material. At any rate, we cannot see how it in any manner tended to prejudice the defendant.

We may remark, in regard to other alleged errors in the introduction of testimony, that the order in which testimony shall be admitted is largely within the discretion of the trial court; that when the court rules correctly that certain matters are not proper subjects of cross-examination, and at the same time notifies the defendant that he can recall the witness and examine him fully in reference to those matters, and the defendant fails to recall the witness or introduce his testimony thereon, it is difficult to see any ground of complaint; and, further, that the credibility of a witness cannot be impeached by asking her whether she has not had some difficulty with her husband.

Another assignment of error is that one of the jurors was permitted to act as interpreter. The record discloses that when Lauenberger was called as a witness one Fritz Lomax was sworn as interpreter. After the examination had proceeded a little while, defendant's counsel suggested that the interpreter was not correctly translating the answers of the witness; that the defendant had so informed him, which statement was corroborated by one of the jurors. This juror was asked if he fully understood the peculiar dialect of the German language which the witness spoke, and replied that he did, whereupon, with the consent of defendant, he was sworn to act as an interpreter, and the subsequent examination of the witness was carried on through him. We cannot see that in this any substantial right of the defendant was prejudiced. The juror certainly heard all that the witness stated, and was therefore fully prepared to act with the other Jurors in considering his testimony, and, as his interpretation of the witness' testimony was with the consent of the defendant, the latter cannot now question its propriety.

The remaining assignments of error relate to the matter of instructions. It appears that at the close of the testimony the defendant presented a body of instructions in 22 paragraphs, and asked the court to give them to the jury. They were marked "Refused as a whole, except as given," and the only exception to such refusal was in this language: "The defendant excepts to the refusal of the court to give the instructions requested by the defendant, being numbered 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, and 21." Such an exception is insufficient to compel an examination of each separate instruction. It is enough that any one of the series is erroneous. In Beaver v. Taylor, 93 U. S. 46, 54, this precise question was presented, and the court said: "The entire series of propositions was presented as one request; and, if any one proposition was unsound, an exception to a refusal to charge the series cannot be maintained." See, also, Railroad Co. v. Horst, Id. 291, 295; Block v. Darling, 140 U. S. 234, 11 Sup. Ct. 832; Bogk v. Gassert, 149

U. S. 17, 26, 13 Sup. Ct. 738; Holder v. U. S., 150 U. S. 91, 14 Sup. Ct. 10; Hickory v. U. S., 151 U. S. 303, 316, 14 Sup. Ct. 334; Allis v. U. S., 155 U. S. 117, 15 Sup. Ct. 36; Mississippi Valley Co. v. Pace, 158 U. S. 36, 15 Sup. Ct. 743.

An examination of the 22 instructions shows that they are mainly directed to the matters of reasonable doubt, presumption of innocence, circumstantial testimony, and confessions, in respect to which the court, while not using the language of counsel, substantially expressed the same propositions in its charge. Of course, it was under no obligation to use the precise language adopted by counsel, and if it fully covered the ground indicated by the requests it is sufficient. One of the requests, to wit, No. 21, reads as follows:

"The jury are instructed that marital discord and quarrels are relevant to prove motive in cases of marital homicide, but, as instances of such quarrels are very numerous, generally expending their force in words, such proof is entitled to little weight, unless connected in, rome way with the fatal wound."

This, if true under any circumstances, was' obviously improper as applied to the facts of this case, for, as there was no evidence of what took place between the deceased and her murderer at the night of the homicide, it might carry the impression to the jury that they were to ignore all the testimony of marital discord and quarrels because there was no express connection shown between such quarrels and the homicide.

It also appeared that defendant's counsel, at the close of the charge, excepted as follows:

"Further, the defendant excepts to the giving of the instructions to the jury on the definition of the word 'malice,' and its application to this case, as being misleading, confusing, and not correctly stating the law as applicable to this case, and tending to influence the jury to find a verdict not justified by the evidence in this case.

"The defendant excepts to the giving of the instruction of the court to the jury on the question of murder in the second degree, as not being justified by the evidence, and tending to mislead and confuse the jury and cause them to render a verdict not sustained by the evidence in this case.

"The defendant excepts to the instruction of the court to the jury in defining 'deliberation,' that the same does not properly and legally define the meaning of the words used in the indictment in this case.

"The defendant excepts to the instruction of of the court to the jury in the definition and meaning of 'premeditation,' as misleading and not correct as charged in the indictment in this case."

It may well be doubted whether these exceptions are sufficiently specific to call the attention of the court to the precise matters complained of. Beaver v. Taylor, 93 U. s. 46, 55, in which this court observes: "It is

not the duty of a judge at the circuit court, or of an appellate court, to analyze and compare the requests and the charge, to discover what are the portions thus excepted to. One object of an exception is to call the attention of the circuit judge to the precise point as to which it is supposed he has erred, that he may then and there consider it, and give new and different instructions to the jury, if in his judgment it should be proper to do so." Allis v. U. S., 155 U. S. 117, 15 Sup. Ct. 36; Mississippi Valley Co. v. Pace, 158 U. S. 36, 15 Sup. Ct. 743. But, if they are, we find nothing in the charge of the court in respect to those matters which can be deemed erroneous. This was the definition of "malice": "The term 'malice' denotes a wicked intention of the mind. act done with a depraved mind, attendant with circumstances which indicate a willful disregard of the rights or safety of others, indicates malice. 'Malice aforethought' is such wicked intention of the mind previously entertained." Evidently, there is nothing in this of which the defendant can complain. 1 Bish. New Cr. Law, § 429. Following this definition of "malice" the court in its charge referred to the divisions of "express and implied malice," and discussed them at some length, but we find nothing in such discussion which is not supported by accepted definitions, or which in any manner would tend to the prejudice of defendant's rights.

An

With reference to the giving of an instruction on the question of murder in the second degree, the accuracy of the instruction is not questioned, and that it was proper to give | one has been already determined by this court. In Hopt v. Utah, 110 U. S. 574, 582, 4 Sup. Ct. 202, it was said: "It was competent for the judge, under the statutes of Utah, to state to the jury 'all matters of law necessary for their information,' and consequently to inform them what those statutes defined as murder in the first degree and murder in the second degree. Laws Utah 1878, p. 120; Code Cr. Proc. §§ 283, 284."

As to the other matters, we do not find in the charge any separate definition of the terms "deliberation" or "premeditation." Probably counsel referred to the statement that such deliberation and premeditation need not exist for any fixed period of time; that it is enough that they were formed before the act. This is the accepted law. 2 Bish. New Cr. Law. § 728.

Again, the verdict was returned on October 21st. On November 2d counsel for defendant came into court, and sought to save other exceptions to the charge. The court noted those exceptions, but declined to make any ruling on them. Obviously they were too late. Bank v. Eldred, 143 U. S. 293, 298, 12 Sup. Ct. 450. These are all the errors assigned. We find nothing in the record of which the defendant has any just complaint, and therefore the judgment is affirmed.

(159 U. S. 417)

SONN et al. v. MAGONE, Collector. (November 11, 1895.)

No. 16.

CUSTOMS DUTIES-CONSTRUCTION OF TARIff Laws -COMMERCIAL MEANINGS-CLASSIFICATION

OF BEANS AND LENTILS.

1. In order that an alleged commercial use of a word or phrase employed in a tariff law, which differs from its ordinary signification, shall prevail over its ordinary meaning, it must appear that such commercial designation is the result of established usage in commerce and trade, and that, at the time of the passage of the act, such usage was definite, uniform, and general, and not partial, local, or personal. Maddock v. Magone, 14 Sup. Ct. 588, 152 U. S. 368, followed.

2. The words "seeds" and "vegetables" are words of common speech, which have acquired no special signification by usage, and have no scientific meaning different from their popular meaning. Therefore, the question whether particular products, such as beans and lentils, are properly classifiable under the one or the other term, is a matter for the court to decide, and it is proper in such case to direct a verdict.

3. Beans and lentils in a mature and dry state were dutiable, under the act of March 3, 1883, under the description "vegetables," tained in paragraph 286, and were not entitled to free entry as "seeds" under paragraph 760.

con

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

*This was an action to recover duties exacted by the collector of customs of the port of New York, and paid by the importers under protest in order to get their goods. The importations were made in the years 1887 and 1888, and the articles were invoiced in four of the six invoices as "white handpicked Danubian beans," in one as "haricots," and in another as "Bohemia lentils."

By section 2502 of the customs duties act, passed March 3, 1883 (22 Stat. 488, c. 121), as a substitute for title 33 of the Revised Statutes, duties were levied on the following articles: Under Schedule A, entitled "Chemical Products," par. 94: "All barks, beans, berries, balsams, buds, bulbs, and bulbous roots and excrescences, such as nut-galls, fruits, flowers, dried fibers, grains, gums, and gum-resins, herbs, leaves, lichens, mosses, nuts, roots and stems, spices, vegetables, seeds (aromatic, not garden seeds), and seeds of morbid growth, weeds, woods used expressly for dyeing, and dried insects, any of the foregoing of which are not edible, but which have been advanced in value or condition by refining or grinding, or by other process of manufacture, and not specifically enumerated or provided for in this act, ten per centum ad valorem." Paragraph 16: "Castor beans, or seeds, fifty cents per bushel of fifty pounds."

Under Schedule G, entitled "Provisions," par. 259: "Wheat, twenty cents per bushel." Paragraph 260: "Rye and barley, ten cents per bushel." Paragraph 263: "Indian corn, or maize, ten cents per bushel." Paragraph 264: "Oats, ten cents per bushel." Para

graph 285. "Potatoes, fifteen cents per bushel of sixty pounds." Paragraph 286: "Vegetables, in their natural state, or in salt or brine, not specially enumerated or provided for in this act, ten per centum ad valorem." Paragraph 287: "Vegetables, prepared or preserved, of all kinds, not otherwise provided for, thirty per centum ad valorem."

Under Schedule N, entitled "Sundries," paragraph 452: "Hemp seed and rape seed, and other of seeds of like character, other than linseed or flaxseed, one quarter of one cent per pound." Paragraph 465: "Garden seeds, except seeds of the sugar beet, twenty per centum ad valorem." Paragraph 466: "Linseed or flaxseed, twenty cents per bushel of fifty-six pounds; but no drawback shall be allowed oL oil cake made from imported seeds."

By section 2503 the following articles were exempted from duty:

Paragraph 636: "Drugs, barks, beans, berries, balsams, buds, bulbs, and bulbous roots and excrescences, such as nut-galls, fruits, flowers, dried fibers; grains, gums, and gum-resin; herbs, leaves, lichens, mosses, nuts, roots, and stems; spices, vegetables, seeds aromatic, and seeds of morbid growth; weeds, woods used expressly for dyeing, and dried insects, any of the foregoing of which are not edible and are in a crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture, and not specially enumerated or provided for in this act."

Paragraph 760: "Plants, trees, shrubs, and vines of all kinds not otherwise provided for, and seeds of all kinds except medicinal seeds not specially enumerated or provided for in this act." Paragraph 761: "Plants, trees, shrubs, roots, seed cane, and seeds imported by the department of agriculture or the United States Botanical Garden." Paragraph 778: "Seed of the sugar beet."

Paragraph 808: "Tonquin, Tonqua

or Tonka beans."

The importations were classified by the collector as vegetables, under paragraph 286, and subjected to duty accordingly; while the importers claimed that they should have been classified as seeds, under paragraph 760, and admitted free. The circuit court Adirected a verdict for the defendant, and, Judgment having been rendered thereon, this writ of error was brought.

H. E. Tremain, for plaintiffs in error. E. B. Whitney, Asst. Atty. Gen., for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

These articles were not string beans or beans in the pod, but mature beans in a dry state, consisting of two varieties,-lentils and

white medium beans. It appeared that the main use of both lentils and beans was for food, though sometimes they were sold for seed, and that they were never bought and sold under the name of "vegetables" or under the name of "seeds," but simply as "beans" or "lentils," as the case might be. Some evidence was adduced to the effect that, although the seed, root, or top of the plant might properly be called a vegetable if green, yet that, if the article were mature and dried, it thereupon ceased to be a vegetable, and became a seed. But, as the circuit judge well said, the testimony did not deal in the commercial designation of the article or what it was called in trade and commerce, but only tended to show how the witnesses thought it should be classified. It is true that one of the plaintiffs stated that, if a customer inquired for a certain kind of field bean, he would ask him whether he wanted the "field pea bean," or "the seed of the field pea bean," or "the seed of the white medium bean," or what kind of beans he wanted; and that they imported the seeds of the lentil and the seeds of the bean, though they did not import the seed of the wheat plant, of the rye plant, or of the oat plant. It would be absurd to regard this as tending to establish a commercial designation.

In construing a tariff act, when it is claimed that the commercial use of a word or phrase in it differs from the ordinary sig-nification of such word or phrase, in order that the former prevail over the latter it must appear that the commercial designation is the result of established usage in commerce and trade, and that, at the time of the passage of the act, that usage was definite, uniform, and general, and not partial, local, or personal. Maddock v. Magone, 152 U. S. 368, 14 Sup. Ct. 588.

The articles were known in trade and commerce as lentils and beans. They did not come within the paragraphs of the tariff, specially enumerating certain beans and seeds, or referring to inedible beans, seeds, and vegetables; but the words "seeds" and "vegetables" are employed in other paragraphs, and it is conceded that these articles fell under the one or the other. The word "seeds," as found in paragraph 760 in the free list, is joined with "plants, trees, shrubs and vines," the obvious intention being to encourage agriculture, horticulture, and arboriculture by facilitating seeding and transplanting, and the words being applicable to seeds used for seeding purposes,-in common understanding, for propagation. The word "vegetables" is found in paragraph 286, under the heading "Provisions," and in common parlance applies to articles of food. The predominant use of lentils and beans is for food, and, as so used, they are commonly called "vegetables," although they may be regarded botanically as seeds, and may sometimes be used for seeding purposes. Under

such circumstances, ordinary use, not occasional or subsequent use, furnishes the guide for classification. Maillard v. Lawrence, 16 How. 251; Worthington v. Robbins, 139 U. S. 337, 11 Sup. Ct. 581; Magone v. Heller, 150 U. S. 70, 14 Sup. Ct. 18. The words "seeds" and "vegetables" are words of common speech, and there is no room here for the contention that they had acquired a special signification by usage or had a scientific, different from the popular, meaning. Whether the articles were properly classified as vegetables was a matter for the court to decide. The interpretation of words of common speech is within the judicial knowledge and matter of law. Marvel v. Merritt, 116 U. S. 11, 6 Sup. Ct. 207; Nix v. Hedden, 149 U. S. 304, 13 Sup. Ct. 881; Cadwalader v. Zeh, 151 U. S. 171, 14 Sup. Ct. 288; Saltonstall v. Wiebusch & Hilger, 156 U. S. 601, 15 Sup. Ct. 476.

As stated by counsel for the government, a verdict should not be directed where, before the meaning of the statute can be known, it is necessary to learn from conflicting evidence the controlling use of the article in question, or its similitude to some other article, or the values of its component materials, or its weight and fitness, or whether labor is necessary to fit it for use by the consumer, or its commercial designation; but we have no such case before us.

We entirely concur with the circuit court in the course pursued, which was in harmony with the ruling in Robertson v. Salomon, 130 U. S. 412, 9 Sup. Ct. 559. There practically the same question was raised,-that is, whether beans were free of duty as seeds or dutiable at 10 per cent. as vegetables; and Mr. Justice Bradley, in delivering the opinion of the court, after stating that beans were "seeds" in the language of botany and natural history, but not in commerce or in common parlance, said: "On the other hand, in speaking generally of provisions, beans may well be included under the term 'vegetables.' As an article of food on our tables, whether baked or boiled or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary or can be produced. But on the trial the parties deemed it important to introduce a great deal of testimony. The court, however, did not allow the defendant to prove the common designation of beans as an article of food. * *

The common desig

nation, as used in every-day life, when beans are used as food (which is the great purpose of their production), would have been very proper to be shown in the absence of further light from commercial usage. We think that the evidence on this point ought to have been admitted. In addition to this, the court told the jury that 'the commercial designation of the article, or what the article is call

ed in trade and commerce, or the name "bean," has nothing to do with the question." We think the court erred in this instruction. The commercial designation, as we have frequently decided, is the first and most important designation to be ascertained in set-, tling the meaning and application of the tariff law. But, if the commercial designation fails to give an article its proper place in the classifications of the law, then resort must necessarily be had to the common designation. We think, therefore, that the court erred both in its charge and in the exclusion of the evidence offered; especially as, without any evidence, and with the common knowledge which we all possess, the court might almost have been justified in directing a verdict for the defendant." In this case the court was not only almost, but altogether, justified in such direction; and, while there are expressions in that opinion which have been laid hold of as qualifying the general rule as to judicial knowledge, they must be treated as induced by the state of the record, and are not to be regarded as having that effect.

Many exceptions were taken to the exclusion and admission of evidence, and to the refusal of the court to give instructions asked on plaintiffs' behalf; but we find no reversible error in either of the rulings thus questioned, and they need not be discussed. Judgment affirmed.

(159 U. S. 548)

UNITED STATES v. AMERICAN BELL
TEL. CO. et al.
(November 11, 1895.)
No. 745.

JURISDICTION OF SUPREME COURT AND CIRCUIT
COURTS OF APPEALS-CONSTRUCTION OF

STATUTE-SUIT TO CANCEL PATENT.

1. Where the appellate jurisdiction is described in general terms in a statute, so as to comprehend the particular case in question, no presumption can be indulged of an intention to oust or restrict such jurisdiction. Any statute claiming to have that effect must be examined in the light of the objects of the enactment, the purposes it is to serve, and the mischiefs it is to remedy, bearing in mind the rule that the operation of such a statute must be restrained within narrower limits than its words import, if the court is satisfied that its literal meaning would extend to cases which the legislature never intended to include in it.

2. Under the fifth and sixth sections of the judiciary act of March 3, 1891 (26 Stat. 828), the circuit courts of appeals have appellate jurisdiction in all cases in which original jurisdiction is conferred on the circuit courts by reason of the United States being plaintiff's or petitioners, including the case of a bill by the United States to cancel a patent for an invention.

3. The provision in section 6 of the judiciary act of March 3, 1891 (26 Stat. 828), making the decisions of the circuit courts of appeals final in all cases arising under the patent laws, refers only to suits at law and in equity for infringement. and to suits in equity for interference and to obtain patens. It does not apply to suits brought by the United States to cancel patents, for in such suits the circuit courts of appeals

have jurisdiction on the additional ground that the United States is a party, and in suits coming within their jurisdiction on that ground their decisions are not made final. Therefore an appeal will lie in such cases from the circuit courts of appeals to the supreme court under the provision (also contained in the sixth section) allowing appeals "in all cases not hereinbefore, in this section, made final."

Appeal from the United States Circuit Court of Appeals for the First Circuit.

Causten Browne and R. S. Taylor, for the United States. James J. Storrow and Frederic P. Fish, for appellees.

Mr. Chief Justice FULLER delivered the opinion of the court.

This is a suit by the United States to cancel a patent for an invention granted to the American Bell Telephone Company, as assignee of the inventor, Emile Berliner. On a hearing in the circuit court there was a finding and decree for the complainant. 65 Fed. 86. The cause having been taken to the circuit court of appeals for the First circuit, the decree of the circuit court was reversed, and it was ordered that the bill be dismissed. 15 C. C. A. 569, 68 Fed. 542. From this decree an appeal was taken by the United States to this court, which appellees now move to dismiss "for want of jurisdiction in this court to entertain it under the circuit court of appeals act of March 3, 1891, c. 517 (26 Stat. 828), for the reason that the case is a case arising under the patent laws."

The supreme court has appellate jurisdiction, under the constitution, in all cases to which the judicial power extends (other than those in respect of which it has original jurisdiction), "with such exceptions and under such regulations as the congress shall make." It was early held that, in the passage of the judiciary act of 1789, congress was executing the power of making exceptions to the exercise of appellate jurisdiction, and that the affirmative description of the cases to which the appellate power extended was to be understood as implying a negative on the exercise of such appellate power as was not comprehended within it, but that, as this restriction rested on implication founded on the manifest intent of the legislature, it could be sustained only when that manifest intent appeared. Durousseau v. U. S., 6 Cranch, 307.

Where the appellate jurisdiction is described in general terms, so as to comprehend the particular case, no presumption can be indulged of an intention to oust or to restrict such jurisdiction; and any statute claimed to have that effect must be examined in the light of the objects of the enactment, the purposes it is to serve and the mischiefs it is to remedy, bearing in mind the rule that the operation of such a statute must be restrained within narrower limits than its words import, if the court is satisfied that the literal meaning of its language would extend to cases which the legislature never intended to include in it. Petri v. Bank, 142 U. S. 644, 650, 12 Sup. Ct.

325; Brewer's Lessee v. Blougher, 14 Pet. 178; Reiche v. Smythe, 13 Wall. 162, 164; Market Co. v. Hoffman, 101 U. S. 112.

We inquire, then, whether the appellate jurisdiction of this court over controversies to which the United States are parties has been circumscribed by congress in respect to the right of appeal.

By section 629 of the Revised Statutes, original jurisdiction was conferred upon the circuit courts (with a limitation as to the value of the matter in dispute) of all suits in equity and all suits at common law where the United States are petitioners or plaintiffs; all suits at law or in equity arising under any act providing for revenue from imports or tonnage; all causes arising under any law providing internal revenue; all causes arising under the postal laws; and all suits at law or in equity arising under the patent or copyright laws of the United States. By the fifth paragraph of section 711 the jurisdiction of the courts of the United States of all cases "arising under the patent right or copyright laws of the United States" was declared to be exclusive.

By the act of March 3, 1875 (18 Stat. 470), it was provided: "The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners." And this was repeated in substance (the differences being immaterial here) in the acts of March 3, 1887 (24 Stat. 552), and August 13, 1888 (25 Stat. 433).

And this court had appellate jurisdiction over all final judgments and decrees of any circuit court, or of any district court acting as a circuit court, in civil actions, where the matter in dispute exceeded the sum or value of $5,000. Rev. St. §§ 690-692; 18 Stat. 315.

The primary object of the act of March 3, 1891, c. 517, as stated in American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 382, 13 Sup. Ct. 758, "well known as a matter of public history, manifest on the face of the act, and judicially declared in the leading cases under it, was to relieve this court of the overburden of cases and controversies arising from the rapid growth of the country, and the steady increase of litigation, and, for the accomplishment of this object, to transfer a large part of its appellate jurisdiction to the circuit courts of appeals thereby established in each judicial circuit, and to distribute between this court and those, according to the scheme of the act, the entire appellate jurisdiction from the circuit and district courts of the United States."

By section 5 of this act, appeals or writs of error may be taken from the circuit court