See same case below, 74 C. C. A. 82, 145 | appointed, and the importer offered further Fed. 1022. Statement by Mr. Justice Peckham: This case comes here by virtue of a writ of certiorari issued from this court to the United States circuit court of appeals for the second circuit, for the purpose of reviewing the action of the courts and of the customs authorities in relation to an assessment of duty on certain importations made by the petitioner, appellant, at the port of New York. evidence to sustain his claim that the merchandise was entitled to free entry. No testimony was offered by the government. It is not claimed by the government that the merchandise in question comes under paragraph 351 as wool of the third class (except as it may be wool of like character), as it is not Donskoi, native South American, Cordova, Valparaiso, native Smyrna or Russian camel's hair, but it is asserted that the growth on the skins was wool on the skin under paragraph 360, or was a wool of like character as that above enumerated in paragraph 351. The merchandise on which duty was assessed was a growth upon certain skins of the Mocha sheep, imported from Hodeida, The evidence shows that the hair or wool Arabia, which growth was classified by the (whichever it is called) grows on the Mocha collector as wool on the skin of the third white sheep, imported from Hodeida, Arabia. class, and assessed for duty at 3 cents per The growth to be found on this breed of pound, under the provisions of paragraph sheep is not bought or sold in this country 360 of the tariff act of July 24, 1897 (30 as wool, but as hair. It would not be acStat. at L. pages 151, 183, chap. 11, U. S. cepted as a delivery of wool of any grade Comp. Stat. 1901, pp. 1626, 1666). The im- by those dealing in that article. Although porter duly protested against the classifica- there might have been a very small proportion, and insisted that the merchandise was tion of what might possibly be termed entitled to entry free of duty under para- very inferior wool on these skins (not more graph 571 (30 Stat. at L. supra, page 198, than 10 per centum in any case, and frechap. 11, U. S. Comp. Stat. 1901, p. 1684), quently less), yet there was no substantial or under paragraph 664 of such act. Page use of any portion of the growth on the 201 (U. S. Comp. Stat. 1901, p. 1688). Para- skins for purposes for which wool is gengraphs 351, 358, 360, under which the gov-erally used. To some extent, but very little, ernment claims duty, and paragraphs 571 and 664, under which the importer claims free entry, are set forth in the margin.† The collector having returned the merchandise in question as wool of the third class, under paragraph 360, the importer appealed to the board of general appraisers, where the ruling of the collector was sustained, and the importer then appealed to the circuit court, and then to the circuit court of appeals, each of which courts sustained the ruling of the board of general appraisers and the collector. Before the board of general appraisers the importer produced six witnesses, who testified as to the character, use, and commercial designation of the merchandise. On the appeal to the circuit court a referee was there †Paragraphs from tariff act of 1897, under which the government claims. 30 Stat. at L. 151, 183, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1666. 351. Class three, that is to say, Donskoi, native South American, Cordova, Valparaiso, native Smyrna, Russian camel's hair and all such wools of like character as have been heretofore usually imported into the United States from Turkey, Greece, Syria, and elsewhere, excepting improved wools hereinafter provided for. 358. On wools of the third class and on camel's hair of the third class, the value whereof shall be twelve cents or less per pound, the duty shall be four cents per pound. it had been tried in mills to spin, and it might be used sometimes by carpet manufacturers in a small way, and efforts had been made to use it, mixed with wool, in spinning, but it was not practically successful, nor was it practicable to use it for other purposes for which wool is used. The chief, or predominant, and almost sole use of the substance is as hair for stuffing, and for the saddlery trade, and by bed manufacturers for stuffing purposes. It is bought and sold all over the country as Mocha hair. The skin upon which the substance grows is the thing that is valuable. A large part of the skins imported into this country is used in the manufacture of glove leather. One witness testified that his firm so used from 75 to 90 per cent of the skins im 360. The duty on wools on the skin shall be one cent less per pound than is imposed in this schedule on other wools of the same class and condition, the quantity and value to be ascertained under such rules as the Secretary of the Treasury may prescribe. Petitioner claims under following paragraphs: 571. Hair of horse, cattle, and other animals, cleaned or uncleaned, drawn or undrawn, but unmanufactured, not specially provided for in this act, and human hair, raw, uncleaned, and not drawn. 664. Skins of all kinds, raw (except sheepskins with the wool on), and hides not specially provided for in this act. such skins as the ones in question and throws out those he considers dutiable when there is enough wool to call it dutiable, and lets the skins go not dutiable when you could not make anything out of the growth in any way, although some use might possibly be made of it. The cross-examination of other witnesses was to the effect that this growth had been tried in mills for the purpose of spinning, but very little, being used with other stock to make into yarn, but it has not been successfully used for that purpose; it might be used sometimes by carpet manufacturers in a small way, and, while it could not be used or spun alone, it might be carded. It was also said on cross-examination of one of the witnesses that if such growth ran pretty white it is sometimes used in those low-grade carpet yarns where they put in such stuff as jute packing is made of and some hair like the growth in question. The evidence is, however, overwhelming and the witnesses substantially unanimous, that this substance is not known as wool, and is neither bought nor sold as such, and is commercially known as Mocha hair, and is not used as wool. ported, and the growth thereon was bought | cent only of the growth; that he examines and sold as Mocha hair. It costs more to remove the growth from the skin than it sells for after its removal. It cannot be used for spinning purposes because it would not hold together. It might be carded, but there would not be much left after carding. The price of the skins on which this growth is found is not influenced by the quantity of the growth on them. The more of a growth there is, the less the skin will bring, or, as is said, the more hair, the poorer the skin. The skins are sold by the importers to tanners of gloves and shoe leather, just as they arrive. After the growth is washed and removed from the skin it may be sold for from 3 to 5 cents per pound, which is less than the cost of removing it. In buying the skins no notice is taken of the growth, the only consideration being the value of the pelt, and the pelts are worth no more with long hair on than short hair. The growth has never been accepted or sold as wool, but, on the contrary, prior to July 24, 1897, when the tariff act was passed, it was uniformly regarded and bought and sold in the United States as hair. "Mocha hair" was the trade nomenclature prior to 1899, and as such the trade name was definite and uniform throughout the United States, and dealers in it never knew it to be called anything else than Mocha hair. It has not the appearance of wool, does not feel like wool, and has none of the qualities of wool. It is bought from tanners after it has been taken from the skin by then, and it is thus sold and bought as Mocha hair, and the skins are used for leather by the tanners. One of the witnesses called on behalf of the importers was an examiner of wool fibers and skins at the port of New York, which position he had held for about fifteen years. He said that when he first went into the government employ such skins as those in question were returned free, the hair as well as the skin, but that practice has since been changed. The witness further said that if the growth in question were found on a goat he would return it as hair of a goat, and entitled to free entry; that wool could be run down, or deteriorate, to such a condition as the growth in question, but that it was, in fact, mostly "what they call dead hair or kemp;" that although it could possibly be carded, it was not commercially suitable, and there would not be much left after they got through carding it. On cross-examination the witness said that he would return the article in question as Mocha sheepskin with the wool on. On such a skin as the one in question the witness said there was a substance which he would call wool, which was about 10 per Messrs. J. Stuart Tompkins, Edward S. Hatch, and Hatch, Keener, & Clute for petitioner. Assistant Attorney General Sanford for respondent. Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: The evidence in this case, taken before the board of appraisers and also before the circuit court, is uncontradicted. It shows that the substance in question is not wool, has none of its characteristics, and is not put to any of its uses, and does not appear like wool. On the contrary, it is composed mostly of dead hair or kemp and cannot be remuneratively carded, nor is it commercially suited for carding, nor for spinning. Its commercial designation is Mocha hair, and it is not known or regarded or recognized as wool in any of the markets of the country. It is not denied that the commercial designation of an article, which designation was known at the time of the passage of a tariff act, is the name by which the article should be classified for the payment of duty, and, as is stated, "without regard to their scientific designation and material of which they may be made, or the use to which they may be applied." Two Hundred Chests of Tea, 9 Wheat. 430, 438, 6 L. ed. 128, 130; Arthur v. Morrison, 96 U. S. 108, 24 L. ed. We do not agree that the word "wool" in this act is used in a generic sense so far as this particular point is concerned. The word does not necessarily include all growth upon the coat of a sheep, even though the substance is like that in question here. 764; American Net & Twine Co. v. Worth- | under paragraph 664, in the free list, and ington, 141 U. S. 468, 35 L. ed. 821, 12 not as a sheepskin with the wool on. Sup. Ct. Rep. 55; Hedden v. Richard, 149 U. S. 346, 348, 37 L. ed. 763, 764, 13 Sup. Ct. Rep. 891. As was said by Mr. Justice Story in Two Hundred Chests of Tea, supra, Congress did not "suppose our merchants to be naturalists or geologists or botanists. It applied its attention to the description of articles as they derived their appellations in our own markets, in our domestic as well as our foreign traffic." And in Hedden v. Richard, supra, it was said: "The language of commerce must be construed, particularly when employed in the denomination of articles, according to the commercial understanding of the terms used." The commercial designation should prevail unless Congress has clearly manifested a contrary intention. Cadwalader v. Zeh, 151 U. S. 171, 176, 38 L. ed. 115, 117, 14 Sup. Ct. Rep. 288. We are of opinion that the use of the word "wool" in the tariff act excluded a substance which, while it was a growth upon a sheepskin, was nevertheless commercially known, designated, and dealt in as Mocha hair, having none of the characteristics of wool, and which would not be accepted by dealers therein as a good delivery of wool. In this case the evidence is uncontradicted that the growth on these skins was commercially known as Mocha hair, and that it was not used in the way wool is used, or as a substitute for wool. It ought not, simply for the reason that the skin upon which it grows is the skin of a sheep, to be classified as wool, under paragraph 360 of the tariff act, and thereby be subjected to a duty as high as the value of the substance itself. Although it has been so classified, and that classification has been affirmed all through, yet the question is not presented to this court as if it were a question of fact decided upon contradictory evidence, and concluding this court for that reason. There is, in truth, no contradictory evidence in the case. It is one where, in our opinion, the courts below have given undue weight to the evidence elicited on cross-examination of witnesses called on the part of the importer, which showed that there possibly was, in some cases, a very little inferior wool found on these skins, while the courts ignored the other facts, as testified to by the same witnesses and already mentioned, which showed beyond the possibility of successful contradiction that the substance was erroneously classified as wool. Upon the facts, the substance ought not to have been so classified. The growth being still on the skin should have been regarded as part of such skin, and classified Counsel for the government cites from the Encyclopedia Britannica, where, in speaking of the difficulty in determining the dividing line between hair and wool, it is said: "At what point, indeed, it can be said that an animal fiber ceases to be hair and becomes wool it is impossible to determine, because in every characteristic the one class by imperceptible gradations merges into the other, so that a continuous chain can be formed. from the finest and softest merino to the rigid bristles of the wild boar." It may be difficult in some cases to define the line between "wool" and "hair" as a growth upon skins, but we do not regard that difficulty as an argument for the construction contended for by counsel for the government. That argument leads to the classification of a substance like that in question as wool, when in fact it bears no resemblance to it, is not used as wool, and has none of its characteristics, and is known commercially as Mocha hair, and is so bought and sold over the whole country. The case is one of degree; and because, in some few cases, the points may closely approach each other, and there may be, in such cases, some difficulty in telling wool from hair, yet that fact furnishes no reason for refusing to adopt the general test which, in most cases, is easily applied,-fitness, identity of use, commercial designation. To adopt the claim of counsel eliminates all inquiry as to whether an article is wool or hair, and leaves simply the question whether it is to be found on what may be called the wool-bearing animals or on the alpaca or other like hair-coated animals. Some sheep are wool-bearing animals; therefore the hair on the skin of the Mocha sheep is wool and must be classified as such. We do not agree with this claim. If an article does not, to a dealer, look like wool, cannot be used as wool, is not commercially known as woof, but, on the contrary, is bought and sold throughout the country as Mocha hair, and is so designated commercially by those dealing in it, it ought not to be classified as wool or made to pay duty as such, simply because it grows on a sheep. We have looked over the various authorities cited by counsel for the government, but we see nothing in any of them tending to the conclusion that, upon the facts in this case, the growth on the skin of the Mocha sheep was properly classified as wool. Taking all the evidence in this case, uncontradicted as it is, we feel compelled to the conclusion that the classification in this the conclusion that the classification in this case, adopted by the courts below and by the appraisers and collector, was wrong, and that the merchandise in question was entitled to free entry. The judgments of the courts below are reversed and the case remanded to the Circuit | ity prescribed by U. S. Rev. Stat. § 5239, which provides for the forfeiture of the charter of a national bank as the result of violations of the national bank act by the directors, such violations to be determined only by the Federal courts, and makes every director who participated in or assented to the same civilly liable to persons who have suffered damage in consequence thereof. [No. 230.] 1907. Court with instructions to take such further Argued March 8, 11, 1907. Decided May 13, proceedings as may be necessary, not inconsistent with this opinion. Reversed. IN ERROR to the Supreme Court of the State of Nebraska to review a judgment which affirmed a judgment of the District Mr. Justice Moody took no part in the de- Court of Seward County, in that state, in cision of this case. favor of plaintiff in an action to charge the officers and directors of a national bank with liability for false representations as to the bank's financial condition. Dismissed CHARLES E. YATES et al., Plffs. in Err., for want of prosecution as to some of the V. JONES NATIONAL BANK. Appeal-abandonment. 1. The prosecution of a writ of error sued out apparently on behalf of all the defendants below will be deemed abandoned by those who have furnished no bond for costs and are not represented by counsel, especially where the bill of exceptions does not contain the answers of those defendants nor the pertinent evidence relating to their case.* Error to state court-Federal question. 2. The express denial of an immunity claimed in both the trial and appellate courts, under U. S. Rev. Stat. § 5239, U. S. Comp. Stat. 1901, p. 3515, by officers and directors of a national bank in respect to the rule of liability applied for making false of ficial reports as to the bank's financial condition, is sufficient to sustain the exercise by the Supreme Court of the United States of its appellate jurisdiction over state courts.+ National banks-liability of directors-false official reports. 3. Directors of a national bank who merely negligently participated in or assented to the false representations as to the bank's financial condition contained in the official report to the Comptroller of the Currency, made and published conformably to U. S. Rev. Stat. § 5211, U. S. Comp. Stat. 1901, p. 3498, cannot be held civilly liable to anyone deceived to his injury by such report, since the exclusive test of such liability is furnished by U. S. Rev. Stat. § 5239, which makes a knowing violation of the provisions of the title relating to national banks a prerequisite to such liability. Courts-state or Federal jurisdiction-enforcing civil liability of national bank di plaintiffs in error, and reversed as to the others, and remanded for further proceedings. See same case below (Neb.) 105 N. W. 287. The facts are stated in the opinion. Messrs. Halleck F. Rose, J. W. Deweese, and Frank E. Bishop for plaintiffs in error. Messrs. Lionel C. Burr, John J. Thomas, Charles L. Burr, Richard S. Norval, and William B. C. Brown for defendant in error. Mr. Justice White delivered the opinion of the court: This writ of error is prosecuted to secure the reversal of a judgment of the supreme court of the state of Nebraska, affirming that state, upon a verdict of a jury awardone entered by a court of Seward county, in ing damages against the defendants below, plaintiff's in error here, because of certain acts charged to have been done by them as officers and directors of the Capital National Bank of Lincoln, Nebraska. We briefly summarize a statement contained in the opinion of the court below concerning a prior action between the same parties. That action, and three others of like character, brought by different plaintiffs, were begun in a county different from that in which the present one was commenced, and recovery was sought, with one exception, from those who were defendants below in this case, of the sum of a loss occasioned by the insolvency and suspension of the Capital National Bank, a corporation organized under the national bank act. The actions referred to were removed into a cir4. State courts may enforce, against di-cuit court of the United States, and in each rectors of a national bank who have made false representations as to the bank's finan- a motion to remand was overruled, and in cial condition in the official report to the one of the cases (brought by Thomas BaiComptroller of the Currency, the civil liabil- ley) the circuit court sustained a demurrer rectors. *Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3129, 3130. There was judgment against Stuart, one of the defendants, for failure to answer the to the petition and dismissed the cause, and | and subsequently, the court sustained the the judgment so doing was affirmed by the demurrer and dismissed the action. Reviewcircuit court of appeals. 11 C. C. A. 304, ing the action of the circuit court, however, 27 U. S. App. 339, 63 Fed. 488. The plain- the circuit court of appeals held that in any tiffs in the other cases thereupon dismissed event the removal had been made too late, their actions and commenced new ones, as "and that the judgment of the lower court also did Bailey, in Seward county, of which dismissing the plaintiff's case was rendered the case before us is one. The same per- without lawful jurisdiction over the case." sons who were impleaded in the prior ac- 46 C. C. A. 471, 107 Fed. 561. As a result tions were made defendants, and in two of the case went back to the state court, and the actions one Thompson, a director of the in that court the demurrer to the second bank, who had not been previously sued, amended petition was argued and overruled. was joined as a defendant. The defendants were sought to be made liable for acts done as officers and directors of the Capital Na-original petition, and this judgment was tional Bank, although it was not expressly alleged that the bank was organized under the national bank act. Reliance in each action was placed upon alleged untrue written and oral statements and representations of the financial condition of the bank, alleged to have been made and published by the defendants, which were fully set out in various forms of expression, but in none of the averments was it specifically asserted that the acts in question were done in consequence of and in compliance with the provisions of the national bank act, although the exhibits attached to the petition disclosed the character of the written reports, which were in part relied upon. The state court overruled an application to remove, and, a transcript of the record having been filed in the circuit court, on motion the action was, by that court, remanded to the state court, upon the ground that the petition was "clearly based, not upon the provisions of the national banking act, but upon the liability claimed to arise under the principles of the common law." See Bailey v. Mosher, 74 Fed. 15. An amended petition was filed, changing somewhat the averments originally made, and supplementing the same by new allegations. After a considerable lapse of time a second amended petition was filed. This latter enumerated many acts of negligence and mismanagement in the conduct of the affairs of the failed bank charged to have caused its insolvency, in addition to the averments which had been made in the original petition. The defendants demurred on the ground of want of jurisdiction, because the result of the pleading as amended was to demonstrate that the whole cause of action relied upon was based upon the violation by the defendants of provisions of the national bank act, and because, under that act, no cause of action in favor of the plaintiff was stated. The day the demurrer was filed the action was removed by the defendants to the circuit court of the United States. That court overruled a motion to remand (see Bailey v. Mosher, 95 Fed. 223), affirmed by the supreme court of Nebraska. Stuart v. Bank of Staplehurst, 57 Neb. 570, 78 N. W. 298. A separate answer to the second amended petition was filed on behalf of the defendant Thompson and a joint answer on behalf of the defendants Yates and Hamer. In the answer of Thompson it was averred that, while a stockholder, he was not a director of the Capital National Bank at the time the plaintiff made its various deposits; it was denied that any of the reports set out and referred to in the petition were signed or attested by Thompson, and specifically for himself he denied "all alleged misconduct and mismanagement of said bank on his part, and all of the alleged neglect of duty and the causing of the insolvency of said bank, as charged in the said amended petition." The following paragraph was also set up in the answer: "This defendant further says that the cause of action set out in the plaintiff's amended petition, if it have any, is founded upon alleged facts which, if true, constitute a violation by this defendant, as a director or stockholder, of his duties as such director or stockholder, as laid down and defined in the national banking laws of the United States above referred to, concerning the government and management of national banks. And this defendant alleges that if any liability attaches to him as a director or stockholder of said bank for any act done or duty neglected as set forth in said amended petition or otherwise, that such liability is determined and controlled by the national banking act concerning the management of national banks; and that, in determining the liability of this defendant, there is necessarily involved the construction of said national banking act relating to the duties of directors and stockholders of national banks. That a Federal question is involved in determining the liability of this defendant by reason of the alleged mismanagement of said bank and the alleged neglect of duty on the part of this defendant." Matter alleged to constitute an estoppel |