majority"> SPRAGUE, District Judge.

It is plain, that the time when the valuation is to be made, is that of the exportation to the United States, and the standard, the market value in the country of production, at that time.

The only question is, as to what shall be added to such valuation.

The law says, to this value shall be added the usual cost and charges.

If it were not for the subsequent proviso in the statute, the valuation would be, in all cases, the market value at the place of exportation, which might include the charges at Cuba, and the freight thence; and to this should be added the charges at Halifax. But the proviso alters the standard of value, by declaring that, when the place of exportation is not that of production, the value shall be taken in the place of production, at the time of exportation. Nothing is said about costs and charges in the proviso, and therefore, only the costs and charges at the place of exportation should be added.

The principal question is, whether the freight from Cuba to Halifax can be added. This item constitutes no part of the value of the merchandize in Cuba, and it is not one of the costs and charges incurred at Halifax. If the standard were the market value in Halifax, it might be included; but as the standard is the market value in Cuba, it is necessarily excluded. It is admitted, that if the sugars had been shipped from Cuba to the United States, freight could not be ad*841ded, and there is no more reason why it should be added in the present ease.

Upon examination of the statute, I cannot resist the conclusion, that the construction which has been given to it by the treasury department, and is now contended for, in behalf of the United States, is erroneous.

This opinion, I understand to be in accordance with the decision of the circuit court of the United States, in the recent case of Grinuell v. Lawrence, [Case No. 5,831.]

In the present case, the duties should have been assessed on the market value of the sugars in Cuba, at the time when shipped from Halifax, with the addition of the usual charges at Halifax; and for the excess, which was unlawfully demanded and paid, the plaintiffs are entitled to judgment.

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