IN BE BOYD.
the· 'COmponent material of chief .value;' that they were produced at. a period prior to the yeal' 1700;. that they and two other antique Gobelin tapestries, produced at a like period, Were allpur:chased by the said Louis Stem for the purpose ofadding them to a,CQllection of curiosities and brie-a-brac, which he owned at the time in New York; that the two tapestries in suit were placed by the said Stem in his apartment ina foreign country,while temporarily residing there, being thus separated' from the other two tapestries, so as to destroy the unity of IlsseIilblage; that the two in suit were ordered to be shipped to this country, and were shipped on' a different vessel from that in which the other two were imported; that theSe tapestries were not suitable for souvenirs, or for a cabinet of collections of antiquarian curiosities, within the' meaning of paragraph 524, and were not free of duty thereunder; and the board affirmed the decision of the collector as to the aforeElaid classification and exaction Iilade by him. From this decision of the board the importei' appealed to the United States circuit court for a review of the questions of law and fact involved, and thereafter, upon the return made by the was tried. board, this W. Wickham Smith, of Ourie, Smith, & Machie, for appellant. Edward M'lkhell, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for appellee.
WALLACE, Circuit Judge. Inasmuch as the question in this case can very readily be reviewed by the circuit court of appeals, I am not disposed to feel trammeled by any of the previous decisions in this circuit, or in any other circuit, in respect to it. I think a "collection" means something more than two articles. I also think that whether an article is dutiable or not under this particular clause does not depend upon the fact whether it has belonged to a collection or is imported to add to a collection, but whether it is apart of a collection when it is brought in. Therefore I hold that these tapestries were dutiable, and I affirm the decision of the board of appraisers.
CCWcuit Court, So D. Ntw Yor7c. FebrulU'J 18, 1899.)
CUSTOMS DUTIEs--AOT OJ' OOTOBER 1 1890-CLASSI:FIOATION-COTToN
LAQII APllONBo Aprons made of cotton lace /teld not to be dutiable, as articles of wearing apparel, at 00 per cent. ad valorem, under paragraph 849 of the act of October 1, 1890, but dutiable, as "articles made wholly or in part of lace, " at 60 per cent. ad l1alO'1"em, under paragraph 373 of said act. (SyUavus btl the Court.)
At Law. Appeal by collector of the port of New York from decision 'Of the board of United Statai general appraisers under the acto!' June 10, 18UO.
FEDERAL· REPORTER, vol. 49. Boyd, Sutton & Co. imported into the port of New York, per steamer Cufic, November 3, 1890, certain merchandise, consisting of cotton lace aprons made up arid ready to be worn, upon which the collector of customs at that porllevied and assessed a duty of 60 per cent. ad vaWrenn, as an "article made Wholly or in part of lace," under the provisions of paragraph 373 .'of Schedule J of the act of October 1,:1890. "Par. embroideries, insertings,'neck ruffiings, ruchings, trimmirigs,tuckings, lace window curtains, and other similar tamboured articles, and articles embroidered by hand or machinery, embroidered and hemstitched. handkerchiefs, and articles made wholly or in part of lace, ruf· flings, tuckings, orrul1hings,all of the above-named articles, composed of flax, jute, cotton, or other vegetable fiber, or of which these substances, or either of them, ,or a mixture of any of them, is the component material of chief value, not specially provided for in this act, sixty per centum ad valorem: provided, that articles of wearing apparel, and textile fabrics, when embroidered by hand or machinery, and whether special1y or othel'wise provided for in this act, shall not pay a lEl$s rate of duty than that fixed by the respectiveparagraphs and schedules of this act upon embroideries of which they are respectively composed."· , The importers protested, and appealed to the.board of United States general appraisers, under the act of June 10, 1890, claiming the same to be dutiable at 50 per cent. ad valorem, as cotton wearing apparel, under the provisions of paragraph 349 of Schedule I of said act: "Par. 349. Clothing. ready made, and articles of wearing apparel of every description, handkerchiefs, and neck-ties or neck-wear, composed of cotton or other vegetabletlber, or of whicbcotton or other vegetable fiber is the component material of cbief value, made up or manufactured wholly or in part by the tailor, seamstress, or maliufacturer, aU of the foregoing not specially provided for in this act, fifty per centum ad 'Valorem: provided, that all such clothing ready made and articles of wearing apparel having India-rubber as a component tuaterial (not including gloves or elastic articles that are specially provided for in this act) shall be sqbject to a duty of tifty cents per pound, and in addition thereto. tifty per centum ad valorem," The board of United States general appraisers reversed the decision of the collector, and found as matters of fact that the articles were aprons composed of cotton, and made chiefly of lace, and were wearing apparel. They decided that the merchandise was more specifically provided for under the term" wearing apparel" than under the term" articles made of cotton lace," and reversed the decision of the collector. From their decision, appeal was duly taken by the collector to the United States circuit court. . Edward Mitchell, U. S. Atty., 'and Henry O. Platt, Asst. U. S. Atty., tor appellant. 'Curie, Smith &: Mackie, for defendants. WALLACE, Circuit Judge. In the case of Boyd, l::!uttQn & Co., r have (lome to the conclusion that the cotton lace aprons in controversy were properly classified by the colleotor, and I reach this conclusion almost wholly because of the foroe whioh I think must be given to the proviso in section 373. We know very well that the effect of a proviso is to
STATE:S f).ADLlll\'t. ,
carve an exception out of the enacting clause, and th.erefore I must read the enacting clause as including wearing apparel among the articles made wholly or in part. of lace. I think the qUestion is a close one, yet other conclusion, giving·to the proviso in section I cannot.ai'rive at S78wbatl deem to be its due force and effect. The decision of the board of appraisers should be reversed. So ordered.
STATES f). ADLER
Cowrt, S. V. 10't0a, C. D. March 8, 1m.)
PENSIONS-FRAuDULENT PRESBNTATION OF CLJ.IM-INDICTHBNT.
, Au.· indictment under Rev. St.. 5 4746, for knowingly procuring the presentation of a false affidavit cOncerning a claim for pension, is Buftlcient if it alleges the presentation of an affidavit with a signature known to be false and forged. It need not allege that the pension claim was false.
The indictment charged that defendants on a certain day, "at the county of Wapello, in the southern district of Iowa, did then and there present to the commissioner of pensions at Washington, iil the District of Columbia," etc. At its close it charged; "And that at the time and place aforesaid, that is to say, on * * * at the county of Wapello, state of Iowa, the said * * * did then and there preserit and (lause to be presented to the commissioner of pensions aforesaid," etc. construing the parts of the indictment together, that it charged the presentation of the false affidavit at Wapello county, Iowa, and not at Washington, D.C.'
J.P. Laiiey and M. J. Williams, for defendant Adler. Before SmRAS and WOOLSON, 'District Judges.
WOOLSOI!t, District Judge. The indictment herein charges that on the 8th day of July, A. D. 1890, defendant-
J-ewis M'lle8, Dist. Atty., for the United States.
On demurrer to indictment.
"At the county of Wapello, in the southern district of Iowa, did then and there cause to be presented and present to the commissioner of pensions at Washington, in the District of Columbia, a certain false, forged, and counterfeited affidavit, in writing, which said false, forged. and counterfeited affidavit is iDwriting, and is ill words and figures as follows, [here follows, an affidavit, being a declaration for an invalid pension (in the ordinary form) for Daniel Boone, and purporting to be signed by Daniel BOODIl as affiant;] that said false, forged, and counterfeit affidavit is false, in this: that is to say. that the said false, forged, and counterfeited affidavit was never signed by Daniel Boone, but that in truth and in fact the same was signed by said George S. Boone, and that said George S. Boone signed the name Daniel Boone to said false and forged affidavit, which said false, forged, and counterfeited affidavit .has marked thereon the receiving mark of the pension office of the United States, of date July 11, 1890; that at and long prior to the signing of the name Daniel Boone to said false and forged affidavit the said Daniel Boone, Whose name was purported to be signed to said false and forged affidavit, had been deceased, and that at the time and place aforesaid, tllat is-to saYi on the 8th day of July, A. D. +'690, at the county of Wapello, state oflowa, the