cloth known as crinoline cloth,' and on all other manufactures of hair not otherwise herein provided for, thirty per centum ad valorem." The words, "all other manufactures of hair not otherwise herein provided for," mean not otherwise provided for in the act of which they are a part. Smythe v. Fiske, 23 Wall. 374. There is no provision in that act for other manufactures of hair than crinoline and hair-seating. It therefore necessarily follows that, if the goat-hair goods in question are to be deemed manufactures of hair, the duties are to be assessed in conformity with that act, and not according to the provisions of any other act.

The construction of the clause for which the government contends, if admitted, would lead to great embarrassment, if not insurmountable difficulty, in determing the duties to be assessed on many articles. Its position is that by "all other manufactures of hair not otherwise provided for" is meant all other manufactures of hair similar to crinoline cloth and hair-seating. If this be correct, it would be impossible to say at what rate of duty such other manufactures of hair are to be assessed,-whether by the square-yard rate, or the ad valorem rate. The two rates could not be indifferently applied. The natural meaning of the section is that on crinoline cloth an ad valorem duty shall be assessed, and a similar duty on all other manufactures of hair not otherwise provided for in the act. The similitude clause can have no bearing on the question. That clause only provides that there shall be levied on each nonenumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any article enumerated as chargeable with duty, the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars mentioned. Rev. St. 2499. To place articles among those designated as enumerated, it is not necessary that they should be specifically mentioned. It is sufficient that they are designated in any way to distinguish them from other articles. Thus the words, "manufactures of which steel is a component part," and "manufactures of which glass is a component part," have been held a sufficient designation to render the goods enumerated articles under the statute, and take them out of the similitude clause. Arthur v. Sussfield, 96 U. S. 128. Upon the same principle, "manufactures of hair" must be held a sufficient designation to place such manufactures among the enumerated articles. Judgment affirmed.

BUTLER, Receiver, v. COLEMAN et al.1 SAME v. MIXTER. SAME v. WHITNEY. SAME v. DEMMON.

(February 20, 1888.)

1. ATTACHMENT-BEFORE JUDGMENT-FEDERAL JURISDICTION-AGAINST NATIONAL BANK. Under Rev. St. U. S. § 5242, providing that no attachment before final judgment shall be issued in any state court against a national bank, and Rev. St. U. S. § 915, entitling the plaintiff in actions in the federal courts to similar remedies by attachment as those provided by the laws of the state in which such courts are held, a federal court cannot issue a writ of attachment before final judgment against a national bank; its jurisdiction in regard to attachments being limited by all the restrictions imposed upon state courts.

2. SAME UNLAWFUL ATTACHMENT-BOND FOR PROPERTY-VALIDITY.

A bond given to release property from an illegal attachment creates no liability either as a statutory or a common-law obligation; there being no lawful authority for taking such a bond when the attachment itself is unlawful.

3. SAME-ACTION TO SET ASIDE BOND-EQUITY-JURISDICTION.

A suit brought for the purpose of having bonds given in an attachment suit declared void and the property held by the sureties as indemnity returned is cognizable in equity when brought by the principal on the bonds; such an action being in the nature of an interpleader to determine the conflicting claims to the property. Appeal from the Circuit Court of the United States for the District of Massachusetts. In error to the Circuit Court of the United States for the District of Massachusetts.

George Mixter, Henry M. Whitney, and Daniel L. Demmon each brought an attachment suit against the Pacific National Bank of Boston, and all obtained judgment. The bank, by Peter Butler, its receiver, brings error. The bank, by its receiver, also brought suit in equity against Lewis Coleman, John Shepard, George Mixter, Lucy E. Prescott, executrix of Calvin B. Prescott, deceased, Henry M. Whitney, and Daniel L. Demmon to recover possession of property of the bank deposited with Coleman and Shepard to secure them against loss on account of bonds signed by them as sureties, and given to release property seized on these attachments. The bill was dismissed on the hearing, and the receiver appeals.

A. A. Ranney, for appellant and plaintiff in error. Joshua D. Ball, for appellees Mixter and Prescott. Alfred D. Foster, for appellee Whitney. Henry Wheeler, for appellee Demmon. Richard Stone for appellees Coleman and Shepard.

WAITE, C. J. All of these cases involve the same general question, and they may properly be considered and decided together. From the records it appears that the Pacific National Bank of Boston was an association for carrying on the business of banking, organized under the national bank act. On the 20th of November, 1881, it became embarrassed, and was placed in charge of a bank examiner, in whose control it remained until March 18, 1882, when its doors were opened for business with the consent of the comptroller of the currency. By statute, in Massachusetts civil actions are begun by original writ, which "may be framed either to attach the goods or estate of the defendant, and, for want thereof, to take his body; or it may be by original summons, with or without an order to attach the goods or estate." Pub. St. Mass. 1882, c. 161, §§ 13, 14. "All real and personal estate liable to be taken on execution * * * may be attached upon the original writ in any action in which debt or damages are recoverable, and may be held as security to satisfy such judgment as the plaintiff may recover." Section 38. "A person or corporation whose goods or estate are attached on mesne process in a civil action may, at any time before final judgment, dissolve such attachment by giving bond with sufficient sureties, * ** with condition to pay to the

'Reversing Price v. Coleman, 22 Fed. Rep. 694.

plaintiff the amount, if any, that he may recover within thirty days after the final judgment in such action." Section 122. At the time the bank resumed business, it was indebted to George Mixter in the sum of $15,000; to Henry M. Whitney also in the sum of $15,000; to Daniel L. Demmon in the sum of $25,000; and to Calvin B. Prescott in the sum of $5,000. On the 24th of March, 1881, Mixter and Prescott each began a suit against the bank in the circuit court of the United States for the district of Massachusetts, by writ directing an attachment, to recover the amounts due them respectively. Demmon also began a suit in the same court and in the same way on the 28th of March, to recover the amount due him, and Whitney another on the 28th of April, upon the claim in his favor. At the time these suits were begun, the bank had money on deposit to its credit in the Maverick National Bank and in the Howard National Bank, and the necessary steps were taken to subject these deposits to the attachments which were issued in the several suits. The bank arranged with Lewis Coleman and John Shepard to become its sureties upon bonds to dissolve attachments in any actions that might be brought against it, and placed in their hands a certificate of deposit in the Maverick National Bank for $100,000, to be held as their protection against all liabilities which should be thus incurred. This certificate was afterwards exchanged for $121,000 of the bonds of the Nantasket Company, $20,000 of the bonds of the Toledo, Delphos & Burlington Railroad Company, and $15,000 of the bonds of the Lebanon Springs Railroad Company. Immediately after each of the attachments in the above actions had been made, the bank executed a bond to the plaintiff in a penal sum suited to the amount of the claim, with Coleman and Shepard as its sureties, reciting the attachment, and that the bank "desires to dissolve said attachment according to law," and conditioned to be void "if the Pacific National Bank of Boston shall, within thirty days after the final judgment in the aforesaid action, pay to the plaintiff therein named the amount, if any, which he shall recover in such action." Upon the execution of the bond in each case, the attachment was dissolved. After this the bank closed its doors a second time, and on the 22d of May, 1882, a receiver was appointed by the comptroller of the currency in accordance with the provisions of section 5234 of the Revised Statutes, and at once took possession of its assets and proceeded to wind up its affairs. When the receiver was appointed he found the several suits which had been commenced still pending. In the Cases of Mixter, Whitney, and Demmon he appeared, answered for the bank, filed motions to discharge the attachments, and motions to dismiss the suits. His motions were all overruled, and, his defenses not being sustained, judgments were rendered against the bank in each of the cases for the amounts found to be due the several plaintiffs respectively. For the review of the action of the court in these cases the writs of error which are now under consideration were brought. The suit of Prescott still remains undisposed of in the circuit court. Failing in his motions and in his defenses at law, the receiver filed a bill in equity in the circuit court against the several attaching creditors, and the sureties on the bonds given to dissolve the attachments, the object of which was to reduce to his possession the securities which were held by the sureties for their protection against liability, and to restrain the several attaching creditors from enforcing the attachment bonds on the ground, among others, "that the attachments made in said actions were unauthorized, illegal, and void." This bill was dismissed by the circuit court, (22 Fed. Rep. 694,) and from that decree the appeal which is now one of the subjects of consideration was taken.

In the view we take of the case, the most important question to be considered is whether an attachment can issue against a national bank before judgment in a suit begun in the circuit court of the United States. Section 5242 of the Revised Statutes of the United States contains this provision: "No attachment, injunction, or execution shall be issued against such association or

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