IN RE AUSTIN.
873
and the act done on the Monday following, unless there is some statute providing that the Sunday should be excluded from the computation. Dorsey v. Pike, 46 Hun, 112; Pear-point v. Graham, 4 Wash. C, C. 232, 241; In re York, 4 N. B. R. 479, 482; Davies v. Miller, 130 U. S. 284, 287, 9 Sup. Ct. Rep. 560. In the law regulating bankruptcy proceedings, congress has provided (Rev. St. U. S. § 5013) that in the computation of time limited by such laws, or by orders of court thereunder, the last day shall be excluded when such day falls on Sunday, Christmas day, etc. If they had intended a similar rule to apply to the filing of protest under section 2931, they would have said so, and, in the absence of such provision of statute, the usual rule must apply. The unreported decision in the first circuit, cited on the argument by plaintiffs' counsel, does not apply. There the collector at the port of Boston closed his office on the 17th of June, which was not a dies non by federal law, and it was hf'ld that a filing on the ensuing day was timely. In that case he had arbitrarily made the filing of the protest impossible on a day when congress assumed it could be filed. But congress certainly did not suppose it could be filed on a Sunday, and, not having extended the time beyond such day, the court will not dOSG. n appears also that the practice of the treasury department has been uniform in rejecting all protests served on the eleventh day after the liquidation of the duties, where the tenth day has fallen on a Sunday. Syn. Tr. Dec. 3139. The action of the collector in rejecting this protest by the Normandie of February 6, 1889, must therefore be sustained.
In re
AUSTIN
etal. October 14,1891.)
(Circuit Court, S. D. New YO'I'k.
1.
CUSTOMS DUTIES-SWEET£:-iED CHOCOLATE.
as "cocoa * * * manufactured," and not under paragraph 318 as "chocolate, "it being specially excepted in the latter paragraph.
2.
SAME-PROTEST BY IMPOHTERS.
Importers are confined to such grounds of objection to the,payment of duties as are distinctly and specifically set forth in their protest or nctice in wl'iting to the collector, under section 14 of the act of June 10, 1890, entitfed" An act to simplify the laws in r.elation to the collection of the revenues. "
At Law. The firm of Austin, Nichols & Co. imported and entered at the port of New York on November 3,1890, certain "sweetened chocolate," upon which the collector levied and assessed duty at the rate of 50 per cent. ad valorem, as "chocolate confectionery, ",or assimilating thereto, under the provisions of paragraph 239 and seotion 5 of the tariff act of October 1, 1890. The importers protested, claiming: (1) That the merchandise was dutiable under paragraph 318, which reads as follows:
874
FEDERAL REPORTER,
vol. 47.
"OhOcolate, (other than,ehocolate confectionery and chocohtte commerciaHykh&wn as' sweetcnedchocolate,') two cents per pound." It was claimed:, by the importers that there was a mistake in the punctuation of this paragraph,and that the parenthesis was intended by congress to be plaeed after the word" confectionery," and not after the words "sweeteI1ed' chocolate;" and that, by a proper repunctuation of said paragraph, "sweeteried'cbocolate" should be included therein, and not' excluded therefrom. '(2) Or that said merchandise was dutiable under section 4 of the 'tatitr'act of October 1, 1890, at 20 per cent. ad valorem. as an "article manu.factured in'vvhole or in part, not provided for in this act." protest' 'contained no claim that the'merchandise was dutiable'ils 'lebcoa manufactured," ullder paragraph 319 of' said act. On appeal 'from the decision of the collector by the importers to the board of Uni'tedShitesgeneratappraisers, the decision of the collector was reversed. The board'of general appraisers held that there was an erwr 'inthe)unctu:ation of paragraph 318, as claimed by which th were al1thorized to correct, and,'mider such corrected punctuation, y ,H sweeteneqchocolate"; was, Syn. Tr. Dec. 10,919, ,G.' A. :414J.I ;,,'IThecolle0tor;appealed from the decision of the board of to thiEV6ourt,and the. return of said board was filed bn April 2S;'1891. Additidrml testimony was thereafter taken, under -order oFthe'6'otirli;before oneofsaid general appraisers, as an officer of 'thecdurt,under the of section 15 of said act of June 10,1890, by whicfl,among'other thil.1gs, it appeared that sweeteried chocolate'is manufactured from the cocoa beans, which are roasted, cracked, and the shells blown off, then crm:hf:)d and put in a mixer, where the sugar and vanilla, or other flavor, is added. From this mixer it passes into another machine, where it is ground once more by large granite rollers. From this machine it passes intQIl;lpotherone, GQntaining five large granite rollers, for the purpose of making it as fine as possible. After it has passed through machine!!,' it is put in forl11,cooled, wrapped, and packed. That the manufacture of unsweetened chocolate was by wl1elJ. ,the chocolate paste passes in!othe ,..irnx:er tbe sugl\ris OlUlttcd. That 'cocoa, prepared to be made mto a cocoa in the same manner as in beverage; is making chocolate, and pressing the uil or butter out. ,In the manufacture of cbocolat'6i:thebutterisnot &xtracted, Both chocolate and cocoa '4re made Elame"l'aW material.,'i. e., the cocoa bean. After the passage of the tariff act ·ofOctober 1,1890, in'its present form, a joint resolution was introduced in congress, to change paragraph 318 as, fol, . ' ,j Hesbl ved,by the and representatives of the j1nited St'ates ,ot America in congress assembled, that the act entitled' All act to j'educe the revenues and eqltalize the duties on imports, and for other purposes,' Japproved' Cj)ctober 1, 1890, be.. and ..thesame is hereby, amended as follows: I,n .318 insert, a parenth,e$is, ufter the word.' confectionery',' and stri\,eo,ut the the, w<'>.l'd ' chocolate,' where it last occUi'sin .the pa\'agl·aph. so include in only the words' other than chocolate conI ectionel'y.' .. ..
11\ RE H. B. CLAFUN CO.
875
This joint resolution passed the house of representatives, but failed to pass the senate. . Edward Mitchell, U. S. Atty., and Hem'Y C. Platt, Asst. U. S. Atty., for the collector. W. Wickham Smith, for importers. LACOMBE, Circuit Judge, (orally.) "Crude cocoa" is on the free-list, (paragraph 542.) "Cocoa manufilCtured," which is a very comprehensive term, apparently, is contained in paragraph 319. Cocoa, according to the testimony here, is manufactured into a substance known as "prepared cocoa;" also into a substance known as "chocolate;" and of chocolate we have information here of two varieties, "chocolate confectionery" and "sweetened chocolate." As manufactured cocoa, all these articles-prepared cocoa, chocolate, and its varieties-would be included. "Cocoa prepared" is expressly provided for in paragraph 319. "Chocolate confectionery" is expressly provided for in paragraph 238. "Chocolate" itself, excepting the confectionery and the sweetened chocolate, is specially provided for in paragraph 318. I find no provision in the tariff act for "sweetened chocolate," except in a parenthetical phrase, where it is excepted in the enumeration of chocolate, and therefore I think it should be classified under "cocoa manufactured," as covered by paragraph 319. But the court further determines in this case that, inasmuch as it appears by the protest that the importers did not call the collector's attention to paragraph 319 as being the one under which their goods should be classified, they cannot avail themselves of the provisions of that paragraph in the appeal that they have taken from the collector's decision. Davies v. Arthur, 96 U. S. 148. The importers must recover, if at all, only upon the grounds stated in their protest. Chung Yune v. Kelly, 14 Fed. Rep. 639. The decision of the boardM general appraisers in this case is therefore reversed.
In re H. B.
CLAFLIN Co.
(Oircuit Vourt, S. D. New Yor1..
October 7,·1891.)
CUSTOMS DUTIES-CLASSIFICATION-"lIEMSTITCHED HANDKERCHIEFS."
Hemstjtched cotton handkerc1;liefs, known as such in and eommerce at the time of the passage of the tariff act of March 8,1888, having a hem of one inch or more in breadth, with several threads drawn out from the material at the head of the hem, and the hem stitched down by an open stitch, are not "hemmed handkerchiefs, " within the provision of Schedule .I (Tariff Ind. New, par. 325) of said tariff act, but are dutiable as "manufactures of cotton not specially enumerated· or provided for" at 35 per cent. ad va£orem under the same schedule of said tariff act, par. 324.
At Law. This was an application by the importers uncler the provisions of secthe act of congress entitled "An act to simplilJ1 the lawsin ration 15
