Thorp v. Raymond. 16 H.

The defendant then proved that, before the year 1801, the premises in question were in the actual possession of one Oliver De Lancy, claiming as owner, who, in the same year, by indenture of lease, demised the same to one James Bathgate, for the term of fourteen years; that the said Bathgate entered into possession, and continued to hold and occupy the premises under this lease till 1804, when one David Lydig entered, claiming to be the owner in fee; that said Bathgate attorneyed to, and held and occupied under him, as tenant, down to 1840, when the defendant succeeded as tenant of the premises under the said Lydig; that David Lydig died in 1840, leaving Philip, his only child and heir at law, surviving; and that from the date of the lease to Bathgate, 1st May, 1801, down to the commencement of this suit, the premises had been continually held and possessed by De Lancy and the Lydigs, father and son, by their several tenants, claiming to be the owners in fee, and exclusive of any other right or title; and occupied and enjoyed the same in all respects as such owners.

Both parties having rested, the court charged the jury that Hannah Turner took the title to the premises on the death of her grandfather, Nicholas Brouwer, in 1749, as his heir at law; but that, as she was then a feme covert, the statute of limitations did not begin to run against her till 1805, on the death of Edmund Turner, her husband; and as she was also under the disability of insanity, in 1801, when the adverse possession commenced, the statute did not begin to run against her estate until her death, this latter disability having continued till then; and that her heirs had ten years after this period to bring the action. But, that the right of entry would be barred if the adverse possession, including these ten years, had continued twenty years; and the right of title would also be barred if the adverse possession had continued twenty-five years, including these ten years. That the ten years having expired in 1832, and the action not having been brought by the plaintiff till 1850, it was barred by the [250] statute of limitations in both respects as an ejectment, or writ of right; and that, upon the law of the case, the defendant was entitled to their verdict.

We think the ruling of the court below was right, and that the judgment should be affirmed.

It is admitted, that, if this suit should be regarded in the light of an action of ejectment to recover possession of the premises, the right of entry would have been barred by the statute of New York, the twenty years bar having elapsed since the right accrued, before suit brought. 1 R. Laws of 1813, p. 185, § 3.

The right of entry of Hannah Turner accrued in 1801, but at that

Maillard v. Lawrence. 16 H.

time she was laboring under the disability of coverture, and also of insanity, which latter survived the former, and continued till her death, in 1822. By the saving clause in the third section of the act, the heirs had ten years from the time of her death within which to bring the ejectment, and no longer, notwithstanding they may have been minors, or were laboring under other disabilities, as it is admitted successive or cumulative disabilities are not allowable under this section. 6 Cow. 74; 3 Johns. Ch. R. 129, 135. The ten years expired in 1832, which, with the time that had elapsed after the adverse possession commenced, exceeded the twenty years given by the statute. The suit was brought in 1850.

But, it is supposed that the saving clause in the second section of this act, which prescribes a limitation of twenty-five years as a bar to a writ of right, is different, and allows cumulative disabilities; and as ejectment is a substituted remedy in the court below for the writ of right, it is claimed the defendant is bound to make out an adverse possession of twenty-five years, deducting successive or cumulative disabilities. This, however, is a mistake. The saving clause in this second section, though somewhat different in phraseology, has received the same construction in the courts of New York as that given to the third section. 12 Wend. 602, 619, 620, 635, 636, 656, 676. The judgment of the court below is, therefore, affirmed.

THIRION MAILLARD, EARNEST CAYLERS, and HAMILLE C. ROUMAGE, Plaintiffs in Error, v. CORNELIUS W. LAWRENCE.

16 H. 251.

Under the tariff' act of 1846, (9 Stats. at Large, 42,) shawls of worsted, worsted and cotton, silk and worsted, silk, barege, merino, mousseline de laine, and worsted and silk scarfs, are wearing apparel, and subject to a duty of thirty per centum ad valorem under schedule C.

ERROR to the circuit court of the United States for the southern district of New York. The case is stated in the opinion of the court.

Mc Cullok and Cutting, for the plaintiffs.

Cushing, (attorney-general,) contrà.

* DANIEL, J., delivered the opinion of the court.

[ *256 ]

The plaintiffs in error instituted in the court aforesaid

against the defendant an action of trespass on the case for the re

Maillard v. Lawrence. 16 H.

covery of an alleged excess of duties charged by the defendant as collector of the port of New York, and paid to him under protest by the plaintiffs upon certain goods imported by them from Havre in France, and described by them in the invoices and entries thereof as "worsted shawls, worsted and cotton shawls, silk and worsted shawls, barege shawls, merino shawls, silk shawls, worsted scarfs, silk scarfs, and mousseline de laine shawls." There appear to have been nineteen different importations by the plaintiffs, comprised within the description just given, but a particular or separate enumeration of them is not necessary, it being admitted that the protest of the plaintiffs embraced the whole of them, and that the correctness or incorrectness of the proceeding in reference to each of them depends upon the construction of the same statute. Upon the articles thus de

scribed, the collector charged the duty of thirty per centum [* 257] ad valorem as being wearing apparel within the meaning * of schedule C, in the act of congress of the 30th of July, 1846 Vide 9 Stats. at Large, c. 74, p. 44. The plaintiffs insist that according to schedule D, in the same statute, they were bound to pay at the rate of twenty-five per centum ad valorem only, and for a recov ery of the difference between this last rate and that at which they have made payment, their action has been brought.

Upon issue joined on the plea of non-assumpsit and under instructions from the court as to the import of the provisions of the statute of July 30, 1846, a verdict was found for the defendant, and a judgment entered in accordance therewith. This case is comprehended within narrow limits, and its decision must depend entirely upon the interpretation of those portions of the statute of 1846, designated as schedules C and D, as to the description and enumeration of the articles subjected to duties and the rate of impost prescribed by these schedules.

In schedule C, which imposes a duty of thirty per centum ad valorem, are comprised the following articles, in the literal terms of the law," clothing ready-made, and wearing apparel of every description, of whatever material composed, made up, or manufactured, wholly or in part by the tailor, seamstress, or manufacturer."

By schedule D, of the same act, it is declared that an impost of twenty-five per centum only shall be levied on "manufactures of silk, or of which silk shall be a component material, not otherwise provided for; manufactures of worsted, or of which worsted is a component material, not otherwise provided for."

Several witnesses were examined by the plaintiffs, with the view of showing that in a mercantile sense the term shawls, under which descriptive name the goods of the plaintiffs were entered, did not in

Maillard v. Lawrence. 16 H.

clude "wearing apparel," and à fortiori not wearing apparel either made up or manufactured wholly or in part by the tailor, seamstress, or manufacturer, and that therefore, under the provision of schedule D, they were subject to an impost of twenty-five per centum only as manufactures of silk or worsted," not otherwise provided for." Countervailing evidence was adduced on the part of the defendant to show that, in a mercantile sense, and by generally received and notorious acceptation, and by the plain and even imperative language of the statute, shawls were established to be wearing apparel; and consequently came within the rates imposed by schedule C, and could not be brought within the description in schedule D, as articles "not otherwise provided for." The character of the evidence, or more properly the points it was designed to bear upon, most plainly appear from the several prayers submitted at the trial, and by the rulings of the court upon those prayers.

*The counsel for the plaintiffs moved the court to charge [* 258 ] and instruct the jury, 1st. That if the jury shall find from the evidence that the shawls in question were known at the date of the passage of the said act of 30th July, 1846, in trade and commerce as "manufactures of worsted," or of which worsted was a component material, that then they are embraced in schedule D, and are only liable to a duty of twenty-five per centum ad valorem, and no more. Second. That if the jury shall find from the evidence that the shawls in question were not, at the date of the said last-mentioned act, in a commercial sense, and according to the meaning of the term among merchants, either

1. Articles worn by men, women, or children "made up," or made wholly or in part by hand. 2. Nor clothing ready-made, or wearing apparel "made up," or manufactured wholly or in part by the tailor, seamstress, or manufacturer. 3. Nor manufactures of cotton, linen, silk, wool, or worsted, embroidered or tamboured in the loom, or otherwise by machinery, or with the needle, or other process; then, in either of said cases, the articles in question are liable only to a duty of twenty-five per centum ad valorem.

Third. That if the jury shall find from the evidence that the articles in question were charged, under the act of 1842,' with duty as "manufactures of combed wool or worsted," "manufactures of worsted, and manufactures of worsted and silk combined," under section 1, subdivision 1, of said act, and as "manufactures of cotton, or of which cotton shall be a component part, under section 2, subdivision 2, of said act, then the articles in question are, under the act of 1846, liable to a duty of twenty-five per cent. ad valorem, and no more Fourth. That if the jury shall find from the evidence that, at the

15 Stats. at Large, 548.

date of the passage of the said act of the 30th of July, 1846, the shawls in question were commercially known as "manufactures of worsted," or of which worsted was a component material, and that they were not known in trade and commerce as clothing ready-made, or as "wearing apparel" made up, or manufactured wholly or in part by the tailor, seamstress, or manufacturer, nor as articles worn by men, women, and children, made up, or made wholly or in part by hand, then they are chargeable with a duty of twenty-five per cent. ad valorem, and no more.

Whereupon his honor, the presiding judge, refused so to instruct the jury in accordance with all or any of the said several prayers, whereby the plaintiffs, by their counsel, had prayed the court to instruct the jury.

And thereupon the counsel for the plaintiffs then and [* *259] there excepted to the refusal of the said judge to instruct the jury in conformity with the said several prayers of the said plaintiffs, and also to the charge and instructing the jury by the said judge, in conformity with all, any, and every of the several prayers wherein the defendant's counsel had so prayed the court to instruct the jury as matter of law.

The counsel for the defendant insisted, as matter of law, and prayed the court to charge and instruct the jury as follows:

First. That shawls and scarfs suitable and adapted in the state they are imported, to be worn by women on the person, as an article of dress, and usually so worn by women in the United States, are "wearing apparel," "made up" or manufactured wholly or in part, by the tailor, seamstress, or manufacturer, within the true meaning of schedule C, of the tariff act of the 30th of July, 1846, and are properly chargeable with the duty of thirty per centum ad valorem, prescribed by said schedule C.

Second. That shawls and scarfs of the description above named, are not the less wearing apparel, made up or manufactured wholly or in part by the tailor, seamstress, or manufacturer, within the true meaning of the said schedule, though sometimes purchased by clothiers and tailors to be made up into vests, dressing-gowns, and other garments, as testified to by the witnesses for the plaintiffs in this case.

Third. That shawls and scarfs of the description above named are wearing apparel, made up or manufactured wholly or in part by the tailor, seamstress, or manufacturer, within the true meaning of the said schedule C, notwithstanding, at the date of the passage of the said act of July, 1846, they may not have been called or known by commercial men in trade and commerce by the name of wearing apparel.