cross-examination the possession of any of these bonds, she stated on her direct examination that the proceeds of the Lewis notes were, about 1878, put into these bonds or into Southern Pacific bonds. Mrs. Preble seldom went to her safe, and she may not have known about these bonds. Taking all the evidence together, I cannot say that the jury were mistaken in their finding on this item. The verdict was for $34,772.88, and there should be a remission of $3,636.53, covering the value of $1,000 Chicago sewerage and $1,000 Minneapolis bonds, with premium and interest, and the plaintiff may elect to take judgment for $31,136.35, or a new trial will be granted. Cattle Co. v. Mann, 9 Sup. Ct. Rep. 458; Kennon v. Gilmer, Id. 696.

UNITED STATES ex rel. HARSHMAN v. COUNTY COURT OF KNOX COUNTY.

(Circuit Court, E. D. Missouri, E. D. September 25, 1889.)

1. APPEAL-EFFECT-SUPERSEDEAS.

Where a bill to modify the method of collecting a judgment which was not stayed by giving a supersedeas bond, as allowed by statute, was dismissed, and no interlocutory order affecting such judgment was ever made in the proceeding on the bill, a supersedeas bond upon appeal from such dismissal only stays any orders made in the proceeding on such bill, and does not operate to restrain the collection of the original judgment, even though the proceeding on the bill be deemed a mere continuation of the original action.

2 JUDGMENT INJUNCTION TO RESTRAIN-COLLECTION.

Where the original judgment has stood for eight years, and the debtor admits the justice thereof, merely seeking to change the method of collecting it, its collection will not be restrained pending the appeal from the dismissal of the bill.

At Law. On motion for rehearing.

For former report, see 15 Fed. Rep. 704.

Thomas K. Skinker and John B. Henderson, for relator.

James Carr, for respondent.

BREWER, J. In this case there is a petition for a rehearing. In 1881, Harshman recovered a judgment against Knox county.' That judgment has never been disturbed. No proceedings in error were taken, and no supersedeas bond given to stay the collection of that judgment. within the 60 days allowed by statute, or, indeed, at any other time. Years after, there having been some intermediate proceedings on mandamus, the defendant in that judgment filed a bill in equity to restrain its collection, or perhaps more correctly to modify the method of collection. In that equitable proceeding no interlocutory order was entered, and when the matter came up for final hearing a decree was entered dismissing the bill. Appeal was prayed from that decree, allowed, and appeal-bond fixed in the sum of $500, and given. Now the contention is

'Not reported.

that the giving of the appeal-bond operates, as a matter of law, to restrain the collection of the original judgment. The statutes give to a party against whom a money judgment is rendered the right to stay that judgment by giving a supersedeas bond within 60 days. That was not done in this case, and it is a general rule that that which cannot be done directly cannot be done indirectly. It would be strange if a judgment debtor, failing to supersede by giving directly a supersedeas bond, could years after, by a bill in equity to restrain or modify that judgment, obtain by indirection the same supersedeas and stay. The principle is the same whether the judgment debtor is a county or an individual. To neither is the right given to stay it by this indirect process.

It is said that the bill in equity of the county is not an independent suit; that it is a mere continuation of the original action. So it is for some purposes, but, although it be a continuation of the original action, an appeal-bond in this continuation ought not to have any effect upon the original judgment. It may supersede any order made in this subsequent proceeding, but there was nothing here except a judgment for costs to supersede. There was no interlocutory order, no order in the case affecting that judgment at law, and, whatever may be superseded, it is only that which is part and parcel of this continuation proceeding. It seems to us that there can be no doubt that, as this bill was dismissed, as no interlocutory order was ever made, a supersedeas bond upon an appeal from such dismissal has no effect whatever upon the original judg ment. That remains, with every right to collect which it had at the time it was rendered.

It is further insisted that if there be no supersedeas of right by virtue of this appeal-bond, the court has a controlling power over all its processes, and that it ought to stop the collection of this judgment at law until the question presented by this bill in equity has been finally determined by the supreme court. Assuming that it is true that the court has such controlling power, it seems to us that it would be grossly inequitable to exercise it in this case. Of the validity and justice of the original judgment at law, so far as respects the indebtedness, no question is made. All that is challenged is that part of it which refers to the collection and the amount of taxes that can be yearly enforced.

Now, when a debtor admits the justice of the debt, when judgment thereon has stood against him for eight years, we see no equity in restraining for years longer all efforts to collect while he simply pursues a litigation to change the method of collection. The petition for rehearing will be denied.

MCNAB . SEEBERGER, Collector of Customs.

(Circuit Court, N. D. Illinois. July 18, 1889.)

1. CUSTOMS DUTIES-CLASSIFICATION.

Act Cong. March 3, 1883, (Heyl's Arrangement, cl. 336,) provides a customs duty on "fax or linen thread, twine, and pack thread" of 40 per cent. ad valorem. Clause 347 provides a duty on "seine and gilling twine" of 25 per cent. Plaintiff imported linen twine, on which he paid a duty of 40 per cent., under protest that it was "seine twine." It appeared that the goods were composed of several yarns, loosely twisted together, and known to the trade as "gill twine." They were classed as book or pamphlet twine, which is composed of single yarns, not twisted together, but of about the size and strength of one of the yarns of the twine in question. Held, that the goods were only subject to a duty of 25 per cent.

2. SAME-RECOVERY OF PAYMENTS-PROTEST.

Plaintiff's right of recovery is not affected by the fact that his protest claimed the goods to be "seine twine," while the proof showed them to be "gilling twine, as the two terms are convertible for the purposes of the question in issue.

The plaintiff, Joseph D. McNab, imported linen twine, which he claimed was subject to duty at 25 per cent. ad valorem, as "seine twine." The collector classed the goods as "linen thread," on which there was a duty of 40 per cent. ad valorem. Plaintiff paid the duty under protest, and appealed to the secretary of the treasury. The action of the collector being affirmed by the secretary, plaintiff brings this suit to recover the excess.

P. L. Shuman, for plaintiff.

W. G. Ewing, U. S. Atty., and G. H. Harris, Asst. U. S. Atty., for defendant.

BLODGETT, J. Plaintiff imported a quantity of linen twine, which the collector classified as linen thread, and assessed a duty thereon at 40 per centum ad valorem, under clause 336 of Heyl's Arrangement of the act of March 3, 1883, which reads: "Flax or linen thread, twine and pack thread and all manufactures of flax, or of which flax shall be the component material of chief value, not specially enumerated or provided for in this act, 40 per centum ad valorem." Plaintiff insisted that said goods should have been classed as "seine" and "gilling" twine, under clause 347 of Heyl, which reads, "Seine and gilling twine, 25 per centum ad valorem," paid the duties imposed under protest, appealed to the secretary of the treasury, by whom the action of the collector was affirmed, and in apt time brought this suit to recover the excessive duties which plaintiff claims were imposed upon the goods. The goods in question are composed of several yarns, say from six to thirty, according to the strength required, which are laid together and loosely twisted, and the proof shows that these goods are known to the trade as "gill twine," or sometimes spoken of in the trade, and especially by fishermen, as "salmon twine." The use of said goods is almost exclusively that of making gill-nets for catching salmon.

Defendant claims that the goods were rightfully assessed as "twine," under clause 336, and has introduced proof tending to show that the goods in question are what is known to the trade as "book" or "pamphlet" twine, used for stitching the leaves of books and pamphlets together, and is also known as "shoe thread," used for stitching boots and shoes. I think the proof satisfactorily shows that linen thread is imported for use by book-binders, the threads being about the size and strength of the single yarns composing the twine in question, and the proof also shows that linen thread is imported for use by shoe manufacturers, and when imported for such use the threads are laid together, not twisted, and waxed when used. Clause 347 of Heyl evidently intended to specify and enumerate a kind of linen twine, or manufacture of flax, to be used for the manufacture of gill-nets and seines, which was different from the thread and twine described in and covered by clause 336, and from the proof in this case it seems to me there can be no doubt that the goods now in question are the kind of goods which are used by fishermen to make gillnets and seines for the salmon fishery, and the intention of congress undoubtedly was to favor the fishing interest by allowing the importation of manufactured seines, and materials for seines, and gill-nets, at a lower rate of duty than was imposed upon the ordinary flax thread and twines. It was also contended in behalf of the defendant, upon argument, that the plaintiff was not entitled to recover in this case because the protest only claimed that the commodity in question was "seine twine," while the proof shows that it is "gilling twine." But I do not think that so narrow a construction should be placed upon the protest, as it is clear from the tenor of the protest that the plaintiff intended to bring the goods within the operation of clause 347 as dutiable at 25 per centum, and, whether he called it "seine twine" or "gill twine," would make no difference, as probably they are, for the purposes of this question, convertible terms.

MANDEL et al. v. SEEBERGER, Collector of Customs.

(Circuit Court, N. D. Illinois. July 18, 1889.)

CUSTOMS DUTIES-CLASSIFICATION.

Merchandise invoiced as "onyx columns, vases, and candelabras," and known by dealers in marble and similar material as "onyx marble" or "onyx, and for which no specific duty is provided in the customs law, is assessable as "manufactures of marble" for a duty of 50 per cent. ad valorem, under Rev. St. U. S. § 2499, providing that a non-enumerated article, bearing a similitude to any enumerated article, shall be dutiable at the same rate as the enumerated article, and if resembling two or more enumerated articles, chargeable with different rates of duty, the non-enumerated article is dutiable at the same rate as the article which it resembles paying the highest duty.

At Law.

Action by Leon Mandel and others against Anthony F. Seeberger, collector of customs, to recover excess duty levied upon certain merchandise imported by them.

Shuman & Defrees, for plaintiffs.

W. G. Ewing, U. S. Dist. Atty., and G. H. Harris, Asst. J. S. Atty., for defendant.

BLODGETT, J. Plaintiffs imported certain merchandise into the port of Chicago which was described in the invoice as "onyx columns, vases, and candelabras," which merchandise the collector classed as "manufactures of marble," and assessed thereon a duty of 50 per cent. ad valorem, under clause 468 of Heyl's Arrangement of the Customs Act of March 3, 1883. Plaintiffs contended that the goods in question were dutiable at 20 per cent. ad valorem, under section 2513 of said act, as "articles wholly manufactured, not otherwise provided for," and insisted that they were justified in so claiming by the decision of the secretary of the treasury of September 28, 1887. An appeal was taken to the secretary of the treasury from the classification and assessment upon the goods in question by the collector, by whom the action of the collector was affirmed. The duties so assessed were paid under protest, and plaintiffs brought this suit in apt time to recover the difference between the duties so assessed and the 20 per cent. which they claim should have been the duty on said goods.

It is admitted by the plaintiffs, and the proof shows, that the goods in question are not manufactures of the "onyx" which is known and spoken of as among the gems and precious stones, and usually classed with agates, carnelians, and chalcedonys, but is a stalagmitic formation of lime, resembling, in its chemical composition, and in its structure, the finer varieties of marble. It is known by those dealing in it under the name of "onyx marble," and mainly for brevity, evidently, is often described in the circulars, invoices, and advertisements of dealers in marble and similar materials as "onyx;" the word "onyx," as applicable to this material, being evidently a fanciful or arbitrary name, suggested, probably, by the peculiar veinings and colorings of the stone.

I find in the Imperial Dictionary (volume 3, p. 390) the article defined as follows:

"Onyx marble-a very beautiful, translucent limestone of stalagmitic formation, discovered by the French in the province of Oran, Algeria, and first brought into notice at the London Exhibition of 1862. It is used for the manufacture of ornamental articles."

In volume 15 of the ninth edition of the Encyclopedia Britannica, article "Marble," p. 529, this material is spoken of as follows:

"One of the most beautiful stalagmitic rocks is the so-called onyx marble of Algeria. * * * Large deposits of a very fine onyx-like marble, similar to the Algerian stone, have been worked of late years at Tecali, about 35 miles from the City of Mexico. Among other stalagmitic marbles, mention may be made of the well-known Gibraltar stone. * * * This stalagmite is much deeper in color and less translucent than the onyx marbles of Algeria and Mexico."

And in voiume 1" of the same edition of the Encyclopedia Britannica, (page 777,) after describing the onyx from which cameos, etc., are cut, it is said: