30 F. 425 -

COHN V. SEEBERGER.

425

Synaptical Series. One of Webster's definitions of the word "cutlery" is: "Edl!;ed drcutting instruments in general." Pen and pocket knives and razors, which might also come under the general designation of "cutlery," are chargeable with a specific duty of 30 per cent. ad valorem, (paragraph 207, NewTariif Index,) and, being so specifically charged, they are, of course, takerl'from the operation of the general term "cut1ery;" butI am very clearly of opinion that, if shears and scissors come in the general· definition ·qf cutlery, these instruments should also be 91assed 'th&e, so 1011g as there.is no specific duty imposed upon them. Olle oE:the ,grounds, if not the only one, assigned for goods ,"as a manufacture of steel not otherwise ptovided for," was that the trade circular of the manufacturer calls them "machines." I do not tq.a.t a name should be the .sole guide by which to classify imported goods for duty. The use, and especially when an article is new lI-pdja for ;other .articl may be and often is an important guide to"the proper These articles, as I have said, are more and scissors,in their operation and .uses than like any other . implement, and I, see no reason why they should be called "'which woll1d' not justify the application of the same term to ,sl1'ears,:,ottothe comml;>nclassof,pocket-knives·. the light of the Pl"Oqf'fUlerefore, and the analogies, I conclude that these goods should have been classed as "cutlery," and chal"ged duty ,at 315 per cent. ad valorem. . The found for the plaintiff.

es,

CoHN

and others v. SEEBERGER, Collector, etc.

(Otrcuit Court, No D. llJinoi8. March 14,1887.)
cUSTOMS DUTms:'-WORSTED-NON-ENUMERATED A:RTICLES-" DIAGONALS. to

Cloths popularly knowriias"diagonals," worsted being the component of chief v8.lue, should be claseedfor duty as 8. "manufacture of worsted not othei'wjsllprovided for," 868, NllW Tariff,) and not as "woolens, " and &til subject to a duty of 24 cents per pound, and 85 per cent. aa

At Law. Action to recover excess of duties paid under protest. P. Shuman, for plaintiff. . W. G. EWing, U. S. Atbt., for defendant. '
BLODaETT,· Plaintiffs imported an invoice of cloths popularly known as "diagonals,"whi6h'were classed by the collElctor as "woolens," and a dutyqf 35 cents per pound and 35 per cent. ad valorem assessed -upon them; under paragraph 362 of the New Tariff as indexed by the treasury department. J,>laintiffs .ipsisted that. the· goods should have ·been class.ed ,as "manufactures o'f worsted not otherwise provided for," and a duty assessed upon them, under paragraph 363 of the New Tariff,

.r .

426

FEDERAL REPORTER.

at 24 cents per pound, and 35 per cent. ad valm'em. Plaintiffs 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 to recover the excess of duties which, as they claim, were illegally assessed. Paragraph 362, so far as it is material to the questions in this case, is as follows: , "Woolen cloths, ... ... ... and all manufactures of wool of every description, made whoUy or in part of ,,",001, not specially enumerated or provided for in thifl'act, valued at not exceeding eighty cents per pound, thirty-five cents pet, pound and thirty-five per centum ad fJalorem,' valued at above eighty cents per pound, thirty-fi'vecents per pound, and in addition thereto .' forty per centum adfJalorem." . : . And soiriuch of paragraph 368 as is material to this case is as follows: .' , "All of e"ery desQi'iption, composed Wholly or in part of worsted, .... ... ... not lipeciallyenumerated or provided for in this act, valued at not exeeeding cefits per pound, ten cents per pound; valued at above .thirty cents per pound,:a.nd not exceeding forty cents per pound, twelve Per pound; valued,:at above forty cent,s per pj>und, and not exceedingsixty per cents per pj:mnd; valued at above sixty cen,ts. per anI! not exceildingeighty cents per cents per pouIld; and, in addition' theretO; upon all the above-named articles thirtyfive per centumad''oalorem:.'" ':., , The proof shows that the goods in question afe used mainly, if not wholly, in this country, for the maniifacture'Ofnieii's wearing apparel, such as coats, vests, and pantaloons, and are denominated or known to the trade as "worsteds," and are composed mainly of worsted, but that the worsted fiper is mixed or adulterated with about 10 per cent. ofshoddy and some cotton; and the expert ,called by the government testifies that this shoddy is composed"of ",601, 'or, at leastithat, by microscopic examination he found wool to anextept ofnotlessfhanlO percent. Worsted is made by combing the long-fibered wools so that the fibers shaUlie or be arranged other; while wooJ is treated by carding, so as to inwith each other.. Generally speakirig, worsted is wool, terlock the that is,ips'one of the products ofwooljbut, for the purposeof assessing duties' uuclei-'the customs laws of this country, iUs obviously considered as a different commodity from wooL ' I fhe fair deductipn, from the proofin the case is that the characteristic quality of these goods is given them by the worsted contained in the yarn from which they are woven, 'but that, for the purpose of giving them an increased body and. weight at a comparatively low .cost, a of shoMy, and, perhaps cotton, . has been. mixed or worsted fiber. , Shoddy is defined by Webster to be "a spun in with, fibrous,materiaL,obtaiu,ed by divilli,ng or tearing into fipers refuse woolen druggetll, etc." In Ogilvie's Imperial DiC7 goods, tiomiry it dl;ffined as "old woolen or worsted fabrics torn up or deviled fresh but. inferior wool, to be into fibers py machinery, and : espun and into cheap cloth." .After old woole,n and. worsted fab-

SEEBERGER..

427

rics have been- tom 'in pieces by a deviling machine, as I understand ehoddy to be m'aae, I apprehend that it would be extremely difficult, if not impossible, for a microscopist to distinguish between the wool and worsted of which it was composed. In fact, the product of the process upon old woolens and worsteds would seem to be a separate manufacture of wool, IlS much, perhaps, as worsted, as shoddy is subject to a specific duty of 10 cents per pound when imported. (See paragraph 361, New Tariff' lridex.) I am therefore of opinion that these goods, being composed principally of worsted,-the worsted giving character to the fabric,-wereentitled to be classed as a manufacture ofworsted, although there was a portion of shoddy, which may have all been made from wool ,mixed with the worsted fiber for the purpose of giving weight and body to the fabric. Good merchantable or commercial wool, if mixed or combined with worsted, would undoubtedly increase the cost; that is, make a more expensive manufacture than the same weight of shoddy, and hence shoddy is used solely as an adulterant to save so much weight ofworsted. . Proof was introduced on the part of the plaintiffs showing that, these goods arecommercil;l.lly known to the trade as "worsteds," but I think the test as to their classification for the purpose of assessing duties is whether they are made wholly or in part of what is commercially known as wool or worsted, or whether they are made ofa mixture of worsted and the article known as "shoddy." If they composed of worsted and wool mixed, although the worsted might be the component of chiefvalue, I should be inclined to think them dutiable as woolens. But these goods are composed of worsted and the worsted-being the component of chief value,and shoddy, although it may be a product of wool, is not wool within the meaning of paragraph 362 above quoted. Hence I think them dutiable as worsted goods not otherwise specially enumerated or provided for under paragraph 363. The issue is found for the plaintiffs.

CROSS v. SEEBERGER, Collector, etc.

(Olrc'Uit Uo'Urt, N. D. Illinois. March 14, 1887.)CusTOMIl DuTIES-FROZEN FISH-IMMEDIATE UIlE.

Fresh fish. that is, unsalted or uncured fish. imported in bulk, or otherwise than in barrels or half barrels. in a frozen condition. to be put upon the market and sold for immediate use, are to be admitted free of duty, upon the importer furn,ishing to the collector of the port of entry reasonable or proper proof or assuraIl,ces of an honest intention to put them on the market for lID' mediate use. Clause 699. New Tariff Index.

At Law. Action to recover duties paid under protest. P. L. Bhuman,for plaintiff. W. G. Ewing, U. S. Atty., for defendant.