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Opinion of the Court.

charge of the court, and to the refusals of the court to charge, and to its refusal to charge otherwise than as it had charged, are untenable.

The court instructed the jury that if the four articles in question, according to the understanding of commercial men, dealers in and importers of them, would, when imported, “be included in the class of articles known as aniline dyes, by whatever name they had come to be known,” they were subject to duty as aniline dyes, and the defendant was entitled to a verdict. We see no objection to this instruction. It was in accordance with the established rule that, in interpreting customs statutes, commercial terms are to be construed according to the commercial understanding in regard to them. Nor is this rule inapplicable to this case because the articles in question were unknown in 1874, when the statute was enacted. As the court said to the jury, the law was made for the future; and the term “aniline dyes and colors, by whatever name known," included articles which should be commercially known, whenever afterwards imported, as "aniline dyes and colors." In Newman v. Arthur, 109 U. S. 132, it was held that the fact that, at the date of an act imposing duties, goods of a certain kind had not been manufactured, does not withdraw them from the class to which they belong, when the language of the statute clearly and fairly includes them. But it is sufficient if it so includes them according to commercial understanding

The bill of exceptions states as follows: “In the course of the trial a large amount of testimony was introduced, on behalf of both parties, as to the similitude or resemblance, under Revised Statutes, section 2499, of the dyes and colors of the plaintiffs' importations and various dyes and colors known in trade of this country, and by chemists from 1869 to time of trial, as aniline dyes and colors, it being contended upon the part of the defendant that the importations of the plaintiffs, if not specified under and covered by the term aniline dyes, yet that they were chargeable as aniline dyes by similitude."

Section 2499, thus referred to, reads as follows: " There shall be levied, collected, and paid, on each and every non

VOL. CXXXII-17

Opinion of the Court.

enumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this title as 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; 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 as is chargeable on the article which it resembles paying the highest 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.”

On the question of similitude the court instructed the jury that if the articles in question did not fall within the class of articles known as “aniline dyes,” or either of them did not, the jury were then to proceed to the consideration of the question arising under section 2499 of the Revised Statutes, as to similitude; that, if the four articles did not fall within the class of “aniline dyes,” then the question would be whether any one of them bore a similitude, either in“ material, quality, texture, or the use to which it may be applied,” to what were known as aniline dyes at the time the Revised Statutes were enacted ; that, if it did, it was dutiable at the same rate as aniline dyes were; that the word “texture ” did not apply to the subject; that, if any one of the articles bore a similitude or resemblance, in material or quality, to what were known as aniline dyes in 1874, it was dutiable at the same rate as an aniline dye; that if either of them bore a similitude in the use to which it might be applied, to aniline dyes known and in use in 1874, it was dutiable at the same rate as an aniline dye; that the mere application to the dyeing of fabrics would not create the similitude, but that if there was a similitude in the mode of use, a similitude in the same kind of dyeing, producing the same colors in substantially the same way, so as to take the place of aniline dyes in use, there would be a similitude in use; that if all the articles were neither aniline dyes nor bore

Opinion of the Court.

such similitude the plaintiffs were entitled to a verdict for the full amount they claim; that, if any less than all of them were neither aniline dyes nor bore such similitude, the plaintiffs were entitled to a verdict as to those, for the amount of duties charged which ought not to have been charged; that the question was whether the articles fell within the description of “aniline dyes or colors, by whatever name known,” as commercially known, or bore a similitude to articles which fell within that description, as they were known in 1874; that the jury were not to consider “ aniline dyes” as a term synonymous with “coal-tar dyes;" and that they were to look at the term “aniline dyes” according to its commercial usage in 1874.

The plaintiffs excepted to that part of the charge in regard to similitude which had reference to the expression “similitude in material," and to that part which related to "similitude in the same kind of dyeing,” and also requested the court to charge the jury, “ in respect to similitude of quality,” that the mere quality of producing color, or dyeing, was not a sufficient similitude to warrant the jury in finding a verdict for the defendant by reason of similitude. In response to this request, the court said that it had already instructed the jury that the mere fact that the article would color was not a similitude. The plaintiffs also excepted to the charge of the court as to similitude in use.

We are of opinion that the charge on the subject of similitude submitted the question properly to the jury; and that it was not error to refuse the request to charge, that, if the jury should find that any one of the articles was used as a substitute and in place of cochineal, and not as a substitute for any aniline dye known at the time of its introduction, the plaintiffs, as to that branch of the case, were entitled to a verdict.

Other questions are raised in the bill of exceptions which we do not deem it necessary to notice particularly. We see no error in the record.

Judgment affirmed.

Opinion of the Court.

DAHL v. RAUNHEIM.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF MONTANA,

No. 85. Submitted November 7, 1889.- Decided November 25, 1889.

An applicant for a placer patent, who has complied with all the proceedings

essential for the issue of a patent for his location, but whose patent has not issued, may maintain an action to quiet title against a person asserting title to a portion of the placer location under a subsequent location

of a lode claim. If on the trial of such an action the court instruct the jury that if they

believe that the premises were located by the grantors and predecessors in interest of the plaintiff as a placer mining claim in accordance with law and they continued to hold the premises until conveyed to the plaintiff, and the plaintiff continued to hold them up to the time of the application of a patent therefor, and at the time of the application there was no known lode or vein within the boundaries of the premises claimed, and there is a general verdict for the plaintiff, the jury must be deemed to have found that the lode claimed by the defendant did not exist when

the plaintiff's application for a patent was filed. When a person applies for a placer patent in the manner prescribed by law,

and all the proceedings in regard to publication and otherwise are had thereunder which are required by the statutes of the United States, and no adverse claims are filed or set up, and it appears that the ground has been surveyed and returned by the Surveyor General to the local land office as mineral land, the question whether it is placer ground is conclusively established and is not open to litigation by private parties seeking

to avoid the effect of the proceedings. The rulings upon a motion for a new trial are not open to consideration in

this court.

AT Law, to quiet title. Verdict for the plaintiff and judgment on the verdict. The defendant sued out this writ of

The case is stated in the opinion. Mr. William II. De Witt, for plaintiff in error, submitted on his brief.

error.

No appearance for defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

This is an action to quiet the title of the plaintiff below to certain placer mining ground, forty acres in extent, situated

Opinion of the Court.

in Silver Bow County, Montana, of which he claims to be the owner, and in a portion of which the defendant claims to have some right and interest, and for which portion he has applied for a patent. The plaintiff asserts title under a location of the ground as a placer claim on the 22d of February, 1880, by parties from whom he purchased.

The defendant asserts title to a portion of that ground, being three acres and a fraction of an acre in extent, as a lode claim under a location by the name of the Betsey Dahl Lode, made subsequently to the location of the premises as placer mining ground, and subsequently to the application by the plaintiff for a patent therefor. That application was made on the 16th of July, 1881, and the register of the local land office caused notice of it to be published as required for the period of sixty days. All the other provisions of the law on the subject were also complied with. See Smelting Company v. Kemp, 104 U. S. 636, 653. To this application no adverse claim to any portion of the ground was filed by the defendant or any other person, and the statute provides that in such case it shall be assumed that the applicant is entitled to a patent upon certain prescribed payments, and that no adverse claim exists. The statute also declares that thereafter no objection of third parties to the issue of a patent shall be heard, except it be shown that the applicant has failed to comply with the requirements of the law. No such failure was shown by the defendant. He is, therefore, precluded from calling in question the location of the claim, or its character as placer ground.

The only position on which the defendant can resist the pretensions of the plaintiff is that the placer ground, for a patent of which he applied, does not embrace the lode claim. The effect to be given to that position depends upon the answer to the question whether at the time of his application any vein or lode was known to exist within the boundaries of the placer claim, which was not included in his application. Section 2333 of the Revised Statutes provides that when one applies for a placer patent who is at the time in the possession of a vein or lode included within its boundaries, he must state that fact, and then on payment of the sum required for a vein or lode

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