kinds, except medicinal seeds, not specially enumerated or provided for . in this act." The merchandise was shown to be millet seed, hulled, used for bird food, and for cooking, and eating in soups. It was not in its natural state, and, upon trial in a germinator, would notsprout 6r grow. Stephen G. Clarke, for plaintiffs. Stephen A. Walker, U.S. Atty., and Henry a. Platt, Asst. U. S. Atty., for defendant. .
SHIPMAN, J., (c1w,rging jury.) The question is whether this article is a seed. The plaintiffs tnust satisfy you by a fair prepomlerance of proof that iUs a seed. It has the appearance and name of a seed. It is tes:tified, and it is probably true,·· thlllt it is not in the natural state; .that it would not. grow if planted; that the germ is destroyed; and that it ia U'sedfor soups and for food for birds.. What has been done to it is not shown by any testimony; what process has been applied to it is not stated. It is fOf you to slIoY whetherithas been cha.nged froUl the condition of a seed to something else.
Verdict ;for defendant.
LELAR ,,; HARTRAN:ln', Collector}
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CtrITQM8 DUTIES-GINGER-ALE BO'J.'TLES. . ...
March 8. 1888.
Bottles containing ginger-ale are Dot liable to any duty under the act of
Action to Recover back Customs-Duties. On the trial the following facts were proved: Plaintiff imported on October 1, 1888,250 dozen bottles ofginger-ale. The invoice contained -First, an item of 250 dozen finest ginger-ale at a specified value; and, 8eCond, 250 dozen bottles at a specified value:; The appraiser drew a red ink line embracing both items, and opposite this line wrote: "Gingerale,20.%." The collector thereupon exacted aduty'of 20 per dent. upon' . the aggregate value of. both ale and bottles. Due protest and appeal welie made against the exaction of so much. of this duty as was imposed upon the value of the bottles. Prank P. Prichard, for plaintiff. .
act of March 3. 1883. contains the following clause: "Ginger.ale or ginger·beer twenty per centum ad tJalo1'em, but no sepal'ate or additional duty shall be collected on bottles or jugs cORtaininp; the same." This clearly exempts the bottles from any duty as bottles, and if tl)eyl;leconsideroo as coveripgs of the goods they are also exempt by: the of thesame.act that the value of the usual and necessary coveringS shall not be estimated in ascettahung dutiable value. .
by C. Berkeley Taylor, Esq., of the Philadelphia bar.
To the contention of the go:rernment that the use of the wQrds "separate or additional" imply that the bottles are subject to duty as part of their tents there are two answers: First, a tax cannot be imposed by n'egative words, and a provision that nQ separate duty shall be imposed is no warrant for imposing a duty as part otthe ginger-ale; and, second, the words "separate and additional" had been used in preVious statutes to designate the duty imposed on bottles and were used in the present act simply to identify the duty which was'removed. '
John K. Valentine, U. S. Atty., for defendant.
The use of the words "separate or additional" imply that there Is a duty on the bottles not separate or additional, viz.. a duty as part of the imported article which is a bottle of ginger-ale. Bottled ginger-ale derives its chief value from its bottled condition. It is the duty of the appraiser therefore to appraise its value. in a bottled condition, and this is the meaning of the appraisement made by him.
J., (charging jury.) This suit is brought to recover duties exacted by the collector lind paid by the plaintiffs upon 250 dozen of bottles cont4iniQg ginger-ale.. The. ginger-ale was assessed and the duty exacted I'llsoon the bottles. Under the view of the law taken by the court, the duty was illegally exacted. The collector had no authority to require the importer to pay it. The importer, however, was bound to pay it; and having paid it, the only recourse he can have is to sue to recover it hack. He has done SOj and this suit is for the recovery of the duty on 250 dozen of bottles containing ginger-ale, which, as I have already said, was illegally exacted by the collector, and this amount the plaintiff is entitled to recover. Your verdict will, therefore, be for the ' plaintiff for the amount of claim.
Verdict for plfl,inti:lf. '
MOBRIS 'tI. CADWALADER, Collector"
(Olr/Juit Oourt, B. D. Pennll1/1vania. October 8,1887.)
CuSTOMS DUTIES-PACKING C:e:ARGES-ApPRAISIllMENT OF GOODS PER SE.
Since tJ?,e act of March 8. 1888, duties can be exacted by the collector only upon an appraisement of the market value of the goods per 86.
SAME-APPBAISEMENT-DISALLOWANCE OF CHARGES.
Whereon the invoice the gross value of the goods is stated. and a deduction made of specific packing charges. and the net amount is then carried out as the market value of the goods per 86, an appraisement which simply disallows the chs,rges. or adds them again to make dutiable value. or states that they ate to he added to make market value. is not an appraisement of the _goods per 86; but an addition of charges. and does not justify the collector in exacting duty on .the value, of the goods increased by the amount of such charges. '
Action tQ Rebover back' Customs Duties.
lRepOrted'byC.. :BerReley Taylor, Esq., of the Philadelphiaba1'.
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