Stearns, 19 Pick. 20; Nickerson v. Chase, 122 Mass. 296; Eddy v. O'Hara, 132 Mass. 56, 61; Pub. Stat. chap. 183, sec. 27." So in Farmers & M. Bank v. Franklin Bank, 81 Md. 404, the court, allowing a set-off which matured after action brought, said: "There is nothing in the attachment laws in this state to justify the conclusion that it was designed by allowing garnishment to be made to place the garnishee in a worse position in reference to the rights and credits attached than if he had been sued by the defendant. The attaching creditor seeks to have himself substituted to the rights of his debtor as against the garnishee, and by laying his attachment he acquires no superior right to that of his debtor. The right of condemnation must therefore be subject to any such right of set-off or discharge existing DANIEL MAGONE, Collector of the Port at the time of garnishment as would be available to the garnishee if he were sued by the defendant. Any other rule would in many cases work gross injustice and might be subject to great abuse. . . . This right of set-off 622] or discharge, and *as against the attaching creditor, should not, however, extend to any matter originating by the action of the garnishce subsequent to garnishment, as otherwise it would be in the power of the garnishee to defeat the right of condemnation, which should not by any means be allowed." In the first of the above cited cases the liability of the garnishee was conditional and undeterminate at the time of the service of the garnishment process, and his right to claim against the principal debtor did not become fixed until long after the service of process, so that the garnishee had no cause of action against the principal debtor when the attachment writ was served. Also in each of the other cases the set off allowed matured after the service of garnishment, but arose under a contract entered into before the service of the writ. In other words, the principle established by these cases is that whatever rights the garnishee may have under existing contracts with the principal debtor, he is entitled to have the benefit thereof as against the attaching creditor. The latter clause of the quotation from the case of Farmers & M. Bank v. Franklin Bank, supra, lays down the correct rule to be applied in cases of this character, and that rule is, that while the garnishee may not, after service of the writ, by his own action acquire set-offs or counterclaims against the principal debtor to the prejudice of the attaching creditor, he may properly avail himself of all claims fairly aris ing out of contracts with the principal debtor which were in existence when the attachment was commenced, and under or out of which bis claim against the principal debtor arises. From the foregoing considerations we think the court below should have ascertained the damages growing out of the failure to perform the rail contract on the part of the St. Louis Company, and having ascertained the amount of such damages the same should have been allowed the complainant as a set-off against the sum of $16,473.28, found to be due from it to the St. Louis Company, and for which the garnishee order or judgment was rendered; and if 623] that adjustment left *any balance due the complainant from the St. Louis Company, 1. 2. of New York. (See S. C. Reporter's ed. 623-627.) Tariff Act-commercial designation. A specifie description of goods in a Tariff Act will prevail over a more general description in determining the duties to be imposed. The commercial designation of an article is a question of fact for the jury. [No. 291.] Argued March 15, 1894. Decided April 9, 1894. IN ERROR to the Circuit Court of the United States for the Southern District of New York, to review a judgment for defendant, Daniel Magone, Collector, in an action brought by William B. Bogle et al., against said defendant, to recover back an excess of duties exacted and paid upon imported goods. versed, with directions for a new trial. See same case below, 40 Fed. Rep. 226. Re Statement by Mr. Justice Gray: This was an action, brought May 23, 1888, against the collector of the port of New York, after due protest and appeal, to recover back an excess of duties exacted and paid upon goods imported and invoiced by the plaintiffs in 1886 and 1887 as "fish pastes," and which they contended should have been assessed as "fish, prepared or preserved," twenty-five per cent ad valorem, but which the defendant assessed as "sauces," thirty-five per cent ad valorem, under the Tariff Act of March 3, 1883, chap. 121, Schedule G, of which im pcses the following rates of duty: "Anchovies and sardines, packed in oil or otherwise," in small tin boxes, certain rates varying from ten to two and a half cents per box, according to its size; "when imported in any other form, forty per centum ad valorem. Fish preserved in oil, except anchovies and sardines, thirty per centum ad valorem. "Salmon, and all other fish, prepared [624 or preserved, and prepared meats of all kinds, not specially enumerated or provided for in this Act, twenty-five per centum ad valorem. NOTE. As to lien of United States for duties, see note to United States v. 350 Chests of Tea, 6: 702. As to action to recover back duties paid under protest; protest, how made, and its effect, see note to Greely v. Thompson, 13: 397. "Pickles and sauces of all kinds, not other- | dinary use of the term 'sauces' included the wise specially enumerated or provided for in articles in suit." 40 Fed. Rep. 226. this Act, thirty-five per centum ad valorem." 22 Stat. at L. 503, 504. At the trial, one of the plaintiffs, who were importers of fancy groceries at New York, testified that the goods in question (samples of which were produced in court) were imported as anchovy paste" and "bloater paste." The definition in Webster's Unabridged Dictionary of "sauce," as "A mixture or composition to be eaten with food for improving its relish; a relishing condiment; appetizing addition to the principal material of a dish," being read to him, he testified that the word had a significance in the wholesale commerce of this country in 1883 and theretofore, differing from the definition read; that the commercial meaning of a sauce was a liquid, and that was the only particular in which it varied from the definition read; and that anchovy paste or bloater paste, such as represented by the samples, was not recognized in trade or commerce in 1883 and prior thereto as a sauce. On cross-examination, he testified that he understood the sense of the dictionary definition of sauce to be "anything used as a relish, either liquid or solid, as an addition to the food;" that these articles were used as food, principally in sandwiches, or like potted meats or deviled meats; that “anchovy paste" was manufactured out of anchovies, and "bloater paste" out of bloaters; that these were the only names by which they were known in trade and commerce in and before 1883, as well as since; that they had a fish taste; and that no part of each fish could be distinguished, but all was ground up fine, and spiced. A verdict was returned accordingly, and judgment entered thereon; and the plaintiffs tendered a bill of exceptions, and sued out this writ of error. Mr. Everit Brown for plaintiff in error. Mr. Edward B. Whitney, Assistant Atty. Gen. for defendant in error. Mr. Justice Gray delivered the opinion of the court: The word "sauce," as commonly used, designates a condiment, generally, but not always of liquid form, eaten as an addition to and fogether with a dish of food, to give it flavor and make it more palatable; and is not applied to anything which is eaten, alone or with a bit of bread, either for its own sake only, or [626 to stimulate the appetite for other food to be eaten afterwards. For instance, cheese eaten with bread, or ham or chicken eaten in a sandwich, or anchovies or herrings, caviare or shreds of salt fish, eaten, whether with or without bread, as an appetizer before a meal, would hardly be called a sauce. In the dictionary of Webster, referred to at the trial, the primary definition of "sauce" is accordingly given as "A mixture or composition to be eaten with food for improving its relish; a relishing condiment; appetizing addition to the principal material of a dish. In a later edition, there is given, by way of additional definition, Stewed or preserved fruit, eaten with other food as a relish; as upple sauce, cranberry sauce, etc." In the Tariff Act of 1883, the clause relating to "sauces of all kinds" (unless affected by other clauses in the Act or by commercial us age) may well be held to include all substances, whether solid or liquid, fairly coming within either of these two definitions. But the second definition has no application to the present case. an Three other importers and sellers of fancy groceries at New York, called as witnesses for the plaintiffs, testified that the term "sauces,' as used in trade in and before 1883, had reference to liquids only, and did not include solids; and that the goods in question were not commonly known as sauces. One of them testified that each of these pastes was used as a direct The three clauses mentioned in argument as 625] *article of food, and not as an addition possibly applicable to the goods in question, to anything to give zest to it, and was used only are arranged in the Act in a natural order bein a distinct form, as in a sandwich or the like, ginning with the most specific and restrictive, and on cross-examination testified that "he had and ending with the most general; first, often eaten the same articles as those in suit chovies," "imported in any other form" than with a cracker or a cake, eating the paste alone" packed in oil or otherwise," in small tin first and the cracker afterwards-probably within thirty seconds after-as soon as he was able to swallow." The two other witnesses testified that it had a spicy flavor, and would induce hunger and thirst, and was used as an appetizer before a meal. The witnesses also testified that they dealt in the article known as anchovy sauce" or "essence of anchovies,' which was a liquid, and altogether different from these pastes, and never eaten alone or as an addition to bread, but as a condiment. boxes, forty per cent ad valorem; then, "all other tish, prepared or preserved," "not specially enumerated or provided for in this Act," twenty-five per cent ad valorem; and lastly, "sauces, of all kinds, not otherwise specially enumerated or provided for in this Act," thirty-five per cent ad valorem. 22 Stat. at L. 503, 504. Any article which comes within two or more of these descriptions must therefore be assigned to the earlier one. Homer v. Austin, 68 U. S. 1 Wall. 486 [17: 688]; Reiche v. Smythe, 80 U. S. 13 Wall. 162 20: 566]; Secberger v. Cahn, 137 U. S. 95 [34:599]; American Net & T. Co. v. Worthington, 141 U. S. 468 [35: 821]. At the close of the plaintiffs' evidence, the court, upon motion of the defendant, directed a verdict for him, upon the grounds that "the plaintiffs had not proved facts sufficient to entitle them to recover;" that "the term At the trial, the plaintiffs in:roduced evi'sauces of all kinds,' in the Tariff Act, was dence that the goods in question were manua descriptive term of ordinary use, to be taken factured out of anchovies or *bloaters, [627 in its ordinary meaning, and not in any re-ground up and spiced, were used as food, in a strictive or trade meaning," and that "the or-distinct form, or as an appetizer, principally in a sandwich, or sometimes with a cracker, and not as a condiment; and were specifically known as "auchovy paste" and "bloater paste:" and that, in trade and commerce in 183 and previously, the word "sauces was applied to liquids only, and not to these pastes. The circuit court, in directing a verdict for the defendant, ruled, in substance, that, as matter of law, and without regard to comercial usage, these articles came within the words sauces of all kinds" in the Tariff Act. We are unable to concur in that view; or to Bay, either of our judicial knowledge, or in view of the evidence introduced, that these articles are necessarily “sauces of any kind; still less, that this is so clear as to exclude the usual test of commercial designation. Cadwiader v. Zeh, ante, p. 115. " On the contrary, we are of opinion that the evidence of the nature and the use of these articles, and of their commercial designation, would have warranted a jury in finding that they were not " sauces," and were "fish preserved or prepared." If that fact were proved it would follow that, as such, the bloater paste, at least, was subject to the duty of only twenty-five per cent ad valorem; but a question might arise, which does not appear to have been considered at the trial, whether the an chovy paste was not subject to a duty of forty per cent ad valorem, under the earlier and more specific clause of the act, as "anchovies" "imported in any other form" than packed, inil or otherwise, in small tin boxes. Judgment reversed, and case remanded to the circuit court with directions to set aside the verdict and to order a new trial. IN ERROR to the Circuit Court of the United States for the District of Massachusetts, to review a judgment for the plaintiffs, Ed. ward T. Russell et al., against Leverett Saltonstall, Collector of Customs, defendant, for duties illegally exacted and paid under protest upon imported goods. Recersed, with direc tions to render judgment for defendant. Statement by Mr. Justice Gray: This was an action, brought May 15, 1888. against the collector of customs for the Port of Boston and Charlestown, to recover back duties exacted by him, and paid under protest, upon blueberries imported by the plaintiffs from New Brunswick, No answer was filed. But the case was submitted to the decision of the circuit court upon a statement of facts, in which it was agreed that the regulations of the Treasury Department might be referred to, and that the court might enter judgment as the law required upon the facts stated, which were in substance as follows: On October 22, 1887, the plaintiffs imported from New Castle, in the province of New Brunswick, into the port of Eastport, in the state of Maine, upon the stena sp Cumberland, running regularly between St. John, N. B., Eastport, and Boston in the state of Massachusetts, five hundred cases of canned blueberries, consigned to John Thompson, the master of the steamship, to be by him entered at the custom house at Eastport, and thence to be immediately transported in *bond to 629 the port of Boston, consigned to the plaintiffs: and the goods were duly entered by him, as agent of the plaintiffs, at the custom house at Eastport, Mr. Justice Jackson did not hear the ar- for warehouse and immediate transportation, gument, and took no part in the decision of without being removed from the steamship. this case. On the same day, the duties were assessed by the collector at Eastport, and the amount of duty fixed at $144, being twenty per cent of $720, the value of the blueberries, cases, cans, and cost of packing, added together, that being the amount of the entered value, as stated in the invoice. The value of the blueberries was $315, the value of the coverings $50, and the cost of packing them $75. The cases were 628] *LEVERETT SALTONSTALL, Collector of Customs for the Port of Boston and Charlestown, Piff. in Err., v. EDWARD T. RUSSELL ET AL. (See S. C. Reporter's ed. 628-633.) Case submitted upon agreed facts-duties, where made of wood; each case contained twenty to be paid--protest. [No. 314.] four cans, made of tin; and each can contained one and a half pounds of blueber ics. Both the cases and the cans were the usual and neces sary coverings of such goods, and were not of any material or form designed to evade duțies thereon, nor designed for use otherwise thau in the bona fide transportation of the goods to the United States. The goods were immediately transported by ination of the goods by the United State, apthe same steara-hip to Boston. Upon exam praisers in Boston, they reported to the defindant that the dutiable value of the same was $315, being the cost of the blueberries, with out including the value of the coverings, or the cost of packing them; and the defendant wrote to the collector at Eas' port, calling his Submitted March 22, 1894. Decided April attention to the fact that he had included th 9, 1894. NOTE.-As to lien of United States for duties, see note to United States v. 350 Chests of Tea, 6: 702. 48 to action to recover back duties paid under protest: protest, how maite, and its effect, see note to Greely v. Thompson, 13: 397. value of the coverings in his assessment; but be refused to correct it. Thereupon the defendant reported the case to the Secretary of the Treasury, informed the collector at Eastport of the fact, and meantime suspended the entry. On November 11, 1887, the Secretary of the Treasury wrote a letter to the collector withdrawn; and they may be withdrawn for at Eastport, instructing him to make the cor rection. consumption within one year from the date of original importation on payment of the duri 9 On November 18, 1887, the plaintiffs entered and charges to which they may be subject by the goods at the custom house in Boston for law at the time of such withdrawal, or after rewarehousing and withdrawal; the defendant that time and within three years from such as essed the duties thereon, for the same date on payment of the duties assessed on the amount and made up of the same items as the original entry and charges, and ten per cent collector at Eastport; and exacted payment of additional. Rev. Stat. 9962, 2970, BECI, the same from the plaintiffs. They contended 3001; Tremlett v. Adams, 54 U. S. 13 How. 630] *that the merchandise was subject to a 2:5, 303 [14: 152, 153]; Fw'dai v. Murphy, 95 duty of twenty per cent of the value of the blue U. S. 191 [24: 468]; Weston v. United States, berries, not including the value of the boxes and 85 U. S. 18 Wall. 322 [21: 763]. For the same cans, or the cost of packing; and paid the assess purpose, provision has been made by winch ed duties to the defendant under protest; and, merchandise imported at cervain ports, any -urbeing dis-atisfied with his decision, on the same ing to be consigned to one of the ports anter day gave to him, and mailed to the collector wards named in the stated, may be entered for at Eastport, notices thereof in writing, setting warehouse and immediate trasportation, i forth distinctly and specifically the grounds examined and the dutiesestimated at the pory of of their objection, and appealed to the Secre- first arrival, but the app raisement and Legii 'ntary of the Treasury, who declined to enter-tion of duties made at the port of destination. tain the appeal, on the ground that the protests, Rev. Stat. §§ 2890–2997; Acts of June 10, 1880, had not been seasonably filed, but athrmed the assessment by the collector at Eastport; and the plaintiffs seasonably brought this suit to recover the sum of $81, exacted and paid upon the coverings and cost of packing. Upon the agreed statement of facts, the circuit court gave judgment for the plaintifis; and the defendant sued out this writ of error. chap. 120 (21 Stat. at L. 174: February 24, 1887, chaps, 215, 218 (21 Stat. at 1.. 411, 4'4). But the goods in question were not deposited in or withdrawn from a bonded warehouse; nor is Eastport one of the ports at which goe is can be imported and shipped through without apprais ment. It follows that article 721–725, 740 and 743 of the Treasury Regulations of 1884, cited by the importers, have no applica port was the final ascertainment and liquidu Mr. Edward B.Whitney, Assistant Atty. tion to the case; and that the assessment at EastGen. for plaintiff in erior. Mr. Frederic Cunningham for defend-tion of the duties upon these goods. That such ants in error. Mr. Justice Gray delivered the opinion of the court: The case having been submitted to the cir cuit court upon a statement of facts agreed by the parties, or case stated, upon which the court was to render such judgment as the law required, all questions of the sufliciency of the pleadings were waived, and the want of an answer was immaterial; and no finding of facts by the court was necessary. Willard v. Wood, 135 U. S. 309, 314 34: 210, 213]; Bond v. Dustin, 112 U. S. 604, 607 [23: 835, 836]. It is conceded that the duties complained of were illegal, in view of the decision of this court in Oberteuffer v. Robertson, 116 U. S. 459 [29: 706], and that the only question in the case is whether protest should have been made, under sections 2931 and 3011 of the Revised Statutes, within ten days after the liquidation of the duties at Eastport. was the opinion of the Treasury Department appears from its having addressed its [632 letter of instructions for the correction of the assessment, not to the defendant, but to the Eastport collector, as well as from the reasons which it gave for disallowing the appeal of the importers. And we have been referred to no Act of Congress, Treasury regulation or judicial decision, which warranted a new assess ment of the duties upon these goods by the defendant at Boston. See Spring v. Russell, 1 Low. Dec. 258. But this suit of the importers against him clearly comes within section 3011 of the Revised Statutes, as amended by the Act of February 27, 1877, chap. 69, which provides that any person who shall have made payment, under protest, and in order to obtain possession of merchandise imported for him, to any col lector, or person acting as collector, of any money as duties, when such amount of davies was not, or was not wholly authorized by la»," may maintain an action "to ascertain L..C validity of such demand and payment of duties, and to recover back any excess so pain;" but that "no recovery shall be allowed in such action, unless a protest and appeal shall have been taken as prescribed in section 2931." 19 Stat. at L. 247. 631] *By the customs acts of the United States, except as otherwise expressly provided. duties on imported goods are to be assessed and paid at the first port of entry. United States v. Vowell, 9 U. S. 5 Cranch, 368 [3: 128]; Mee dith v. Uniti Stairs, 38 Ú. S. 13 Pet. 46, 491 [10: 258, 262]; Hortianjt v. Oliver, 125 Ú. S. 52531:813]. For the purpose of encouragi.g By section 2931, here referred to, the de and facilitating commerce, by exempting the cision of the collector of custons at the port of importer from the payment of dat es until he importation and entry, as to the rat and is ready to bring his goods into market, pro amount of duties to be paid" on merekam ise vision has been made by which the goods may and the dutiable costs and charges thereon, be entered for the warehousing and deposited "shall be final and conclusive against all porin a bonded warehouse in the district of entry, sons interned therein," unless the importer and may be transported to a bonded warehouse shall, within ten days after the ascertainment in any other collection district, and the pay- and liquidation of the duties by the proper meut of duties postponed until the goods are, oflices of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall, within thirty days after the date of such ascertainment and liquidation, appeal therefrom to the Secretary of the Treasury." By virtue of this section, Eastport being "the port of importation and entry" of these goods, the decision of the collector at that port, as to the 633] rate and amount of duties to be *paid, was "the ascertainment and liquidation of the duties by the proper officers of the customs;" and the plaintiffs, not having given notice in writing of their objection to that decision within ten days thereafter, cannot maintain an action to recover back the whole or any part of the duties paid. The conclusion, which appears to be required by the terms of the statutes, is the only one consistent with the decision of this court in Merritt v. Cameron, 137 U. S. 542 [34: 772]. It was suggested, in the brief in behalf of the importers, that the collector had no jurisdiction or power to assess a duty upon the coVerings; the liquidation was void, just as if the collector undertook to assess a duty upon domestic goods; the appraisement was void; and in such a case section 2931 of the Revised Statutes does not apply, and no protest is necessary; because there has been no valid liquidation.' In support of this suggestion were cited Oberteuffer v. Robertson, 116 U. S. 499 [29: 706]; Badger. Cusimano, 130 U. S. 39 [32: 8511; Robertson v. Frank Brothers Co. 132 U. S. 17, 24 [33: 236, 238]; United States v. Thurber, 28 Fed. Rep. 56. But United States v. Thurber was an action by the United States to recover duties, and not an action against the collector to recover them back; in Badger v. Cusimano, and in Robertson v. Frank Brothers Co., protests had been made in due form; in Oberteuffer v. Robertson it was distinctly recognized that the proper remedy of the importer was by protest and appeal; and the statutes, as has already been seen, make such protest and appeal essential prerequisites to recovery in an action brought to ascertain the validity of the demand and payment of duties, and to recover back any excess so paid. See also Lawrence v. Cascell, 54 U. S. 13 How. 488, 496 [14: 235, 239]: Nicholl v. United States, 74 U. S. 7 Wall, 122 [19: 125]; Arnson v. Murphy, 109 U. S. 238 (27: 920], 115 U. S. 579 (29: 4911 Judgment reversed, and case remanded to thecircuit court with directions to render judgment upon the agreed statement of facts for the defendant. 634] S. B. BURCK, Appt., V. ABNER TAYLOR, (See S. C. Reporter's ed. 632-671.) 2. 3. 5. vention of a statute is void and cannot be enforced. Where in a contract with a state the contractor agreed not to assign the contract in whole or in part without the consent in writing of the state authorities, such agreement is binding not only upon the parties, but upon all others who seek to acquire rights in it. When rights arising out of contract are coupled with obligations to be performed by the contractor, and involve a relation of personal confidence, the contract cannot be assigned by him without the consent of the other party. When an executory contract is transferred to a third party who is accepted by the promisor in lieu of the original contractor, such third party enters upon the performance of the contract free from any disposition of the profits made by the original contract or before the substitution. Constructive notice of a contract cannot be implied from the fact of its record in the office of the clerk of the county, where there is no statute providing for such record. [No. 170.] Argued Dec. 15, 1893. Decided April 9. 1894. APPEAL from a decree of the Circuit Court trict of Texas, dismissing a suit in equity brought by S. B. Burck, plaintiff, against and to recover the plaintiff's share of the profits Abner Taylor, defendant, for an accounting of a contract made with the state of Texas, for the building of its capitol. Affirmed. of the United States for the Western Dis Statement by Mr. Justice Brewer: *On December 8, 1888, appellant filed [635 his petition in the district court of Travis county, Texas, to recover of defendant the sum of $231,417, alleged to his share of the profits of the contract made with the state of Texas for the building of its capitol. The suit thus commenced was thereafter removed to the United States Circuit Court for the Western District of Texas, and on October 7, 1889, upon leave obtained, the plaintiff filed an amended bill. To this bill, on November 4, defendant demurred. On March 4, 1890, the demurrer was sustained, and the plaintiff electing to stand upon his bill and declining to amend it, a decree was entered dismissing the same with costs. From such decree of dismis sal the plaintiff appealed to this court. matters set forth in the bill are as follows: On January 18, 1882, the state of Texas, by Joseph Lee and N. L. Norton, capitol commissioners, made and executed a contract with Matthias with the approval of O. M. Roberts, governor, Schnell for the erection of the capitol building, according to certain plans and specifications; Schnell to furnish all the material and do all the work, and the state, as the consideration therefor, to convey 3,000,000 acres of land. The 26th clause of the contract is as follows: "It is further agreed, covenanted and stipu The Contract, when void-agreement not to assign-lated by the party of the second part that this personal confidence-disposition of profits-contract shall not be assigned, in whole or in part, by the party of the second part without the consent in writing, of the party of the 1. As a general rule, a contract made in contra-first part, signed by the governor of Texas and constructive notice. NOTE.-As to contracts: their interpretation and | when independent, see note to Goldsborough v. |