regular in form, but understated the price of the costumes in the trunk nearly one-half. Before anything further had been done towards the entry of the trunk, which was detained at the public stores, the attorneys for the claimant wrote to the Treasury Solicitor that the invoice which had been taken out to accompany the trunk did not correctly state the purchase price of some of the items in it and that the claimant did not wish to make entry upon such invoice. The letter then gave new values to many of the items in the invoice, correcting the old ones. Upon receipt of the letter the trunk was seized, and the question now arises as to whether its contents was forfeited because the claimant had made a misstatement in regard to its entry.

William M. Wemple and Harold S. Deming, Asst. U. S. Attys. Kammerlohr & Duffy (John G. Duffy and Henry P. Velte, of counsel), for claimant.

HAND, District Judge (after stating the facts as above). In U. S. v. One Trunk (McNally, Claimant), 171 Fed. 772, I held that to take out a fraudulent invoice and change one's mind before using it was not to "attempt to enter" imported merchandise. Considered as imported merchandise subject to section 4 of the Customs Administrative Act, I must consistently hold that there was no ground of forfeiture, because the claimant did not use the fraudulent invoice to enter the goods under section 4.

The question remains whether she was required to enter the trunk as baggage under section 2799. I find as fact-both sides having asked for the direction of a verdict-that by her conduct before the collector she declared the value of the contents of the trunk to be the sum of the consular invoice and that such a declaration was an attempt to deceive the collector. I believe, also, that articles 610 and 611 of the Treasury Regulations, requiring passengers to state the value of their baggage, is valid, because paragraph 697 of the Dingley act put a pecuniary limitation upon the exemption of wearing apparel.

The remaining question is whether the claimant was under any duty of any kind to enter the trunk as personal baggage under section 2799. The goods were merchandise for sale. That is not within the usual definition of "personal baggage," or of "personal effects." Murray's Oxford Dictionary defines "personal effects" as "personal luggage as distinguished from merchandise"; and I think that the exception from section 4 of "personal effects" is equivalent to an exception of the articles which must be declared under section 2799 of the Revised Statutes. No one contends that the goods here are "personal effects," as I understand it. Therefore the goods did not come within section 2799, and the declaration of value was not required by law.

Mr. Wemple insists that this result contradicts United States v. One Purple Cloth Costume (D. C.) 158 Fed. 899, and United States v. 21812 Carats of Emeralds (D. C.) 153 Fed. 643. I do not think so. In the first case the claimant tried to smuggle her dresses through the lines as personal baggage and without any declaration of any kind. If an importer so packs imported merchandise amid his actual personal baggage as to conceal it, he has by that act given it, quoad hoc, the character of personal baggage. He, least of all, can urge that it is not such. Perhaps as to such goods both forms of entry apply. Further,

I think that, even by shipping a separate package of imported merchandise among passengers' baggage, as here, the owner prima facie classes it as such, and must be held under duty to declare it as baggage, or to indicate its true character when asked to declare his baggage. If there be an ambiguity, it is of his own making, and he must resolve it. However, in this case, I am satisfied that the claimant did at the proper time quite unambiguously declare that the contents of the trunk was not personal baggage, as it was not in fact. By her talk with the collector and by writing the words "Consul Invoice" upon the declaration, I think she meant to say:

"I have also some goods in a trunk, described in a consular invoice, which are among the passengers' baggage, but which will come in as imported merchandise."

If so, she effectively cleared up any ambiguity about the character of the goods, and correctly asserted that it was not baggage, in spite of its location in the ship. It is true that she misstated their value, but that was not a change in her position; and though it was quite as corrupt as though it were illegal, it remained a gratuitous statement. do not believe that, where the owner does not seek to conceal the character of imported merchandise by dressing it up as baggage, Congress could have intended to make applicable two independent systems of formalities, each complete in itself. If I have understood United States v. One Pearl Necklace, 111 Fed. 164, 49 C. C. A. 287, 56 L. R. A. 130, and One Pearl Chain v. United States, 123 Fed. 371, 59 C. C. A. 499, those cases are clearly to the contrary.

I will direct a verdict for the claimant; but, as the seizure does not seem to me to have been without reasonable cause, I will not give costs.

J. H. LICHTENSTEIN & CO. v. UNITED STATES.

JOHN ZIMMERMANN CO. v. SAME.

(Circuit Court, S. D. New York. November 9, 1909.)

Nos. 4,852, 4,853.

1. CUSTOMS DUTIES (§ 82*)—PROTEST-ESSENTIALS.

While alternative grounds of dissatisfaction may properly be stated in protests against decisions by collectors of customs, this rule does not permit the enumeration of a long list of paragraphs, many of which are entirely remote, with the purpose of covering everything. Under the provision in Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 (U. S. Comp. St. Supp. 1909, p. 820), that protests shall set forth "distinctly and specifically" the importers' grounds of objections, it is not enough that the provision ultimately relied upon can be found somewhere in the protest.

[Ed. Note.-For other cases, see Customs Duties, Cent. Dig. § 198; Dec. Dig. § 82.*]

2. CUSTOMS DUTIES (§ 32*)-MULTIFARIOUS PROTESTS "DISTINCTLY AND SPECIFICALLY."

Protests each covering 24 separate provisions of the tariff, which carry about 50 different rates of duty, are invalid, as not setting forth the imFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

porters' objections "distinctly and specifically," within the intent of Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 (U. S. Comp. St. Supp. 1909, p. 820).

[Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 82.*

For other definitions, see Words and Phrases, vol. 3, pp. 2131, 2132; vol. 7, p. 6599.]

On Application for Review of a Decision by the Board of United States General Appraisers.

The decision below is reported as G. A. 6,534 (T. D. 27,885), and overruled the importers' protests against the assessment of duty by the collector of customs at the port of New York.

Brown & Gerry (Allan R. Brown, of counsel), for importers.

D. Frank Lloyd, Deputy Asst. Atty. Gen. (Martin T. Baldwin, of counsel), for the United States.

MARTIN, District Judge. The Board of Appraisers held that the protests in these cases were not in compliance with section 14 of the customs administrative act of 1890 (Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. Supp. 1909, p. 820]). The protests each cover 24 separate provisions of the tariff, and those provisions carry about 50 different rates of duty. The provision finally urged before the Board was included in the protests. The real question presented in these cases arises under the holding of the courts that protests on alternative grounds are proper and that there may be a judicial determination of doubtful enumerations or apparently conflicting paragraphs.

It should be borne in mind that these protests constitute the pleading upon which the cause comes before the court. The line of cases above referred to should not be construed by the pleader that he is at liberty in his allegations to enumerate a long list of paragraphs, many of which are entirely remote, with the one purpose of covering everything. I know of no hard and fast rule that can well be adopted to apply to cases like this; but in my opinion it would be bad law and decidedly unwise for the court to hold that if the provision ultimately relied upon by the importer can be found somewhere in the protest it is sufficient. That is not what was intended by the use of the words "setting forth therein distinctly and specifically * * the reasons for his objections," in said section 14 of the customs administrative act. General provisions in the same paragraph, not applicable, should be also eliminated from the pleading. While the court should not scrutinize it as a plea, yet it should insist that the spirit of the law be followed, otherwise it would foster a want of mental application to an analytical problem-a haphazard classification of a large number of paragraphs, many of which are entirely remote.

*

I think the Board was right in its view of these protests, and therefore its decision is affirmed.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

UNITED STATES v. YAMASHITA.

SAME v. FURUYA & CO.

(Circuit Court, W. D. Washington, N. D. January 21, 1910.)

Nos. 1,320, 1,321 (1,740, 1,741).

CUSTOMS DUTIES (§ 30*)-CLASSIFICATION-FISH IN SMALL PACKAGES.

In Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 258, 30 Stat. 171 (U. S. Comp. St. 1901, p. 1650), relating to fish "in packages containing less than one-half barrel," classification should be determined by the size of the container in which the merchandise is packed for transportation and wholesale trade, rather than of the container in which it is packed for retail trade; and fish in boxes of a capacity of not less than one-half barrel, but filled with one pound paper packages for retail, is not dutiable under said provision.

[Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 30.*]

On Application for Review of a Decision by the Board of United States General Appraisers.

Elmer E. Todd, U. S. Atty.

Comstock & Washburn (Albert H. Washburn, of counsel), for importers.

HANFORD, District Judge. The appeals in these two cases present for adjudication a single question as to the proper classification of imported merchandise for the purposes of assessing duties under the Dingley tariff law of 1897 (Act July 24, 1897, c. 11, § 1, 30 Stat. 151 [U. S. Comp. St. 1901, p. 1626]). The merchandise consists of dried fish imported in boxes containing either 110 pounds or 220 pounds; the boxes being filled with one pound paper packages containing the fish, in which form it is sold at retail. The collector of customs exacted payment of duty at the rate of 30 per cent. ad valorem, under the last clause of paragraph 258 of the tariff act of 1897 which reads as follows:

"Fish in packages containing less than one-half barrel, and not specially provided for in this act, 30 per centum ad valorem."

The importers paid the duty under protest, contending that the duty should have been assessed at the rate of three-fourths of one cent per pound under the first clause of paragraph 261 of said act, which reads as follows:

"261. Fish, fresh, smoked, dried, salted, pickled, frozen, packed in ice, or otherwise prepared for preservation, not specially provided for in this act, three-fourths of one cent per pound."

Their contention was sustained by the decision of the Board of General Appraisers, and to reverse that decision the collector of customs appealed to this court.

By the provisions of the law the rate of duty collectible is to be fixed by reference to the bulk and weight of the package in which the fish is imported, and the question in these cases arises from the fact

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

that the fish was imported in one pound paper packages in form suitable for retail trade and distribution to consumers, and that a number of one pound packages were incased in boxes of weight and bulk sufficient to avoid the 30 per cent. ad valorem clause of the tariff law. It is the opinion of the court that the most reasonable construction of the law is that which tends to simplify the collector's duties and facilitate economy and convenience in the method of collecting revenue.

Therefore the decision of the Board of General Appraisers, in holding that the box in which the merchandise was packed for transportation and wholesale trade is the package which determines the classification, rather than the more numerous and frail containers in which it was put up for retail trade, is correct, and the court affirms that decision.

MEMORANDUM DECISIONS.

BONSALL v. T. B. PEDDIE & CO. (Circuit Court of Appeals, Second Circuit. February 8, 1910.) No. 118. Appeal from the Circuit Court of the United States for the Southern District of New York. H. S. Mackaye, for appellant. Louis C. Raegener and S. L. Moody, for appellee. Before WARD and NOYES, Circuit Judges, and HOUGH, District Judge.

PER CURIAM. Decision affirmed, on opinion of Judge Ray (161 Fed. 564).

CARTER V. GOSS.† (Circuit Court of Appeals, Fifth Circuit. March 1, 1910.) No. 1,950. In Error to the Circuit Court of the United States for the Southern District of Texas. W. G. Love and J. C. Hutcheson, for plaintiff in error. John Charles Harris, Maurice E. Locke, and Eugene P. Locke, for defendant in error. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. This case was before this court at a former term. Goss V. Carter, 156 Fed. 746, 84 C. C. A. 402. As we read the present record, no new questions are raised, and we adhere to our former decision. The judgment of the Circuit Court is affirmed.

CROWN CORK & SEAL CO. OF BALTIMORE CITY v. BROOKLYN BOTTLE STOPPER CO. et al. (Circuit Court of Appeals, Second Circuit. February 8, 1910.) No. 183. Appeal from the Circuit Court of the United States for the Eastern District of New York. Bill by the Crown Cork & Seal Company of Baltimore City against the Brooklyn Bottle Stopper Company and oth

ers.

Decree for complainant. Defendants appeal. Continued. For opinion be low, see 172 Fed. 225. S. L. Moody, for appellants. J. Q. Rice and R. H. Parkinson, for appellee. Before LACOMBE, WARD, and NOYES, Circuit Judges. PER CURIAM. The fundamental and controlling question presented on this appeal came before this court in A. B. Dick Co. v. Henry (no opinion filed), and was certified to the Supreme Court March 16, 1909. Until that court shall have passed upon it we feel unwilling to take up the same subject in another case, even though it may present some points of difference. Such a postponement of the decision would leave the injunction undisturbed, but upon the facts

† Rehearing denied March 29, 1910.