Neves et al. v. Scott et al.

requires only to be obeyed and fulfilled by those standing in the relation of trustees, for the benefit of the cestuis que trust, according to the provisions of the settlement." 9 How. 211. This position does not appear to have been taken by the counsel for the complainants in the Supreme Court of Georgia, nor is it noticed by the court in its opinion; though it is conceded, in the course of the opinion that while "courts of equity will not enforce a mere gratuitous gift, or a mere moral obligation or voluntary executory trust, it is otherwise. of course, where the trust is already vested."

On the former argument in this court we formed the opinion, that the instrument in question did completely define and declare, and so did create, certain trusts; that they were, in the sense of a court of equity, trusts executed; that the complainants were cestuis que trust; that the failure to interpose trustees to hold the property created no difficulty, each party to the settlement being regarded, so far as may be necessary to effectuate their intent, as holding their several estates as trustees for the uses of the settlement; and so the complainants were entitled to the relief prayed.

We find nothing in the opinion of the Supreme Court of Georgia in conflict with these views, because we do not find they were there adverted to; and after considering the elaborate and able argument of the respondent's counsel at this term, we remain satisfied of the correctness of our opinion, and judgment must be entered accordingly.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Georgia, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that 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 for further proceedings to be had therein, in conformity to the opinion of this court.

De Forest et al. v. Lawrence.

WILLIAM W. DE FOREST, GEORGE F. THOMAS, AND ROBERT W. RODMAN, PLAINTIFFS IN ERROR, v. CORNELIUS W. LAWRENCE, LATE COLLECTOR OF NEW YORK.

The tariff law of 1846, passed on the 30th of July, (9 Stat. at Large, 42,) contains no special mention of imported sheepskins, dried with the wool remaining on them. They must be regarded as a non-enumerated article, and charged, with a duty of twenty per cent. ad valorem.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.

The plaintiffs in error, W. W. De Forest & Co. sued the collector to recover back money paid under protest, for duties on importations into New York, in the years 1847 and 1848, from Buenos Ayres, invoiced as sheepskins, having the wool on them.

The collector (under instructions from the Secretary of the Treasury) demanded and received a duty of thirty per cent. ad valorem on the wool upon the sheepskins, and a duty of five per cent. ad valorem upon the pelts.

The wool upon the skins was appraised at, .

Duty thereon at thirty per cent.,

Skins without the wool,

Duty thereon at five per cent.,

$18,596.52

5,578.95

9,972.14

498.60

$28,568.66,

Total valuation of wool and skins,

Total duty,

$6,077.55

Whilst the collector thus charged one duty upon the skin and another upon the wool, the importers claimed to enter the articles at a duty of five per cent. upon the whole, and the court decided that the proper duty to be charged was twenty per cent. upon the entire valuation.

The cause of this great difference of opinion was as follows: By the act of 19th May, 1828, (4 Stat. at Large, 271, chap. 55, sect. 2, first paragraph,) a duty is imposed on wool unmanufactured: "And all wool imported on the skin shall be estimated as to weight and value, and shall pay the same rate of duty, as other imported wool."

By the act of July 14, 1832, (same vol. chap. 227, sect. 2, first paragraph, p. 584,) wool unmanufactured is charged with duty: "Provided, that wool imported on the skin shall be estimated, as to weight and value, as other wool.".

By the act of 30th August, 1842, (5 Stat. at Large, chap. 270,

De Forest et al. v. Lawrence.

sect. 1, paragraph first, p. 548,) a duty on wool unmanufactured is imposed: "Provided, also, that wool imported on the skin shall be estimated, as to weight and value, as other wool."

In the 5th sect. and sixth paragraph of that same act, of 1842, (p. 554,) duties are imposed " on sheepskins, tanned and dressed, or skivers, two dollars per dozen; on goat or sheepskins, tanned and not dressed, one dollar per dozen; on all kid and lambskins, tanned and not dressed, seventy-five cents per dozen; and on skins tanned and dressed, otherwise than in color, to wit, fawn, kid, and lamb, usually known as chamois, one dollar per dozen; . . . on raw hides of all kinds, whether dried or salted, five per cent. ad valorem; on all skins pickled and in casks, not specified, twenty per cent. ad valorem."

Subsequently to these three statutes, so mentioning and distinguishing those three several classes of imports, eame the statute of 30th July, 1846, (9 Stat. at Large, (Little & Brown,) chap. 74, p. 42,) entitled "An act reducing the duties on im ports, and for other purposes."

The first section enacted, that, from and after the first day of December then next, "in lieu of the duties heretofore imposed by law, on the articles hereinafter mentioned, and on such as may be now exempt from duty, there shall be collected, levied, and paid, on the goods, wares, and merchandise, herein enumerated and provided for, imported from foreign countries, the fol lowing rates of duty." Then follows the enumeration of various articles, subject to various duties, in schedules from A to H, ranging from duties of one hundred per centum to five per centum ad valorem.

Section 2 enacts that the goods "mentioned in зchedule I, shall be exempt from duty."

Section 3 imposes on all goods, wares, and merchandise imported from foreign countries, "and not specially provided for in this act, a duty of twenty per centum ad valorem."

In schedule C, of articles subject to thirty per cent. ad valorem, "wool unmanufactured" is mentioned, but "wool imported upon the skin" is not specially provided for therein. In schedule H, among other articles subject to the duty of five per cent. ad valorem, "raw hides and skins of all kinds, whether dried, salted, or pickled," are mentioned; but "wool imported on the skin" is not therein mentioned. In schedule I, of articles exempt from duty, wool imported on the skin, is not mentioned, neither is it mentioned in any one of the schedules, from A. to I inclusive.

On the trial of the case in the Circuit Court, Mr. Justice Nelson instructed the jury that the article came most appropriately within the schedule of non-enumerated articles, and as such was chargeable with a duty of twenty per cent.

De Forest et al. v. Lawrence.

To which charge the counsel for the plaintiffs excepted, on the ground that the court should have charged the jury that the article imported by the plaintiffs, raw sheepskins dried, fell under schedule H, of the Tariff of 1846, and was not a non-enumerated article, but on the contrary, was enumerated under said schedule H, and was liable only to a duty of five per cent., and not to a duty of 20 per cent. That the said article being a raw skin dried, and being not otherwise specifically provided for in said act, was liable only to the same rate of duty as all other raw skins dried. And the counsel for the said plaintiffs requested the court to charge the said jury accordingly, which request was refused by the court, and the counsel for the plaintiffs thereupon excepted.

Upon this exception, the cause came up to this court, and was argued by Mr. Schley, for the plaintiffs in error, and by Mr. Crittenden, (Attorney-General,) for the defendant.

The points for the plaintiffs in error were the following:

I. The Tariff of 1846 provides,

1. For such articles of import as are "specially enumerated," as liable to certain rates of duty.

2. Such as are "exempt" from duty; and

3. Such as are not "specially provided for in this act," but, as non-enumerated articles, are made subject generally to a duty of twenty per cent. ad valorem.

II. If an article is not "specially enumerated," or "exempt," it must fall under the third class of " non-enumerated" articles. This act, therefore, provides for every possible article of import, and whether any duty is leviable, and if so, at what rate, is to be tested by this act alone.

III. The terms "skins" and "hides" are general descriptions or denominations of certain classes of articles, known by that name both as natural products and as articles of merchandise and commerce.

It is to be presumed that Congress used and intended them to be understood as they are crdinarily used and understood. The "skin" or the "hide," the covering of the flesh of animals, as a composite article, has parts: the fleece and the pelt. When the general term is used, the parts are included; as in speaking of the head, we include the eyes or the hair.

IV. If the article is to be removed from its natural and commercial classification, he broken up, and one part be artificially classed as wool, or hair, or fur, this can only be done by express provision. Such an instance of separation appears in schedule G, where "furs undressed, when on the skin," are made liable to a duty of ten per cent.

De Forest et al. v. Lawrence.

V. "Wool" and "hair" are used to designate a certain portion of the covering of the animal after it is shorn, clipped, or cut off the skin; until clipped or cut they are a part of the skin. A contract for wool would not justify a delivery of sheepskins; nor a contract for sheepskins, a delivery either of wool, or of a pelt shorn of the wool.

VI. "Wool unmanufactured," mentioned in schedule C, and "hair of all kinds, uncleaned and unmanufactured," mentioned in schedule G, refer to wool and hair, clipped or cut, and not to the skin or hide with the wool or hair on, in its natural state. When the skin or hide is shorn, one part is denominated wool or hair, and the remainder is no longer termed a “skin,” but a "pelt."

VII. Thus as "hair" pays a duty of ten per cent., but the skin with the hair on, only a duty of five per cent., in the case of a deerskin; so in the case of a sheepskin, while the "wool" pays a duty of thirty per cent., the skin with the wool on should pay only a duty of five per cent.

VIII. The terms "skins" and "hides" are generic, and include all kinds of skins and hides. Schedule H, embodies this idea in words, "hides and skins of all kinds," and intends the hide or skin of every animal, deer, sheep, calf, horse, &c. Though all these are known in trade as hides and skins, yet to distinguish them, the denominations of deerskins, sheepskins, calfskins, horsehides, &c., are appropriately used. To say that be cause one kind of skins is called "sheepskins," and another "deerskins," &c., they are by such distinctive terms, removed from the general class designated in schedule H, "hides and skins of all kinds," would be to destroy the class entirely; for one after another, every kind of hide and skin could be thus removed until no kind would be left. If, because a particular skin is called in commerce a sheepskin, it is removed from the genus "skin," by the same argument Saxony wool, or Smyrna wool, would not be comprised under "wool unmanufactured;" nor camwood or fustic, under "dye woods," in schedule H; nor horsehair under "hair of all kinds," nor beaver fur under "furs," nor emeralds under "precious stones," in schedule G, &c.

It is obvious that such a rule of construction would destroy the tariff. Does a stone cease to be a precious stone because it is called an emerald? or a skin cease to be a skin because it is called a sheepskin?

IX. If schedule H, then, merely described "hides and skins of all kinds," a sheepskin would be comprised under it as appropriately as any other kind of skin.

X. But schedule H requires that the "hide or skin" should be "raw," that is, unmanufactured or undressed, in order to