*618

the evidence, the certificate stated that this was all the evidence, and thereupon it occurred as a question whether, in point of law, upon the facts as stated and proved, the action could be maintained, and whether or not the jury should be so instructed; and, on this question, the judges were opposed in opinion. The court refused to consider the case, and dismissed the certificate.

The case of Wilson v. Barnum, 8 How. 258, is especially worthy of note in this connection. The question certified in that case was whether, upon the evidence given, the defendant infringed the complainant's patent. Chief Justice TANEY, delivering the opinion of the court, said: "The question thus certified is one of fact, and has been discussed as such in the arguments offered on both sides. It is a question as to the substantial identity of the two machines. * * The jurisdiction of this court to hear and determine a question certified from the circuit court is derived altogether from the act of 1802, and that act evidently gives the jurisdiction only in cases where the judges of the circuit court differ in opinion on a point of law. * In the multitude of questions which have been certified, this court has never taken jurisdiction of a question of fact. And in a question of law it requires the precise point to be stated, otherwise the case is remanded without an answer." And the case was remanded for want of jurisdiction.

It seems to us that the certificate in the present case is obnoxious to the objections presented in the cases cited. The new controversy raised by the defendant's construction of the pavement in Redwood City is substantially a new suit on the patent; and we are asked to decide it. We are asked to say whether a pavement constructed in such and such a manner is an infringement of the patent as the circuit court has construed the patent. And this is a mixed question of fact and law. By the final decree in the case, made in 1881, the court decided that the pavements which the defendant had been theretofore making did infringe the patent. How those pavements were constructed we are not informed; and therefore we do not know what was the precise construction given by the court to the patent. Whether the new pavement, constructed in Redwood City, is an infringement or not, is just as much a mixed question of law and fact (as the case is presented to us) as was the question whether the pavements formerly constructed by the defendant were an infringement. It is a question which the circuit court must decide for itself in the ordinary way. If the judges disagree there can be no judgment of contempt; and the defendant must be discharged. The complainant may then either seek a review of that decision in this court, or bring a new suit against the defendant for the alleged infringement. The latter method is by far the most appropriate one where it is really a doubtful question whether the new process adopted is an infringement or not. Process of con. tempt is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant's conduct.

The case must be dismissed, with directions to the circuit court to proceed therein according to law.

(113 U. S. 542)

PEUGH . DAVIS.
(March 2, 1885.)

1. MORTGAGE-CONSTRUCTIVE POSSESSION BY MORTGAGEE-Use and OCCUPATION-INTER

EST.

If a mortgagee, who takes a merely constructive possession of the mortgaged premises, has not therein such a valuable interest as warrants a claim upon him by the mortgagor for use and occupation, the mortgagor cannot, on the ground of set-off, ask to be relieved of his liability for interest on the debt secured.

2 SAME-USE AND OCCUPATION-DAMAGES FOR WITHHOLDING LAND.

in an action for use and occupation, the plaintiff cannot recover for his failure, through defendant's withholding the land from him, to make a profitable sale.

SAME-INTEREST-TENDER of Money.

In order to be relieved of interest on a debt secured by mortgage, accounting from a certain time, the plaintiff should show that at that time he made an actual tender of the money owed.

Appeal from the Supreme Court of the District of Columbia.

R. T. Merrick, M. F. Morris, T. T. Crittenden, and L. H. Pike, for appelant. A. G. Riddle and H. E. Davis, for appellee.

*543

*MILLER, J. This case was before us at the October term, 1877, and the question then was whether certain instruments of writing, made by Peugh So Davis, constituted an absolute conveyance of lots in the District of Columoia, or were in the nature of a mortgage security for loan of money. The court was of opinion that, on all the facts of the case, the latter was the true construction of the transaction between the parties. The court below was directed to permit the plaintiff Peugh to redeem the property by the payment of the loan, with interest at 6 per cent. per annum, and, as it appeared that the defendant had taken possession of the property, it was said in the opinion that he "should be charged with a reasonable sum for the use and occupation of the premises from the time he took possession in 1865, and allowed for the taxes paid and other necessary expenses incurred by him." 96 U. S. 332. Upon the return of the case to the supreme court of the District of Columbia it was referred to an auditor to ascertain the sum necessary to redeem on that basis. Two reports were made, neither of which were entirely acceptable to the parties or to the court, which finally, by a decree in general term, allowed nothing for use and occupation by defendant, but did make an allowance for a sum received from the United States for its use, after deducting from this latter sum the amount paid to an agent for its collection.

The appellant assigns for error that no allowance was made him for the use and occupation by defendant. The reply to this is that he never used and occupied it or received any rents, except the amount for which he is charged as received from the government. The lots were open, uninclosed, with no buildings on them, and no actual possession or use of them was had by the defendant. His possession was merely constructive under his interpretation of the contract, that the land was his own. The witnesses say it was worth nothing in its actual condition, and no evidence is given to the contrary. It is urged that a sum equal to the interest on the money borrowed by Peugh should be allowed as rent, or for occupation, from the time Davis asserted his ownership and possession. We can see no reason for this, and it would have been in conflict with the instruction contained in the opinion of this court that he "should be charged a reasonable sum for the use and occupa tion." If this was worth nothing, that was the end of that matter.

It is said that during the period in question the land rapidly rose in value and afterwards declined; that Peugh could have sold it, and probably was offered a sum for it which would have left him a large profit; and that he ought in this transaction to set off this loss against the amount he must pay to redeem. This is not allowance for use and occupation. It is damages for a tort. It cannot be recovered in this suit, if it could be recovered in any.

The short answer to all this is that Mr. Peugh owed the money he had borrowed from Davis. What he is now claiming in the original suit is the right to pay the money and have a reconveyance of the land. Nothing hindered during all this time that he should pay this money; and if, as he alleges, Davis denied his right to do so, then he should have made a regular and lawful tender of the amount due. If he had done so, the interest would have ceased to run against him, and the amount that he is now required to pay would have been diminished by more than one-half. A lame attempt is made to show that he did make this tender. Some evidence is offered that he told Davis that he was ready to account with him and pay what was due, and that he had the money with him. But in order to make a tender that'

would have caused the interest to cease, he should have ascertained for himself the sum due, or have fixed upon a sum which was sufficient, and then made a formal tender by counting out or offering that sum to Davis distinctly and directly as a tender. The fact that he did not do this is the answer to all that he now claims in this court. He has been permitted to redeem. His own assertion of that right has been allowed him; but if he ever had this money and was ready and willing to pay it, he did not do so. He did not produce or show it. He did not fix the amount he was ready to pay; but he took the money away with him, and used it himself, and there is no hardship in requiring him to pay 6 per cent. interest on it if he wishes to redeem the lots.

The decree of the supreme court of the district is affirmed.

(113 U. S. 645)

SCHMIEDER and another v. BARNEY, Collector, etc.

(March 2, 1885.)

1. TARIFF LAWS-CONSTRUCTION-SIGNIFICATION OF LANGUAGE.

The language of tariff acts is to be construed according to its commercial signification, but it will always be understood to have the same meaning in commerce as it has in the community at large, unless the contrary is shown.

2. SAME-EVIDENCE-EXPERT TESTIMONY UPON MATTERS UNDERSTOOD BY THE COMMUNITY AT LARGE.

The opinion of commercial experts is not to be put in the place of that of the jury upon a question that is as well understood by the community at large as by merchants and importers.

In Error to the Circuit Court of the United States for the Southern District of New York.

A. W. Griswold and Sidney Webster, for plaintiffs in error. Sol. Gen. Phillips, for defendant in error.

WAITE, C. J. The only fact in issue in this case on the trial below was whether the "Saxony dress goods," imported by the plaintiffs in error, were "goods of similar descriptions" to "delaines," within the meaning of that term, as used in the tariff act of July 14, 1862, c. 163, § 9, (12 St. 553.) To maintain this issue on their part, the plaintiffs in error called a number of merchants and commercial experts, by whom they offered to prove that, in trade, among merchants and importers, "Saxony woven dress goods" were not, in 1861 and 1862, and prior thereto, "commercially known or considered as goods of similar description to delaines," "but commercially belonged to another class, that of woven dress goods, classed as different articles, and kept in a different department of goods from the family of printed dress goods known as delaines." Other witnesses, who were commercial experts, were asked, in substance, whether, in their opinion, the goods which had been imported by the plaintiffs in error were known in trade among merchants, in 1861 and 1862, as goods of similar description to delaines. All this evidence was excluded by the court, and exception taken. That ruling is now assigned for

error.

•

In Greenleaf v. Goodrich, 101 U. S. 278, decided by this court at the October term, 1879, after the trial below in the present case, it was held that it was not error to charge the jury (page 283) "that the similarity referred to in the expression goods of similar description,' in the act of 1862, is a similarity in respect to the product, and its adaptation to uses, and to its uses, and not merely to the process by which it was produced; and that if a class of goods were not, in 1862, commercially known as delaines, it does not follow that they were not goods of similar description, within the meaning of the statute, or to charge that "these words are to be taken and understood in their popular and received import, as generally understood in the community at large at the time of the passage of the act."

""

In reference to this, and other portions of the charge then under exaiuination of a like import, this court said, speaking by Mr. Justice STRONG, (page 284:) "Notwithstanding the strenuous objections urged against such a submission to the jury, we think it was correct. At least it was quite as favorable to the plaintiffs as they had the right to demand. Reliance is placed upon the rule, which we admit to be established, that the commercial designation of an article among traders and importers, when such designation is clearly established, fixes its character for the purpose of the tariff laws. But the present is not a case of commercial designation of articles. The phrase ' of similar description' is not a commercial term, and if it were, there is no evidence in the record to show what it is understood to mean among merchants and importers." To this ruling we adhere, notwithstanding what is said in the able argument which has been presented to us on behalf of the present importers. It is quite true that, in the case then presented, the fact that delaines were woven in the gray,"-that is to say, in the natural color of the materials of which they were composed, and not in colors, as was the case with "Saxony dress goods"-was much relied on as showing that the dress goods were not of a similar description with delaines; but the real point for decision was whether goods must be commercially classified with delaines to make them of "similar description." It was there decided that if they were similar in product, in adaptation to uses, and in uses, they were of similar description, even though in commerce they might be classed as different articles. Upon that question the decision in Greenleaf v. Goodrich must be taken as conclusive.

66

It is contended, however, that in this case the plaintiffs in error went further than was done in that, and that they offered to prove that in commerce "Saxony dress goods” were not considered as of “similar description" to delaines. It is argued that this brings the case within what should be taken as an exception reserved in the former decision. The exception claimed is drawn from the following clause in the opinion: "The record exhibits nothing tending to show what was commonly understood among merchants as distinguishing goods, known in commerce as of a similar description with delaines, from all other goods. Nor was there any evidence that there were any goods known by merchants, or in commerce, as goods of similar description with delaines; much less was it in proof that being woven in the gray was regarded by merchants as determining that goods so woven were not of similar description with delaines. In regard to all these matters the record is silent. Composed, as the goods were, of the same materials as delaines, having a similar general appearance, and intended for the same uses, they might well have been of similar description with colored delaines, though there were differ-a ences in the process of manufacture."

Undoubtedly the language of tariff acts is to be construed according to its commercial signification, but it will always be understood to have the same meaning in commerce that it has in the community at large, unless the contrary is shown. Swan v. Arthur, 103 U. S. 598. The most that can be claimed for the alleged reservation in Greenleaf v. Goodrich is that it would have been proper to inquire whether the phrase "of similar description" was a commercial term, and, if so, what it was understood by merchants and importers to mean. That, however, is not what was attempted in this case. The witnesses were asked, in effect, not what the words "of similar description" were understood among commercial men to mean, but whether the goods of these importers were known in commerce as goods of similar description to delaines. The effort was to put the opinion of commercial experts in the place of that of the jury upon a question which was as well understood by the community at large as by merchants and importers. This it was decided in Greenleaf v. Goodrich could not be done, and upon the point supposed to have been reserved in that decision this case stands just where that did. The tes

v.5s-40

timony offered was therefore properly rejected. The opinions of the collector of the port and of the board of official appraisers were no more admissible on this question than those of any other competent experts.

The judgment is affirmed.

(115 U. S. 122)

COMMISSIONERS OF BUNCOMBE Co. and others v. TOMMEY and others, Trustees, etc.

(October Term, 1884.)

1. MECHANIC'S LIEN-NORTH CAROLINA STATUTES-CONSTRUCTION OF RAILROAD. The statutes of North Carolina of March 28, 1870, and March 1, 1873, the first, giving a lien to mechanics and laborers in certain cases, and the other, regulating sales under mortgages given by corporations, do not give to those performing labor and furnishing materials in the construction of railroads, a lien upon the property and franchises of the corporation owning and operating such roads.

2. SAME CONSTRUCTION OF STATUTE GIVING LIEN.

Ordinary lien laws giving to mechanics and laborers a lien on buildings, including the lot upon which they stand, or a lien upon a lot or farm or other property for work done thereon, or for materials furnished in the construction or repair of buildings, should not be interpreted as giving a lien upon the roadway, bridges, or other property of a railroad company, that may be essential in the operation and maintenance of its road for the public purposes for which it was established.

3. SAME-BATTLE'S REVISAL, CH. 26, 48-PUB. LAWS N. C. 1871-72, CH. 199.

The proviso of the third section of the said act of 1873 (Battle's Revisal, c. 26, 48) has reference to the debts and contracts of private corporations formed under the act of February 12, 1872, (Pub. Laws N. C. 1871-72, c. 199,) and not those of railroad corporations organized, for public use, under the act of February 8, 1872. Appeal from the Circuit Court of the United States for the Western District of South Carolina.

The Spartanburg & Asheville Railroad Company-a corporation created by the consolidation, in the year 1874, of a railroad company of the same name, organized under the laws of South Carolina, and of the Greenville & French Broad Railroad Company, of North Carolinia-executed, under date of October 1, 1876, a deed of trust, whereby, for the purpose of securing the payment of its bonds, with interest coupons attached, it conveyed its franchises, railroad, rights, lands, and property, real and personal, in trust for those who should become holders or owners of such bonds. The deed contained a provision by which the principal of all the bonds should become due after continuous default for six months in the payment of semi-annual interest upon them, or upon any of them. Such a default having occurred in respect of the installments of interest due January 1, 1878, the present suit was brought for the purpose of enforcing, in satisfaction of the entire amount of said bonds and coupons, the lien given by the before-mentioned deed. Certain parties-Garrison, Fry & Deal, Clayton, and Rice & Coleman-were made defendants, because, as creditors of the railroad company, they claimed, respectively, a lien upon property covered by the mortgage superior to that asserted in behalf of the bondholders. Garrison alleged that, being a me chanic, he contracted, December 1, 1876, and June 2, 1877, with, and afterwards built for, the railroad company two trestles in Polk county, North Carolina, his work being completed February 18, 1878; Fry & Deal, (the first named being a mechanic,) that they furnished materials and work upon trestles in the same county, under a contract made with the company on June 2, 1877, and fully executed June 17, 1878; Clayton, that he performed work (grading, etc.) upon the company's road in the same county, under a contract made with it prior to the mortgage, but not executed until after its date; and Rice & Coleman, that they did work and labor, and furnished materials, on the company's road in Henderson county, North Carolina, such work beginning June 1, 1876, and ending May 1, 1878.