contract of life insurance. The insured died before the policy was actually issued. If it had been issued it would have contained a stipulation that "payment of the loss would be made within ninety days after notice of the death, and due proof of the just claim of the assured." The beneficiary was the wife of the insured. On the trial the plaintiff offered evidence to prove the contract and the death of her husband; that she had filled up in the presence of the company's agent the blank forms which it had furnished, and which were always used in making proofs of death; and that he had received without objection and retained them; but offered no evidence as to the contents of those papers. She rested her case upon this testimony, and the court refused an instruction that she could not recover This court held that such instruction was properly refused. Of course, as a wife, she had an insurable interest. Proof of the contract and of her husband's death established the fact of her right to recover, unless she had failed to furnish due proofs of her just claims; but as the company received them without objection, and did not return them for correction, it was properly held that they were sufficient All that was in fact determined was that, if the proofs were retained without objection, the court could not declare them insufficient.

Further, in the case before us the blank which was furnished to the plaintiff by the company, and upon which he prepared the statements, contained this notice:

"This blank is furnished [upon application] for the convenience and assistance of the representatives of the insured, and the company reserves the right to consider and determine the question of its liabilIty under any policy, without prejudice or presumption by reason of the delivery here

of."

So the party had full information in advance that the company's right to challenge its liability would not be in any manner prejudiced by the receipt of these proofs of death, or any statements therein. We see no error in the ruling of the court below, and its judgment is affirmed.

Mr. Justice GRAY was not present at the argument, and took no part in the decision of this case.

(144 U. S. 581)

WINDETT V. UNION MUTUAL LIFE INS. Co. OF MAINE. (April 18, 1892.)

MORTGAGES-FORECLOSURE-CLAIM FOR TAXES

PAID.

1. A deed of trust in the nature of a mortgage, given to secure the payment of a note, contained covenants that the mortgagor would pay all taxes upon the land, and also a power to sell and pay all expenses, including all money advanced for taxes. The land was sold for nonpayment of taxes, and there was some doubt, from the evidence, whether the purchaser did or did not give notice of the tax sales to the tenants, but no evidence of invalidity in any other respect. The mortgagee, after waiting two years for the land to be redeemed, bought the tax title for a sum exceeding the amount of unpaid taxes and interest, but very much less than the penalties accrued, and then brought suit to foreclose. Held, that the mortgagee was not bound to con

test the tax titles, and that the sum paid to extinguish them was chargeable to the mortgagor under the terms of the mortgage.

2. In the foreclosure suit the mortgagor could not set off against plaintiff's demand a claim for a general retainer for future professional services, in the absence of an express agreement to pay a retainer.

36 Fed. Rep. 838, affirmed.

Appeal from circuit court of the United States for the northern district of Illinois. Bill by Union Mutual Life Insurance Company of Maine against Arthur W. Windett to foreclose a deed of trust. From a decree for plaintiff, rendered upon the report of a referee, defendant appeals. Affirmed.

Arthur W. Windett, for appellant. P. S. Groscupp and Josiah H. Drummond, for appellee.

Mr. Justice GRAY delivered the opinion of* the court.

This was a bill in equity by a corporation of Maine against a citizen of Illinois to foreclose a deed of trust in the nature of a mortgage of land in Chicago, made by the defendant to the plaintiff on July 12, 1869, to secure the payment of his note of that date for $7,500, payable in five years, with interest at the rate of 8 per cent.; and containing covenants that the premises were "free and clear of all liens and incumbrances;" and that the mortgagor would "in due season pay all taxes and assessments on said premises, and exhibit once a year receipts of the proper persons to said party of the second part, showing payment thereof;" and a power to sell on any breach of condition, and out of the proceeds, after paying all expenses, "including all moneys advanced for taxes, insurance, or other liens and assessments, with the interest thereon at the rate of ten per cent. per annum from the date of payment, all which advances shall be secured by this trust," to pay the principal and interest of the note to the mortgagee, and any surplus to the mortgagor.

This bill was filed February 10, 1882, after default in payment of principal and interest of the mortgage debt. The master, to whom it was referred to state the account between the parties, reported that there was due to the plaintiff the sum of $20,556.11. The defendant except. ed to the master's report in two respects, and appealed from a final decree rendered for the plaintiff in accordance with that report.

1. The defendant failed to pay the taxes assessed on the land from 1869 to 1879, and the land was sold and conveyed for noupayment of these taxes to Asahel Gage. The plaintiff's president urged the defendant to redeem the land from the tax sales, (as he might, under the Revised Statutes of Illinois, c. 120, § 210, by paying the amounts for which the land was sold, with interest at the rate of 10 per cent., and certain penalties,) and told him that otherwise the plaintiff would be obliged to take steps to protect itself. The defendant promised to pay the taxes and interest, but insisted that the tax deeds were void, for want of previous notice to

re

the tenants of Gage's purchases as quired by chapter 120, § 216, of the same statutes. The defendant never paid the taxes, or took any steps towards redeeming the land. After waiting two years, the plaintiff, on August 1, 1881, bought in Gage's tax titles for the sum of $3,750, which exceeded the amount of unpaid taxes and interest by the sum of $300 only, equal to a very small part of the penalties accrued. The master allowed the plaintiff this sum of $3,750, with interest at the rate of 10 per cent., amounting | to $1,809.24.

The defendant argued that the plaintiff could not be allowed for the taxes, because they had been extinguished by the tax sales and deeds; and could not recover on the tax titles, because they were void, and because equity would not enforce them.

But the plaintiff did not set up the tax deeds as a ground of suit, but only as evidence of clouds upon his title, arising out of the mortgagor's own neglect to pay the taxes. It is at least doubtful, upon the evidence, whether Gage did not give notice to the tenants of the tax sales; and there is no evidence whatever of any invalidity in the taxes, the sales, or the deeds, in any other respect. In this state of things, the mortgagee was not bound to take the risk of contesting the tax titles, and the sums paid to extinguish those titles were reasonable expenses chargeable to the mortgagor by the terms of the mortgage.

2. The defendant, who is an attorney at law, claimed by way of set-off the sum of $2,500 for professional services, and the further sum of $5,000 for a general retainer, by reason of the president having, as the defendant testified, said that he "wished to engage him professionally in behalf of the company with reference to fifteen or twenty cases,-litigated or complicated cases, growing out of their foreclosure proceedings and claims upon property.

The master allowed the defendant the sum of $600 for professional services actually rendered, and the evidence does not satisfy us that they were worth more.

The defendant's claim for a retainer for services in suits to be brought in the future was rightly disallowed by the master. No express agreement to pay a retainer was proved, and an agreement to pay a retainer for services which are never performed is not to be implied. Decree affirmed.

(144 U. S. 603)

ROBERTSON v. SALOMON et al.
(April 18, 1892.)

CUSTOMS DUTIES-CLASSIFICATION-ELASTIC WEB-
BING.

Under the tariff of 1883, elastic goods used to insert in the upper part of shoes or gaiters could not be classified as "fabrics in part India rubber, not otherwise provided for, "dutiable at 30 per cent., under Schedule N. p. 513; but, when composed of cotton, silk, and India rubber, were dutiable at 35 per cent. as "webbing, composed of cotton, flax, or other material," under Schedule N, p. 514; and, when composed of worsted and India rubber, were dutiable either under Schedule N, p. 514, or under Schedule K, p. 509, (at 30 cents per pound, and 50 per cent. ad valorem

in addition,) as "webbing, gorings," eto, made of wool, worsted, etc.; the classification depending upon the question whether the goods were known to the trade simply as "webbing," or as both "webbing" and "goring;" and, in an action to recover duties paid, this question was one for the jury, and not for the court.

In error to the circuit court of the United States for the southern district of New York. Reversed.

Asst. Atty. Gen. Parker, for plaintiff in error. S. G. Clarke and E. B Smith, for defendant in error.

604

Mr. Justice BLATCHFORD delivered the* opinion of the court.

This is an action at law, brought October 15, 1884, in the superior court of the city of New York, by Bernard J. Salomon and Samuel Mendel Phillips against William H. Robertson, late collector of the port of New York, to recover an alleged excess of duties, amounting to $288.20, on certain goods imported into that port in March and June, 1884. The case was removed by the defendant, by certiorari, into the circuit court of the United States for the southern district of New York, and was tried there, before a jury, in January, 1888. There was a verdict for the plaintiffs for $157.08 as to certain of the goods, and for the defendant as to certain others of them; whereupon a judgment was entered for the plaintiffs for $157.08 damages, $46.85 costs, and $6.67 interest, making in all $210.60. To review that judgment the defendant has sued out a writ of error.

The goods in question were invoiced as "elastic webbings. Some of them were composed of worsted and India rubber, and the remainder of cotton, silk, and In.* dia rubber. The collector assessed duties on the worsted and rubber goods at the rate of 30 cents per pound and 50 per cent. ad valorem, and on the cotton, silk, and rubber goods at the rate of 35 per cent. ad valorem. The plaintiffs paid such duties under a protest, which stated the grounds of their dissatisfaction to be "that under existing laws, and particularly by Schedule N of the tariff act of March 3, 1883, said goods were liable at no more than 30 per cent. ad valorem, as fabrics in part India rubber, not otherwise specially enumerated or provided for." The duties claimed to have been levied and paid in excess of the lawful rate amounted, with interest, in the case of the worsted and rubber goods, to $125.04, and in the case of the cotton, silk, and rubber goods to $32.04.

The bill of exceptions states as follows: "To further sustain the issue upon their part, the plaintiffs called witnesses who testified substantially that the goods in question are used to insert in the upper part of shoes and gaiters; that the rubber is an essential part of the article; and that it could not be used for the purpose for which it is intended without rubber. That it is sometimes known as 'elastic webbing,' and that it is also known under the name of 'elastic goring.' That there are webbings in which rubber is not a component part. That there are many kinds of webbings, such as surgical webbings, suspender webbings, and upholstery

webbings. That all narrow woven fabrics are considered webbings. That the articles in question in this action were woven on the loom. That webbings are always woven on the loom."

The defendant put in evidence which tended to show that the elastic webbing in controversy was bought and invoiced as "elastic webbing," but was sold in the market in the United States as "goring;" that the general trade name for it in the United States was "goring;" that it was never made on braiding machines or by hand; that "elastic webbing" was a term known in trade and commerce in the United States prior to 1883, applicable to goods like the plaintiff's importation; that the term "elastic webbing," applied to goods like those in question, had been known in trade and commerce, as the foreign name, since and prior to 1883, in and among importers* and large dealers, but that "goring" was the American name, and the article was so called because it was used to make gores of, and formed the goring of a congress shoe; and that the shoe manufacturer called them gores. It was also admitted at the trial that all the testimony contained in the bill of exceptions as to trade designation and use was likewise true immediately prior to and on March 3, 1883.

At the close of the case, the defendant moved the court to direct a verdict for him, upon the general ground that the plaintiffs had not established their contention, and specifically as to the goods composed of worsted and rubber, that it appeared from the testimony that they were known in this country under the specific name of "goring;" and that, especially since the word "goring" was inserted first into the worsted clause by the act of March 3, 1883, it more specifically described the goods in question than "fabrics in part of India rubber. That motion was denied by the court, and the defendant excepted.

99

of

The defendant then asked to have submitted to the jury the question whether or not the merchandise composed worsted and rubber was known in trade and commerce, and among large dealers in this country, under the name of "goring;" which motion was denied by the court, and the defendant excepted.

The court then directed a verdict for the plaintiffs for the respective amounts sought to be recovered by them. To this ruling the defendant excepted.

At the time the goods in question were Imported they were subject to duty under section 2502 of title 33 of the Revised Statutes, as enacted by section 6 of the act of March 3, 1883, c. 121, (22 St. p. 488.)

Schedule I,Cotton and Cotton Goods, of section 2502, provided as follows (page 506) in regard to duties: "Cotton cords, braids, gimps, galloons, webbing, goring, suspenders, braces, and all manufactures of cotton, not specially enumerated or provided for in this act, and corsets, of whatever material composed, thirty-five per centum ad valorem.

Schedule K," Wool and Woolens," (page 309:) "Webbings, gorings, suspenders, braces, beltings, bindings, braids, galloons, v.12s.c.-48

fringes, gimps, cords and tassels, dress trimmings, head nets, buttons, or barrel buttons, or buttons of other forms for tassels or ornaments, wrought by hand, or braided by machinery, made of wool, worsted, the hair of the alpaca, goat, or other animals, or of which wool, worsted, the hair of the alpaca, goat, or other animals is a component material, thirty cents per pound, and, in addition thereto, fifty per centum ad valorem."

Schedule N, "Sundries, (page 514:) Webbing, composed of cotton, flax, or any other materials, not specially enumerated or provided for in this act, thirty-five per centum ad valorem.

And the same schedule, (page 513:) "India rubber fabrics, composed wholly or in part of India rubber, not specially enumerated or provided for in this act, thirty per centum ad valorem. Articles composed of India rubber not specially enumerated or provided for in this act, twenty-five per centum ad valorem."

The collector levied on the goods composed of worsted and India rubber 30 cents per pound, and, in addition thereto, 50 per cent. ad valorem, and on those composed of cotton, silk, and India rubber 35 per cent. ad valorem.

The plaintiffs claimed that the goods were India rubber fabrics, composed wholly or in part of India rubber, not specially enumerated or provided for in the act, and therefore subject to a duty of only 30 per cent. ad valorem.

We are of opinion that the judgment must be reversed. It appears distinctly that the goods in question were used to insert in the upper part of shoes or gaiters, and that, while each of the two kinds was called "webbing," it was also known as "goring.' The worsted and India rubber article was dutiable as webbing or as goring, at 30 cents per pound, and, in addition, 50 per cent. ad valorem; while the cotton, silk, and India rubber article was dutiable as webbing composed of cotton,

or

any other materials not specially enumerated or provided for in the act, at 35 per cent. ad valorem.

It is very clear that the words "goring" and "gorings" make their first appearance in the act of March 3, 1883; and their inser tion in that act must have had reference not merely to their absence from previous statutes, but, in connection with such ab. sence, to the construction which this court had put upon prior statutes in which those words did not appear, in reference to the duties leviable on articles of the character of those in question in this suit. Although the goods in question were com posed wholly or in part of India rubber, those composed of worsted and India rubber were specially enumerated or provided for as "gorings," under Schedule K; and those composed of cotton. silk, and India rubber were specially enumerated and provided for in Schedule N, as "webbing, composed of cotton, flax, or any other materials; and all of them, therefore, were excepted from the 30 per cent. duty imposed on India rubber fabrics by Schedule N.

The cases of Arthur v. Davies, 96 U. S. 135, in 1877, in regard to goods imported

In 1873, and of Beard v. Nichols, 120 U. S. 260, 7 Sup. Ct. Rep. 548, in regard to goods imported in 1878 and 1879, relied upon by the plaintiffs, do not control the present

case.

In Arthur v. Davies the articles in question were suspenders or braces, made of India rubber, cotton, and silk, cotton being the component material of chief value, and suspenders or braces made of India rubber, cotton, and silk, cotton being the component material of chief value, a few threads of silk being introduced for purposes of ornament. It was held that the goods were dutiable under section 22 of the act of March 2, 1861, (12 St. p. 191,) which imposed a duty of 30 per cent. on "braces, suspenders, webbing, or other fabrics, composed wholly or in part of India rubber, not otherwise provided for," and to an additional duty of 5 per cent. ad valorem imposed on the same articles by section 13 of the act of July 14, 1862, (12 St. p. 556,) and not to a duty of 50 per cent. ad valorem, imposed by section 8 of the same act, (12 St. p. 552,) on manufactures of India rubber and silk, or of India rubber and silk and other materials." This was held on the ground that, if the articles were technically and commercially braces and suspenders, composed in part of India rubber, they took their dutiable character from that source.

In Beard v. Nichols the goods were webbing made of India rubber, wool, and cotton, and were used for gores in making congress boots, and without the rubber would not have been adapted to that use. They were not wrought by hand nor braided by machinery, but were woven in a loom, and appear to have been substantially like the goods in question in the present case, made of worsted and India rubber. They were held to be dutiable at 35 per cent. ad valorem, under section 2504 of the Revised Statutes, Schedule M. "Sundries," (page 477,) which imposed that rate of duty on "braces, suspenders, webbing, or other fabrics, composed wholly or in part of India rubber, not otherwise provided for;" and not to a duty of 50 cents per pound, and, in addition thereto, 50 per cent. ad valorem, under Schedule L of section 2504, "Wool and Woolen Goods," (page 472,) as "webbings" of which wool or worsted was a component material. That decision was put upon the ground on which it is there stated that the decision in Arthur v. Davies had been put, namely, that, ever since 1842, webbing composed wholly or in part of India rubber had been a subject of duty eo nomine.

64

But the act of March 3, 1883, does not impose a duty on 'webbing composed wholly or in part of India rubber," as did subdivision 10 of section 5 of the act of August 30, 1842, (5 St. p. 555,) and as did Schedule C of section 11 of the act of July 30, 1846, (9 St. p. 44,) and as did section 22 of the act of March 2, 1861, (12 St. p. 191,) and as did section 13 of the act of July 14, 1862, (12 St. p. 556.)

By the act of March 3, 1883, Schedule K, a duty is imposed on webbings and gorings of which wool or worsted is a component material, without reference to

the fact whether the article contains India rubber or not; and by Schedule N of the same act a duty is imposed on webbing composed of cotton, flax, or any other materials, without reference to the fact whether it contains India rubber or not.

We are of opinion that the goods composed of worsted and India rubber were dutiable as gorings at 30 cents per pound, and, in addition thereto, 50 per cent. ad valorem, if they were known in this country, in trade and commerce, under the specific name of “goring;" that whether they were or not so known was, on the evidence, a question for the jury; that the court erred in not submitting that question to the jury; that the goods composed of cotton, silk, and India rubber were subject to a duty of 35 per cent. ad valorem; and that the court erred in directing a verdict for the plaintiffs.

The judgment is reversed, with a direction to grant a new trial, and to take further proceedings in conformity with this opinion.

(144 U. S. 601) MEYERHEIM et al. v. ROBERTSON.

(April 18, 1892.)

CUSTOMS DUTIES-CLASSIFICATION-LACES. Under Rev. St. U. S. § 2504, p. 462, Schedule C, laces made by machinery out of linen thread, and known as "torchons, were dutiable at 40 per cent. ad valorem, as "manufactures of flax," and could not be classed under Schedule C, p. 463, as "thread lace," dutiable at 30 per cent. ad valorem, which is always handmade.

In error to the circuit court of the United States for the southern district of New York.

Affirmed.

Wm. Stanley, S. G. Clarke, and E. B. Smith, for plaintiffs in error. Asst. Atty. Gen. Parker, for defendant in error.

Mr. Justice BLATCHFORD delivered the opinion of the court.

This is an action at law, brought in the superior court of the city of New York, in November, 1882, by Siegmund Meyerheim, William Kempner, and Henry Strahlheim, against William H. Robertson, late collector of the port of New York, and removed by the defendant into the circuit court of the United States for the southern district of New York, to recover $764.50, as an alleged excess of duties exacted on the importation of certain goods into the port of New York in the years 1881 and 1882. The case was tried before a jury in June, 1888, and a verdict rendered for the defendant, on which there was a judgment in his favor for costs.

The importation was of certain laces made by machinery out of linen thread, and with them certain laces of the same material, made by hand. The defendant assessed duty upon all the laces at 40 per cent. ad valorem under the provision of Schedule C of section 2504 of the Revised Statutes, (page 462,) which imposed that rate of duty on "flax or linen thread, twine, and pack thread, and all other manufactures of flax, or of which flax shall be the component material of chief value, not otherwise provided for." The plaintiffs claimed that the goods were dutiuble at only 30 per cent. ad valorem,

*602

88 thread lace and Insertings," under the same schedule, (page 463.)

After the suit was brought, the secretary of the treasury refunded to the plaintiffs all excessive sums exacted upon such of the above importations of laces of linen thread as were made by hand, leaving the controversy only as to those laces of linen thread which were made by machinery. All the laces, whether made by hand or machinery, were known, bought, and sold as "torchons, " and the issue presented was whether or not machine-made torchons were dutiable as "thread lace," or as "manufactures of flax, or of which flax shall be the component material of chief value, not otherwise provided for.'

The articles were made wholly of linen thread, and, therefore, of flax. It clearly appeared by the testimony of one of the plaintiffs that he never heard the machine made goods bought and sold as thread laces, but invariably as "torchons." The testimony on the part of the defendant was to the same effect, and showed that thread lace was always handmade.

The defendant requested the court to direct a verdict in his favor, while the plaintiffs claimed to go to the jury. A verdict for the defendant was directed, and the plaintiffs excepted.

We do not think there was any question for the jury on the evidence. Judgment affirmed.

(144 U. S. 647)

the legislature known as "No. 3 of 1874," at the rate of 60 per cent. of their valua tion. The petition of the plaintiff wasz filed in April, 1881, in the civil district! court of the parish of New Orleans, and set forth that he held, as assignee of the agent of Mrs. J. D. Wells and others, five bouds of the state, of $1,000 each, with coupons attached, dated August 1, 1864, payable 25 years after date, with 6 per cent. interest, payable semiannually; that these bonds were issued by the state at that date, under the law of February 8, 1864, and other laws, and were properly indorsed and assigned to the plaintiff, or the holders thereof; that they were legal and valid obligations of the state, were issued in strict conformity to law, and not in violation of the constitution of the state or of the United States, and were issued and transferred for a valuable consideration, and were entitled to be funded as such valid obligations; that the plaintiff desired and was entitled to have them funded under Act No. 3 of 1874, known as the "Funding Act, and to have them exchanged for consolidated bonds of the state, as provided in that act, at the rate of 60 per cent. of their valuation; and that he had presented the bonds for such funding and exchange to the board of liquidation, making an amicable demand of the board therefor, but that it had refused to fund them, and make the exchange.

"

The petition further set forth that the

SIANA. (No. 21.) (April 18, 1892.)

SUPREME COURT JURISDICTION-FEDERAL QUES

TION.

A decision by the supreme court of Louisiana that certain state bonds, issued in 1864, were invalid, because they were exchanged by the state authorities for sugar, instead of for state or Confederate currency, as required by the act authorizing their issuance, and that, therefore, the holder was not entitled to exchange them for consolidated state bonds, under the funding act of 1874, involved no federal question, and is not reviewable in the United States supreme court.

In error to the supreme court of the state of Louisiana.

Petition in the civil district court of the parish of New Orleans by B. J. Sage against the state board of liquidation of the state of Louisiana to have certain state bonds declared legal and valid, and exchangeable for consolidated state bonds, under the funding act of 1874. Judgment was rendered for defendant and affirmed by the state supreme court. 37 La. Ann. 412. Plaintiff brings error. Writ of error dismissed.

B. J. Sage and Chas. W. Hornor, for plaintiff in error. W. H. Rogers, Atty. Gen., for defendant in error.

Mr. Justice FIELD delivered the opinion of the court.

This was a suit against the board of liquidation of the state of Louisiana to compel it to fund certain bonds of the state held by the plaintiff, of August 1, 1864, and toɔ exchange them for its consolidated bonds, as provided in the act of

government of Louisiana in due course of administration and performance of governmental business, in paying for property needed to facilitate and aid civil operations, and that the transaction had no connection with contemporaneous mili tary affairs, and was in no wise touched or tainted with any Confederate cause, consideration, or motive; and that they were issued in proper form and by proper officers, according to law, sealed with the seal, and secured by the faith, of the state. The plaintiff therefore prayed that the board of liquidation might be cited, and that it be decreed that the bonds were legal and constitutional obligations of the state of Louisiana; that they were issued in conformity with law, and not in violation of state or federal constitution, and were given to the original holders for a valuable consideration, and were entitled to be funded and exchanged in conformity with Act No. 3 of 1874; and also for all orders, judgments, and decrees? that justice might require in the premises.

To the petition the board of liquidation appeared and answered by a general denial of its allegations. It also made special denial that the bonds were valid obligations of the state, and alleged that the parties who signed and issued them were not the authorized agents of the state; that the bonds were not issued for a valuable consideration; and that they were issued in violation of the constitution of the United States.

The statute No. 3 of 1874, referred to in the petition, enacted that the board of liquidation, which was created by it, should exchange the consolidated bonds