Opinion of the Court.

two classes, "earthenware," and "glassware," but counsel insists that the groups are three: “(1) earthenware; (2) tiles, brick, and slate; (3) glass and glass articles."

Reference is made to the tariff legislation since 1842 to show that tiles and earthenware were considered different things, and that tiles were always associated with bricks as similar things. It is argued that this distinction was intended to be preserved in the act under consideration; but, we are of opinion that this conclusion does not follow, and that it was the intention of Congress to place all of the articles in Schedule B in one or the other of the two classes designated in the heading. All of the schedule relates to glass, except the first nine paragraphs. The first five, it is conceded, relate solely to earthenware, and the next four are encaustic tiles; brick, fire-brick, and roofing and paving tiles; slates, slatepencils, etc.; and roofing slates; all consisting of earths, though only two hardened by man. These four are all in some respects in similitude, and although a difference between a Sevres vase and a roofing slate may be admitted, they are not inappropriately placed where they are, and we perceive no adequate ground for holding that they should be treated as a class by themselves.

The fact seems to be that these tiles were decorative earthenware tiles, called in trade, as appears from the evidence, plain glazed and plain enamelled tiles, those having the color in the glaze being termed enamelled, and those having the color in the body being termed plain glazed; and in reference to such tiles the department ruling is that they are properly assessed as "glazed earthenware." Syn. Dec. 1885, 7051; and see Id. 1877, 3352; Id. 1878, 3705.

We think the view taken by the court entirely correct, and this disposes also of the importation by the Furnessia. The protest rested upon the sole ground that the articles "were dutiable at 35 % ad valorem, under section 2499, Rev. Stat., by similitude to encaustic tiles." The articles were described in plaintiff's entry as "eight casks plain white tiles," and in the invoice as "glazed earthenware tiles." The collector taxed them under the fourth paragraph.

Opinion of the Court.

It appeared that the principal use of these tiles was for walls, though sometimes used for hearths, bath-room floors, and under sinks, and for the same general purposes as glazed encaustic tiles; but if they were covered by the fourth paragraph then they could not be classed with encaustic tiles by similitude. And that these "plain white tiles," or "glazed earthenware tiles" were within that paragraph, follows from what we have already said. There was nothing to be submitted to the jury.

The tiles brought by the Canada were described in plaintiff's entry as "two packages encaustic tiles," and were delivered to plaintiff on or before March 18, 1886. It was shown that a portion of the duty was paid on the day of entry, February 26, and the remainder May 10. As plaintiff had been in possession of these tiles for some weeks before payment of the excess, he did not pay in order to obtain possession, and the instruction of the court to find for the defendant was therefore correct.

Plaintiff's counsel insists that he originally paid the difference between paving tiles and encaustic tiles to obtain possession, but as the tiles were described as encaustic, and chargeable by law as such at a duty of thirty-five per cent, this contention is inadmissible. There is nothing to show that the Circuit Court was apprised that plaintiff's claim was that he had paid the excess between twenty and thirty-five per cent, and as payment of the excess between thirty-five and fiftyfive per cent was made May 10, and the protest filed and appeal taken to the Secretary of the Treasury on that day, it is plain that the Circuit Court was not mistaken as to the facts.

Finally, we are of opinion that the court did not err in excluding evidence as to the purposes for which similar tiles were used after March 3, 1883, or for what purposes they were intended to be used or were imported, at the time of the trial. This came within the rule that the classification is to be determined as of the date when the law imposing the duty was passed. Curtis v. Martin, 3 How. 106, 109; American Net and Twine Co. v. Worthington, 141 U. S. 468, 471.

Judgment affirmed.

Opinion of the Court.

CROSS v. UNITED STATES.

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

Under the act of February 6, 1889, "to provide for writs of error in capital cases," 25 Stat. 655, c. 113, a writ of error does not lie from this court to the Supreme Court of the District of Columbia to review a judgment of that court in general term affirming a judgment of the trial court convicting a person of a capital crime.

MOTION TO DISMISS. The case is stated in the opinion of the

court.

Mr. Solicitor General for the motion.

Mr. Charles Maurice Smith and Mr. Joseph Shillington opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

William D. Cross was tried upon an indictment for murder in the Supreme Court of the District of Columbia, holding a criminal term, in March, 1890, and a verdict of guilty having been returned, and a motion for a new trial heard and overruled, was sentenced to death. He thereupon prosecuted an appeal to the court in general term, which reversed the conviction and granted a new trial. 19 Dist. Columb. 562.

A second trial was had at the June, 1891, special criminal term, which again resulted in a verdict of guilty, and, a motion for a new trial having been made and overruled, he was, July 30, 1891, sentenced to be executed January 22, 1892. From this conviction he prosecuted an appeal to the court in general term, which, on January 12, 1892, finding no error in the record, affirmed the judgment. The opinion, by Cox, J., will be found in 20 Washington Law Rep. 98.

On January 21 a writ of error from this court was allowed,

Opinion of the Court.

on petition, by the Chief Justice of that court, citation was signed and served, and the time for filing the record enlarged.

On the same day an order was entered by the court ́in general term, "that the execution of the sentence of death pronounced against the defendant by the special term of this court on the thirtieth day of July in the year of our Lord one thousand eight hundred and ninety-one, to take place on the twenty-second day of January, 1892, be and the same is hereby postponed until the tenth day of June, 1892, between the same hours specified in the said judgment of the said special term."

The case comes before us on motion to dismiss the writ of

error.

Under acts of Congress, the Supreme Court of the District of Columbia consists of one chief justice and six associate justices, appointed by the President, by and with the advice and consent of the Senate, and holding their offices during good behavior. Special and general terms of the court, and appeals from the former to the latter, are provided for. General terms may be held by three justices, two constituting a quorum, while special terms are held by one justice. Any one of the justices may hold a criminal court for the trial of all crimes and offences arising in the District. Rev. Stat. Dist. Col. $$ 750, 753, 754, 757, 762, 763, 772; 19 Stat. 240, c. 69, § 2; 20 Stat. 320, c. 99, § 1.

By the act of July 7, 1838, 5 Stat. 306, c. 192, a Criminal Court was established in the District of Columbia; and it was held in Ex parte Bradley, 7 Wall. 364, at our December term, 1868, that under the act of March 3, 1863, 12 Stat. 762, c. 91, by which the courts of the District were reorganized, the Criminal Court still remained a separate and independent court, although held by a justice of the Supreme Court of the District created by the act, and that the only jurisdiction of the Supreme Court in criminal cases was in an appellate form. But by the act of June 21, 1870, 16 Stat. 160, c. 141, it was provided, as now embodied in section 753 of the Revised Statutes of the District, that the several general terms

Opinion of the Court.

and special terms of the various courts, circuit, district, and criminal, should be considered terms of the Supreme Court of the District, and that the judgments, decrees, sentences, etc., of the general terms, and of the special terms, and of the various courts should be the judgments, decrees, sentences, etc., of the Supreme Court, but that this should not affect the right of appeal as provided by law.

Section 772 reads: "Any party aggrieved by any order, judgment or decree, made or pronounced at any special term, may, if the same involve the merits of the action or proceeding, appeal therefrom to the general term of the supreme court, and upon such appeal the general term shall review such order, judgment or decree, and affirm, reverse or modify the same, as shall be just."

And under section 770: "The supreme court in general term, shall adopt such rules as it may think proper to regulate the time and manner of making appeals from the special term to the general term," etc.

The act of February 25, 1879, 20 Stat. 320, c. 99, forbade any justice to sit in general term to hear an appeal from any judgment or decree or order which he may have rendered at special term.

By the act of 1838 a writ of error lay to the Criminal Court from the Circuit Court of the District, and postponement of execution in capital cases was provided for, and this was carried into § 845 of the District Revised Statutes.

The Supreme Court sitting at special term and the Supreme Court sitting in general term are the same tribunal, but the court in general term exercises appellate powers and is an appellate court, although it may also exercise jurisdiction in hearing matters in the first instance, (Rev. Stat. Dist. Col. S$ 770, 800,) and the final judgments or decrees which may be brought here by appeal or writ of error are those rendered by the general term. Such review may be had when the matter in dispute exceeds $5000, (Rev. Stat. § 705; 20 Stat. 320, c. 99, 84; 23 Stat. 443, c. 355, § 1; Rev. Stat. Dist. Col. S$ 846, 847:) but necessarily this does not apply to criminal

cases