In the Matter of Watson Freeman.

prisonment for debt. It may be assumed, with some degree of safety, that if a State really and entirely abolishes imprisonment for debt, the process of the Courts of the United States will be as effectual as the process of the Courts of the States. Not so, if the right of the creditor is modified and restricted; for it may well be, and is so in this case, that those modifications and restrictions will be accompanied with sanctions and safeguards which the Courts of the United States are incompetent to apply.

This law of the State of Massachusetts, while it restricts the right of the creditor, and imposes on him new conditions, also provides, in the same connection, and as part of the same system, for highly penal proceedings against debtors, viewed merely as instruments for enforcing payment; these latter are of great practical importance, and if the conditions and limitations imposed on the creditor were adopted, while the penal proceedings against the debtor were rejected, it is clear that a system of law to compel the payment of debts differing very widely from that enacted by the State, would be brought into operation. These penal enactments are not only found in the same law, and make part of the same general system with the restrictions upon imprisonment, but the proceedings under them are part of the same course of proceeding taken to enforce the judgments of the Courts. And if a judgment creditor in the Courts of the United States were deprived of recourse to them, he would be placed upon a different and far less advantageous footing, than a judgment creditor in a State Court.

Yet it is certain that none of these parts of the law of Massachusetts can have been adopted by Congress. In Gwin and Breedlove, 2 How. 29, it was held that the Process Act of 1828 had not adopted similar provisions of State laws, though in existence when that Act was passed; because the Courts of the United States cannot execute the criminal laws of the

In the Matter of Watson Freeman.

States. A fortiori, as to such laws, passed after an act of adoption.

Whether the provisions of this law of Massachusetts, exclusive of those of a criminal nature, are necessarily addressed exclusively to State officers, and are not capable of being executed by the Courts of the United States, we do not deem it necessary to decide. It is to be noted, that the law of Massachusetts does not make any change in the process of the State Courts, but only in the proceedings of State officers in its execution. Nor is any thing to be done by any Court, as such, to vary the execution of process. There can, therefore, be no proceedings in any Court of the United States in conformity with this law. Whether a judge of a Court of the United States, or a commissioner appointed to take affidavits, &c., could be held to be in place of the State magistrates, and exercise the powers conferred by this law on the latter, are questions not unattended with difficulty, and which we do not find it needful to decide.

Independent of this consideration, we are unable to declare that Congress has adopted the law of the State of Massachusetts, now in question, and consequently it is the duty of the marshal to levy this execution, without regard to that law.

We have considered this case as if it were an execution on a judgment at law. In point of fact it is upon a decree in admiralty.

By the sixth section of the Act of August 23, 1842, (5 Stat. at Large, 518,) the Supreme Court are authorized to regulate and alter the forms of writs and other process used in the District and Circuit Courts.

Under this authority they made and promulgated a rule for regulating proceedings in admiralty, (Dec. 1850,) which contains the following clause:

"And imprisonment for debt, on process issuing out of the Admiralty Court, is abolished in all cases where, by the laws of the State in which the Court is held, imprisonment for debt

Ross et al. v. Peaslee.

has been or shall be hereafter abolished, upon similar or analogous process issuing from a State Court."

This has no reference whatever to modifications and restrictions upon imprisonment. It is confined to its abolition. If this rule alone governs the case, it is decisive. If it does not, and upon that we give no opinion, it certainly has a strong tendency to show, that, in the opinion of the Supreme Court, no law was in existence adopting prospectively, State laws, which should in any manner modify imprisonment for debt. If they had not so considered, it is very improbable that the rule would have stopped where it does. We have thought it proper, not to rest our opinion on this rule, but upon grounds applicable to all executions issuing out of this Court, that suitors and officers may know what, in our judgment, the law requires of them, under all such executions.

HENRY W. Ross et al. vs. CHARLES H. PEASLEE.

An article not enumerated by name in the Tariff Act of 1846, (9 Stat. at Large, 42,) does not come under the section of that Act which provides for non-enumerated articles, provided it so resembles some enumerated article in quality, material, or use, as to be governed by the 20th section of the Tariff Act of 1842, (5 Stat. at Large, 565,) which is unrepealed.

THIS was an action for money had and received, to recover back money alleged to have been illegally exacted by the defendant, who is collector of the customs of the port of Boston, in payment of duties.

The import in question was entered as "7 casks of brown tartar," paying a duty of five per cent. ad valorem. It was charged with a duty of twenty per centum ad valorem. Much evidence was introduced, tending to show that the import in

Ross et al. v. Peaslee.

question was not in a naturally crude state, but had undergone a process of refining. It was agreed that it was not known in commerce as "cream of tartar." But the defendant insisted it was not "argols or crude tartar" named in the Tariff Act of 1846, and there subjected to a duty of five per cent., but bore such resemblance to cream of tartar that it should be subjected to a duty of twenty per cent. The jury were instructed as follows:

CURTIS, J. If this import, samples of which are produced, was known in the commerce of the United States, when the Tariff Act of 1846 was passed, as argols, or crude tartar, it is subject to a duty of five per cent. only. It appears that many different qualities of argols were then known. The Act embraces all the qualities under the single denomination of "argols, or crude tartar," and imposes the same rate of duty on all. It is not material, therefore, that the article now in question is of a high grade of argols, if it is in fact argols of any grade. But if it is not in a crude state, if it has undergone a process of refining, was it known in commerce in July, 1846, as argols? or have such articles come into commerce since 1846, and have they been known as partly refined argols? If the latter is true, then we must look for the rule fixing the rate of duty, in some other part of the laws, and not in the clause imposing five per cent. on argols, or crude tartar.

It has been decided by the Supreme Court of the United States, that the 20th section of the Tariff Act of 1842 is still in force. That section is as follows: "That there shall be levied, collected, and paid, on each and every non-enumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any enumerated article chargeable with duty, the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the particulars before-mentioned;

Ross et al. v. Peaslee.

and if any non-enumerated article equally resembles two or more enumerated articles, on which different rates of duty are chargeable, there shall be levied, collected, and paid, on such non-enumerated article, the same rate of duty that is chargeable on the article which it resembles, paying the highest rate of duty; and on all articles manufactured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable."

At the same time, the third section of the Tariff Act of 1846, which is also in force, enacts that, goods not specially provided for in that act, shall pay a duty of twenty per centum. And the defendant contends that if you find the import now in question is neither argols, nor cream of tartar, it is not specially provided for in that act, and so must pay a duty of twenty per centum.

But, it is necessary to take these two sections, namely, the 20th section of the Act of 1842, and the 3d section of the Act of 1846, together. And they must be so construed, that both can have a sensible and just operation. The 20th section does not impose any particular rate of duty on any article. It merely gives rules of construction, by the aid of which we can determine under what schedule, if any, of the Act of 1846, particular articles fall. And if, by the aid of these rules of construction, any particular article comes under one of those schedules, then it is provided for by the Act of 1846, and of course does not fall within the third section as a non-enumerated article. If this import, now in question, is neither argols, nor cream of tartar, then, though it is not enumerated by any name, yet it may bear such a similitude to one or the other of them, as to fall within the rules prescribed by the 20th section, and thus become liable to pay the rate of duty imposed upon that article which it most nearly resembles. You must therefore proceed to inquire whether the article before you has a similitude in material, quality, or use, to