Opinion of the Court.

be used in the process which is the main object of the manufacturer." Tested by either of these definitions, the tobacco in question is unmanufactured. To speak of it as "partly manufactured," and deduce a contention therefrom, is simply to assume the question at issue. It is equally unsound to divide the finding of fact so as to make it designate two distinct kinds of tobacco, thus: "First, 'clippings from the ends of cigars; and, second, 'pieces broken from the tobacco of which cigars are manufactured in the process of such manufacture.'" The words "in process of such manufacture" qualify the whole sentence.

Resort to the provisions of the internal revenue laws regarding tobacco seems to us to strengthen rather than to militate against our conclusion. Various provisions of these laws have been brought to our attention: Revised Statutes, § 3244 (ninth) and § 3368; and the act of March 1, 1879, c. 125, § 14, 20 Stat. 327, 345, providing a substitute for Rev. Stat. $3362. These are asserted to be in pari materia, and to show that the tobacco in question was manufactured, within the meaning of the tariff statute, without regard to the general understanding of the word "manufacture." We think the position unsound. The internal revenue laws referred to sought to accomplish two objects: First, the taxation of all forms of manufactured tobacco, including also the waste or scrap arising therefrom; and, second, the complete accounting by the manufacturer for all the product of his factory, including the waste. As waste was necessarily embraced in both objects, it was included in the provisions of the laws relied on. A detailed examination of the statutes will accentuate these views. The first of these provisions is that of section 61 of the act of July 20, 1868, c. 186, 15 Stat. 125, 153, which reads as follows: "That upon tobacco and snuff which shall be manufactured and sold, or removed for consumption or use, there shall be assessed and collected the following taxes:

On all refuse, scraps, and sweepings of tobacco, a tax of sixteen cents per pound." Here is an obvious distinction taken between tobacco, etc., "manufactured and sold" on the one hand, and “refuse, scraps, and sweepings" on the other,

Opinion of the Court.

albeit the tax is the same on both. Its object, too, is plainly to tax tobacco of the various kinds named, in connection with their sale and removal "for consumption and use." The context of the section enforces this view. The tax is upon all tobacco manufactured, sold, or removed from the factory; and the provision as to refuse, scraps, etc., necessarily contemplates the regulation of the business of the factory, and not the grading of the tobacco.

The next section, relied upon is section 62 of the same act, which is as follows: "That all manufactured tobacco shall be put up and prepared by the manufacturer for sale, or removal for sale or consumption, in packages of the following description, and in no other manner : all smoking tobacco, all fine cut shorts which is passed through a riddle of thirty-six meshes to the square inch, and all refuse scraps and sweepings of tobacco, in packages containing two, four, eight and sixteen ounces each." 15 Stat. 152-3. This section evidently has the same object as the first. The fact that it directs the manner in which the scraps and refuse shall be put up in the factory affords no evidence of a legislative determination that the scraps themselves are manufactured articles. Nor does section 59 of the same act justify the interpretation which is sought to be placed upon it. On the contrary, it distinguishes scraps by fair implication from both manufactured and partially manufactured tobacco. Its language is:

"Every person whose business it is to manufacture tobacco or snuff for himself, or who shall employ others to manufacture tobacco or snuff, whether such manufacture shall be by cutting, pressing, grinding, crushing, or rubbing of any leaf or raw tobacco, or otherwise preparing raw or leaf tobacco or manufactured or partially manufactured tobacco, or snuff, or the putting up for use or consumption of scraps, waste, clippings, stems, or deposits of tobacco, resulting from any process of handling tobacco, shall be regarded as a manufacturer of tobacco."

The interpretation of this section, which would hold that scraps were manufactured tobacco, would render the provision

Syllabus.

of the section which relates to them absolutely useless. It would be a construction which would read out of the section by necessary implication, as unnecessary, the provision as to the waste or scrap tobacco found therein. Manufactured tobacco and partially manufactured tobacco had been already provided for. The waste or clippings must have been considered neither manufactured nor partially manufactured, since they were specially provided for after the manufactured and partially manufactured tobacco had already been regulated by the terms of the section. It follows, therefore, that if, under the rule of pari materia, we interpret the provision of the tariff act of 1883 along with the provision of the internal revenue acts, thus quoted, we could not hold the scraps or waste to be a manufactured article, unless we said that that which is neither manufactured nor partially manufactured was vet a manufactured article. We think the context of these sections makes it clear that their general purpose and object was to regulate the manufacture and disposition of all classes of tobacco, and that they conform by a fair construction and interpretation to the view that the scraps are neither a manufactured nor a partially manufactured article. We are here dealing with the waste or the scraps not from the internal revenue point of view, but as an article of commerce, separate from the manufacturer and the factory. The judgment below is

SPALDING v. CASTRO.

Affirmed.

ERROR TO THE CIRCUIT

COURT OF THE UNITED STATES FOR THE

NORTHERN DISTRICT OF ILLINOIS.

No. 297. Submitted March 19, 1894. - Decided April 16, 1894.

Seeberger v. Castro, ante, 32, followed.

A ruling by the court below, correct when applied to this case, is sustained without regard to its correctness as a general proposition.

Syllabus.

THE case is stated in the opinion.

Mr. Assistant Attorney General Whitney for plaintiff in

error.

No appearance for defendant in error.

MR. JUSTICE WHITE delivered the opinion of the court.

This case is covered by that of the same person against Seeberger, collector, just decided. The tobacco was like that imported in the former case, and was likewise assessed. There was due protest by the importer, seasonable appeal to the Secretary of the Treasury, and, on his adverse ruling, a timely suit. The case was tried by a jury. The court instructed the jury that if they believed from the evidence that the tobacco in question required to have labor expended upon it in order to fit it for consumption, then it was unmanufactured tobacco, as claimed by the plaintiff, etc. Excepting to this ruling, the case was brought here. Whatever may have been the correctness of the instruction as a general proposition, it was correct when applied to the case in hand. Evanston v. Gunn, 99 U. S. 660. The judgment is

Affirmed.

WILSON v. HALEY LIVE STOCK COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.

No. 332. Submitted March 30, 1891. Decided April 16, 1894.

A defendant who proceeds to introduce testimony, after denial of his motion for a verdict in his favor on the close of the plaintiff's evidence in chief, thereby waives his exception to that denial.

A count in trespass de bonis asportatis, for the taking and detaining of personal property, can only be supported on the theory that plaintiff was either its owner, or entitled of right to its possession at the time of the trespass complained of.

Statement of the Case.

In an action of trespass de bonis asportatis the plaintiff cannot recover as upon a count for money had and received, at least without an amendment of the complaint.

Where a cause of action is not proven, not merely in some particular, but in its entire scope and meaning, the courts treat it, not as a case of variance merely, but as an entire failure of proof.

THIS was an action by the Haley Live Stock Company against Wilson and five others to recover damages for the forcible seizure on July 27, 1888, of 700 head of cattle, and the extortion from the plaintiff of $12,725.50 as a condition precedent to the defendants surrendering possession of the cattle to the plaintiff.

The answer of Wilson and Breeze, two of the defendants, denied the incorporation of the plaintiff, as well as all the allegations of the complaint, and set up in defence that Wilson, as treasurer of Routt County, and Breeze as his assistant, seized these cattle under a warrant for taxes for the year 1884 against one Ora Haley, by which warrant defendant Wilson was commanded to make the said sum of $12,725.50 out of the personal property of Haley, and by virtue whereof he distrained upon these cattle, and detained the same from July 27 to August 21, when Haley voluntarily paid the amount due. During this time, defendant Wilson was enjoined by Haley from selling them, and the cattle were properly cared for and in better condition than when seized. A similar answer was filed by the other defendants.

Upon the trial it appeared that articles of incorporation of the Haley Live Stock Company, under the laws of Iowa, signed by Ora Haley and Samuel Hass, were filed for record in the county recorder's office of Pottawattamie County, Iowa, on July 24, 1888; in Carbon County, Wyoming, on July 30; and in Routt County, Colorado, on August 10; and in the office of the Secretary of State of Iowa on August 29, though nothing appears to have been filed in the office of the Secretary of State of Colorado. The articles provided for a capital stock of $300,000, divided into 3000 shares; that the corporation should begin business on August 1, 1888, and that Haley should be superintendent and manager of the company.