US SUPREME COURT DECISIONS

In construing a tariff act, when it is claimed that the commercial use of a word or phrase in it differs from the ordinary signification of such word or phrase, in order that the former prevail over the latter, it must appear that the commercial designation is the result of established usage in commerce and trade, and that, at the date of the passage of the act, that usage was definite, uniform, and general, and not partial, local, or personal.

This was an action to recover duties paid under protest. The bill of exceptions, omitting formal parts, was as follows:

"The plaintiff imported, in the year 1886, into the port of New York, certain goods consisting of mugs, plates, cups, and saucers, made of china, of small size, and claimed by him to be dutiable as toys. Duty was assessed by the defendant, and paid by the plaintiff at the rate of sixty percent ad valorem,

Page 152 U. S. 369

under protest as follows:"

"Against your decision and assessment of duties as made by you, and the payment of more than 35% ad valorem on our importations below mentioned, consisting of certain china toys, claiming that under existing laws, and particularly by Sch. 'N,' Act March 3, 1883, as toys said goods are liable at no more than 35% ad valorem, and not at 60% ad valorem, as charged by you."

"Due appeal was made, and suit was brought in due time."

"Plaintiff further introduced evidence tending to show that the articles in question were in fact toys, and in addition that they were known in trade and commerce in March, 1883, and prior thereto, as toys, and were bought and sold under the denomination of toy plates, toy teas, and toy cans."

"In behalf of the defendant, evidence was introduced tending to show that these articles were not handled by toy houses, but that they were bought and sold under the name of A B C plates, A B C mugs, A B C cans, and the cups and saucers were known as Minton teas or after-dinner coffees, and were also used in restaurants to serve coffee in, and that they were used by children to eat and drink out of, and not merely for the purpose of amusement."

"The court, at the conclusion of the evidence, submitted the question to the jury as follows:"

" You are to answer the question by yes or no whether these goods are or are not toys. You have heard the evidence, and all that is necessary for me to do in leaving the case in your hands is to give you the definition of the word toy: 'A toy is a plaything; a thing the main use or purpose of which is the amusement of children.' Bearing that definition in mind, and as instructed by the evidence, you will determine as to these articles whether they are or are not toys."

"Thereupon counsel for plaintiff requested the court to charge that if these articles were known as toys in trade and commerce in March, 1883, and prior thereto, the plaintiff is entitled to recover, which request the court refused so to charge, and plaintiff's counsel duly excepted, and the exception was duly allowed."

The record states that

"after hearing the

Page 152 U. S. 370

evidence for the respective parties and the argument of counsel, the jury say that they find the goods in suit are not toys, and, by direction of the court, that they find a verdict for the defendant."

Judgment was thereupon entered on the verdict in favor of the defendant, with costs, and this writ of error taken out.