Mich. 542, in which the writ was quashed as void because it did not describe the goods taken. The identical question involved in this case was also passed upon in GMy v. Dean, 136 Mass. 128. In that case the value of the replevied property was below the minimum amount of which the court had jurisdiction. The superior court proceeded to make an order for the return of the property, and the supreme court held it to be erroneous. The cases relied upon by the defendant do not support his contention. In People v. Tripp, 15 Mich. 518, the writ of replljvin was not served a sufficient time before the return-day, and the justice declined to proceed, and, a discontinuance was entered. This was within the very words of the statute. There was no evidence that the court did not originally have jurisdiction of the case. In Forbesv. Judge, 23 Mich. 497, the service of the writ was set aside as having been made after the return-day. This was held, in effect, to amount to a discontinuance; but there WllS no evidence in that case that the court did not have juris. diction to issue the writ. In Fleet v. Lockwood, 17 Conn. 233, the writ was abated for want of a bond for prosecution, and a judgment that the plaintiff'return the goods and chattels replevied was halu to be correct, but no question was made concerning the jurisdiction. We are clear in the opinion that there was no power in the court to ordera return of the property after it had been delivered to the plaintiff, or to assess the plaintiff's damages, or to pass updn the question of title as between the parties. As it seems to be conceded that no action will lie upon the bond, (section 8352,) except after an execution returned unsatisfied, it follows that the defendant must seek his remedy by an action against the officer, or agaInst the plaintiff in replevin'. An order will be made vacating the judgment for return and the order assessing damages, as having been improvidently made, and the case will be dismissed for want of jurisdiction.
WmVER & STERRY, Limited, v. SALTONSTAI,L, Collector.
(lHrcuit Oourt, D. Massacl.uaelts. April 29, 1889.)
The duty should be assessed only on the quantity of the goods arriving In port, and not on the qua.n.tity appea.ri.n g by the invoice. 1.0 have been shipped. .. The last paragraph of Jte,v. tlt, § 2900, forbidding theassessIDent of duties on an aIDount less than the 'invoice value, refers only to the prH:e, and not to the quantity.
At Law,' Action by Weaver & Sterry,Limited, against Leverett lector of customs. , a. P. for plaintiff. . .. ' , , T. H. Talbot; Asst. U. S. Atty., for
. COLT. JiUnderthe agreed statell1 ent offacts itappears that the plaintiff, between February. 1887, imported into the port of Boston, from ltiUy,l,800 boxesof,castile,soap; .that the soap, after its arrival and entry at the custom-house, was submitted to an examination by a weigher in the service of thecustoni:-house, who reported the weight to be 70,286 .pounds, whereas the invoice made at time of the shipment of the soap from Italy shows the weight at the time of exportation to have been 72,983 pounds. The plaintiff.claimed that the duty should be exacted only upon the value and amount as shown by the weigher's return to have been actually imported, but the defendant exacted a duty upon the entire value and amount of soap as stated in the invoice to have been shipped, and declined to make any allowance for loss of weight due from the voyage. This'!uit is brought to recover the excess of duties so exacted by the collector. It seems to. me tbat the courts have determined this question in favor of the importer. In principle, I cannot distinguish this case from Marriott v. Brune, 9 How. 619; U. S. v.Southrn.ayd, Id. 637; Austin v. Peaslee, 20 Law Rep. 443; also reported in full in Boston Daily Advertiser".of Sept. 30, 1857. In Marriott v. Brune it was held that the true construotion of the law is to assess duty only upon the quantity of sugar and molasses which arrives in port, and not upon the quantity which appears by the invoice to have been shipped. This doctrine was affirmed in:U..S. v. Southmayd and in AtMtin v. Peaslee. The last paragraph of section 2900, Rev. St., the assessment of duties upon an amount less than the in'\toice value, is snbstantiall.y the same as the proviso contained in section 8 of the act of 1846, (9 St. at Large, 43.) In Marriottv. BrUne it is held that the'decision is not inconsistent with the proviso in section 8 of the act of 1846, because the proviso refers only to'the price, and Dot to the quantity. Such being the construction put upon the law by the supreme court and the circuit court for this circuit, the collector should have assessed duties only upon the quantity of soap which arrived in port, and not upon the quantity which appears by the invoice to have been shipped; and the plaintiff is entitled to a judgment for the excess of duties so exacted. JUdgment for plaintiff.
'(Circuit (Jourt. 8.
.. . . , _ .York. ,.'
April 8.1889.) ,
The similitude either in matcrial, quality, texture. or the use to which it appjie.d: that a !!lao must bear to an ,i.. eonmeifatlid artIcle chargeable wlthdlity m order to subJect the former article to the same rate of duty which is levied aud charged on the latter article, must be a substantial similitude, not merely an adaptability to sale 8S a substitute for the latter arti<;le, but representiugeiihl,ll' its employment, or its etIects in producing a result. ,.';. .
CusTOMS DUTms-MANUFACTUREB-NoN-ENUllERATED ARTICLEB-SrMIUTUDE.