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Among others, not necessary here to refer to the following instructions were requested by the counsel for the plaintiff in error, which the court refused to give, and to which exception was duly taken, viz.:
* (3) That if the number of threads to the square inch in plaintiff's goods, counting the warp and filling, cannot be counted without taking the goods to pieces, then the plaintiff is entitled to recover."
“(5) That cotton Italians, being a new manufacture, and unknown here and abroad when the act of 1864 was passed, they were not specifically enumerated, and the presumption, until rebutted, is that they come under the general provision of manufactures not otherwise provided for.” • The provisions of the law which govern the case are contained in section 2504, Rev. St., being Schedule A, cotton and cotton goods, and are as follows:
“(1) Sec. 2504. On all manufactures of cotton, (except jeans, denims, drill. ings, bed-tickings, ginghams, plaids, cottonades, pantaloon stuff, and goods of like description) not bleached, colored, stained, painted, or printed, and not exceeding one hundred threads to the square inch, counting the warp and filling, and exceeding in weight five ounces per square yard, five cents per square yard; if bleached, five cents and a half per square yard; if colored, stained, painted, or printed, five cents and a half per square yard, and, in addition thereto, 10 per centum ad valorem.
(2) On finer and lighter goods of like description, not exceeding two hun. dred threads to the square inch, counting the warp and filling, unbleached, five cents per square yard; if bleached, five and a half cents per square yard; if colored, stained, painted, or printed, five and a half cents per square yard, and, in addition thereto, twenty per centum ad valorem.
(3) On goods of like description, exceeding two hundred threads to the square inch, counting the warp and filling, unbleached, five cents per square yard; if bleached, five and a half cents per square yard; if colored, stained, painted, or printed, five and a half cents per square yard, and, in addition thereto, twenty per centum ad valorem.
“(4) On cotton jeans, denims, drillings, bed-tickings, ginghams, plaids, cottonades, pantaloon stuffs, and goods of like description, or for similar use, if unbleached, and not exceeding one hundred threads to the square inch, counting the warp and filling, and exceeding five ounces to the square yard, six cents per square yard; if bleached, six cents and a half per square yard; if colored, stained, painted, or printed, six cents and a half per square yard, and, in addition thereto, ten per centum ad valorem.
“(5) On finer or lighter goods of like description, not exceeding two hundred threads to the square inch, counting the warp and filling, it unbleached, six cents per square yard; if bleached, six and a half cents per square yard; if colored, stained, painted, or printed, six and a half cents per square yard, and, in addition thereto, fifteen per centum ad valorem.
“(6) On goods of lighter description, exceeding two hundred threads to the square inch, counting the warp and filling, if unbleached, seven cents per square yard; if bleached, seven and a half cents per square yard; if colored, stained, painted, or printed, seven and a half cents per square yard, and, in addition thereto, fifteen per centum ad valorem: provided, that upon all plain woven cotton goods, not included in the foregoing schedule, unbleached, valued at over sixteen cents per square yard; bleached, valued at over twenty cents per square yard; colored, valued at over twenty-five cents per square yard; and cotton jeans, denims, and drillings, unbleached, valued at over twenty cents per square yard; and all other cotton goods of every description, the value of which shall exceed twenty-five cents per square yard, there shall be levied,
collected, and paid a duty of thirty-five per centum ad belorem: and provided, further, that no cotton goods having more than two hundred threads to the square inch, counting the warp and filling, shall be admitted to a less rate of duty than is provided for goods which are of that number of threads." "(12) *
and all other manufactures of cotton, not otherwise provided for, thirty-five per centum ad valorem."
The contention of the plaintiff in error now relied on is, in substance, that the goods in question are not embraced in the provisions of the statute, applicable to “manufactures of cotton,” described and classed by the number of threads to the square inch, because that description had reference only to goods so described and classed by mercantile usage in dealings between buyers and sellers, where the threads could be counted by the aid of a glass, whereas, the goods in question, as it must be assumed from the offers of proof which
were rejected, were not dealt in by manufacturers and merchants according to any such usage, and could not be, because the threads in a square inch could not be counted, except by unraveling the fabric for that purpose; and it is therefore argued that, as the goods in ques. tion were of a new manufacture, not known at the date of the
passage of the act, they cannot be considered as within the specified enumeration of the statute, and the appropriate duty must be determined by the final clause, embracing “all other manufactures of cotton not otherwise provided for." The claim is, in the language of counsel making it, that “congress did not mean to subject to this countable clause every article of cotton manufacture of which, by cutting out a square inch, the number of threads constituting the warp and woof of that area could be counted, but only those articles in which the threads were counted in ordinary mercantile transactions therein, and which could be counted by methods practiced by the trade."
It is sought to support this argument by invoking the rule of construing the statute applied in Arthur v. Morrison, 96 U. S. 108, and the numerous cases there cited, that where words are used in an act imposing duties upon imports which have acquired, by commercial use, a meaning different from their ordinary meaning, the latter may be controlled by the former if such be the apparent intent of the statute; but the application fails in the present instance because the language used is unequivocal. There is no reference in the statute, either expressly or by implication, to any commercial usage, and there is no language in it which requires for its interpretation the aid of any extrinsic circumstances. The rejected proof of the custom of merchants to rate certain descriptions of goods, as to values, by the number of threads to the square inch, as ascertained by inspection by means of a glass, throws no light whatever on the meaning of the law, because the law fixes the rate of duty by a classification based on the number of the threads in a square inch, without reference to the mode in which the count is to be made. It might be quite convenient for dealers not to count the threads, except when they
could do so without unraveling, but it is pure conjecture that congress intended to stop the count by collectors at the same limit. There appears to be no difficulty in counting the threads, no matter how fine the fabric, as long as the goods are plain woven, and the necessity of unraveling for the purpose of counting seems to exist only in case of twilled goods; and yet this very act requires a count of threads in the case of jeans, denims, drillings, bed-tickings, etc., which are twilled, and bases a difference of duty upon them according to the number of threads to the square inch so ascertained.
The fact that at the date of the passage of the act goods of the kind in question had not been manufactured, cannot withdraw them from the class to which they belong, as described in the statute, where, as in the present case, the language fairly and clearly includes them.
There is no error in the record, and the judgment is accordingly affirmed,
(109 U, S. 162)
Louis v. TRUSTEES OF BROWN TOWNSHIP, Delaware County, Ohio.
(November 6, 1883.)
MUNICIPAL BONDE-DECLARED VOID BY A FORMER ADJUDICATION-ADVERSE IN
TERESTS OF CO-DEFENDANTS-DECREE AS TO, CONCLUSIVE.
Adverse interests between co-defendants in a chancery suit, where such parties.
have been made defendants because they will not join as plaintiffs and are necessary parties to the suit, may be passed upon and decided in that suit. The decree will be conclusive upon those parties, and their assignees, if they have had a hearing and an opportunity of asserting their rights. So held in overrul
ing demurrers to pleas setting up former adjudications. Corcoran v. Chesapeake & Ohio Canal Co. 94 U. 8. 741, followed.
In Error to the Circuit Court of the United States for the Northern District of Ohio.
Geo. Hoadly, E. M. Johnson, and Edward Colston, for plaintiff in. error.
C.H. Scribner, for defendant in error.
MILLER, J. This is an action on bonds and interest coupons thereto attached, signed by the trustees of Brown township, payable to the Springfield, Mt. Vernon & Pittsburgh Railroad Company, or its assigns, on the first day of October, 1871, and dated April 20, 1853. The plaintiff says she is the owner and holder of the bonds and coupons, and in explanation of her title alleges that “after execution and delivery of said note to said railway company as aforesaid, and in the year 1854, the said railroad company did indorse and deliver said note and the coupons thereto attached to Brown, Collins & Brown, and that said Browns, Collins & Brown afterwards indorsed and delivered said note and coupons to Richard B. Hopple, and Richard B. Hopple. afterwards indorsed and delivered said note and coupons to the plain
tiff, who now holds and owns the same." The defendants for answer, among other matters, filed two pleas of a former adjudication, in which the bonds were declared to be void, and rely upon these in bar of the action.
The first of these pleas, called defense No. 3, sets out a suit by one Hiram Hipple, plaintiff, against the trustees of Brown township, Robert B. Hopple, and others, in which he alleges himself to be the owner of real estate incumbered by a mortgage to secure the payment of the bonds on which the present suit is brought, and that said defendants, among whom was the Richard B. Hopple from whom plaintiff in this suit purchased the bonds aforesaid, asserted a claim to his land on account of said mortgage. The plea further alleges that the holders of the bonds, among whom was Richard B. Hopple, filed their answer and cross-bill alleging the bonds and mortgage to be valid, and pray that the bonds and mortgage might be declared to be valid, and for a decree of foreclosure of the mortgage, and that in said cross-bill said Richard B. Hopple set up as the foundation of his prayer for relief, his ownership of the identical bonds now set forth in this action. In the suit on the mortgage, which was finally appealed to the supreme court of the state, Hopple and the other bondholders failed, and were adjudged to pay costs on the ground of the want of authority in the trustees of Brown township to issue the bonds. To this suit the trustees of Brown township and Richard B. Hopple and other bondholders were parties. The second plea sets forth an application by Richard B. Hopple, in his right as owner of these bonds, for a writ of mandamus from the supreme court of Ohio to compel the trustees of Brown township to levy a tax to pay the interest on said coupons. To the alternative writ the trustees answered, denying the validity of the bonds, and the court decided that the supposed bonds and coupons were issued without any legal authority, and without any authority to take stock in the railroad company to which they were delivered, and gave judgment for costs against said Hopple. The plea also avers that said bonds were not transferred to Annie Louis, plaintiff, until long after said bonds and coupons were due. . To these pleas demurrers were filed, and the demurrers overruled, and plaintiff not desiring to reply or plead further, judgment was rendered for defendant. The error assigned by plaintiff is the overruling of these demurrers.
We think the court was right, upon the plainest principles of jurisprudence. The case is unembarrassed by the doctrine of bona fide purchaser of negotiable securities, because the bonds were overdue in the hands of Richard B. Hopple when the suit of Hipple against him and others to have them declared void was commenced; the bonds falling due October 1, 1871, and the suit commenced October 18th of that year, and the cross-bill, in which Hopple sought to enforce the bonds, was commenced April 2, 1872. The bonds were therefore past due, during the whole period of that litigation in which they were adjudged to be void in his hands.
As regards the action of mandamus, while the bonds were not overdue at the time of the judgment against Mr. Hopple, the plea expressly avers that they were overdue when plaintiff Louis became their owner, and as she alleges in her declaration that she bought them of Hopple, it follows that they remained in his hands from the date of the judgment on mandamus against him until they became past due. This follows, also, from the fact that he asserted ownership of them after they were due in the cross-bill to Hipple's suit. The plaintiff, therefore, holding under Hopple by a purchase made after the bonds were due, and after the judgment in which they were decided to be void in his hands, is bound by that judgment, unless something can be shown which takes the case out of the general rule. In the mandamus case the plaintiff was the owner of the bonds, and the present plaintiff is bound by the privity of a subsequent holder of them. The defendants in that case are the defendants in this, 80 that the action is now between parties on whom that judgment is binding.
The only objection made to this is that while the statute of Ohio makes a judgment on mandamus a bar to another civil action where the writ is granted, it does not so declare where it is refused. The words of the statute are not presented to us, nor any decision of the courts of that state cited to sustain the proposition. It is easy to see why the statute should declare that where a party has had a recovery of what he claims by a writ of mandamus, the other party should not also be harassed by another action for the same demand. But it would not follow that where a mandamus was refused on grounds which were conclusive against the right of plaintiff to recover in any action whatever, that the judgment would not be a protection when such other action was brought. Such was the case before us. The ground of the court's judgment in denying the mandamus was not left to inference, however strong that inference might be from the pleadings, as in the case of Block v. Com'rs, 99 U. S. 686, but the court declared, in the case we are now considering, in positive terms, that "the said supposed bonds or undertaking and coupons, in the writ mentioned, were issued by the defendants without any legal power or authority,
and without any legal power or authority to make said supposed subscription to the capital stock of the railroad company, and that said supposed subscriptions, and said supposed bonds and coupons, are for said reason absolutely void,” and that defendants are not estopped to set up the invalidity of said instruments. Here is not only a denial of the writ of mamdamus, but an adjudication that in the hands of Hopple the bonds now in suit were absolutely void.
This court has repeatedly held, since Postmaster General Kendall's Case, 12 Pet. 614, that the proceeding in mandamus is, when appro. priate, an action at law to recover money, and is subject to the principles which govern said actions; and in the case of Block v. Com'rs,