of evidence in specific cases and not an amendment to or repeal of the existing law as above stated; that the amount of decay or shortage of an importation is, therefore, in each case a question of fact to be established as any other probative fact, an issue in the case.

In this case the collector assessed for duty the entire importation. There was no certificate by the appraiser or other customs official of nonimportation in whole or in part of the cargo. Examination was made of the merchandise upon the wharf after it was landed by the importer. The only witness who testified in the case was the importer, who stated he had made a complete and detailed examination. The Board of General Appraisers, weighing the testimony of the importer and the other facts in the record, determined and found that all of these importations which had been examined by the importer within six days after the arrival of the vessel were entitled to certain abatements of duties by reason of a shortage at the time of importation; that all of the shipments which were examined after six days after such arrival of the cargoes were not entitled to such abatements. The board expressly rests its decision upon the ground that the evidence offered by the importer did not convince the board that the return of the collector in the cases specified was incorrect. The board expressly stated that its opinion was not an attempt to make a hard and fast rule as to all cases. We can not read the decision of the board other than a finding of fact relating to the particular importations in question, and applicable to no other importations, and based solely upon the testimony in the record before the board in the particular case.

The board had before it on the one hand the return of the collector, upon the other hand the testimony of the importer. It weighed each carefully and made a specific finding of fact as to each protest and importation. It refused to accept the testimony of the importer in certain instances as sufficient to refute the presumption of correctness of the return of the collector. The record is significant of reasons why the board might decline to accept as conclusive the testimony of the importer as to some of these importations at least. The following is the testimony:

Q. Fruit containing 60 per cent of decay salable?-A. Salable?

Q. Yes. Can you sell fruit containing as much decay as that? A. Yes. The buyers get stuck.

By General Appraiser SOMERVILLE: Generally state to the purchaser when you sell the goods what your estimate of the rot is?

A. Oh, no; we keep it for ourselves.

Q. Does he examine them himself before he buys?-A. Yes; of course he examines the best samples.

We are unable to discover in this record any cogent reason why the court should interfere with the finding of the board.

Affirmed.

32354-VOL 2-12-22

UNITED STATES v. BAKER CASTOR OIL CO. (No. 456).1

1. TARE, GENERALLY.

Impurities ordinarily present in an article of merchandise do not constitute tare; only those impurities not ordinarily present in the merchandise as traded in may be the subject of an allowance for tare.-Seeberger v. Wright (157 U. S., 183); Shallus v. United States (1 Ct. Cust. Appls., 316: T. D. 31408).

2. TARE IN CASTOR SEEDS.

Without passing on the relevancy, as testimony here, of a certificate showing the results of an analysis made at the place of export, this certificate may be taken as in the nature of an admission against interest, and since it is made apparent that no allowance is commonly made as between seller and buyer of castor seeds, except in cases where the impurities exceed 3 per cent, and then only for the excess over and above 3 per cent, the allowance here should have been, not for 5, but for the excess above 3 per cent, namely, 2 per cent.

United States Court of Customs Appeals, November 28, 1911. APPEAL from Board of United States General Appraisers, G. A. 7088 (T. D. 30878). [Modified and affirmed.]

Wm. L. Wemple, Assistant Attorney General (Charles E. McNabb on the brief), for the United States.

Curie, Smith & Maxwell (W. Wickham Smith of counsel) for appellee.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: The merchandise involved in this case is an importation of castor seeds or beans. Duty was assessed at the rate of 25 per cent per bushel of 50 pounds under paragraph 266 of the tariff act of 1909. The importers claimed an allowance for dirt, gravel, and other foreign substances, amounting to 4.99 per cent, and filed a protest with the Board of General Appraisers, which protest was sustained. The Government brings the case here by appeal.

The board found as a fact that there was present about 5 per cent of dirt, gravel, etc., and directed a reliquidation accordingly, relying for authority on the case of Seeberger v. Wright (157 U. S., 183), and the case turns upon the effect to be given to this decision.

It was said in the opinion of the board that this case has been criticized to some extent by inferior tribunals, but has never been overruled. It is true that the case has been distinguished in numerous other cases by inferior tribunals, and it is also true that it has never been overruled.

It is therefore essential to determine just what that case decided. This is to be determined by ascertaining the question presented to the court. The case was tried under a stipulation and among the facts found by the court was this: The invoices show the gross weight and tare of 5 pounds per bag and a deduction of 4 per cent for impurities. The collector, in assessing the duties, deducted the tare, which was the weight of the bags, but refused to allow anything for impuri

1 Reported in T. D. 32076 (21 Treas. Dec., 668).

ties, assessing a duty of 20 cents per bushel of 50 pounds upon the gross weight, less the tare.

It would appear, therefore, that in the case cited, at least as to the importation there considered, there was an allowance made by the seller for the impurities. There was nothing in the record of that case to show that this was an unusual allowance. As was said by the Court of Appeals in United States v. Reid, Murdoch & Co. (120 Fed. Rep., 242), involving imported currants, and in holding that the decision in Seeberger v. Wright was not controlling:

In that case (Seeberger v. Wright) *

*

* it was admitted or proven that it contained 4 per cent of impurities, while there was no proof that the imported article, according to the customs of the trade, contained any such impurity.

So, in dealing with the subject of shelled nuts, the court in Spencer & Co. v. United States (143 Fed. Rep., 916), referring to Seeberger v. Wright, and United States v. Reid, Murdoch & Co., said:

Both cases make it plain that the important thing is to find out what the shelled nuts of commerce were when paragraphs 269 and 270 were enacted. These impurities are said to have appeared in the nuts since then. If this were so, and if the percentage of impurities has been clearly shown, there would be great force in the contention— and it was held that no allowance should be made for impurities in an importation when there was nothing to show "abnormal quantities of foreign matter" in the importation, or where the merchandise did not vary from the "ordinary wholesale condition." This case was, on appeal to the Circuit Court of Appeals for the Second Circuit, affirmed on the opinion by the district judge.

The case of Seeberger v. Wright was considered by this court in the case of Shallus v. United States (1 Ct. Cust. Appls., 316; T. D. 31408), and it was said:

The principle as to when tare is allowable is stated in effect that tare should be allowed only in such cases where its presence was uncommon to the condition of the merchandise as ordinarily dealt in in trade and commerce. In other words, the ordinary impurities of merchandise do not constitute tare, but the extraordinary impurities, such as are uncommonly present in the merchandise as bought and sold in trade and commerce, are alone the subject of allowance for dutiable purposes.

We think this is a correct interpretation of the Seeberger case. The importers introduced as a part of their case a certificate made by the Incorporated Oil Seed Association, of London, England, which is claimed to be a report of the analysis of the seed in question, showing clean castor seed, 95.01 per cent; nonoleaginous, 4.99 per cent; fixed allowance, 3 per cent; and to be deducted from invoice, 1.99 per cent, totaling 100 per cent; "say, allowance to buyer, 1.99 per cent." Government's counsel objected to the introduction of this testimony as hearsay. It was, however, admitted as a part of the res gesta. The objection urged by Government's counsel has much force, and it is very doubtful whether the board did not extend the rule of res gestæ to facts which as affecting the present issue con

stituted a past transaction. But as the importer proved the presence of these impurities by other testimony, we do not deem it important to decide this question. In any view, the testimony offered may properly be used to illustrate and limit the testimony of the importer's witnesses, in so far as it militates against their claim, as in the nature of an admission against interest.

The attention of the importer's witness was called to this statement, and the following occurred:

Q. I also find on the right-hand side opposite, "Fixed allowance, 3 per cent." What does that mean?-A. That is the basis on which that seed is bought.

Q. Does that mean that it is bought with a margin of 3 per cent for dirt?—A. Some bought with a margin of 3 per cent, some with a margin of 1 per cent

Q. I mean as to this particular transaction?—A. Three per cent.

Q. That means there was an allowance of 3 per cent?-A. The difference between 3 per cent and 4.99 per cent.

This is the only testimony showing what the castor seeds of commerce are, and from this it is plainly to be inferred that no allowance is made as between seller and buyer except in cases where the nonoleaginous substance exceeds 3 per cent, and then only for the excess above 3 per cent.

Applying that rule to the present case by accepting the finding of the Board of General Appraisers as to the quantity of impurities contained in the seed under consideration as 5 per cent, the allowance to the importer should have been for 2 per cent only, and the decision of the Board of General Appraisers is modified accordingly.

CATALDI AUROLA et al. v. UNITED STATES (No. 593).1

ALLOWANCE FOR BREAKAGE, LEAKAGE, ETC.

The proviso to paragraph 307, tariff act of 1909, forbidding allowance to be made for breakage, leakage, etc., of merchandise therein described, must be strictly construed and can not be made to apply to merchandise not within its terms; but the legality of that provision itself is now stare decisis. The board rightly held the leakage here to be dutiable.

United States Court of Customs Appeals, November 28, 1911. APPEAL from Board of United States General Appraisers, Abstract 24585 (T. D. 31207). [Affirmed.]

Joseph G. Kammerlohr for appellants.

Wm. L. Wemple, Assistant Attorney General (Wm. A. Robertson on the brief), for the United States.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: This is an appeal from a decision of the Board of General Appraisers affirming the action of the collector in imposing duty upon 24 casks of wine, the sole question being whether the collector erred in refusing to allow a deduction for leakage.

The report of the collector states that the United States gauger in his return attached to the entry reports certain wantage in excess

1 Reported in T. D. 32077 (21 Treas. Dec., 670).

of normal, which would indicate leakage. Duty was assessed on the amount found by the United States gauger plus wantage in excess of normal outage.

The proviso to paragraph 307 of the act of 1909, corresponding to like provisions in previous acts, reads as follows:

And provided further, That there shall be no constructive or other allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits.

Two contentions are made: First, that this proviso should be held applicable to goods after their arrival and before delivery to the importer; second, that it is beyond the power to tax goods that never arrived in this country.

It is conceded that the question is not new, as it was considered by the board in Montague's case (T. D. 26086), in which the earlier cases In re Saenz & Co., G. A. 5891 (T. D. 25965), and Gilmore's case, G. A. 3692 (T. D. 17644), are reviewed. In the latter case it was said:

The effect of the present tariff law, as contained in said paragraph 244 (corresponding to the proviso to paragraph 307 of the act of 1909), is to bring broken bottles of wines and liquors, which may have been broken on the voyage of importation, within its special scope, and for such a deficiency of this kind of merchandise no allowance is provided. It is, in fact, expressly prohibited.

It is no reasonable objection to this construction of the law that it operates to assess duty arbitrarily upon goods which never arrived in this country. The requirement of the law is that wines and other spirituous liquors mentioned in Schedule H and imported in bottles or jugs "shall be packed in packages containing not less than one dozen bottles or jugs in each package, or duty shall be paid as if such package contained at least one dozen bottles or jugs." One bottle in a package would thus be assessed as if it were a dozen bottles, whether the deficiency may have occurred by accident or design. The validity of such a law was sustained over 20 years ago by Judge Shipman in Bensusan v. Murphy (10 Blatch., 530; 3 Fed. Cas., 239), decided by the Circuit Court for the Southern District of New York. The same reasoning applies in favor of the validity of a law which arbitrarily disallows any reduction of duties for loss by breakage, leakage, or other damage.

This case was followed in the Montague case. A review of this decision was sought by the Supreme Court, but the writ of certiorari was denied. See case reported under title of Shaw v. United States. (203 U. S., 591).

This decision is not inconsistent with the decision of the court in Marriot v. Brune (9 How., 619). It was said in that case:

The collection of revenue on an article not existing, and never coming into the country, would be an anomaly, a mere fiction of law, and is not to be countenanced where not expressed in acts of Congress, nor required to enforce just rights.

The provision we are now considering is an administrative provision that was evidently designed to prevent fraud and for convenience in the administration of the customs laws.

So in Lawder v. Stone (187 U. S., 281). The Supreme Court, in referring to Marriot v. Brune and other decisions said:

It would require a clear expression by Congress of its intention to adopt a contrary policy before a court would be justified in holding that such was the purpose of the legislative branch of the Government