UNl'rED STATES V. BREWER.
asserted here in favor (}f the bankrupt t() excuse him from prooucing the books of account kept in the business which he was conducting when his voluntary petition was filed to invoke the benefits, and submit to the requirements, of the bankruptcy law. He thereby elected t(} place all his property (aside from exemptions), including these books of account, which contain apparently the only evidence of credits outstanding, at the disposition of this court. If he were otherwise privileged' t(} withhold the books, his petition operates both as a waiver and as a transfer of the right of custody, and the books cannot now be withheld or withdrawn upon the assertion that they may contain criminating evidence or matter. If within the knowledge or control of the petitioner, the books must be disclosed and produced. Ruling upon the facts is postponed for the hearing of further testimony.
UXITED STATE8 v. BREWER et a1. (Circuit Court of Appeals, Second Circuit.
CUSTO)!S -THEASUHY OF AMEmCAN-MADE
January 30, IS!)!).)
Under paragraph 4!l3 of the tariff act of Oetober 1, 1890, which permits the free reimportation of certain articles of American manufacture, including bags whieh have been cxported filled with American products. or exported empty and returned tilled with foreign products, but requires proof of identity to be "made under general regulations to be prescribed by the secretary of the treasury," the provision as to the manncr of proof is of the essence of the exemption; and, the secretary having promulgated such general regulations, reasonahle in their requirements, an importer cannot ignore them, and obtain the exemption by substituting other evidence satisfaetory to the customs officers. Bags claimed to have been exported filled from another port, but of which fact no certificate of the collector is furnished, as required by article 331 of the treasury regulations, are properly dutiable.
Appeal from the Cireuit Court of the United States for the Southern District of NewYork. This cause comes here upon appeal from a decision and judgment of the circuit conrt, Southern district of Kew Yark, which affirmed the deeision of the board of United /'itates general appraisers. which had reversed the decision of the colledor in regard to the classification for duty of certain empty bags. D. Frank Lloyd, Ass1. U. S. Atty. Stephen G. Clarke, for appellees. Circuit Judges. Before WALk\CE, LACOMBE, and LACOMBE, Circuit Judge. The importers do not object to the rate of duty if the bags are dutiable, but contend that they are entitled to free entry, under paragraph of the tariff act of October 1, 1890. That paragraph provides that, among the articles exempt from duty, there shall be included "bags * * * of American manufacture
92 FEDERAL REPORTER.
On April 6, 1893, the appellees imported by the Bovic, from Liverpool, 50,000 empty bags. They claimed that all of these were of American manufaeture, and stated on their entry that the bags had been exported from San Francisco filled with American products, as follows: Twenty thousand bags by the Dovenby, August 16, 1892; 10,OOn bags by the Earlscourt, July 8, 1892; and 20,000 bags by the. Glaucus, December 21, 1891. They also presented a certificate to the like effect, of the foreign shipper, attested by a enited States consul, as provided in article 336 of the regulations. Certificates from the collector of the port of San Francisco, whence it is claimed the bags were exported, covered 20,000 bags by the Dovenby, and 10,000 by the Earlscourt, but showed that only 7,880 bags had been exported by the Glaucus. On the difference between this amount and 20,000-viz. 12,120 bags-the collector at New York exacted duty. Upon being informed of the discrepancy of certificates as to the Glaucus, the importers secured an additional certificate from the foreign shipper, duly attested, setting forth that the 12,120 bags were exported from San Francisco by the Cara, December 28, 1896. The board of appraisers found, as the evidence shows, that the statement in the first foreign shipper's certificate, "20,000 by Glaucus," was a clerical error; and, being satisfied by proof sufficient to convince their minds that all the bags were in fact of American manufacture, reversed the decision of the collector. The circuit court reached the same conclusion. This cause is within the ruling in U. S. v. Dominici, supra. The paragraph of the tariff act is the same; the regulations of the secretary of the treasury have been duly made and promulgated; there has been no attempt to defeat the provisions of the act by prescribing un· reasonable regulations, or such as it is impossible to comply with,lildeed, the particular one in controversy (article 331, supra) seems to provide the most natural and effective method for determining the identity of the articles claimed to have been "exported empty, or exported filled with American products." Therefore, since no certificate from San Francisco of exportation of the 12,120 bags by the Cara was ever laid before the collector (and, indeed, no effort to obtain
UNITED STATES V. BREWER.
lmclt certificate was made by the importer). the proof of identity whieh the statute provided for was nen'!' mad\', and Ow hag':<' in (j\l\':<.tion were not entitled to free entn. 'l'he deeision of the dt'('uit eoul't is · reversed.
L':"\ITED STATES v. BllE'VllR et aI.
(Circuit Court of Appeals, Second Circuit.
January 30, 1899.)
'Vhere bag-s of American manufal'ture. on being expol'tl'd to be returned. were marked for identification as required hy artiele 3:3H of the treasury regulations, but on'their attempted reimportation an examination of sample packages disclosed but 8 pel' cent. havin/!' the same marks, they were not entitled to entry under paragraph 4tm of the tariff act of October 1, 1800, on other proof that they were of AUl(!rican manufacture.
SA)[E-CLASSIFICATLON-DUTY OF IMPOH'I'ER TO SEPARATE FREE FROM DuTIABLE GOODS,
It is the duty of an importer to make affirmative proof of a state of facts relieving his merchandise from duty to whieh it would otherwise .be and to segregate from the sanw class of goods such portions as are claimed to be free. He cannot require the otlicprs to separate frpp from dutiable goods indiscriminately minglt'd, and in such case duty should be assessed on all.
Appeal from the Circuit Court of the United States for the Southern District of York. This cause comes here upon appeal from a decision of the circuit eourt, Southern distrid of New York, rewrsing a d(·cision of the hoard of general appraisers which had aflit'med a decision of the collector of the port of Kew York touching the classification of certain merchandise for customs duties. D. Frank Lloyd, Asst. 1.:". S. Atty. Stephen G. Clarke, for appellees. Before WALLACE, and SHIPMAN, Circuit .Judges. PER CURIAM. The articles imported were 50,000 flour bags, which the appellees contend were duty free under paragraph 4H3 of the tariff act of Odober 1, 1890, as "bags of American manufacture." The proviilions of the statute and treasury regulations will be found recited in our opinion in U. S. v. Brewer (filed to-day) !l2 Fed. 841. 'rhe various docunwnts required by the treasury regulations were presented to the collector. It appears from the findings of the board of general appraisers that:
"To establish the identity required by law a list of brandfl was furnished by the importer, with the number of bags bearing eac-h brand exported by four several vessels, to wit: By the Durham City, 19,a15; by the Bo.'lton City, 12,524; by the Charlotte, IS,IOO; and by the Ariadne, lil,-thus accurately acc-ounting for the whole importation of 50,000 bags." "But when the contents of one bale came to be examined, the bale was found to contain only thirteen brands which were ineluded in tlw invoice list, and 152 brands which were nowhere on the invoiee list. In other words, there was prima facie identification of S per cent. of the contents of this bale, and conclusive disproof of the identity of 92 per cent. thereof."