1. Where it appears that no injury resulted to the plaintiff in
error, a judgment will not be reversed merely because the court, at
the trial, permitted a witness on his cross-examination to be
interrogated as to matters pertinent to the issue, but about which
he had not testified in chief.
2. In September, 1872, A. imported from India a product known as
"jute rejections," upon which the collector of the port of Boston
imposed a duty of ten percent
ad valorem under sec. 24 of
the Tariff Act of March 2, 1861, 12 Stat. 196, as a nonenumerated
manufactured article, and of five dollars per ton under sec. 11 of
the Act of July 14, 1562,
id. 554, as a vegetable
substance not enumerated. A. paid the duty under protest and
brought suit against
the collector to recover the specific duty, five dollars per
ton. The jury were instructed that it was for them to find
"whether or not jute rejections were of a class of nonenumerated
vegetable substances similar to the enumerated articles in sec. 11
of the Act of July 14, 1862. If they were, then the duty was
properly assessed; if not, then their verdict must be for the
plaintiff."
Held that the instruction was proper.
This was an action brought by Willis, Edmands, & Co.,
against Thomas Russell, a former collector of customs for the port
of Boston, to recover certain duties paid under protest upon an
importation from India of jute rejections, made in September, 1872.
A duty of ten percent
ad valorem, assessed under sec. 24
of the Tariff Act of March 2, 1861, 12 Stat. 196, and five dollars
per ton under sec. 11 of the Tariff Act of July 14, 1862,
id., 554, had been paid; and this action was for the five
dollars per ton.
The plaintiffs, after proving their payment of the duties
alleged to the defendant, put in evidence the following protest for
the purpose of showing that they had complied with sec. 14 of the
Act of June 30, 1864, c. 171. 13 Stat. 214.
"BOSTON, Oct. 7, 1872"
"SIR -- We desire respectfully to protest against your action in
assessing and exacting a duty of fifteen dollars per ton upon an
importation made by us into this port of 125 bales of jute
rejections, weighing 37,500 pounds, or about, per ship
Melrose, from Calcutta, and entered for consumption, on
the 18th of September,
Page 100 U. S. 622
claiming that under existing laws this duty cannot be legally
imposed upon this merchandise. Jute rejections are not enumerated
in any tariff act in force, consequently can only be subjected to
duty as a nonenumerated article. Jute rejections are
unmanufactured. They are raw material, and have not passed through
any process of manufacture before being imported into the United
States. Being nonenumerated and unmanufactured, we claim that upon
importation they should be classified and subjected to a duty of
ten percent
ad valorem, under the twenty-fourth section of
the Act of March 2, 1861."
"Should it be determined that, because of the process which this
merchandise passes through in being prepared for shipment, it is
manufactured or partially manufactured, we then claim that it
should be classified as a nonenumerated manufactured or partially
manufactured article, under the section and act above referred to,
and subjected to a duty of twenty percent
ad valorem."
"We pay this duty, amounting to two hundred and fifty-one
dollars and six cents ($251.06) gold, in order to obtain possession
of our property, and shall hold you and the government responsible
for its exaction."
"Yours very respectfully,"
"WILLS, EDMANDS, & CO."
"To Hon. THOMAS RUSSELL,
Collector"
One of the plaintiffs having testified in chief to the payment
of the duties and to the protest and appeal, but not as to what
jute rejections were, or as to the contents of the protest, the
defendant claimed upon cross-examination the right to examine him
with a view of showing that jute rejections were a vegetable
substance, within the eleventh section of the Tariff Act of July
14, 1862.
The plaintiffs objected, upon the ground that the witness had
not testified in chief upon the subject inquired of; but the court
overruled the objection, and permitted him to be examined as to
whether jute rejections were a vegetable substance similar to the
enumerated articles in the second clause of said sec. 11, what they
were, and how jute was grown. To this ruling the plaintiffs
excepted. The plaintiffs claiming that the vegetable substances not
enumerated, named in said second clause, were limited to those used
for cordage, offered to show that in 1862 jute, sisal grass, sun
hemp, and coir were so used, and that jute
Page 100 U. S. 623
rejections were not then, never have been, and cannot be, so
used. This profert of evidence being objected to, was rejected by
the court as immaterial, and the plaintiffs excepted. They asked
the court to instruct the jury as follows:
First, that sec. 15 of the Act of March 2, 1861, and
sec. 11 of the Act of July 14, 1862, and the provision in schedule
C, sec. 2504 of the Revised Statutes of the United States, must be
construed together, and full effect be given to the words "used for
cordage" as restrictive in the application of sec. 11 of the Act of
July 14, 1862, in the assessment of duties.
Second, that the words "used for cordage" by necessary
implication of law are to be implied in sec. 11 of the Act of July
14, 1862.
Third, that the provision in schedule C, sec. 2504 of
the Revised Statutes of the United States, as follows, "vegetable
substances used for cordage," was a legislative declaration, on the
first day of December, 1873, that such was the state of the law,
and it is necessarily a construction of sec. 11 of the Act of July
14, 1862, in connection with sec. 15 of the Act of March 2, 1861.
It was the declared purpose of Congress to collate all the statutes
as they were at that date, and not to make any change in their
provisions.
Fourth, if the jury shall find that commercially jute
rejections were not used for cordage, then they were not liable to
the duty imposed by the defendant under sec. 11 of the Act of July
14, 1862, and their verdict must be for the plaintiffs.
The court declined so to instruct the jury, but instructed them
that it was for them to find whether or not jute rejections were of
a class of nonenumerated vegetable substances similar to the
enumerated articles in sec. 11 of the Act of July 14, 1862. If they
were, then the duty was properly assessed; if not, then their
verdict must be for the plaintiffs. The jury returned a verdict for
the defendant, and judgment having been rendered thereon, the
plaintiffs sued out this writ of error.
Page 100 U. S. 624
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Five dollars per ton import duties were, by the Act of the 14th
of July, 1862, levied on jute, sisal grass, sun hemp, coir, and
other vegetable substances not enumerated, except flax, tow of
flax, Russia and Manila hemp, and codilla or tow of hemp. 12 Stat.
554.
By the prior act, jute, sisal grass, sun hemp, coir, and other
vegetable substances, if not enumerated and used for cordage, were
subject to a specific duty of ten dollars per ton. Jute butts paid
five dollars per ton, and codilla or tow of hemp paid the same duty
as nonenumerated vegetable substances used for cordage. Pages of
the volume are filled with the enumerated list; but the
twenty-fourth section provides that all articles, raw and
unmanufactured, not therein enumerated or otherwise taxed, shall
pay a duty of ten percent ad valorem.
Id., 188, 196.
Products called jute rejections, to the amount of one hundred
and twenty-five bales, were imported by the plaintiffs from
Calcutta. Due entry of the importation for consumption was made by
the importers, and the collector assessed an import duty on the
goods of ten percent ad valorem and a specific duty of five dollars
per ton.
Id., 196, 554.
Pursuant to the requirement of law in such cases, the plaintiffs
filed a written protest, objecting to the levy of the specific
duty, in which they claimed that the products imported should be
classed as nonenumerated articles, raw and unmanufactured, and be
subject to a duty of ten percent
ad valorem and no more;
or, if regarded as partially manufactured, that the importation
should be subjected to a duty of twenty percent
ad
valorem, and no more.
Payment of the amount exacted was made by the plaintiffs to
obtain possession of the goods, and redress being refused, the
plaintiffs instituted the present suit to recover back the amount
and lawful interest. Service was made, and, the defendant having
appeared, the parties went to trial, and verdict and judgment were
in favor of the defendant, and the plaintiffs excepted and sued out
the present writ of error.
Six errors are assigned here, as follows:
1. That the court erred in permitting a witness for the
plaintiffs to be cross-examined
Page 100 U. S. 625
on a matter not within his testimony in chief.
2. That the court erred in refusing to permit the plaintiffs to
introduce evidence to prove that jute rejections were not and could
not be used for cordage, and that jute and the other vegetable
substances mentioned in the act of Congress were used for that
purpose.
3. That the court erred in permitting the defendant to introduce
evidence to prove that jute rejections were one of the vegetable
substances referred to in the act of Congress.
4. That the court erred in refusing each of the four prayers for
instruction presented by the plaintiffs.
5. That the court erred in instructing the jury that it was for
them to determine whether or not jute rejections were of a class of
nonenumerated vegetable substances similar to the articles
enumerated in the eleventh section of the act, under which the
importation was made.
6. That the court erred in not defining in what the required
similarity would consist to bring the importation in question
within the act of Congress.
Testimony was introduced by the plaintiffs to prove that they
paid the duties, and they read the protest in evidence to show that
they had complied with that condition precedent to a right to
recover back the amount paid. Witnesses were called by them to
prove payment and protest; and one of them having testified to the
payment of the duties, and to the fact of protest and appeal, the
defendant claimed the right to cross-examine him as to whether jute
rejections were a vegetable substance similar to the articles
enumerated in the second clause of the eleventh section of the
Tariff Act, under which the duties were exacted. Objection was made
by the plaintiffs, but the court overruled the objection and
admitted the evidence. Exception was taken by the plaintiffs to the
ruling of the court, and that exception constitutes the basis of
the first assignment of error.
Authorities of the highest character show that the established
rule of practice in the federal courts and in most other
jurisdictions in this country is that a party has no right to
cross-examine a witness, without leave of the court, as to any
facts and circumstances not connected with matters stated in his
direct examination, subject to two necessary exceptions. He may ask
questions to show bias or prejudice in the witness,
Page 100 U. S. 626
or to lay the foundation to admit evidence of prior
contradictory statements. Subject to those exceptions, the general
rule is that if the party wishes to examine the witness as to other
matters, he must in general do so by making him his own witness and
calling him as such in the subsequent progress of the cause.
The Philadelphia & Trenton
Railroad Co. v. Stimpson, 14 Pet. 448,
39 U. S. 459;
Houghton v.
Jones, 1 Wall. 702,
68 U. S. 706; 1
Greenl. Evid., sec. 445-447; 1 Whart. Evid., sec. 529.
It has been twice so ruled by this court, and is undoubtedly a
valuable rule of practice, and one well calculated to promote
regularity and logical order in jury trials; but it is equally well
settled by the same authorities that the mode of conducting trials,
and the order of introducing evidence, and the time when it is to
be introduced, are matters properly belonging very largely to the
practice of the court where the matters of fact are tried by a
jury. Both of the cases referred to by the plaintiffs show that the
judgment will not be reversed merely because it appears that the
rule limiting the cross-examination to the matters opened by the
examination in chief was applied and enforced; but those cases do
not decide the converse of the proposition, nor is attention called
to any case where it is held that the judgment will be reversed
because the court trying the issue of fact relaxed the rule and
allowed the cross-examination to extend to other matters pertinent
to the issue.
Cases not infrequently arise where the convenience of the
witness or of the court or the party producing the witness will be
promoted by a relaxation of the rule, to enable the witness to be
discharged from further attendance, and if the court in such a case
should refuse to enforce the rule, it clearly would not be a ground
of error unless it appeared that it worked serious injury to the
opposite party. Nothing of the kind is shown or pretended in this
case. Instead of that, it is conceded that the ruling of the court
did not work any injury to the plaintiffs, and in that view the
first assignment of error is overruled.
Jackson v. Litch,
63 Pa.St. 451, 455.
Enough appears to show that the importation in this case was
made under the tariff act temporarily increasing the duties on
imports, which imposes a duty of five dollars per ton in addition
to the duties theretofore imposed on the articles
Page 100 U. S. 627
therein enumerated, and other vegetable substances not
enumerated, except flax, two of flax, hemp of two descriptions, and
codilla or tow of hemp. Products such as those imported, called
jute rejections, it is admitted, are vegetable products, and that
the article or product is not enumerated in that tariff act; but it
is contended by the plaintiffs that the words "used for cordage,"
found in the fifteenth section of the former act, must be implied,
to come in after the word "enumerated," as used in the said section
of the antecedent act. Grant that and it would follow that the
plaintiffs must prevail, as the evidence shows that jute rejections
are not used for cordage.
Hemp, under the prior act, unmanufactured, paid a duty of
thirty-five dollars per ton, and Manila and other hemps of India
paid a duty of fifteen dollars per ton. Jute, sisal grass, sun
hemp, and coir were enumerated articles in that tariff act, and
they, with other vegetable substances not enumerated, if used for
cordage, paid a duty of ten dollars per ton, and codilla or tow of
hemp paid a duty of the same amount.
None of these suggestions are controverted, nor can it be
controverted that jute, sisal grass, sun hemp, coir, and other
vegetable substances are required in terms by the new act
increasing the duties on imports to pay five dollars per ton in
addition to the duties previously imposed by law. All that is
conceded; still, the plaintiffs contend that the words "used for
cordage," found in the prior act, should, by implication, be
incorporated, as before explained, into the subsequent act
increasing import duties; but the Court is not able to adopt that
construction of the new provision, for several reasons:
1. Because there is nothing in either act, or in the two when
read together, to justify such a construction, or even to indicate
that such was the intention of Congress.
2. Because nothing short of legislation would justify such a
conclusion.
3. Because the exceptions contained in the new provision afford
satisfactory proof that such was not the intention of Congress.
Attempt is made to support the theory of the plaintiffs by the
fact that the words "used for cordage" are restored in the Revised
Statutes, but the Court is of the opinion that no aid can be drawn
from that provision in favor of the views of the
Page 100 U. S. 628
plaintiffs, as it imposes a duty of fifteen dollars per ton on
the articles named, including other vegetable substances not
enumerated. Sec. 2504, sched. C, entitled Hemp, Jute, and Flax
Goods.
Evidently the provision in the Revised Statutes referred to was
borrowed from a later act, and cannot in any sense be regarded as a
legislative construction of the clause in the tariff act under
consideration. 16 Stat. 264.
Three of the prayers for instruction presented by the plaintiffs
are covered by the preceding suggestions, and nothing need be added
to show that they were properly rejected. Their fourth prayer was
also rejected; but the court instructed the jury in its stead that
it was for them to find whether or not jute rejections were of a
class of nonenumerated vegetable substances similar to the
enumerated articles in sec. 11 of the act under which the same were
imported, adding, that if they were, then the duty was properly
assessed; that if they were not, then their verdict should be for
the plaintiffs.
New products or articles of importation frequently appear, and
hence it is that Congress finds it necessary to impose duties by
some general designation, in order that nonenumerated articles may
not escape from their just share of the public burden.
Nonenumerated articles under the first act in question were
subjected to a duty of ten percent
ad valorem, but the act
increasing import duties included some of those articles in the
enumerated list, and imposed on them a duty of five dollars per ton
in addition to the duties previously imposed by the prior act.
Appended to the class so enumerated in the clause of the second act
under consideration was the phrase, "and other vegetable substances
not enumerated," which were by the same clause made subject to the
same additional specific duty.
Both the appraisers and the collector as well as the
commissioner regarded the products imported as vegetable substances
similar to the articles enumerated in the preceding part of the
same clause, and if their theory is correct, then it was immaterial
whether the jute rejections were or were not used for cordage, as
those words, though incorporated into the corresponding clause in
the prior act, were left out of the clause in the subsequent act
increasing import duties.
Page 100 U. S. 629
It is the theory of the plaintiffs that the clause in the second
act means the same thing as the clause in the antecedent act, but
the circuit court held otherwise; and the Court here fully concurs
in the view of the circuit court, that the duties were properly
assessed if the products imported were of a class of nonenumerated
vegetable substances similar to the enumerated articles mentioned
in the clause of sec. 11, which imposes the duty in question.
Plainly the question was one of fact, and the Court is of the
opinion that it was properly submitted to the jury in connection
with the converse of the proposition, that if the products were not
of that class, then their verdict should be for the plaintiffs.
Complaint is also made by the plaintiffs that when they offered
evidence to show that jute rejections were never used for cordage,
the court rejected the evidence as immaterial; but the Court here
is of the opinion that the ruling was correct, as it is clear that
the words "used for cordage" is no part of the clause of sec. 11,
under which the duties were assessed.
Dissatisfaction is expressed by the plaintiffs that the circuit
judge did not give the jury some better standard to guide them in
the performance of their duty, but it is not perceived that there
is any just ground for that complaint, as he gave them the very
criterion which the tariff act prescribes -- that if the
importation was of an article nonenumerated and of a class of
vegetable substances similar to the enumerated articles preceding
that phrase in the same clause, then the duty was properly
assessed, but if not, then the plaintiffs were entitled to the
verdict.
For these reasons, the Court is of the opinion that there is no
error in the record.
Judgment affirmed.
