quired by the purposes of the act, and.. the language of it is in strict accordance with this construction. . There is nothing in the warehouse act that I can discover showing any purpose to hold the surety liable for the mere possibility of a reliquidation, after the goods have been delivered, and the liquidated duties paid. There is no more reason for security against such a possibility in the case of warehoused goods, than in the case of entry for consumption; and no reason to suppose the warehouse act had any such purpose in view. Nothing in this construction affects the right of the government to recover against the importer any additional duties fixed by reliquidationarter withdrawal in the case of warehoused goods, any more than in the case of goods withdrawn for consumption. I do not perceive that the service of a protest and appeal by the importer affects at all the construction of the language of this bond, or of section 2970. Until a reliquidation, whether the first liquidation was in fact correct or erroneous, the importer, on withdrawing his goods, must pay the duties as they stood liquidated at the time of withdrawal; and by paying that sum, whether the subsequent liquidation were greater or less, the condition of the bond was fulfilled. The motion fora new trial must be denied.
(Circuit Court, N. D. nUno1.8. July 81,lS90.)
OvsTOJo!Il DUTIEI!-FLuSBBD-ALLOWANCD FOR lJo!PURITIES.
Rev. St. U. S. § 2898, prohibiting the allowance of "draught" in assessing customs duties, does not forbid deduotion for impurities from an article subject to a specific duty; and, under Act March 8,1883, c1. 466, (Hey!,) making linseed orflaltseed dutiable "at 20 cents per bushel of 56 pounds, "a deduction should be made for dirt and similar impurities contained in such seed.
« Defrea, for plaintiff. W. G. Ewing, U. S. Dist. Atty., for defendant.
BLODGETT, J. Plaintiff imported a quantity of flaxseed from Liverpool, which had been brought from Calcutta. The invoices showed the gross weight and a tare of five pounds per bag, and a deduction of "4 per cent. for impurities." The collector, in assessing the duties, deducted the tare, which was the weight of the bags, but refused to allow anything for impurities, assessing a duty of 20 cents per bushel of 56 pounds upon the gross weight, less the tare. Plaintiff paid the duties so assessed under protest, appealed to the secretary of the treasury, by whom the action of the collector was affirmed, and brought this suit in apt time to recover the excess of duties paid by reason of the refusal to proof in the case shows withmake any deduction for impurities.
WRIGHT A: , LAWTHER LEAD CO. fl. SEEBERGER.
out dispute that the seed contained dust, composed of clay, sand, and gravel, to an averagEtof 4 per cent., and the question is whether this deduction should have been allowed the plaintiff, or, in other words, should the plaintiff have been compelled to pay duty: on an:·thing but the clear flaxseed. It is contended on the part of the defendant that, under the last clause of section 2898, which prohibits the allowance in any case for "draught," the collecto,1' has no authority to make the alclaimed f.or impurities. By the thirty-fifth section of the act ofAugust4, 1790, it was provided"That thetollowing allowance shall be made for the draft and tare of the article subject to duty by wtlight; that is to say: for draught on any quantity of one hundred weight, or one hundred and twelve pounds, and under, one pound; on any quantity above one, and not exceeding two, hundred weight, two pounds; on any qUll.ntity above two; and not exceeding, three, hun(jred weight, three pounds; on any qUlmtity'above three, and not exceeding ten, hundred weight, four ponnds; on any quantity above ten, 'and not exceeding eighteen, hundred weight, seven pounds; on any quantity above eighteen hundred weight, nine pounds." The same provision is found in section 58 of the act of March 2,1799, and this continued to be the law until, by the sixteenth section of the act of July 14, 1862, the provision which I have quoted from section 2898 was enacted,. and still reniained in force. The contBntion on the part of the collector is that section 2898, which prohibits the allowance of "draft" or "draught," prohibits him from making any deduction from an article subject to specific duty by reason of the impurities 'contained in it. I am, however, of opinion that the words "draft" and "draught," used in these acts (If congress, do not apply to or mean the impurities contained in an imported article, but mean the arbitrary allowance of certain deductions for loss of weight in handling, or shrinkage, or variations in scales, or devices for weighing, and have no reference to such deductions as should be made to ascertain the exact, or, as nearly as possible, the exact, amount of clean seed imported. By the tariff act of March 3,1883, c1. 466, (Heyl,) "linseed or flaxseed is made dutiable at twenty cents per bushel of fifty-six pounds," and I can give no other conEtruction to this provision of, the law than that it means 56 pounds of clean seed, or as nearly &s the same can be ascertained and determined. I am not prepared to say whether any deduction could be allowed where the impurity consists of flaxseed or linseed made foul by mixture with other oleaginous seeds. such as rape and mustard seeds, but I am quite clear in my conclusion that the importer has the right to have a deduction made for dirt, and impurities of that character, which are contained in the seed, and that he should only be required to pay duty upon the weight of the seed after ascertaining and deducting, with approximate accuracy, the quantity of such impurities.
vol. 44. Collector.
July 31, 1800.)
DAVIS fl. SEEBERGER,
(Circuit Court, N. D.
CUSTOMS DUTIES-CLASSIFICATION-MARBLE PAVING TILE.
Small pieces of marble, from three-quarters of an inch to half an inch square, used in making marble mosaic floors, which are worked into figures in the floor, and, after being imbedded in cement, are polished, are dutiable under the tariff act of March 3, 1883, (Heyl, cl. 467b,) as "marble paving tile," there being no specification in the law as to the size of the latter, and not as a "manufacture of marble, " under clause 468, though they are often arranged in patterns, and held 80 by gummed paper, before importation.
At Law. ,shuman Defrees, for plaintiff. W. G. Ewing, U. S. Dist. Atty., for defendant.
BLODGETT, J. Plaintiff imported a quantity of small marble cubes or blocks for use in making marble mosaic floors, upon which the collector assessed a duty of 50 per cent. ad valorem, under clause 468 of Heyl's arrangement of the tariff of March 3, 1883, as a manufacture of marble not specially enumerated or provided for. Plaintiff' insisted that the article was dutiable under clause 467b of Heyl, by reason of the assimilating clause in the tariff act, "as a marble paving tile, at one dollar and ten cents per cubic foot," paid the duties imposed by the collector under protest, appealed to the :;ecretary of the treasury, by whom the action of the collector was affirmed, and brought this suit in apt time to recover the excess of duties so paid. The article in question consists of small pieces of marble in a cubical, or nearly cubical, form, which are used to work into figures in the class of floors lately introduced in this country known as "marble mosaic." These pieces or small blocks, from three-quarters of an, inch to half an inch square, made up of different colored marbles, are worked, in the laying, into figures, and, after being imbedded in the cement, are polished by the application of polishing stones and rubbing, so as to bring out the colors and fignres in contrast. It seems quite clear to me that, as imported, these little cubes are not a "manufacture of marble," for, by themselves, they make nothing but a bag of little stones. The words "manufacture of marble," under clause 468, seem to me to mean some article manufactured,-sorne completed, or approximately completed, article,-such as a statue, or a table 'top, or a marble column or pillar, or any other article which is imported complete for use; but the commodity in question has to be laid into the floor, and then laboriously rolled and solidified into the cement bedding, and after that polished by rubbing. It is true the proof shows that a part, and perhaps the larger pat:t, of these small cubes are arranged in patterns before importation, and held there by gummed paper; but this does not make a manufacture of marble, as the bulk of the work is yet to be done upon them after they are laid into the cement. Marble paving tiles, the duty on which is provided for in clause 467 (Heyl) are usually understood to mean the small squares of marble intended to be