tent the act limits and modifies the act of 1831, now embraced in Revised Statutes, § 2461. It is equally clear that he is bound to act in good faith to the government, and that he has no right to pervert the law to dishonest purposes, or to make use of the land for profit or speculation. The law contemplates the possibility of his abandoning it, but he may not, in the meantime, ruin its value to others, who may wish to purchase or enter it. With respect to the standing timber, his privileges are analogous to those of a tenant for life or years. In this connection, it is said by Washburn in his work upon Real Property (1st ed.) vol. 1, p. 108: "In the United States, whether cutting of any kind of trees in any particular case is waste seems to depend upon the question whether the act is such as a prudent farmer would do with his own land, having regard to the land as an inheritance, and whether doing it would diminish the value of the land as an estate." "Questions of this kind have frequently arisen in those states where the lands are new and covered with forests, and where they cannot be cultivated until cleared of the timber. In such case, it seems to be lawful for the tenant to clear the land if it would be in conformity with good husbandry to do so, the question depending upon the custom of farmers, the situation of the country, and the value 498]of the timber... *Wood cut by a tenant in clearing the land belongs to him, and he may sell it, though he cannot cut the wood for purposes of sale; it is waste if he does." poses; that while they were at liberty to sell the timber so cut for the purpose of cultiva tion, they could not cut it for the purpose of sale alone. In other words, if the cutting of the timber was the principal, and not the incident, then the cutting would be unlawful, and the timber when cut became the absolute property of the United States. Their position was said to be analogous to that of a tenant for life, the *government holding the [499 title with the rights of a remainderman. In the courts of original jurisdiction, it has been uniformly held that a similar rule applied to homestead entries. United States v. McEntee, 23 Int. Rev. Rec. 368; United States v. Nelson, 5 Sawy. 68; The Timber Cases, 11 Fed. Rep. 81; United States v. Smith, 11 Fed. Fep. 493; United States v. Stores, 14 Fed. Rep. 824; United States v. Yoder, 18 Fed. Rep. 372; United States v. Williams, 18 Fed. Rep. 475; United States v. Lane, 19 Fed. Rep. 910; United States v. Freyberg, 32 Fed. Rep. 195; United States v. Murphy, 32 Fed. Rep. 376. This general consensus of opinion is entitled to great weight as authority. While we hold in this case that, as between the United States and the settler, the land is to be deemed the property of the former, at least so far as is necessary to protect it from waste, we do not wish to be understood as expressing an opinion whether, as between the seitler and the state, it may not be deemed the property of the settler, and therefore subject to taxation. Carroll v. Safford, 44 U. S. 3 How. 441 [11: 671]; Witherspoon v. Duncan, 71 U. S. 4 Wall. 210 [18: 339]; Kansas P. R. Co. v. Prescott, 83 U. S. 16 Wall. 603 [21: 373]; Un'on P. R. Co. v. McShane, 89 U. S. 22 Wall. 444 [22: 747]; Wisconsin Cent. R. Co. v. Price County, 133 U. S. 496 [33: 687]; By analogy we think the settler upon a homestead may cut such timber as is necessary to clear the land for cultivation, or to build | him a house, outbuildings, and fences, and, perhaps, as indicated in the charge of the court below, to exchange such timber for lumber to be devoted to the same purposes; but not to sell the same for money, except so far as the timber may have been cut for the purpose of cultivation. While, as was claimed in this case, such money might be used to build, enlarge, or finish a house, the toleration of such practice would open the door to manifest abuses, and be made an excuse for stripping the land of all its valuable timber. One GEORGE W. PATTON ET AL., Piffs. [500 A As the land in question continued to be "the land of the United States," within the meaning of section 2461, the first question must be answered in the negative and the second in the affirmative. in Err., v. UNITED STATES. man might be content with a house worth $100, land and of the rights of the settler, we think, While this question never seems to have arisen in this court before, in United States v. Cook, 86 U. S. 19 Wall. 591 [22: 210].-a suit in trover for the value of timber cut from an Indian reservation,-it was held that while the right of use and occupancy by the Indians was unlimited, their right to cut and sell timber, except for actual use upon the premises, was restricted to such as was cut for the purpose of clearing the land for agricultural pur (See S. C. Reporter's ed. 500-510.) manufacture of wool-Tariff Act of 1883. Wool tops broken up and prepared for spinning are not woolen waste dutiable only at ten cents per pound under the Tariff Act of 1883, but, being wool of the first class costing under thirty cents a pound and as such liable to a duty of ten cents a pound, are liable to treble that duty for being imported scoured, and to double that result, being sixty cents a pound, when their character or condition is changed for the purpose of evading the duty. note to United States v. 350 Chests of Tea, 6: 702. NOTE. As to lien of United States for duties, se As to action to recover back duties paid under protest; protest, how made, and its effect,-see note to Greely v. Thompson, 13: 397. 2. The term "woolen waste" in the absence of a or condition is changed, whether known commer- because they were imported scoured, and again doubled the result upon the ground that they had been changed in their character or condition for the purpose of evading the duty. This made the aggregate duty sixty cents per pound, which appears to have been greater than the whole value of the goods. To recover the difference paid upon the entry and the duty 4. Woolen waste artificially produced by the break-imposed by the collector, the United States ing up of wool tops cannot be considered a man- brought this suit. ufacture of wool, under the Tariff Act of 1883. 5. Wools which have, in fact, undergone the process of scouring, are properly classified as imported scoured, although they may not be known commercially as scoured wools. [No. 36.] Argued Oct. 16, 1895. Decided Nov. 11, 1895. IN ERROR to the Circuit Court of the United States for the Eastern District of Pennsylvania to review a judgment of that court affirming a judgment of the District Court in favor of the United States, plaintiff, against George W. Patton et al., defendants, for duties due on imported goods entered by the importer as wool waste. Affirmed. Statement by Mr. Justice Brown: Upon trial before a jury, the court charged that the importation in question could not be considered as wool waste, as it did not consist of refuse or broken particles thrown off in the process of manufacture, and was made intentionally by tearing up what are called "wool tops," which consist of wool which has been subjected to several processes, and prepared for spinning; and that it could not be consid ered as a manufacture of wool; and hence the court left it to the jury to say whether the wool was imported scoured, and in a condition other than that in which such wool was customarily imported in March, *1883, and previous [502 ly. The court expressed the opinion that the plaintiff was entitled to recover the amount of the duties assessed, but submitted the case to the jury upon the evidence. The jury found a general verdict for the This was an action by the United States in plaintiff in the sum of $10,887.26, and further the district court against the importing firm of found, in answer to a special question subGeorge W. Patton & Co. to recover certain mitted to them by agreement, "that the tops duties claimed to be due on thirty-three bales which were broken into fragments constituting of merchandise entered by the importers as this importation were so broken for the pur"wool waste," and claimed by them to be du- pose of changing the condition of the wool from tiable at ten cents per pound under the follow-tops into the fragments resembling waste for the ing clause of schedule K of the Tariff Act of 1883: "Woolen rags, shoddy, mungo, waste, and flocks, ten cents per pound." At the time of the importation (November, 1888) the duties were accordingly assessed and paid at this rate. The appraiser subsequently returned the goods as scoured wool, broken tops, class 1, Costing under thirty cents per pound in the 501] unwashed condition, sixty cents *per pound." The collector accordingly fixed the duty at sixty cents per pound, under the following paragraphs of the Act (22 Stat. at L. 508): "All wools shall be divided for the purpose of fixing the duties to be charged thereon, into the three following classes: "Class one, clothing wools-that is to say, • merino wools," etc. "The duty on wools of the first class which shall be imported washed shall be twice the amount of the duty to which they would be subjected if imported unwashed; and the duty on wools of all classes which shall be imported scoured shall be three times the duty to which they would be subjected if imported unwashed." The duty upon wool which shall be imported in any other than ordinary condition, as now and heretofore practiced, or which shall be changed in its character or condition for the purpose of evading the duty shall be twice the duty to which it would be otherwise subject." The collector first imposed a duty of ten cents a pound upon this as wool of the first class costing under thirty cents per pound in the unwashed condition, then trebled this duty, purpose of evading the duty to which the wool in the form of tops would be subjected on importation into this country, or evading duty to which the importers believed the tops would be liable." Judgment having been entered upon this verdict, defendant sued out a writ of error from the circuit court of the United States, which affirmed the judgment of the court below. Defendants thereupon sued out a writ of error from this court. Messrs. Frank P. Prichard and John G. Johnson for plaintiffs in error. Mr. Edward B. Whitney, Assistant Attorney General, for defendant in error. Mr. Justice Brown delivered the opinion of the court: 1. The first assignment of error is that which is taken to the instruction to the jury that the importation in question, though called wool waste, seems to be so called only because of its resemblance to what was formerly known by this designation; that it does not consist of refuse or broken particles thrown off in the process of manufacture, but is made intentionally by tearing up what are called "wool tops," which consist of wool which has been put through several processes and prepared for spinning, and that the term "waste" did not embrace this commodity. The correctness of this instruction turns upon the meaning of the words "woolen [503 waste," as used in the Act of 1883. As bearing upon this, we are at liberty to consider its ordinary definition, which will be controlling, except so far as it may be varied by a commercial designation obtaining at that time. Saltonstall v. Wiebusch, 156 U. S. 601 [39: 549]. Waste is defined by Webster as "that which is of no value; worthless remnants; refuse. Specifically: remnants of cops, or other refuse resulting from the working of cotton, wool, hemp, and the like, used for wiping machinery, absorbing oil in the axle boxes of railroad cars, etc." In this connection, and in the same clause of the statute, other words are included, undoubtedly referring to articles of the same or of a similar nature. These are "rags; shoddy," defined as a fibrous material, obtained by 'deviling' or tearing into fibers, refuse woolen goods, old stockings, rags, druggets, etc.;" mungo," which properly signifies the disintegrated rags of woolen cloth, as distinguished from those of worsted, which form shoddy; and "flocks," defined as "woolen or cotton refuse, old rags, etc., reduced to a degree of fineness by machinery, and used for stuffing upholstered furniture:" and also as very fine sifted woolen refuse, especially that from shearing the nap of cloths, used as a coating for wall paper to give it a velvety or clothlike appearance." The prominent characteristic running through all these definitions is that of refuse, or material that is not susceptible of being used for the ordinary purposes of manufacture. It does not presuppose that the article is absolutely worthless, but that it is unmerchantable and used for purposes for which merchantable material of the the same class is unsuitable. waste in this country, the price of tops became so low and the price of waste so high that the deliberate breaking up of tops began for the purpose of exporting them to America as waste, though there is no evidence of any importation of this character prior to 1887. The discovery that the tops thus broken up might be entered at the American customhouses as waste produced such a sudden demand for exportation that while the amount declared at the American consulate at Bradford, the center of this trade, for the last two months of 1887, and the first two months of 1888, was only 190,088 pounds, for the corresponding months of 1888 and 1889 it rose to 1,803,558 pounds. " It appeared, from the evidence, that the waste, whether intentionally or unintentionally produced, was an article having different qualities from the merchantable wool, and was used as an adulterant. It is, however, used like other scoured wool, being mixed with it in the carding machine, and is worth only ten or fifteen cents less per pound *than scoured [505 wool of the same character; and hence, in view of the difference in tariff rates, is an article of much more value than scoured wool for the purposes of importation. While these broken tops became a large import under the designation of waste, they never seem to have been prepared in this country for the purposes of sale, the tops being much more valuable in their unbroken condition; while in England, in 1888, the broken tops were more valuable than the unbroken ones. The testimony upon The importation in question consisted of both sides indicates that this artificial kind of wool which had been scoured, then carded waste is, for obvious reasons, more uniform and prepared; then put upon a comb, from and clean, and therefore more valuable, than which it comes in long lengths, known as sliv-genuine waste. It was not disputed that the ers or slubbing. It is then put through a process called gilling, which forms the slivers into a less number of slivers of greater thickness. These slivers are then taken into the drawing room and finished, from whence they come out in the form of round balls, called "tops.' These tops become new articles of merchandise, which are sold to the spinners who spin them into worsted yarn. importations in question consisted of tops deliberately broken up for the purposes of sale. The main question is whether the action of the collector was correct in refusing to allow them to be entered under the denomination of ' waste." 64 If the ordinary definition of "waste," as refuse matter thrown off in the process of manufacture, is to control, it is quite clear that the importations in question are not susceptible of this meaning. The common definition of "waste" lends no support to the theory of the defendants. 504] *In the process of making the tops, short ends of wool are produced, which are called and sold in the trade as "Botany laps" or "Botany waste," the two terms being synonymous in the English market. After the top is With regard to its commercial designation produced, it sometimes happens that it is there was undoubtedly some testimony tendshorter in staple than was anticipated, or not ing to show that, in England, merchantable of the proper color, or that it has to be re- tops broken up for the purpose of exportation carded to get out the burrs, or for some other had acquired the commercial designation of reason it becomes unmerchantable. In such waste, or more properly, "broken top waste;" cases, it has always been the practice in Eng- that the importations in question were ordered land to break up the tops as unfit for ordinary by the defendants under the latter designation, use, and in that condition they are sold for and that such waste was preferred to the ordithe same purpose as wool waste, and are nary waste or refuse, because the latter had known and sold commercially as Botany laps too much slubbing. This designation, howor Botany waste. It was not claimed, however, was confined to such waste as had been ever, that they formed a recognized article of commerce in this country, or to any great extent in England. At and prior to 1883, there was no quotable market price for waste, for the reason that the manufacture was not large, though it was bought and sold to a certain extent on its merits upon the market. In 1887 or 1888, owing to the depression of the wool trade in England, and the demand for purchased since 1887, and threw no light upon the commercial designation of the article in question at or prior to March, 1883. There is little or nothing to indicate that the practice of breaking up merchantable tops for export prevailed in England prior to 1887, when the attention of wool dealers there seems to have been called to the profits that could be made by exporting broken tops to America. There were, however, several witnesses produced by 506]the defense, who were *residents of the United States, and who swore that the article in question had been known in this country as top waste since 1866, and that there was no difference in the commercial designation of the article, whether it was intentionally or unintentionally produced. In this connection, we are referred by counsel for defendants to two cases which are sup posed to justify the inference that imported merchandise may be treated in such manner as to change its classification, even though such change were made for the purpose of securing its importation at a lower rate of duty. In the first of these cases (Merritt v. Welsh, This must, however, be taken in connection 104 U. S. 694 [26: 896]) certain sugars were with the undisputed testimony that merchanta- given an artificial color in the process of manble tops had never been broken up in Eng- ufacture. The sole test of their dutiable qualland to form waste prior to 1887 or 1888, ity was their actual color, as graded by the when the attention of dealers was first directed Dutch standard. It had been decided that to the profits which could be made by import- this meant the color of the sugar obtained by ing them into this country under that denomi- the ordinary process of manufacture, and that nation. The witnesses upon cross-examination any means used to degrade the color after such admitted that they had never known of mer- process was a fraud upon the revenue. As no chantable tops being broken up and imported proof was offered to show that they were artihere as waste prior to 1887, and their testi- ficially colored after the manufacture was mony, so far as it bears upon preceding years, completed, the court instructed the jury to indicates that the top waste referred to was find a verdict for the plaintiffs. The real that produced by the breaking up of discolored question was whether (supposing that sugars or otherwise unmerchantable tops, the product were not artificially colored for the purpose of of which was known commercially and prop-avoiding duties after being manufactured> erly as waste or top waste. In short, the testi- their dutiable quality was to be decided by mony upon this subject falls far short of estab- their actual color or by their saccharine lishing a commercial designation applicable to these articles with the certainty, uniformity, and generality required by the decisions of this court. Maddock v. Magone, 152 U. S. 368, 371 [38: 482, 483]: Berbecker v. Robertson, 152 U. S. 373, 377 [38: 484, 485]; Sonn v. Magone, ante, 203. In default of such evidence, the term will be presumed to have been used in the Tariff Act in its ordinary sense of refuse. Swan v. Arthur, 103 U. S. 597 [26: 526]; Schmieder v. Barney, 113 U. S. 645 [28: 1130] Taking the testimony altogether, we think there was no such evidence of a commercial designation of the articles in question as made it incumbent upon the court to submit the question to the jury. strength. It was decided that as the Dutch standard was a color standard only, even if the sugars had been manufactured in dark colors on purpose to evade our duties, the entry at a reduced value was nevertheless lawful, and that the remedy lay with Congress alone. *In the second case (Seeberger v. Far [508 well, 139 U. S. 608 [35: 297]) this court held that certain manufactures of wool, into which a few threads of cotton has been introduced for the purpose of securing the classification of the goods at a lower rate of duty, were properly subject to classification at that rate, although the quantity of cotton was so small as not to materially change the character of the goods as merchandise, the court observing that "Congress having made special provision for a lower rate of duty upon goods when composed in part of wool, without naming how much of other material should enter into their composition in order to secure such lower rate facturers and importers had a right to adjust themselves to the foregoing clause of the tariff, and to manufacture the goods with only a small percentage of cotton, for the purpose of making them dutiable at the lower rate." In those cases, however, there was no such provision applicable to sugars or to woolen cloths as exists in this case, providing that where wool unmanufactured shall be changed in its character or condition for the purpose of evading duty a double duty shall be imposed. The object of this legislation seems to have been to make that unlawful with respect to raw wools which had been held to be legiti mate with respect to other articles. But had the evidence upon this point been much stronger than it was, it is difficult to see how it could avail the defendant in view of the clause that the "duty upon wool which shall be imported in any other than ordinary condition, as now or heretofore prac-of duty, the court was of opinion that manuticed, or which shall be changed in its character or condition for the purpose of evading the duty ... shall pay twice the duty to which it would otherwise be subject." Although it was sub507] mitted as a separate question *to the jury, the testimony was practically undisputed, that the articles in testimony were merchantable tops broken up for the purpose of changing their character or condition from that of tops to that of waste, and that it was done for the purpose of evading the duty to which the wool in the form of tops would be subject on importation, or at least to which the importer believed it would be liable. If such change were made, and made for this purpose, it would make no difference whether the article thus produced was known commercially as waste or not. Assuming that the product would be waste, it would be waste produced by a process which Congress had refused to recognize, and the fact that the classification of the article was thereby changed would not relieve it from the double duty which Congress had imposed upon wool whose character or condition had been changed. 2. We are also of opinion that the importations in question cannot be considered as manufactures of wool. Assuming that the tops, before being broken up, represented a stage in the process of converting the wool into cloth, which would entitle them to be considered as manufactures; if the tops be reconverted into wool, so that the process has to be gone through with again, the wool loses its character as a manufacture and resumes its character as wool, even though it acquires the new com-ject if imported unwashed; and the duty on mercial designation of waste. Waste in its or- wools of all classes which shall be imported dinary sense being merely refuse thrown off scoured shall be three times the duty to which in the process of converting raw wool into a they would be subjected if imported unmanufacture of wool, cannot be considered a washed." In short, the Act refers, not to the manufacture simply because it acquires a new commercial designation, but to the fact whether designation, and if it be artificially produced the wool has been actually scoured or washed, by the breaking up of tops it is with even less or is imported unwashed. If the wools have, reason entitled to be so considered. Unless in fact, undergone the process of scouring, they natural waste can be treated as a manufac- are properly classified as imported scoured, alture, artificial waste should not. though they may not be known commercially as scoured wools. There was no error in the rulings of the court below of which the defendant was entitled to complain, and the judgment of the court below is therefore affirmed. CHARLES THIEDE, Piff. in Err., v. UTAH. (See S. C. Reporter's ed. 510-523.) Law of Utah as to homicide-U. S. Rev. Stat. § 1033-disqualification of jurors—prejudice -circumstantial evidence-description of defendant-order of testimony-interpreter as a juror-general exception-charge to jury— exceptions, when too late. The law of Utah territory requiring, in cases 509] *The clause in the Tariff Act covering these manufactures imposed both a specific and an ad valorem du'y upon "woolen cloths, wool en shawls, and all manufactures of wool of every description." Applying the rule noscitur a sociis it can hardly be supposed that wool used for the purpose of waste and as an adulterant in the manufacture of cloths was to be included in the same designation as woolen cloths and shawls, which evidently refer to articles made of wool and having a separate PEOPLE OF THE TERRITORY OF designation of their own. But, however this may be, the article in question does not fall within the definition of manufactures as laid down by this court in numerous cases. Thus, in United States v. Potts, 9 U. S. 5 Cranch, 284 [3: 102], round copper bottoms turned up at the edge, not imported for use in the form in which they were imported, but designed to be worked up into vessels, were held not to be manufactured copper within the intention of the legislature. So,in Hartranft v. Wiegmann, 121 U. S. 609 [30: 1012], shells cleaned by acid, and then ground on an emery wheel, and some of them afterwards etched by acid, and intended to be sold for ornaments, as shells, were held to be "shells" and not "manufactures of shell." The question is fully discussed in Lawrence v. Allen, 48 U. S. 7 How. 785 [12: 914], in which, however, it was held that india rubber shoes made in Brazil by simply allowing the sap of the india rubber trees to harden upon a form were manufactured articles because they were capable of use in that shape as shoes. Indeed, this was the form in which such shoes were at first made. Finally, in Seeberger v. Castro, 153 U. S. 32 [38: 624], tobacco scrap consisting of clippings from the ends of cigars and pieces broken from tobacco of which cigars are made, in the process of such manufacture, not being fit for use in the condition in which they are imported, were held to be subject to duty as unmanufactured tobacco. This scrap is in the nature of waste, and the case is directly in point. of homicide, the testimony on preliminary exNOTE.-As to jurors,when disqualified and when not by reason of previously formed opinion. A juror forming impressions from reading newspapers, but swearing that he will be governed by the evidence alone, and can try the case impartially, is not incompetent in a homicide case. Com. (Pa.) 11 Cent. Rep. 183. Hall v. Opinions formed, but not of a fixed character, and which readily yield to evidence, do not disqualify the juror. McCarthy v. Cass Ave. & F. G. R. Co. 92 Mo. 536. defendant is guilty is sufficient, under the present statute, to sustain a challenge for actual bias, unless the court finds that he can and will, nevertheless, act fairly and impartially upon the matters to be submitted to him. People v. Brown, 72 Cal. 390. That a juror entertains a fixed opinion that the Hypothetical opinions entertained or expressed by a juror do not, as a rule, disqualify. State v. Bryant, 93 Mo. 273. On the voir dire examination of a juror, an answer by him to a hypothetical question of the dis trict attorney, that if the facts hypothetically 3. The remaining assignment is as to the charge of the court that, if this wool was imported scoured, and in condition other than that in which such wool was customarily imported in March, 1883, and previously, it fell within the provision of wool imported scoured. 510]There is abundance of testimony to the effect that the article imported was not known commercially as "scoured wool;" but in the view taken by the court below, which we think was correct, this was immaterial. The act does not impose a duty upon scoured wool as such by its commercial designation, but provides that "the duty on wools shall be imported washed shall be twice the It is a good cause for rejecting a juror that he amount of duty to which they would be sub-has opinions against hanging a man in any case stated were true he would not regard the defendant as innocent, shows no bias against the defendant. People v. Copsey, 71 Cal. 548. A juror in a criminal case cannot be challenged for cause because he has formed an opinion as to defendant's guilt or innocence, unless such opinion would disqualify him from rendering a verdict according to the evidence. State v. Vatter, 71 Iowa, 557. which Jurors who had formed an opinion based upon newspaper statements about the truth of which they had expressed no opinion, but who stated that they could determine the case upon the proof pre Ex parte Spies, 123 U. S. 131 (31: 80); State v. Bryant, sented, regardless of such opinion, are competent. 93 Mo. 273. |