article or form, designed for use otherwise than in the bona fide transportation of such merchandise, additional duty shall be levied thereon. Appeal by the importers from a decision of the board of general appraisers which affirmed the classification by the collector of the importation in question. Jacob Fromme, for the importers. TOWNSEND, Circuit Judge. The articles in question are boxes used as coverings for Sumatra tobacco, and were classified for duty at 35 per cent. ad valorem, under the provisions of paragraph 208, Tariff Act 1897 [U. S. Comp. St. 1901, p. 1647], on the ground that said boxes come within that portion of section 19 of the act of June 10, 1890 [U. S. Comp. St. 1901, p. 1924] which provides that "if there be used for covering or holding imported merchandise, whether dutiable or free, any unusual article or form designed for use otherwise than in the bona fide transportation of such merchandise to the United States, additional duty shall be levied and collected upon such material or article at the rate to which the same would be subject if separately imported." It is undisputed that the boxes are not the usual coverings of imported tobacco, but there is no evidence that such boxes were designed for use otherwise than in the bona fide transportation of such merchandise to the United States. In fact, the testimony shows that they are not designed for any other use, but are thrown away or cut up into kindling wood. The decision of the board of appraisers is therefore reversed. UNITED STATES v. BROWN et al. (Circuit Court, S. D. New York. November 19, 1902.) 1. FALSE IMPERSONATION-REVENUE OFFICERS-INDICTMENT. An indictment charging that defendants, unlawfully and feloniously, falsely represented themselves to be revenue officers of the United States, and in such assumed character did demand and receive $200 from I. for a pretended violation by the latter of Act Cong. June 13, 1898 [U. S. Comp. St. 1901, p. 2293], in respect of knowingly and willfully buying washed revenue stamps, etc., and with having such washed and restored revenue stamps in possession knowingly and without lawful excuse, as prohibited by Rev. St. § 5448 [U. S. Comp. St. 1901, p. 3679], was sufficient. 2. SAME. An indictment charging that defendants, with intent to defraud one I., unlawfully and feloniously did falsely assume and pretend to be officers and employés acting under the authority of the United States, to wit, revenue officers and employés, and in such pretended character did fraudulently demand and obtain from I. a sum of money, to wit, $200, etc., sufficiently stated the offense described by Act April 18, 1884 (1 Supp. Rev. St. p. 425 [U. S. Comp. St. 1901, p. 3679]), prohibiting the impersonation of a United States officer, etc. Points at issue: The defendants, Brown and Harnett, were jointly Indicted under section 5448, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3679], and the act of April 18, 1884 (1 Supp. Rev. St. p. 425 [U. S. Comp. St. 1901, p. 3679]). The first count charged that the defendants, unlawfully and feloniously, falsely represented themselves to be revenue officers of the United States, and in said assumed character did demand and receive certain money, to wit, $200, of and from one A. Isaacs, for a pretended violation by the said Isaacs of a revenue law of the United States; that is to say, of section 8 of an act of congress concerning internal revenue taxation, approved June 13, 1898 [U. S. Comp. St. 1901, p. 2293], as amended, in the respect of knowingly and willfully buying washed revenue stamps, etc. The second count was like the first, except that it charged that the defendants had in possession washed and restored revenue stamps, knowingly and without lawful excuse. The first and second counts were laid under section 5448, Rev. St. [U. S. Comp. St. 1901, p. 3679]. The third count was framed under the act of April 18, 1884 [U. S. Comp. St. 1901, p. 3679], above named. It charged that the defendants, with intent to defraud one Isaacs, unlawfully and feloniously did falsely assume and pretend to be officers and employés acting under the authority of the United States, to wit, revenue officers and employés, and in such pretended character did fraudulently demand and obtain from him, the said Isaacs, a sum of money, to wit, $200, etc. The defendants, by their counsel, contended that the averments of the indictment were not sufficiently definite, particularly as to the designation of the sort of revenue officer meant; insisting that this should be specified, and applying the objection to all of the counts. William S. Ball, Asst. U. S. Atty. Charles O. Brewster (Max J. Kohler, of counsel), for defendants. THOMAS, District Judge. The words of the indictment are technically sufficient to charge an offense under the Statutes of the United States. For the purpose of sustaining the several counts, it is not necessary to import language into either count, but it seems that it would be necessary to import such language to sustain some of the defendants' objections. What ruling may be required upon. the facts as shown upon the trial need not be considered at this time. The demurrer is overruled. LITTLEJOHN et al. v. UNITED STATES. UNITED STATES v. LITTLEJOHN et al. (Circuit Court, S. D. New York. November 11, 1902.) Nos. 3,201, 3,196. 1. CUSTOMS DUTIES-SAGO FLOUR. Sago flour is entitled to free entry under paragraph 652 of the tariff act of 1897 [U. S. Comp. St. 1901, p. 1687] as "sago, crude," and not dutiable under paragraph 285 [U. S. Comp. St. 1901, p. 1653] as "starch," or under paragraph 20 [U. S. Comp. St. 1901, p. 1628] as a drug, or under section 6 [U. S. Comp. St. 1901, p. 1693], covering raw or unmanufactured articles not otherwise provided for. Albert Comstock, for the importers. TOWNSEND, District Judge. Upon sundry importations of sago flour, duty was assessed under the provisions of paragraph 285 of the tariff act of 1897 [U. S. Comp. St. 1901, p. 1653], for "starch, in cluding all preparations from whatever substance produced, fit for use as starch.' The importers protested, claiming that the article was either free under various paragraphs of the act, the only one necessary now to be considered being the claim that it was free of duty as "sago, crude," under paragraph 652 of said Act [U. S. Comp. St. 1901, p. 1687], or was dutiable only at one-fourth cent per pound and 10 per cent. ad valorem under paragraph 20 [U. S. Comp. St. 1901, p. 1628], or at 10 per cent. or 20 per cent. under section 6 of said act [U. S. Comp. St. 1901, p. 1693]. Said section 6 imposes on all articles not enumerated or provided for, when raw or unmanufactured, a duty of 10 per cent., and when manufactured, in whole or in part, a duty of 20 per cent. The general appraisers sustained the claim of the importers under this last alternative, and the importers appealed, claiming free entry or lower duties. The United States also appealed from this decision. The contention of counsel for the United States in support of its appeal that sago flour is starch, or a preparation fit for use as starch, cannot be sustained in view of the decision in the case of In re Townsend, 5 C. C. A. 488, 56 Fed. 222, and the decision of the supreme court in Chew Hing Lung & Co. v. Wise, 176 U. S. 156, 20 Sup. Ct. 320, 44 L. Ed. 412. Those cases concerned tapioca flour. It was held that tapioca flour was not fit for use as starch. From the evidence herein, it appears that the uses of sago and tapioca flour are identical. The appeal of the government is not sustained. The importers contend that this sago flour is "sago, crude." It appears from the reports of the United States consuls, and from agricultural bulletins published by the British government, that there is a crude form of the sago pulp or pith known as "raw sago," and that it is a more crude product than sago flour. It also appears that commerce in this crude article is confined to the natives in the country where the sago grows, and it is fully proven that this raw sago has not come into this country, and would not bear transportation hereto. Sago flour is the first and only form in which the product of the sago palm is known in this country. But counsel for the government contends that it is not crude because the pulp of the sago tree has been subjected to certain processes in the foreign country before its importation here, and that in its state of importation into this country it is a completed article and ready for use. It appears, however, from undisputed testimony that the only manipulations which it undergoes in the foreign country are those which are necessary to fit it for importation, and consist in successive cleansing operations in order to get rid of the impurities which would otherwise cause fermentation. The second claim of the government is that it is a completed article when imported, and is fit for present use. This fact might be decisive in some cases, but it is not a universal or safe test. In this case the processes of cleansing are essential to fit it for trade and commerce in this country; they neither refine nor manufacture it, but only serve to remove the impurities. Such processes are not sufficient to change its character from a crude product to a manufacture. It is further contended that, since congress put crude sago and sago flour on the free list in former tariff acts, it must thereby have intended to designate two separate articles, and that the omission of sago flour from the free list in this act shows the intention of congress to make it subject to duty. But, inasmuch as the crude sago of Singapore is not, and cannot be, imported into this country, the words "sago, crude," in the present act, if this sago flour were excluded, would have no meaning, because they would not refer to any commercial product of sago, and no sago would be free. If, however, this term be confined to this sago flour as the first product capable of transportation, then the other manufactured products of sago or sago flour, such as "pearl sago" or "bullet," might be subject to duty under the appropriate paragraphs of said act. It is therefore held that sago flour is entitled to free entry under paragraph 652 of the present tariff act [U. S. Comp. St. 1901, p. 1687], and the decision of the board of general appraisers is reversed. DAISLEY v. DOUGLASS. (Circuit Court, D. Massachusetts. December 23, 1902.) 1. LIBEL-DAMAGES-AMOUNT. No. 1,210. Where, in an action by a lumber dealer and building contractor for libel, he introduced evidence to prove compensatory damages, that his business loss amounted to from $20,000 to $24,000, resulting from the libel, but defendant in rebuttal showed that a part of the subscribers to its mercantile reports, in which the libel was published, had not withdrawn credit from plaintiff by reason of the publication, a verdict assessing plaintiff's damages at $5,000 was excessive, and should be reduced to $3,000. C. F. Choate, Jr., for plaintiff. Carver & Blodgett, for defendant. PUTNAM, Circuit Judge. This is an action for a libel to the business of the plaintiff as a lumber dealer and building contractor. The verdict was in his favor for $5,000, which the defendant now complains was excessive. On looking at the docket we find the verdict on a previous trial was the same. At that time, on a motion to set aside the verdict for excessive damages, we stated, in our opinion reported 107 Fed. 218, that our mind wavered, and that, as it wavered, we could not allow the motion. There are great difficulties in the way of an attempt to formulate anything like a guiding principle in cases of this character, where, on the one hand, there is only the libel, and, on the other, nothing in the way of evidence except the fact that business has fallen off. The rest is pure matter of inference. In this respect suits for libel and slander, as we said during the trial, stand as exceptional. Of course, we were compelled to direct the jury that the verdict must be compensatory, and yet, under the circumstances, while thus technically only compensatory, the position is so akin to that of punitive damages that it is very difficult for the court to arrive at a conclusion whether or not the jury overstepped the reasonable discretion which the law permits it to exercise. Yet, even with punitive damages, courts must see that there are limits beyond which the juries ought not to go. At the previous trial it was plain that there were certain computations which the jury might make, and which should have limited them as to one element of damages. The evidence as to that was practically the same as it is now, proving a loss of business from $20,000 to $24,000 on the whole, all within two years from the time of the libel. Of course, the jury could not allow for this more than reasonable estimated profits on that amount of business, having, however, the fact in view that, if one's business, like the plaintiff's, falls off a certain percentage, it still carries with it, ordinarily, the same cost for office work, teams, and routine expenses which it does with the full volume of transactions; so that a partial loss ordinarily represents something more than the mere average profit on the goods he sells. It seemed to us then, and it seems to us now, that the jury, assuming that it concluded that the loss of business proven was the consequence of the libel, might well have awarded as the damage thus proved from $2,000 to $3,000. Beyond that it could not have gone, unless it saw, in the general attitude of the case, a probability of damages ensuing not proven in this relatively direct way; that is to say, unless it saw a probability of a continuing diminution of credit, cropping out at unforeseen times, which would naturally result in a further loss of business. It was this unexplored field which led the court to make the remark at the former trial that its mind wavered, and that it, therefore, could not interfere with the verdict. At this present time the defendant has made a much stronger case in that respect than he did at the first trial. He has made a case so much stronger that it affects decidedly the views which the court takes of the question of damages. The defendant has now introduced witnesses who show that all, or nearly all, parties who were subscribers to the defendant's reports to whom the libel was published, did not withdraw credit after the publication. He has met in that way, not with absolute certainty, but with as much certainty as is possible in a court of law, the suggestion that the jury might be justified in going into this unexplored field, as we describe it. As the case now stands, it seems to us that the jury was not justified in rendering a verdict for a sum substantially more than what might be estimated as the diminution of the plaintiff's net profits arising out of the proved loss of business. The court repeats its observation that, where the rules of law are so peculiar as they are in cases of this character, it is difficult for us to revise the verdict of a jury. Nevertheless, under all the circumstances, we are of the opinion that $3,000 must be the extreme to which the jury could justly have gone; and the order will be that, unless the plaintiff remits all damages in excess of that amount, there will be a new trial. |