By the fifth section of the Tariff Act passed on 30 August,
1842, 5 Stat. 555, a duty of thirty percent is imposed on "India
rubber oil cloth, webbing, shoes, braces or suspenders, or any
other fabrics or manufactured articles composed wholly or in part
of India rubber."
In the ninth section, among other articles declared to be exempt
from duty is "India rubber in bottles or sheets, or otherwise
unmanufactured."
By these sections, the duty of thirty percent is payable upon
shoes made of India rubber in Brazil, although they are made by the
same process as bottles or sheets, provided they come to this
country in a condition to be worn without further material labor on
them here, and were actually worn in this form, and provided they
were called, in the language of commerce, "India rubber shoes," and
of these two facts the jury ought to judge.
The articles come within the letter of the law, and the act of
1842 was framed with a desire to tax whatever might compete with
our own manufactures.
When India rubber is made into a shape suitable for use, it may
be considered a manufactured article. Originally it was made into
the shape of boots, to be used
Page 48 U. S. 786
and worn in Brazil and afterwards into shoes, but not intended
to be sent abroad as a raw material.
The fact that the material of which these shoes are made is used
for other articles of manufacture after their importation does not
change this view of the subject.
This was an action of assumpsit commenced by Allen and Paxton,
the defendants in error, in the supreme court of the State of New
York, for the purpose of recovering back from the plaintiff in
error, collector of customs for the port of New York, certain
moneys exacted by him as collector for duties upon a quantity of
common India rubber shoes imported into the port of New York in
September, 1845, by the defendants in error, from Para, in
Brazil.
Under the provisions of the Act of Congress of 2 March, 1833,
the suit was removed into the Circuit Court of the United States
for the Southern District of New York.
The declaration contained the common money counts, to which the
defendant pleaded the general issue.
The cause was tried in May, 1847, and under the instructions of
the court the jury found a verdict for the plaintiffs below for
$2,908.60.
A great deal of evidence was adduced upon the trial by the
plaintiffs to show the manner in which the shoes are made in Brazil
and their use as an article of commerce. Much of this testimony was
objected to as inadmissible. A part of it is transcribed because it
is referred to in the opinion of the court.
The plaintiffs' counsel then called as witnesses James E. Smith,
Amory Edwards, George G. Wales, and William H. Edwards, who, being
sworn, severally testified that they were acquainted with the
articles now the subject of controversy and with other articles of
India rubber imported from Para; that they had been at Para, and
were acquainted with the process of producing or making India
rubber; that the juice or sap of the trees, when collected, is
about the color and consistency of milk, and is called milk; that
it is placed in a vessel of convenient size; that moulds of clay,
or of wood covered with clay, in the shape of a shoe, or bottle, or
other shape, and to which a handle is attached, are dipped in the
milk, and immediately held in the heat and smoke of a fire made of
a peculiar kind of nut, which dries the milk and gives it a dark
color; that this process is repeated several times until the
coating is sufficiently thick, when the article is taken from the
mould by breaking the clay of which it is made or with
Page 48 U. S. 787
which it is covered, and the pieces of clay are taken out; that
shoes and bottles are then generally stuffed with straw, and that
the article is then ready for sale and exportation; that bottles
are made in two or three minutes; that it takes somewhat longer,
say about five minutes, to prepare a shoe; there must be a new
mould for every bottle; the foot-shaped mould is the best form for
dipping. The shoe shape is the most convenient mode of making India
rubber. The stuffing of the shoe is done by the parties who buy
them in Para for exportation. The shoes are sometimes shipped in
bulk and sometimes stuffed. The term "India rubber shoes"
comprehends all kinds of shoes made of India rubber, both
manufactured and unmanufactured; that the price of India rubber
shoes in Para has varied greatly since 1826; that the great demand
for India rubber of late years in the United States for dissolving
for manufacturing purposes has raised the price in Para; that no
such things as suspenders are made in Para; that nothing is made
there in a more manufactured state than the square sheets; that
India rubber shoes are sometimes sold and shipped at Para without
being stuffed with straw.
Much evidence was also introduced by the defendant the object of
which was to show that the articles were known in commerce by the
name of "India rubber shoes," and were bought and sold in the
market as imported, without any alteration of any consequence.
The counsel for the defendant then prayed the court to decide
the law of the case and to instruct and charge the jury as
follows:
First. That in construing and applying the provisions of the
tariff law of August 30, 1842, to the present case, the terms used
therein are to be understood in their known commercial sense, as
used and understood in the ports of the United States prior to and
at the date of said law.
Secondly. That as all "India rubber shoes" imported from foreign
countries are by the said provisions subject to thirty percent
duty, the true and only inquiry in the present case is whether, in
a commercial sense and among commercial men dealing therein, the
articles in question were imported into and usually known and
bought and sold in the ports of the United States prior to and at
the date of the law under the name and denomination of "India
rubber shoes."
Thirdly. That if the jury shall be satisfied from the evidence
that the articles in question were imported into and usually known
and bought and sold in the ports of the United States prior to 30
August, 1842, under the name and denomination of "India rubber
shoes," then they are liable
Page 48 U. S. 788
under the law to a duty of thirty percent
ad valorem,
and the jury should be instructed to find for the defendant, and
that in the case stated, the jury should be instructed to find for
the defendant notwithstanding they should also be satisfied from
the evidence either
1st. That the term "India rubber shoes," as used in commerce,
includes all other kinds of shoes made in whole or in part of India
rubber, as well as these, or
2d. That "India rubber shoes," in a more finished condition and
of a better quality were imported from England, France, or other
countries prior to 1842 and were then and are now known in the
markets, or
3d. That some additional labor is usually applied to these
articles, or is necessary to fit them for convenient use as shoes,
or
4th. That these articles are extensively used by manufacturers
in the United States for the purpose of being made in whole or in
part into other articles, or
5th. That no more or other kind of labor is required to make
these articles than is required to make India rubber in bottles or
sheets or other kinds of India rubber which, by the seventh article
of the ninth section, is entitled to admission as free.
It being insisted on the part of the defendant that neither of
these circumstances, nor all of them combined, can nullify the
explicit terms of the preceding fifth section by which all kinds of
"India rubber shoes" are subjected to the thirty percent duty, nor
make free these articles, provided they are and were known in
commerce under the name "India rubber shoes."
But his honor the presiding judge refused so to decide the law
of the case or so to instruct the jury, and, on the contrary, the
said judge did then and there decide and did then and there charge
and instruct the said jury that the case, in the view taken thereof
by the court, entirely depended on the true legal construction of
the Tariff Act of August 30, 1842, and involved no question of fact
for the jury; that India rubber, when used in whole or in part in
the manufacture of oil cloth webbing, shoes, braces, or suspenders,
or any other fabrics or manufactured articles, was, by the tenth
article of the fifth section of this law, subjected to the duty of
thirty percentum
ad valorem specified in the clause
relating to these fabrics contained in said tenth article; that by
the seventh article of the ninth section of said act, India rubber,
in bottles or sheets or otherwise unmanufactured, is declared to be
exempt from duty; that by virtue of this clause, India rubber
existing in the particular forms enumerated therein and existing in
any other form in which it may be imported is free from duty if
Page 48 U. S. 789
unmanufactured; that, as these two clauses were both in the mind
of the legislature when treating of India rubber, they are to be
construed together; and that, so construed, the fair conclusion is
-- and such the said judge decided to be the true legal
interpretation of said provisions -- that Congress, in laying the
duty, had special reference to the manufactured article in a
finished state, and intended to allow India rubber to come in as
free, whatever might be its form, if it had not been brought, by
manufacture, into a finished state; that as it was not pretended
that the goods in question were shoes manufactured out of the
material called India rubber, and as it was admitted by all the
witnesses that they were brought into the form of a shoe in the
process of making the material called India rubber, they were not
"India rubber shoes" within the meaning of the tenth article of the
fifth section, but were to be regarded as raw material and as
unmanufactured within the meaning of the seventh article of the
ninth section; that the goods in question were therefore entitled
to be admitted free of duty; that the plaintiffs having protested
in writing against the payment of any duty thereon, and the
collector having, notwithstanding, illegally exacted a duty of
thirty percentum
ad valorem thereon, the plaintiffs were
entitled to recover back the moneys so exacted except so far as the
same had been refunded by way of drawback, and that the jury would
therefore render a verdict for the amount of such remaining moneys,
with interest thereon to the day of trial, in favor of the said
plaintiffs.
And thereupon the said defendant, by his counsel aforesaid, then
and there excepted to the whole of the said decision, charge, and
instruction of the said judge, and particularly to those parts
thereof wherein the said judge decided and held that the said case
involved no question of fact for the jury, and wherein the said
judge instructed and charged the jury, as matter of law, that the
goods in question were entitled, under the act of Congress above
referred to, to be admitted free of duty, and wherein the said
judge also instructed and charged the said jury as matter of law
that the plaintiffs were entitled to recover back the moneys
exacted by the defendant as duties on the said goods; and the said
defendant, by his said counsel, did also then and there except to
the aforesaid refusal of the said judge to decide the law of the
case, and to instruct and charge the said jury in conformity with
the prayer of the counsel of the said defendant hereinbefore
contained.
And the said defendant, by his said counsel, thereupon then and
there further excepted to the decision of the said judge in
admitting as evidence against the defendant the deposition of
Page 48 U. S. 790
Samuel K. Appleton, and the parts thereof particularly objected
to by the said counsel, as hereinbefore mentioned, and in admitting
as evidence against the defendant the testimony of James E. Smith,
Amory Edwards, George C. Wales, William H. Edwards, and John L.
Ripley, hereinbefore particularly objected to by the said counsel,
and did also further except to the decision of the said judge in
excluding the instructions of the Comptroller of the Treasury
hereinbefore mentioned.
Upon this exception, the case came up to this Court.
MR. JUSTICE WOODBURY delivered the opinion of the Court.
This was a writ of error to reverse a judgment in the Circuit
Court for the Southern District of New York. That judgment was
rendered in favor of Allen, the original plaintiffs, in a suit to
recover back the amount of duties which Lawrence, the defendant, as
collector of the port of New York, had demanded and received on the
importation of certain boxes of India rubber shoes, in September,
A.D. 1845, and which the importers claimed to be by law free. The
duties were therefore paid under protest, and at the trial the
court, among other things, ruled, that on the facts proved, these
shoes were not in point of law subject to any duty, and
consequently a verdict was returned for the plaintiffs below for
the amount which had been paid to the collector and interest.
The facts proved or admitted which appear material were that
these shoes consisted wholly of India rubber, and in different
sizes, suited for men, women, and children; that no other work had
been expended on them except to dip the moulds or lasts into the
milky liquid as procured from the India rubber trees and then dry
them over a fire -- performing this process several times till a
proper thickness was obtained. A small ornament was afterwards
drawn on some of them and a coarse stuffing inserted in others, and
in this condition they had for many years been imported and worn
without any essential change or addition here unless in some
instances slightly to trim and stretch them on a last. It was also
proved that shoes made in part from India rubber and in part from
cloth or leather of a thinner and lighter fabric had been sometimes
imported from Europe, and for several years had been extensively
manufactured in this country.
Page 48 U. S. 791
The law which governs the question whether these shoes ought to
pay a duty of thirty percent
ad valorem or be admitted
free is the Act of Congress of August 30, 1842, 5 Stat. 555. In its
fifth section, thirty percent is imposed "on India rubber oil
cloth, webbing, shoes, braces or suspenders, or other fabrics or
manufactured articles, composed wholly or in part of India rubber."
And in the ninth section, among other articles declared to be
"exempt from duty" is "India rubber in bottles or sheets or
otherwise unmanufactured."
The court below entertained an opinion that the clause in this
law imposing a duty of thirty percent on India rubber shoes
referred to those made in a finished state from that material after
being altered in Brazil from its liquid condition to the more solid
state, and to the forms of sheets, shoes, bottles &c., and that
this alteration was not a manufacture, though into a shape designed
for use without any material change, and hence that shoes so made
and imported were not dutiable. This view was undoubtedly correct
to a certain extent and in some aspects of the subject, but in
others it seems to us to involve some errors which we think ought
to be corrected and which require more extended explanations
because overruling the judgment below. Thus, although this act of
Congress clearly meant to impose a duty of thirty percent on shoes
imported, which had been made in part from India rubber after it
had been hardened and fashioned into some crude shape in South
America, yet we have no doubt it might likewise intend to impose
this duty on shoes made abroad wholly from India rubber while in
its liquid state, and especially if, when so made, such shoes were
in a condition to be worn without further material labor on them
here, and were made to be so worn, and were in this form often
actually worn.
It is our opinion, therefore, that the jury should have been so
instructed, and if they were satisfied those shoes had been thus
made to be so worn, and, in the language of commerce, if such shoes
were called "India rubber shoes," no less than those made here or
in Europe in part from India rubber and in a more finished form,
that the duty of thirty percent ought to have been paid on
them.
Some of our reasons for this opinion are briefly these.
The articles imported in this case manifestly come within the
letter of the clause imposing a duty of thirty percent on "India
rubber shoes." They are "India rubber shoes." Being thus provided
for as shoes, the subsequent clause making certain articles free
which were unmanufactured, and not enumerating shoes among them,
cannot be presumed to embrace or refer to anything already provided
for.
United States v. Clarke, 5
Page 48 U. S. 792
Mason C.C. 30. Indeed, these shoes were more emphatically India
rubber shoes than those made only in part of that material, as are
most, if not all, of those manufactured in this country and in
Europe. Again, to remove difficulty in many cases whether an
article should come under the description of those liable to duty,
there it is added in the first clause, taxing them, "manufactured
articles composed wholly or in part of India rubber," and in this
way the duty extends to any shoes if a manufactured article,
whether they be, like these, composed wholly of India rubber, or,
like most others, composed only in part of it.
Much more do the shoes in this case appear to come within this
provision in the act of Congress imposing the duty of thirty
percent when we examine the spirit and object of that provision. To
ascertain these with some degree of certainty it may be useful in
the first place to advert a moment to the past as well as
subsequent legislation of Congress on this subject.
The import of India rubber, in any form, into this country, does
not appear to have attracted attention in the revenue laws, as a
separate and specific article, till 1832. Before that, and
especially in the tariff acts of 1828, 1824, and 1816, all of which
are usually conceded to have looked to protection as well as
revenue, India rubber is not enumerated
eo nomine as free
or dutiable, and hence was taxed generally, from twelve and a half
to fifteen percent, among the non enumerated articles, 3 Stat. 310;
4 Stat. 29 and 590. But in 1832, when the policy had become changed
to reduce an overflowing revenue, by leaving free such
unmanufactured articles as furnished raw materials to our own
manufacturers, and such manufactured articles as did not compete
with any made here, the Act of July 14, 1832, ยง 3, exempted from
duty entirely "India rubber," 4 Stat. 590. In 1833, a like policy,
for a like reason, was pursued, and so in 1841, by expressions in
the former period placing "India rubber" among the articles free
from duty, 4 Stat. 630, and in the latter, making "India rubber"
still excepted from duty, though several articles before free were
then taxed, 5 Stat. 463.
But in 1842, when the policy of the government again became
adapted to protection no less than revenue, the act now under
consideration was shaped so as to tax whatever might compete with
our own manufacturers, and to admit free only articles in such
shape or form as were not calculated to rival our own. Now before
1842, it is well known that the making of shoes in part from India
rubber, so as to be waterproof, had been invented, patented, and
extensively practiced in this country. Consequently such a
protective tariff as that introduced in
Page 48 U. S. 793
1842 would be likely to tax any foreign fabric which was in any
considerable degree a rival to the article made here for a similar
use. And consequently a foreign-made shoe, whether "composed wholly
or in part of India rubber," was meant to be taxed thirty percent
if in either case it was in a form suited to be used as waterproof,
was so designed and so used, and this form would rival the shoe
made here for a like purpose.
In construing statutes, it is not only our duty to give effect
to all the words used in their ordinary sense, but to eviscerate,
if possible, their true spirit and intent from all the connected
circumstances, attendant or subsequent as well as preceding.
Bond v.
Hoyt, 13 Pet. 273; 1 Kent's Com. 461.
The statute applicable directly to the present case being in
some respects awkwardly worded, the design of it on this subject
has been made more explicit and clear by the subsequent Act of July
30, 1846, changing the forms of expression to describe the articles
intended to be taxed. Thus it is there provided that a duty of
thirty percent be imposed on "braces, suspenders, webbing, or other
fabrics composed wholly or in part of India rubber, not otherwise
provided for." And to prevent any misconception of the intention it
is added, under the same schedule and rate of duty, "shoes composed
wholly of India rubber."
It would also be very extraordinary if the spirit of the act of
1842, in its high protective policy, should not mean to tax the
foreign India rubber shoe made wholly of India rubber when it was,
and still is, a most formidable and successful rival to the shoe
made here in part of the same substance; when it was at first, and
for many years, the only shoe used here as waterproof; and when,
under all patents and improvements since in lightness and beauty,
none seems able to surpass it now in durability, ease, and economy
combined.
But it is contended that the India rubber shoe, as made in
Brazil and imported thence, is not a "manufactured article," and
hence is not within the clause in the act of 1842 imposing a duty
of thirty percent. It may be conceded that this duty applies only
to such an article. Yet what constitutes a manufactured
article?
In some instances and for some purposes, it may be one kind of
process performed on what is found in a natural state, and in some
another kind. Thus the juice of the maple or of the cane is in some
views manufactured when it is made into molasses or syrup, and in
others when again made into sugar or spirit from molasses. And so
the juice of the grape is in one sense manufactured when converted
into wine, and in another
Page 48 U. S. 794
when made into brandy. And so is lye from ashes, when boiled
down to potash or pearl ash, manufactured into them. Here, the
juice or sap of the India rubber tree, while liquid or in its milky
state, whether then called caoutchouc or some other name, is still
a natural substance, and in its natural form, and, in one sense and
to a certain extent, its being hardened and changed in color, no
less than consistency and bulk, by fire and evaporation, whatever
new form it may then be turned into, is a manufacture. It is so as
much as butter or cheese is a manufacture from animal milk, or tar
from turpentine, and rosin from tar. Yet from the words of the law
as well as its design, it is manifest that the India rubber is not
meant to be taxed as a manufacture, though so hardened and changed,
unless at the same time it is put into a shape which is suitable
for use and adapted with a design to be used in a way that is
calculated to rival some domestic manufacture here, rather than
merely to furnish a raw material in a more portable, useful, and
convenient form for other manufactures here. In the latter case,
within the policy and purpose of the tariff law yielding
protection, it is "unmanufactured," or, in other words, not made
abroad for use in its existing form except as a raw material, like
pig iron or pig lead. But in the former case, within that policy
and purpose, it is "manufactured," as it is made in a shape for use
as a manufacture without being afterwards materially changed in
form, and is designed to be so used, and hence comes in as a
competitor with our own manufactures.
After these, what requisite is wanting to bring it within the
spirit, no less than the letter, of the provision imposing a duty?
It has been changed, by fire and labor, in its color, consistency,
and form from its natural state as the milk of the India rubber
tree. It has been fashioned into an article of clothing, suitable
and customary to be worn in its then shape. It is a rival to other
shoes made here.
These elements would, on principles of common sense, seem to
amount to a manufacture, and one, when imported from abroad, likely
to be taxed.
Going to more technical definitions and to first principles,
such a process to make the shoe is making an article by the hand,
which was once the literal meaning of the word manufacture, or
manu factum, and in the more modern idea attached to the
word, it is making an article, either by hand or machinery, into a
new form, capable of being used, and designed to be used, in
ordinary life.
Indeed, these India rubber shoes were originally made in Brazil
not as a form of sending abroad a raw material to be used for other
purposes. But they were prepared as a shoe, to
Page 48 U. S. 795
be worn in the shape as there finished, and for the purpose of
excluding water. Travelers in Brazil described the use of India
rubber there first in the form of boots, because waterproof. 1
McCulloch's Dict. 311; Ure's Dict.
The shoe succeeded to the boot, and its export in sheets also,
to be cut up to rub out pencil marks &c., gave to the substance
itself the common name of India rubber.
Ibid.
In the form of the shoe, therefore, to be worn in Brazil or
elsewhere because waterproof, it was a manufacture, and one of such
value for that purpose as to lead to a greatly increased export of
the article in that shape within the last twenty years.
And as the invention was made, here and abroad, of thinner and
lighter shoes manufactured in part from it, and of extending the
use of India rubber to many new objects in dress and the arts, the
demand for it, in a state as hardened and colored, without regard
to form, enlarged rapidly.
Considering too that a mode of dissolving it here has been
discovered, and of easily giving to it afterwards any desired
shape, it may be that shoes, no less than sheets or slabs of India
rubber in a hardened form, become often, when convenient, melted
down or dissolved to be used for other purposes. This might often
be done with them, though a manufacture, as their value per pound
would vary but little, if any, from India rubber in the shape of
sheets, as the raw material of which they were manufactured was the
same, and as the expense of making them is similar -- one being
done by several dippings, like a candle, and the other by several
layers of the gum or milk.
But this occasional use of the shoes for other purposes than
wearing as waterproof shoes would not alter their original
character as a manufacture for the latter purpose, nor the
importation and present character of them as a manufacture for the
same purpose.
Thus the importation of cast iron in kettles or hand irons in a
state to be so used and frequently so used, would not be altered,
as a manufacture of that kind and as subject to pay the duty
imposed on it in the tariff, because some of it, after imported,
might occasionally be melted down and recast and used for other or
similar purposes.
Nor is the juice of the cane -- converted into a different
consistence and color abroad, and shipped here as molasses, ready
to be used and often used as such -- any the less a "manufactured
article" and any less subject to the duty on molasses because some
of it, after arriving in this country, may again be manufactured
into sugar or spirit.
Page 48 U. S. 796
A further illustration as to the distinction between the same
article, put into a shape to be sold for use as it is, and into one
not for use as it is, is that of melted iron.
In that state it may be run in moulds, either for pots or for
pigs, and, in the former case, fitted and sold to be used in that
shape, and hence a manufacture, while in the latter sold to be made
up afterwards into new and different forms, and hence, for some
purposes, is then not regarded as a manufacture till so made
up.
So lead may be melted into the shape of pigs or bars for
exportation and for foreign manufacture, or be run into weights for
use as weights and then be regarded as already a manufacture for
that purpose.
It is another evidence that shoes composed wholly of India
rubber were considered by Congress as a manufactured article that
they place them in that category in the tariff with other clearly
manufactured articles, while they place in the category of those
unmanufactured such articles as are not in a shape to be used much,
if at all, without being made up into new forms. Thus it is with
the India rubber images of alligators and lizards imported. If
bottles are an exception, they are specially enumerated in the
tariff among the free articles in order to be free, while shoes are
not, and the former are so enumerated because usually made up here
into new shapes, for other purposes, before used, and when not so
made up are little employed in their original shape, and have no
rival manufacture to be protected by taxing them. Had Congress
intended that shoes, when wholly of India rubber, should be
considered as unmanufactured, and be free, it is difficult to
conceive why it did not place them in that list, and declare them
unmanufactured and free, rather than in the list of manufactured
and dutiable articles, as it did both in 1842 and again in the
revised act of 1846.
Finally, another circumstance exists which appears to be a
decisive indication that this very importation of shoes, though
called in the invoice "unmanufactured," was meant mainly as shoes
for use, to be worn in their existing condition, rather than to be
dissolved and used for other purposes. It is that several of the
boxes were invoiced as shoes for "ladies," and others for "misses,"
or children, and which different forms or shapes would be useless,
as well as more expensive, if the shoes were intended merely to be
cut up or dissolved for other uses and not to be worn by different
sexes and ages as "manufactured" shoes in their present shape.
In several analogous cases, as to teas, cotton bagging, and
sugar, this Court has held that it is a proper fact for the jury
to
Page 48 U. S. 797
decide whether the imported article is or is not known in
commerce by the words or terms used in the tariff imposing the
duty, and not a question of law, to be settled by the court, as was
done here.
United States v. 112 Casks of
Sugar, 8 Pet. 277;
Elliott v.
Swartwout, 10 Pet. 151,
35 U. S. 153;
United States v. Breed, 1 Sumner 164;
22 U. S. 9
Wheat. 438;
Curtis v.
Martin, 3 How. 106.
Unless it be admitted in this case, then, as most of the
testimony proves, that these shoes were known in a commercial sense
and use as India rubber shoes no less than others, made in part
from it, we think the jury should return a verdict on that fact,
and next that the jury should have been further instructed that if
these shoes had been made into their present shape in order to be
worn as waterproof when the purchasers pleased, and that it was
customary so to wear them, they were, within the meaning of the act
of Congress on this subject, "manufactured," and liable to pay a
duty of thirty percent.
Without going into other questions raised at the trial, and
without dwelling longer on this, our opinion is that the judgment
below must be
Reversed and a venire de novo awarded, and the new trial be
governed by the principles here settled.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York, and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the said Circuit Court of the United States for the
Southern District of New York in this cause be and the same is
hereby reversed with costs, and that this cause be and the same is
hereby remanded to the said circuit court with instructions to
award a
venire facias de novo and that the new trial shall
be conducted in conformity to the principles laid down in the
opinion of this Court.
