Baxter v. Maxwell. EDWARD BAXTER AND WILLIAM E. BAXTER vs. HUGH MAXWELL. Semble, that the term, "a manufacture of hemp," used in a Tariff Act, cannot properly include an article generally known in commerce as "hemp carpeting," but in the manufacture of which no material is used which is in fact hemp, or is so called in commercial parlance. Where 30 per cent. duties were charged on an article, under Schedule C of the Tariff Act of July 30th, 1846, (9 U. S. Stat. at Large, 44, 45,) as being "carpeting," and, on the payment of the duties, a protest was made, claiming that the article was non-enumerated, and subject to a duty of 20 per cent. under the Act, and, on the trial of a suit to recover back the excess, the jury found that the article was "a manufacture of hemp," on which, under Schedule E of the Act, the duty was 20 per cent.: Held, that, as the jury found that the article was an enumerated one, the protest was insufficient. A clause, in these words, "and hereby protest on all future entries of the same goods," added at the end of a protest, cannot have any effect as a prospective protest, to aid an insufficient specific protest, subsequently made. Whether such a sweeping prospective protest ought to be held good, in respect to entries at such a port as New York, under the Act of February 26th, 1845, (5 U. S. Stat. at Large, 727,) quere. The case of Marriott v. Brune (9 How., 619) was peculiar, and should not be extended. 66 Where the article in the entry in which such prospective protest was made, was described therein as linens," "hemp covering," and "jute rove:" Held, that such prospective protest could not apply to a subsequent entry, without protest, of the same article, as "linens," or as hemp carpet covering," or as "hemp carpeting; " but that it was sufficient to cover a subsequent entry, without protest, of the same article, as "jute rove," the two importations being within three weeks of each other, and no protest having been made on any intermediate importation of the article. Where, after such prospective protest was made, five successive importations of the same article were made and entered, with specific protests, some of which were sufficient and some insufficient, and afterwards importations of it were made and entered without protests: Held, that such prospective protest could not extend to these last importations. A specific protest, which does not refer to or affirm a prior prospective protest, must be regarded as evidence of the abandonment of all grounds of objection, 1 Baxter v. Maxwell. except those distinctly stated in the specific protest, at least in regard to the entry to which the specific protest applies. (Before HALL, J., Southern District of New York, April 21st, 1857.) THIS was an action against the Collector of the port of New York, to recover back an alleged excess of duties, paid under protest, on an article known in commerce as hemp carpeting. It was shown, on the trial, before Betts, J., that the article was generally known in commerce by that name; that it was sometimes bought and sold as jute carpeting; that it did not contain a single fibre of hemp, in the proper and ordinary signification of that term; that it was manufactured at Dundee, wholly from jute, the material from which gunnybags and gunny cloth are made; that jute was extensively produced in Bengal, and was sometimes called Indian hemp ; that, although it was the fibre of a plant which resembled the nettle family more than it resembled the article generally designated, in trade and commerce, by the simple name of hemp, it was sometimes called jute hemp; and that it had been sometimes classed as hemp or flax, at the Custom-House. Reference was made to McCulloch's Commercial Dictionary, London edition of 1850, article Hemp. The duties were assessed at 30 per cent. ad valorem, under Schedule C. of the tariff Act of July 30th, 1846, (9 U. S. Stat. at Large, 44, 45,) the Collector claiming that the article was embraced in that Schedule, under the description of "carpeting, being either Aubusson, Brussels, ingrain, Saxony, Turkey, Venetian, Wilton, or any other similar fabric." The plaintiff claimed that the article was chargeable with only 20 per cent. duty, either as falling within the description of " manufactures of hemp, not otherwise provided for," under Schedule E. of that Act, or as a non-enumerated article, under section 3 of the Act. The entries of the article were eighteen in number, and were made at various dates between April 29th, 1852, and April 23d, 1853. The jury found a verdict for the plaintiffs for $1900, subject to adjustment at the Custom-House, and subject also to the opinion of the Court as to the sufficiency of the protests. VOL. IV.-3 Baxter v. Maxwell. John S. McCulloh, for the plaintiff's. John McKeon, (District Attorney,) for the defendant. HALL, J. Looking only to the testimony, as stated in the case, I should infer that the jury must have found that the commercial name of the article in question is "hemp carpeting," and not that it is "a manufacture of hemp." If it is, in fact," a manufacture of hemp," it should be classed under Schedule E., which embraces "manufactures of hemp, not otherwise provided for," and be deemed an enumerated article, chargeable with a duty of 20 per cent. If is not "a manufacture of hemp," (even though, by a long continuance of an original misnomer, it had acquired the commercial name of "hemp carpeting," and might be properly classed as such,) then it must be deemed a non-enumerated article, and be chargeable with a like duty of 20 per cent., under the third section of the Act. If the verdict had found, in express terms, that it was "a manufacture of hemp," or that it was not a manufacture of hemp, but its commercial name or designation was "hemp carpeting," though manufactured wholly of jute, there would have been little ground for controversy. But I do not understand, from the language of the case, that the ver dict was special upon these two points, and I am left to infer the finding of the jury in respect thereto, from the evidence stated in the case, the charge of the judge, the general verdict of the jury, and the admissions of the counsel upon the argument of the case. The case sets forth, that the Court, in charging the jury, stated that it was their province to ascertain the commercial name of the article in question, and how it was bought and sold in commerce; that they were to find whether it belonged to the 30 per cent. Schedule, as Wilton, Brussels, Aubusson, or other carpeting of similar fabric, or to the 20 per cent. Schedule, as a "manufacture of hemp; " that, if it was known as "hemp carpeting," and not by any other name, then it belonged to the 20 per cent. Schedule; that, if the evidence did Baxter v. Maxwell. not satisfy the jury that the article came under the head of "a manufacture of hemp," nor under the head of wool carpetings, then it was not known by any denomination in the Act; that the case was resolved into a question of fact for the jury; and that, if the article was not known as "hemp carpeting," and if they found it had no commercial name, then they were to find it to be a non-enumerated article. The case then adds: "The jury, under the instructions of the Court, rendered a verdict for the plaintiffs for $1900, subject to adjustment at the Custom House, and subject also to the opinion of the Court as to the sufficiency of the protests." The concluding portion of the charge is evidently not fully and correctly set forth in the case; and the verdict, if correctly set forth, is silent upon the question as to whether the jury deemed the article to be "a manufacture of hemp," and therefore properly classed under Schedule E., or to be "hemp carpeting," or "jute carpeting," and therefore properly dutiable as a non-enumerated article. It was, apparently, assumed, on the part of the defendant, on the argument, that the jury had found it to be "a manufacture of hemp," though no hemp entered into its composition; and. the charge of the Court, as stated, may, perhaps, justify the inference, that the jury understood the Court as ruling, that if the true commercial name of the article in question was "hemp carpeting," they might properly find it to be "a manufacture of hemp," although it was incontestably proved that no hemp was used in its manufacture, and that they were simply to say whether it was a manufacture of hemp," or embraced within the description of "carpeting" as defined in Schedule C. If the question were now before me for decision, I should, whilst recognizing the principle that the denomination of articles in tariff laws must be construed according to the commercial understanding of the terms used, and that, if the term "hemp carpeting" had been used in the tariff Act of 1846, it would, under the evidence stated in the case, have included the article in question in this suit, although it had been conclusively proved that it was manufactured from a fibre entirely different from, and Baxter v. Maxwell, never classed as, hemp, have great difficulty in adopting the opinion, that when the term, "a manufacture of hemp," is used, it can properly include any article in the manufacture of which no material has been used which, in its raw state, or in the state in which it existed before its introduction into the particular manufacture, is, in fact, or in commercial parlance, embraced within the generic term, "hemp." But this question is not directly before me, and I am inclined to think that, under the peculiar circumstances of the case, and the course adopted by the counsel upon the argument, it is not even incidentally in controversy. The only question reserved by the case is that of the suf ficiency of the protests. On the argument, it was conceded by the counsel for the defendent, that the protests upon seven of the entries were sufficient. It was, in like manner, conceded by the counsel for the plaintiffs, that there were no specific protests in respect to seven others of the entries, and that the plaintiffs had no right of action in respect to the payment of duties on those entries, or any of them, unless the prospective portion of the protests on two of the first mentioned seven entries could be extended to and made to embrace entries subsequently made. The particular protests in regard to the sufficiency of which there was an argument at the hearing, were those made in the cases of the Lady Franklin, the Columbia, the Ocean Queen, the American Eagle and the Invincible. In the case of the Lady Franklin, the entry was of eleven bales, containing linens; and, in the invoice presented at the time of the entry, two of the packages were invoiced as "padding," and the others as "carpeting." The Custom-House marks on this entry and invoice indicate, (as I understand them), that the contents of all the packages were returned, or denominated by the appraisers, as "jute carpeting," and subjected to a duty of 30 per cent. The protest is “ The protest is "against paying 30 per cent. duty on the 'jute carpeting,' contained in this entry, claiming that, by the Act of 30th July, 1846, said goods are considered a non-enumerated article, and, as such, |