conclusively that the contention of counsel for the complainant cannot be maintained. On the other hand, it does not follow that because the money borrowed by the wife with the authorization of the judge was used to pay her husband's debts, the note and mortgage given therefor are void and cannot be enforced. To make such a defense good it must be shown that the creditor knew when he made the loan that the money was not to be used for the separate benefit or advantage of the wife; for the lender, having in good faith paid the money to the wife, or to another by her direction, is not bound, since the passage of the act of 1855, to see that it is used for her benefit. It has been so held by the supreme court of Louisiana. In McClellan v. Dane, 32 La. Ann. 1197, the defendant was a married woman, who had executed by the authorization of the judge the note and mortgage sued on. She alleged by way of defense that the note and mortgage were obtained from her through the influence of her husband, who received the money for which the note and mortgage were given, and that, therefore, as to her they were without consideration. In support of her defense Mrs. Dane offered evidence tending to show that the money borrowed was subsequently received by her husband, and by him used for his own purposes. This evidence was admitted by the court below, and its admission was declared by the supreme court to be error. In giving judgment the court said: "The check representing the borrowed money was delivered to the wife, who indorsed the same and received the money which it called for, and to require more from the lender in such cases would be to defeat the very object of the law. * * * Our jurisprudence is firmly settled on this question, and it is unnecessary to quote authorities in support of the proposition that, in the absence of any allegation of fraud against the creditor himself, married women are bound, as all other persons, by their contracts and mortgages, executed under proper authorization, as required by the law of 1855, (Civil Code, 127, 128,) and cannot be allowed by parol*testimony to attempt to disprove the certificate of the judge and their own authentic declarations in acts of mortgage. Nor will the law authorize the inquiry into the subsequent disposition made of the funds borrowed by married women when properly authorized thereto. The law does not and cannot confer upon the lender in such circumstances the power and authority to watch over and control the acts of the married woman who has borrowed money from him, so as to prevent the improper use of the same." In the still later case of Dougherty v. Insurance Co. 35 La. Ann. 629. the supreme court of Louisiana said: "Objections founded on the irregularity of the proceedings before the judge, and on the use made of the money and the like, in the absence of fraud or complicity on the part of the lender, have no force. The jurisprudence is now well settled that in such case the lender is not bound to look behind the judge's certificate, and is not concerned as to the actual use of the money after it is paid to the wife or according to her direction." See, also, Pilcher v. Pugh, 28 La. Ann. 494, and Henry v. Gauthreaux, 32 La. Ann. 1103. The result of these authorities, succinctly stated, is that since the act of 1855, when a married woman, with the authorization of her husband, and the sanction and certificate of the judge, borrows money, the creditor is not bound to show that the money was used for her separate benefit and advantage, but the debt may be enforced against her, and her separate property mortgaged to secure it, unless she shows that, with the knowledge or connivance of the lender, the money was borrowed and used, not for her separate benefit, but for that of her husband. This conclusion supports the decree of the circuit court. When Godchaux deducted and retained out of the money ioaned on the note and mortgage of Mrs. Fortier, the sum of $1,800 to pay a debt due to herself from her husband, and paid over to her, or by her direc tion only, the residue, he was acting, so far as the sum just mentioned is con *451 cerned, in complicity with the husband and in fraud of the law, and he cannot shield himself under the authorization of the judge. This sum, with the interest thereon, was properly deducted from the amount due on the note and mortgage. The $1,200 paid by Godchaux to the notary, by the direction of Mrs. Fortier, to clear off taxes, with the interest and costs, which were a lien upon that property mortgaged by her, was applied for her separate benefit and advantage, and she cannot escape liability for it. As to the $5,975, the residue of the loan, we are of the opinion that the defendant has not made it appear affirmatively by preponderance of proof, as she was bound to do, that the money was borrowed by her with the knowledge or connivance of Godchaux to pay off the debts, or for the use of her husband. Godchaux, therefore, having handed to the defendant a check, payable to her own order, for the residue of the loan, his duty ceased. Under the act of 1855 he was not, as we have seen, bound at his peril to take care that she applied the money to her own separate benefit and advantage. So far, therefore, as the defense to the enforcement of the money paid by the check rested in the averment that the money borrowed of Godchaux was with his complicity borrowed for the use of the husband, and not for the separate advantage of the wife, it must fail. Complaint is made in behalf of Mr. Fortier that the court erred in enforc ing by its decree a loan of money made by a national bank on the security of a mortgage; the contention being that the loan on such a security was unauthorized by the national banking act, and was therefore void. In the cases of National Bank v. Matthews, 98 U. S. 621, and National Bank v. Whitney, 103 U. S. 99, this point is expressly decided against the contention of the defendant, and in the latter case it was also held that an objection to the tak ing by the bank of a mortgage lien as security for future advances could only be made by the United States. It follows from the views we have expressed that the decree of the circuit court was right, and should be affirmed; and it is so ordered. (112 U. B. 495) 496 ARTHUR, late Collector, etc., v. MORGAN. 1. CUSTOMS DUTIES-"HOUSEHOLD EFFECTS"-CARRIAGE USED ABROAD. A carriage in use abroad for a year by its owner, who brings it to this country for his own use here, and not for another person, nor for sale, is "household effects," under section 2505 of the Revised Statutes of 1874, p. 484, (2d Ed.,) and free from duty. 2. SAME-PROTEST. A protest against paying 35 per cent. duty on the carriage, which states that the carriage is "personal effects, and had been used over a year, (as shown by affida-" vit,) and that, under section 2505 of the Revised Statutes, "personal effects in actual are free from duty, is a sufficient protest, on which the amount paid for duty can be recovered back on the ground that the carriage was free from duty as "household effects," under the same section use In Error to the Circuit Court of the United States for the Southern District of New York. Sol. Gen. Phillips, for plaintiff in error. Edward Hartley and Walter H. Coleman, for defendant in error. BLATCHFORD, J. Julia Morgan imported into the port of New York, from Europe, in May, 1876, a carriage on which, at the appraised value of $667, the collector exacted a duty of 35 per cent., amounting to $233.45, under the following provision of Schedule M of section 2504 of the Revised Statutes, p. 474, (2d Ed.:) "Carriages and parts of carriages: thirty-five per centum ad valorem." She protested in writing to the collector against paying the 35 per cent. duty, on the ground that the carriage was "personal effects," and had been used by her "over a year," and that she had shown that fact by affidavit; and that, under section 2505 of the Revised Statutes, "personal effects in actual use" were free from duty. She appealed from the decision of the collector to the secretary of the treasury, and he affirmed it, and then she brought this suit. At the trial the above facts were shown, and the plaintiff proved that the affidavit referred to was to the effect that the carriage was old, and had been in use by her abroad for more than one year before its importation; that the affidavit was deposited with the defendant, and transmitted by him to the secretary, with the appeal; that she was a native citizen of the United States, and had lived abroad some three years, as a temporary resident, prior to the importation, and had returned to this country about two weeks before the importation; that the carriage had been purchased by he in France, and had been used by her as a family carriage abroad for more than one year before its importation; and that it was imported by her fo her own use in this country, and was not intended for any other person of persons, or for sale. The defendant offered no testimony, but moved the court to direct a verdict for the defendant on the following grounds: “First, that no evidence was offered to support the claim made in the plaintiff's protest, that the carriage was a personal effect in actual use, within the meaning of that term as used in section 2505 of the Revised Statutes of the United States; second, that the said protest was insufficient to raise the point that the carriage was included within the meaning of the term 'household effects,' as that term is used in section 2505 of the Revised Statutes of the United States; third, that, even if the protest be considered sufficient to raise the last point, the carriage in question cannot properly be held to be included within the true sense and meaning of the term household effects,' as that term is used in section 2505 of the Revised Statutes of the United States." The court denied the motion on each ground, and the defendant excepted to each ruling. A verdict was rendered for the plaintiff, the court having directed it on the ground that, on the testimony and within the meaning of section 2505, the carriage was "a household effect," and the exaction of du V.58-16 *498 661 ties was illegal. The defendant excepted to the direction, and, after a judg. ment against him, brought this writ of error. It was provided by section 2505, Rev. St. 1874, that the importation of the following articles should be exempt from duty: First. Page 484, (2d Ed.) "Books, household effects, or libraries, or parts of libraries, in use, of persons or families from foreign countries, if used abroad by them not less than one year, and not intended for any other person or persons, nor for sale." Second. Page 487, (2d Ed.) "Personal and household effects, not merchandise, of citizens of the United States dying abroad." Third. Page 489, (2d Ed.) "Wearing apparel, in actual use, and other personal effects, (not merchandise,) professional books, implements, instruments, and tools of trade, occupation, or employment of persons arriving in the United States. But this exemption shall not be construed to include machinery or other articles imported for use in any mannfacturing establishment, or for sale." * By section 1 of the act of August 10, 1790, c. 39, (1 St. 181,) there were exempted from duty "the clothes, books, household furniture, and the tools or implements of the trade or profession of persons who come to reside in the United States." This exemption was continued by section 2 of the act of May 2, 1792, c. 27, (1 St. 260.) As to the above clause 1, Schedule I of the act of July 30, 1846, c. 74, (9 St. 49,) exempted from duty "household effects, old and in use, of persons or families from foreign countries, if used abroad by them, and not intended for any other person or persons, or for sale." The same exemption was continued in section 3 of the act of March 3, 1857, c. 98, (11 St. 194,) and in section 23 of the act of March 2, 1861, c. 68, (12 St. 195.) By section 22 of the act of July 14, 1870, c. 255, (16 St. 265, 268,) exemption was extended, in addition to "household effects of persons and families returning or emigrating from foreign countries, which have been in actual use abroad by them, and not intended for any other person or persons, or for sale, not exceeding the value of five hundred dollars. The above clause 1 first appeared in section 5 of the act of June 6, 1872, c. 315, (17 St. 234,) and is now in force as part of section 2503 of the Revised Statutes, by virtue of section 6 of the act of March 3, 1883, c. 121, (22 St. 518.) As to the above clause 2, section 9 of the act of August 30, 1842, c. 270, (5 St. 560,) exempted from duty "books and personal and household effects, not merchandise, of citizens of the United States dying abroad." Omitting the words "books and," this provision was repeated in Schedule I of the act of July 30, 1846, c. 74, (9 St. 49,) and in section 3 of the act of March 3, 1857, c 98, (11 St. 194,) and in section 23 of the act of March 2, 1861, c. 68, (12 St. 195,) and is now in force as part of section 2503 of the Revised Statutes, by virtue of section 6 of the act of March 3, 1883, c. 121, (22 St. 520.) The history of clause 3 above is fully given in Astor v. Merritt, 111 U. S. 210; S. C. 4 SUP. CT. REP. 413. 99 In June, 1876, the attorney general advised the secretary of the treasury that the words "personal effects," in clause 3 above, did not include carriages previously in use, but only such things as are worn, like apparel, upon the person, or are used in connection therewith; and shortly afterwards he advised the same officer that the words "household effects," in clause 1 above, did not include carriages used abroad not less than one year and intended for personal use here. 15 Op. 113, 125. On this construction the department has acted. The last opinion proceeded on the ground that early and repeated decisions in England had held that books, wares, horses, etc., did not pass under bequests of "household goods and effects," and that the express mention of books in clause 1, and the omission of other articles so determined not to be included under the general term "household effects," indicated that "carriages" were not within the exemption. The word "effects" means "property or worldly substance." When it is accompanied, in a will, by words of narrower import, the bequest, if not residuary, may be confined to species of property ejusdem generis with those previously described. But the analogies to be derived from wills are not strictly applicable to a case like the present, and no material aid can be derived from decisions in regard to wills. The construction of the words "household effects" in a will often depends largely on the meaning of words in other provisions in the will, and upon the qualification by the word “other," as referring to specific articles before named, like the word "other" in clause 3 above. In the present case the only direct qualification of "effects" is "household." Persons who dwell together as a family constitute a "household." In New York a statute exempted from execution a cow "owned by any person being a householder." In Woodward v. Murray, 18 Johns. 400, a judgment debtor, who owned a cow, had left his wife and children, they continuing to reside in the house he had occupied. While they were on the road, removing to the house of the wife's father, with the cow and their household furniture, the cow was seized on execution. The court held that the exemption continued so long as the wife and children remained together "as a family," and that they continued to be the debtor's “household," and he the "householder." *The question for decision in this case is whether the carriage of the plaintiff fell under either of these heads: (1) Household effects in use of a person or a family from a foreign country, used abroad by the person or the family not less than one year, and not intended for any other person or persons, nor for sale; (2) personal effects, (not merchandise,) nor for sale, of a person arriving in the United States. The carriage had been in use as a family carriage, abroad, by the plaintiff as owner for more than a year. She came from abroad after a temporary residence there of three years, and imported the carriage two weeks later for use here, and not for any other person, nor for sale. Was it "household effects" or "personal effects" of the plaintiff? We think that it fell within clause 1 and was "household effects." In the provision respecting the "household effects" of persons or families, there is an evident intention to include articles which pertain to a person as a householder, or to a family as a household, which have been used abroad not less than a year, and are not intended for others, nor for sale. A carriage is peculiarly a family or household article. It contributes in a large degree to the health, convenience, comfort, and welfare of the householder or of the family. The statute is not limited to articles of household furniture, or to things whose place is necessarily within the four walls of a house. Clause 2 above uses the words "personal and household effects." This serves to show that, by the use of the words "household effects" alone in clause 1, in the same section of the statute, something is intended different from "personal effects," and that those words embrace articles which the words "personal effects" do not cover. So, too, if the words "other personal effects" in clause 3 should be extended to embrace articles properly cov ered by the words “household effects" in clause 1, such household effects would come in free, although not used abroad for a year, and the door would be opened wide for the introduction without duty of large numbers of articles as "household effects" which it is intended should pay duty. We do not find it necessary in this case to consider any further the construction of the words "other personal effects" in clause 3, because we place our decision on the ground that this carriage was "household effects" of the plaintiff. The protest claimed that the carriage was "personal effects" in actual use, under section 2505, and, as such, free and not subject to the duty imposed on it, but did not claim it to be "household effects." The solicitor general concedes that the objection to the protest is a "bare technicality," and that its language could hardly mislead the officers. A proper protest, as well as an appeal, are prerequisites to the right to sue. Section 3011, Rev. St., as *500 |
