FEDERAL

40.

paid of his' oWn free will. The amoupt· of the items recovered in that single instance,-$2,095---.will afford some indication of the e:xitent' of the burden in the aggregate,:such Ii regUlation by the secretary'would impose on Commerce. .' In my judgment the collector unlawfully refused to allow the entry, and is liable. -The demurrer to the complaint must be overruled, and it is so ordered.

LAZARD

et

at. V. MAGONE,

Collector.

(OIh'cwtt Court, B. 'D. New Yor"- December 18, 1889.) L CUSTOMS DUTIEs-FREE LrST-SI¥IL1TUDB CLAUsB. The similitude described by that. portion of Rev. St. U. S. 52499, as amended by the tari1f act of March 3,1888, whioh provides that "non-enumerated articles, simDar in material and quality and texture, and the use to whioh they may be applied, to artioles on the free-list, 'and in the manufacture of which no dutiable materials are used, shall be free, n ls a .similitude in' all four of the particulars mentioned, therein. ' , It. SAMB-DRY EGGYOLX: Dry egg yolk, being an artiole not enumerated in the tari1f act of March 8, and assimilating to albumen, and alsO to eggs, articles on the free-list of that act, in two 01' more only of these,foul' partioulsrs, is not free of duty under that act by similitude to albumen or eggs;, but is, in the absence of proof that it ls not a manufaet.ured article, subject to duty at the rate of 20 per centum ad valorem as a. non· enumerated manufactured article, tInder the provision therefor contained in Rev. St U. S. 5 2513. '

At Law. Action to recover back duties. The plaintiffs in this on the first day of September, 1887, im';' ported from Dresden, Saxony; into the port of New York, a certain article invoiced as "egg yolk.»" "This article was classified for duty by the defendant, as collector of custbms at that port, as a non-enumerated man.' ufactured article, under the provision therefor contained in section 2513 of the United States Revised Statutes, as amended by the act of March 3, 1883, and duty thereon at ,the rate of 20 per cent. ad'i7alorem was exacted of the plaintiffs by the defendant, as such collector. .Against this classification and this exaction'the plaintiffs, within the time required by law, duly protested, that, under that portion of section 2499 of the United Revised Statutes, as amended by the act of March 3, 1883, which provides "that'non"enutnerated articles, similar in material and quality and texture, and the usa to which they may be applied, to articles on the free-list, and in the manUfacture of which no dutiable materials areueed, shall be free"," this article was free of dUty, as assimilating to albumen, under the provision therefor contained in the list ofthe act of March 3, 1883, (Tariff Index, new, 49BD or, if not assimilating to' albUlnen, then as ilssimilating to eggs; under th e ptovision there tor contained in said free-list, (Id. e90;) or that, if this article assimilated neither to albumen nor to eggs, then it was dutiable at the rate of 10

LAZARD V. MAGONE.

663

per cent; ad valorem, as a non-enumerated raw or unmanufactured article, un,der the provision therefor contained in the aforesaid section 2513. Thereafter the plaintiffs, having duly made appeals, which were decided adversely to them, brought this suit to recover the amount of excessiveduties exacted of them by the defendant as said collector, as claimed in their protest. Upon the trial of this suit, it appeared from samples of the article in suit that it was of the color of the yolk of the hen's egg, and that oit had evidently been dried by natural or artificial heat, and afterwards ground. or subjected to some similar process. It appeared from the evidence of the plaintiffs' witnesses that these articles were sold to biscl;1it and cracker bakers, and used by them in making biscuits, crackers, and -such things; ,that the original yolk of the hen's egg contains 51.49 per cent. of water, 15.76 per cent. of fat, 30.47 per cent. of albumenoids, about 0.55 per cent. of coloring matter, and about 1.73 per cent. of alcoholic extract and mineral matters; that the article in suit, as analyzed, contained 3.35 per cent. of moisture at 100 C., 54.15 per cent. of oil, 39.50 per cent. of organic matters, and 3 per cent. of mineral matter (ash;) that the 39.50 per cent. of organic matter included albumen, caseine, and coloring that there was nq constituent in the article in suit not found in the white, or albumen, or the yolk of the egg; that the the original yolk, if drieq, would be almost the same thing as the analysis0fthe article in suit, only varying therefrom, perhaps, ,if vaxyin,g, lJ.t)ul,throughdifference in treatment, or in composition of the .egg #om which it was taken; that the albumen in the article in suit, with the exception that the water had been almost entirely dried out, .wasprecisEllysimilar in constituents and and properties to the albumen or white found 'in the egg; that the albumen or ",hite,foup.d in Was reduced by drying to the solid or dried albu.which contains from 92 to 95 per cent. of purealbu'metirthitt the shell of the egg was composed chiefly of carbonate of lime, and some organic matter. But it did not appear from the evidence for which purpose albumen was used, or tha,t the article in suit was npt a manufactured article. At the close of plaintiffs' case the defendant's counsel moved the court to direct the jury. -to find a verdict for the, ciafendant, on the ground that the plaintiffs had not proven facts suffi· cient entitle them to for plaintiffs. . I, -E,dwQ,1"d Af'UcMlJ"U. S. Atty. ,and Thomas Greenwood, Asst. U. S. Atty., for defendant·

.

;to, tile j,ury..

I shall dispose of this case without sending it As to the question of the classification of this importation by assimilation under the proviso at the close of section 2499, which reads:" Provided, that 'non-enumerated articles, similar in material and texture I and the use to which they may be applied, to artieJes0Jrt tqe andin the, manufacture of which no dutiable materia1s are used, sqan be, free,"-it ;1i91ille',observed, in the first place, that similarity iuall' four of these respects is requi,red. Undoubtedly,

J.,(qrally,)

664

FEDERAL REPORTER, vol. 40.

the article is similar in material, and apparently in texture, to the albu. men of commerce which is imported here, and which is enumerated on the free-list; but there is no evidence as to the use to which the albu· men so imported is applied, and, therefore, there is nothing from which to deduce a similarity in use, as between that article andthis dried yolk. As to·the claim that it is similar to eggs, which also are on the free-list, while there is proof of similarity of material, and perhaps of use, the texture seems to be entirely different. As to the claim made in the protest that this importation was an article not manufactured, the failnre of the plaintiffs to offer any proof as to how it was made removes that question from the case. The collector has classified it as a manufactured article, and the presumption is that his decision was correct. There is no eVbdence to the contrary, and it cannot, therefore, be .classified as unman· ufactured. Verdict directed· for defenda.nt. ...

UNITED STATES

fl.

BAYLE.

(Dl8triot Oourt, E. D. Mil/8oun, E. D. December 14,;1889.)

L

PosT·OFnou-,-NoN-}[AILABLlIl MATTER-TJmIlATlilNING POSTAL-CARDS;.

a

A postal-c8rd demanding payment of a debt, and stating' that "if it is not paid I!ot once we shall place the same with our lawyer for collection," is non-mailable matter, within 25 St. U.S. the mailing .of a postal-card, envelope, . or wrapper, the outside of WhlCh language of a "threatening character, " or· I1uiguage "calculated * * · and obviously intended to refleot upon the chlll'3cter or conduct" of the person to whom it is addressed. . A llostal-ca'rd containing the words, "Please call and settle account, which is long past due, and for which our collector has called severaL times, and obl1ge. " is not within the as the language cannot be said to be threatening or 0l%enlliV8 to the person addressed, or such as to attr!'Ct public notice.
. .

.

SAME.

On Demurrer to Indictment. GelYT'ge D. Reynolds, U. S. Dist. Atty· .,D. P. Dyer, for defendant.'
:·.11

THAYER, J. This is an indictment in three counts, under the act of Septenlber 26,1888, (25 St. U. S. 496,) for depositing postal-cards of uri alleged nori·mailablecharacter in the mails. The postal-cards in question were each addressed t{) John Greb, 2201 Franklin avenue, St. Louis, and are of the following tenor: "AT. LOUIS, April 12th, 1889. !. "Please call and settle account, which is long past due, and for which OUi' collector has called several times, and oblige, ST. LOUIS PRETZEL Co." " Respe c.t1'ully,
"ST. LOUIS, April 18th, 1889. owe Us $1.80.' We have called several times for same. If not paid once, we ahaH place same With our law agency for collection. .. . "Respectfully, ST. LOUIS PRETZEL Co."