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who is suing one of the parties to a sealed instrument upon a cause of action not arising upon such sealed instrument, from showing that the instrument was in fact a mere device concocted to mislead outsiders dealing with one or other of the parties to it, and not truly representing the relations between these parties. This disposes of the eighteenth assignment of error, and the twenty-second was withdrawn on argument. 17. The only remaining assignments of error are the twenty-sixth, to so much of the charge as instructed the jury that the "measure ot damages is the difference between the value of the property as it proved to be and as it would have been as represented," and the twenty-eighth, to the refusal to charge substantially that the measure of damages is the money plaintiffs had paid out for the mine, with interest, and any other outlay legitimately attributable to defendant's fraudulent conduct, less the actual value of the mine when plaintiffs bought it. In view of the recent opinion in Smith v. Bolles, 132 U. S. 125, 10 Sup. Ot. 39, this court desires the instruction of the supreme court for its proper decision of the question arising upon these two assignments of error. A certificate in the form required by the act of March 3, 1891, has, therefore, been prepared, and will be forwarded to the supreme court. The fact that instructions are thus desired as to a single question out of the many ,arising upon this writ of error affords no sufficient ground for withholding the decision of this court as to the other questions in the cause. Compton v. Railroad Co., 31 U. S. App. 486, 15 C. C. A. 397, and 68 Fed. 263. This opinion is therefore placed on file, and, when instructions are received as to the question certified, the cause will be finally disposed of.
UNITED .STATES v. E. L. GOODSEI.JL CO. (Circuit Court of Appeals, Second Circuit. January 7, 1898.) No. 32. CusTmrs DUTIES-NEW TARIFF LAW-IMPORTATION OF LEMONS.
The act of August 28, 1894, provides that, unless otherwise specially provided, there shall be levied upon all articles "imported from foreign countries or withdrawn for consumptIon" the rates of duty therein prescribed. An importation of lemons was entered a few days before the passage.of the act, and, accordIng to custom and the rules of adminIstration of the port, were desIgnated for examination on the wharf. On august 29th the goods were examined there, having remaIned in the custody of the government up to that time, and were then sold by the Importers. Held, that they were dutiable under the new law.
This cause comes here upon appeal by theUnited States from a decision of the circuit court, Southern district of New York, affirming a decision of the board of general appraisers, which reversed the action of the collector of the port of New York in assessing certain boxes of lemons for duty. The facts appear in the opinion. Henry C. Platt, for the United States. W. Wickham Smith, for appellee. Bef{J:r;e WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.
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84 FlllDERAL REPORTER.
LAOOMBE, Circuit Judge. The vessel containing the lemons arrived at the port of New York on or prior to August 23, 1894. The goods were entered for duty on that day, and a written permit to land and deliver them was also issued on the same day,· in due form, designating the goods for examination on the wharf, which, under the rules of· customs administration at this port, dispensed with the necessity of their removal to the public stores or warehouses. On August 28, 1894, the tariff act of 1894, went into effect, supplanting the prior tariff act of 1890. On August 29, 1894, the goods were examined, and the permit, on being presented to the examiner, was indorsed by him "Examined," with his initials and the date. The lemons were sold by the impocters on the wharf by auction, on August 29, 1894, according to the custom of importers to sell lemons and other fruits on the wharf, on arrival, without removal. It was customary to offer such goods for sale after, or at once on, the issue and receipt of the permit to land, and often before actual examination of the goods, which generally took place on the wharf at the time of sale. The lemons in question took this course. The examiner indorsed his examination on the permit August 29, 1894, at the time of the auction sale on the wharf, according to the prevailing custom in dealing with goods of that character. The goods were never in bond in any warehouse, but came direct from the vessel to the wharf, where they were sold by the importers, as aforesaid. It is the practice of the port, in the case of such goods, that the owner has no control over them until the permit of delivery has been presented to the examiner and duly indorsed by him. The entry was stamped, "Paid Aug. 23, 1894," and also stamped, "Liquidated September 8, 1894," but no additional duty was paid; the amount originally paid by the importer, on August 23, 1894, at the time of getting his duty-paid permit, being the same amount at which the. duties were liquidated. The collector classified and assessed the lemons for duty under paragraph 301 of the act of 1890. The importers protested, claiming that their merchandise was dutiable under the lower of duty imposed in paragraph 216 of the act of 1894. The act of 1894 provides as follows: "On and after the first day of August, eighteen hundred and ninety-four, unless otherwise specially provided for In this act, there shall be levied, collected and paid upon all articles imported from foreign countries or withdrawn for consumption, and mentioned in the schedules herein contained, the rates of duty which are, by the schedules and paragraphs, respectively prescribed, namely."
Inasmuch as this statute was not passed until August 28, 1894, the section above quoted is to be construed as if it read "on and after the twenty-eighth day of August." U. S. v. Burr, 159 U. S. 78, 15 Sup. Ct. 1002. The phrase, "withdrawn for consumption," is a technical one, well known in customs administration. When goods arrive here from abroad, they are entered either "for consumption" or "for warehouse." In the latter case they go into the public stores or a bonded warehouse, where they remain until the importer withdraws them f()r can· sumption, by one or more separate withdrawal entries. Articles,
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then, which are "withdrawn for consumption," are articles which, until the time of such withdrawal, were in public store or bonded warehouse, and the phrase in the act as italicized above covers articles imported from foreign countries on and after the date named, and articles imported .before that date, but still remaining in public store or bonded warehouse on August 28, 1894. Technically, as the appellant contends, the lemons in were never in bond in any public store or warehouse or other place, and were never "withdrawn for consumption"; but none the less are they within the provisions of the section of the statute last quoted from.. The question presented on this appeal has been practically determined by the supreme court. The tariff act of 1883 contained in its tenth section the following provision: "That all imported goods, wares ·and merchandise which may be in public stores or bonded warehouses on the day and year when this act shall go into effect,. except as otherwise provided in thlsact, shall be sUbjected to no other dUty upon the entry thereof for consumption than If the same were imported respectively after that day."
This is substantially the same provision as that contained in the act of 1894, viz. that articles imported before the new act went into effect, but remaining on that day in public stores 61' bonded warehouses, shall be subjected to the new rate of duty. In E:artranft v. Oliver, 125 U. S. 525, 8 Sup. at. 958, it appeared that the bark con· taining the goods arrived before July 1, 1883, the date when the act went into effect, but on that date were still on board, the vessel remaining with unbroken hatches, and with a custom-house officer in charge of the same. The court says: "The plain meaning of this section is that, though goods are Imported before the act takes effect, yet, if they are kept until after that period in a pubUc store or bonded warehouse,-that is, In the custody and under the control of officers of the customs,-they shall be subjected only to the duties thereafter leviable when they are entered for consumption. * * * The place In which the goods are thus kept is not the essential fact, but the custody of the government, and the consequent exclusion of control over them by the owner, which calls for the suspension of previous duties. There is manifest justice in the rule that goods thus withheld from the control of the owner or importer shall be subject only to such duties as are leviable by the law when he is at liberty to take possession of them. Ordinarily, goods in the custody and control of officers of the customs are placed in a public store or bonded warehouse, and thus the designation of the goods as thus placed Is, In the legislation of congress, in effect a designation, and no more, of their being in such custody. But goods on board of a ship, in charge of a customhouse officer, preliminary to their removal to a public store or a bonded warehouse, and during the time necessary for that purpose, are In like custody, and so are, within the spirit and intent of the law, subject only to such duties as are leviable when the goods are freed from such custody. So far as the government is concerned, they are in the same position as if technically in a public store or bonded warehouse. When in either of those places, they cannot be removed without a permit from the collector. When on ship'board, in charge of a custom-house inspector, they are in the same condition, and cannot be removed without a like permit. * * * We are therefore of the opinion that, within the spirit and intent of the tenth sec· tlon of the act of Ylarch 3, 18S3, the goods were not chargeable with duties, while on board the bark, in the custody of an officer of the customs, at any greater rate than they would have been chargeable if in custody of such officer in a pUblic store or bonded warehouse of the government, and that, therefore, duties were only leviable on the goods by the act which went into
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84 FEDERAL- REPGRTER.
effect :onthe 1st of July,1S83. The intent' of the legislature fs to be l0'fed, eVen if not strictly within the letter of the statute." .
We are unable to distinguish the case at bar from this decision. The decision of the circuit court is affirmed.
. VOLKMAN, STOLLWERCK & CO. v. UNITED STATES.
(Circuit Court, B. D. New York.. December 9, 1897.) CuSTO)[S DUTIES-OLASSIFICATION-CACHOUS.
Victoria. ca.chous small pellets,. made in part of Ucorice, with a peppetttlint or wintergreen flavor, used by smokers and others, to sweeten the breath) were dutiable as "artlclesof perfumery," under paragraph 61 of the lLCt O'f 1894" and not as "licorice and extracts of," under paragraph 23, or as "confectionery," under paragraph 183.
This was an appeal ViOlkman, & 09. from a decision of the board of general appraisers sustaining the .action of fIle collector in respect to the clllJssification of certain imported merchandise. The in suit consisted of Victoria oooholls, behig small pellets,' made in part of, licorice, .with a peppermint or wintergreen flavor, used by smokers and others to. sweeten the breath. Duty was assessed thereon, under paragraph 61 of the act of 1894, as perfumery, at 40 per cent. ad valorem. the merchandise to be dutiable The importel'Sprotested, at tberate of.!) 'cents per pound, under paragl'aph23, as "licorice and erlractsof, in paste, rolls, or other forms," or as confectionery, at 35 per cent. ad valorem, under paragraph 183. W. Wickham Smith,for plaintiffs. Henry D. Sedgwick, Jr., Asst. U. S. Atty. WHEELER, District Judge. These cachons are used by smokers and others for perinming the breath, and seem, well enough, to be "articles Of perfumery," provided for in paragl"aph 61 of the tariff act of 1894, as they have been cla'ssified. affirmed.
TUSKA v. UNITED STATES. (Circuit Court, S. D. New York. CuSTOMS DUTIES-CI,ASSIFICATION-SCREENS.
December 9. 1897.)
Screens composed of cotton, paper, and wood. the paper being of chief value, were not dutiable, under the act of 1890, as "furniture." under paragraph 230, or as manufactures of cotton, under paragraph 355, or as manufactures of silk, under paragraph 414; and having beeu classified by the collector as embroidered articles, under paragraph 373, held, that the classification must be affirmed, though not proper in itself, as the protest named only the paragraphs above enumerated.
This was an appeal by A. L. Tuska from a decision of the board of general appraisers affirming the action of the collector of the port of New York in respect to the classification for duty of certain imported merchandise.