*646

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 examination 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 mer-* chants 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.

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. posed, 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 differences in the process of manufacture."

Com

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 tesv.5s-40

2

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 mechanic, 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.

The decree below, ordering a sale of the mortgaged property, must have proceeded upon the ground that, under the laws of North Carolina, these defendants acquired no lien whatever upon the property of the railroad company. The contention here is that some of the defendants acquired a lien as well under a statute passed in 1873, regulating sales under mortgages given by companies upon all their works and property, as under the act called the workmen's lien law of 1870; and that one of the defendants has a lien under the former, while others have liens under the latter statute. The main inquiry now is whether the court below correctly interpreted those statutes. It is necessary, to a clear understanding of the case, that their provisions be, examined in detail.

By the constitution of North Carolina of 1868, the general assembly of that state was required to "provide, by proper legislation, for giving to mechanics and laborers an adequate lien on the subject-matter of their labor." Art. 14, § 4.

Subsequently, by an act approved March 28, 1870, entitled "An act for the protection of mechanics and other laborers, materials," etc., it was provided "that every building built, rebuilt, repaired, or improved, together with the necessary lots on which said building may be situated, and every lot, farm, or vessel, or any kind of property not herein enumerated, shall be subject to a lien for the payment of all debts contracted for work done on the same or material furnished," (section 1;) that "any mechanic or citizen, who shall make, alter, or repair any article of personal property, at the request of the owner or legal possessor of such property, shall have a lien upon such property so made, altered, or repaired, for his just and reasonable charge for his work done and material furnished, and may hold and retain possession of the same until such just and reasonable charges shall be paid," etc., (section 3;) that "all claims under $200 may be filed in the office of the nearest magistrate, if over $200, in the office of the superior court clerk in any county where the labor has been performed or the material furnished," (section 4;) that proceedings to enforce the lien created must be commenced in the courts of justice of the peace, and in the superior courts, according to their jurisdiction; and, upon judgment being rendered in favor of the claimant, an execution for the collection and enforcement thereof may issue in the same manner as upon other judgments in actions arising upon contracts for the recovery of money. Pub. Laws, N. C. c. 206, p. 253; Battle's Revisal, N. C. c. 65, p. 563.

By a general statute, approved February 8, 1872, entitled "An act to authorize the formation of railroad companies and to regulate the same," provision was made for the formation, by any number of persons, not less than 25, of corporations for the purpose of constructing, maintaining, and operating railroads. This statute contains 66 sections, and prescribes the mode in which a company may be organized under it; what its articles of association shall contain; what shall be the amount of its capital stock, and in what way 'subscribed; when it shall become a corporation, with the powers and privileges therein granted; to what extent its stockholders shall be liable for the debts of the company; when it shall be liable to laborers for the amount due them from contractors for the construction of any part of the road; the mode in which it may, by condemnation, acquire real estate needed for the purposes of its incorporation; an annual report to the governor showing its operations and conditions in every respect; when and under what circumstances the legislature may alter or reduce its rates of freight, fare, or other profits; and many other duties respecting the operation and management of its railroad and other property. Pub. Laws N. C. 1871–72, c. 138; Battle's Revisal, c. 99. Corporations formed under that statute are given power to do various things, involving the raising and expenditure of money, and also "from time to time to borrow such sums of money as may be necessary for completing and finishing or operating their railroad, and to issue and dispose of their

bonds for any amount so borrowed, and to mortgage their corporate property and franchises to secure the payment or [of] any debt contracted for the purposes aforesaid," etc. The statute further declares that "all existing railroad corporations within this state shall respectively have and possess all the powers and privileges" therein specified.

On the twelfth of February, 1872, the general assembly of North Carolina passed another statute providing for the formation of "private corporations for any purpose not unlawful" by three or more persons. Pub. Laws N. C. 1871-72, c. 199. At its subsequent session an act was approved, March 1, 1873, entitled "An act to regulate mortgages by corporations, and to regulate sales under them." As the present case depends largely upon the construction to be given to the provisions of that statute, its first and third sections (the second and other sections being immaterial in the determination of any question here involved) are given entire, as follows:

"Section 1. If a sale be made under a deed of trust or mortgage executed by any company on all its works and property, and there be a conveyance pursuant thereto, such sale and conveyance shall pass to the purchaser at the sale not only the works and property of the company as they were at the time of making the deed of trust or mortgage, but any works which the company may, after that time and before the sale, have constructed, and all other property of which it may be possessed at the time of the sale other than debts due to it. Upon such conveyance to the purchaser, the said company shall, ipso facto, be dissolved, and the said purchaser shall forthwith be a corporation by any name which may be set forth in the said conveyance, or in any writing signed by him and recorded in the same manner in which the conveyance shall be recorded."

"Sec. 3. When such corporation shall expire or be dissolved, or its corporate rights and privileges shall have ceased, all its works and property and debts due to it shall be subject to the payment of debts due by it, and then to distribution among the members according to their respective interests; and such corporation may sue and be sued as before for the purpose of collecting debts due to it, prosecuting rights under previous contracts with it, and enforcing its liabilities and distributing the proceeds of its works, property, and debts among those entitled thereto: provided, that all debts and contracts of any corporation, prior to or at the time of the execution of any mortgage or deed of trust by such corporation, shall have a first lien upon the property, rights, and franchises of said corporation, and shall be paid off or secured before such mortgage or deed of trust shall be registered." Pub. Laws N. C. 1872-73, c. 131; Battle's Revisal, c. 26, §§ 46, 48.

S. F. Phillips, for appellants. Wm. E. Earle, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

The first question to be considered is whether the act of 1870 gives a lien to mechanics or contractors upon the property of a railroad corporation, for work performed or materials furnished in and about the construction of its road, or of its bridges constituting a part of its line. We are of opinion that no such statutory lien exists in North Carolina, or was intended to be given by the act of 1870. In reaching this conclusion, we are not aided by any direct decision of the question by the supreme court of North Carolina. Reference was made by counsel to Whitaker v. Smith, 81 N. C. 340, where it was held that an overseer is not entitled, under that act, to a lien, for his wages, upon the employe's crop or land over which he has superintendence. After alluding to the constitutional requirement that laws be enacted to give to mechanics and laborers an adequate lien on the subject-matter of their labor, the court said: "A very large proportion of the laboring population of the state had just recently been released from thraldom, and thrown upon their own resources, perfectly ignorant of the common business transactions