accurately adjusted for use as compasses. The testimony is that they are mainly used by woodsmen and lumbermen to indicate direction, and also to some extent by mariners on board of boats. They range in price from about 25 cents to $8 or $9 apiece. The testimony also shows that they are often sold to the militia and army officers and used for military purposes.

The testimony further shows that all of these compasses "are of a size which can be carried in the pocket or grip," but in use "the compass has to be laid flat, has to be nearly as horizontal as possible, otherwise the needle will not revolve."

The record establishes the facts as above set forth, and the question arises, Is this merchandise dutiable under paragraph 356 of the act of 1913 as metal articles valued above 20 cents per dozen pieces, "designed to be worn on apparel or carried on or about or attached to the person," such as those mentioned in the paragraph" and like articles," or should they be classified as articles in chief value of metal, not specially provided for, at 20 per cent ad valorem under paragraph 167 of the same act?

The board has had before it many questions for solution with reference to paragraph 356, and has in a previous decision analyzed this paragraph as to the merchandise classifiable thereunder. In the matter of protest 740343 of C. B. Richard & Co., G. A. 7755 (T. D. 35592). It is not all articles of metal, valued above 20 cents per dozen pieces, worn on apparel or carried on or about or attached to the person, which are dutiable under this paragraph. They must be the articles mentioned therein, viz, "buckles, card cases, chains, cigar cases, cigar cutters, cigar holders, cigarette cases, cigarette holders, coin holders, collar, cuff, and dress buttons, combs, match boxes, mesh bags and purses, millinery, military, and hair ornaments, pins, powder cases, stamp cases, vanity cases," or "like articles" thereto.

It will be observed the first question arising is whether or not the merchandise is "designed to be worn on apparel or carried on or about or attached to the person "; the second, is it metal or in chief value of metal; the third, is it worth more than 20 cents per dozen pieces; and the fourth, is it one of the articles above enumerated, or a like article thereto? If these four questions can be answered in the affirmative, the merchandise is dutiable under paragraph 356. As to this merchandise it is alone answerable to the second and third descriptions.

In Gallagher & Ascher v. United States (6 Ct. Cust. Appls., -; T. D. 35343) the Court of Customs Appeals succinctly lays down the rule for determining what is a like article to those specified in the statute. In that case the court said:

The controlling question in this provision, outside of the question of value and material, seems to be whether the articles in question are designed to be worn on apparel or carried on or about or attached to the person in the same manner as are the enumerated articles and like articles when in their customary use. If the assessed articles do not resemble the enumerated ones in that particular, then they would not fall within the present provision, whatever might be their resemblance to the exemplar articles or some of them in any other particular. On the other hand, if the assessed articles are similar to the prescribed exemplars in respect to the manner in which they are worn or customarily carried upon the person, then the resemblance is sufficient to satisfy the terms of the provision. The rule of ejusdem generis is thus limited by the paragraph to the single controlling resemblance just defined.

It may be observed that the articles which are enumerated in the disputed provision are numerous and in some respects diverse. Some of them are wholly ornamental in character, for example, "vanity cases and "millinery ornaments"; some are wholly utilitarian, for example, "cigar cutters" and "match boxes"; some may be both ornamental and useful, for example, "chains" and "cuff buttons." In one particular, however, they are all alike, and that is that in their customary use they are all carried upon the person of the user, not for warmth or protection like clothing, but rather as incidental articles of mere personal comfort, convenience, or adornment.

This rule clearly points out to us the manner in which to classify merchandise of this character. In what way, either for personal comfort, convenience, or adornment, does the merchandise in dispute become a like article to those enumerated in the paragraph? We can not see that the articles in question are carried for any one of these purposes. The facts satisfy us beyond a reasonable doubt that the merchandise is not designed to be worn on apparel or attached to the person. If incidentally for purposes of transportation it is carried on the person, this does not signify it was designed to be carried thereon. The compasses and pedometers may be carried in the pocket, but they are of no utility therein. The pedometers must be carried in a particular manner attached by a catch to the vest pocket in order to register the distance walked, and the 'compasses must be removed from the person and placed on a flat surface to properly indicate direction. They are not such articles as are customarily carried on the person or in customary use as are jewelry, cigar cutters, and the articles enumerated in paragraph 356. They are only carried when their use is required for indicating direction or measuring distances. The specific use of these instruments for a specific purpose by a specific class puts them outside of the provisions of paragraph 356.

The facts being practically undisputed-and it is the facts which create the classification-we could not hold this merchandise within the provisions of paragraph 356. It is properly dutiable under paragraph 167 at 20 per cent ad valorem, and we so find.

The protests are sustained and the collector's decision reversed in each case.

(T. D. 35950-G. A. 7825.)

Melba sauce.

MELBA SAUCE-FRUITS, PRESERVED SAUCES.

Melba sauce, a thick sauce consisting of the pulp of the raspberry, together with its juice and probably added sugar, put up in small bottles and used on peaches or pears as a dessert, is dutiable under the provision in paragraph 217, tariff act of 1913, for "fruits of all kinds preserved or packed in sugar, or having sugar added thereto, or preserved or packed in molasses, spirits, or their own juices," and not under the provision in paragraph 201 for "sauces of all kinds, not especially provided for in this section." The latter provision is intended to cover such sauce as is used on meats and vegetables as a relish and not fruit sauce used as a dessert.

United States General Appraisers, New York, December 2, 1915. In the matter of protest 781575 of Meyer & Lange against the assessment of duty by the collector of customs at the port of New York.

[Reversed.]

Strauss & Hedges (Jacob L. Klingaman of counsel) for the importers.

Bert Hanson, Assistant Attorney General (Samuel Isenschmid, special attorney), for the United States.

Before Board 3 (WAITE and HAY, General Appraisers).

WAITE, General Appraiser: The merchandise in question in this case is invoiced as "Melba sauce." It has been assessed at 25 per cent ad valorem as a sauce under paragraph 201, tariff act of 1913, and is claimed to be dutiable at 20 per cent ad valorem under paragraph 217, which provides for fruits, preserved.

A sample was introduced in evidence, which shows the commodity to be a thick, pulpy substance with a raspberry flavor. We judge it is the pulp of the raspberry, together with its juice and probably added sugar. The seeds of the berry seem to have been extracted. The substance flows readily and is of about the same consistency as a thin jam. It is in a bottle which is labeled as containing 9 liquid ounces, and has upon its outer surface a label containing the following:

Sauce for peaches Melba, a special preparation, with raspberry juice for peaches and pears, "a la Melba."

We find also upon this label the following directions:

Select fine, ripe peaches of the kind that detach themselves readily from their stones, steep in boiling water, peel away the skins, place in a basin, and cover with a sirup flavored with vanilla. Keep the basin on ice. At the moment of serving, take the peaches out of the sirup, arrange them in a silver dish on a bed of vanilla ice, and mask each with sauce Melba.

Some testimony was given, but it is of very little use in assisting us in determining the proper classification.

The same commodity was under consideration by the board in Abstract 23904 (T. D. 30893). From the description given in that case the article is identical with this.

The paragraph under which this importation was assessed reads as follows:

201. Pickles, including pickled nuts, sauces of all kinds, not specially provided for in this section, and fish paste or sauce, 25 per centum ad valorem.

It is claimed to be assessable under paragraph 217, known as the fruit paragraph, which provides, among other things, for "fruits of all kinds preserved or packed in sugar, or having sugar added thereto, or preserved or packed in molasses, spirits, or their own juices."

We do not think paragraph 201 is intended to provide for all sauce or sauces. It would be absurd, in our judgment, to classify under that paragraph apple sauce, or plum sauce, or any other sauce used as a dessert. It is intended, we think, to cover such sauces as are used as relishes upon meat and vegetables, such as would contain spices. and salt and have a pungent taste, possibly with an acidity beyond and different from that found in fruit sauce used as desserts.

We are, therefore, of the opinion that this commodity is not assessable under paragraph 201, but is dutiable as claimed. We therefore sustain the protest, following Abstract 23904, supra.

Abstracts of decisions of the Board of General Appraisers.

Board 1-McClelland, Sullivan, and Brown. Board 2-Fischer, Howell, and Cooper. Board 3-Waite, and Hay.

BEFORE BOARD 1, NOVEMBER 30, 1915.

No. 38862.-Protests 754795, etc., of Wm. A. Brown & Co. (New York).

FISH IN LARD.-Fish in tins, packed in lard, classified as fish in oil at 25 per cent ad valorem under paragraph 216, tariff act of 1913, is claimed dutiable at 15 per cent under the same paragraph.

Opinion by BROWN, G. A. The fish in question being packed in lard was found not to be the high-grade delicacy intended to be covered by the 25 per cent provision in paragraph 216, and it was held dutiable at 15 per cent, as claimed.

BEFORE BOARD 3, NOVEMBER 30, 1915.

No. 38863.-Protest 762838 of A. H. Ringk & Co. (New York).

MOHAIR BACKINGS-WASTE.-Merchandise invoiced as mohair backings, classified as waste at 10 per cent ad valorem under paragraph 384, tariff act of 1913, is claimed entitled to free entry under paragraph 651.

Opinion by HAY, G. A. On the authority of G. A. 7649 (T. D. 34997), affirmed in United States v. Ringk (6 Ct. Cust. Appls., -; T. D. 35392), the mohair backings in question were held free of duty under paragraph 651.

No. 38864.-Protest 732314 of Levi & Ottenheimer (Cleveland).

CAPACITY OF BOTTLES.-It is claimed here that certain bottles contained less gin than returned by the Government gauger.

Opinion by HAY, G. A. Protest unsupported; overruled.

BEFORE BOARD 1, DECEMBER 2, 1915.

No. 38865.-Protest 784990 of Brunswick-Balke-Collander Co. (New York). LEATHER CUE TIPS.--Cue tips, classified as manufactures of leather at 30 per cent ad valorem under paragraph 360, tariff act of 1913, are claimed free of duty under paragraph 503, 504, 530, 603, or 604, or dutiable at 15 per cent under paragraph 385.

Opinion by MCCLELLAND, G. A. On the authority of Abstract 38595 the cue tips in question were held properly classified as manufactures of leather under paragraph 360.

No. 38866.-Protests 771336, etc., of R. Lockhart & Co. et al. (Duluth and St. Paul) and protests 776337, etc., of G. J. Thill (Pembina).

BEADED LUMBER.-Lumber sawed, planed, tongued, grooved and beaded, classified at 15 per cent ad valorem under paragraph 176, tariff act of 1913, is claimed free of duty under paragraph 647.

Opinions by MCCLELLAND, G. A. On the authority of United States v. Myers (5 Ct. Cust. Appls., 541; T. D. 35179) the lumber in question was held entitled to free entry under paragraph 647, as claimed.

No. 38867.-Protest 776615 of F. W. Myers & Co. (Ogdensburg).

WEATHER STRIPS-LUMBER.-Battens or weather strips classified as manufactures of wood at 15 per cent ad valorem under paragraph 176, tariff act of 1913, are claimed free of duty under paragraph 647.

Opinion by MCCLELLAND, G. A. The battens or weather strips consist of sawed spruce lumber. They were held free of duty under paragraph 647. Abstract 37482 followed.

No. 38868.-Protest 763528 of P. McGettrick (St. Albans).

NOVELTY SIDING-LUMBER.-Novelty siding classified as manufactures of wood at 15 per cent under paragraph 176, tariff act of 1913, is claimed free of duty under paragraph 647.

Opinion by MCCLELLAND, G. A. The novelty siding in question was held entitled to free entry under paragraph 647, as claimed. United States v. Myers (5 Ct. Cust. Appls., 541; T. D. 35179) followed.

No. 38869.-Protest 563001 of Wells, Fargo & Co. (New York).
ROUGH OPALS-PROTEST INVALID.

SULLIVAN, General Appraiser: The merchandise in this case consists of pieces of opal which have had one surface polished. It was assessed with duty as precious stones, cut, at 10 per cent ad valorem under paragraph 449 of the tariff act of 1909. The protest claims free entry.

At the trial counsel for the United States moved to dismiss the protest on the ground that it does not state under what paragraph the claim is made, and that the protest was not made in the name of the importer, consignee, or owner of the merchandise.

We need consider but one of the grounds of this motion.

The protest is in the following language: "The ground of our objection is that said merchandise is entitled to free entry under paragraph ———.”

It would appear from a close scrutiny of the protest that the figures “626" were typewritten after the word "paragraph," but these have been erased by some one, whom the record does not disclose, and figures resembling "555" in very faint lead pencil writing substituted therefor. It is evident from an inspection of this protest that the original figures were "626," and that some one has taken the liberty of attempting to erase that number. Whether he