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are dutiable thereunder. This construction has the additional merit of rendering the duty on opera-glasses uniform, whereas the other view renders the duty variable, without any reason being shown why congress may be presumed to have intended that the duty should be variable. Judgment will be entered for defendant.

STEPHENSON v. COOPER, Collector.1

(Circuit Court, E. D. Pennsylvania. October 7, 1890.)

CUSTOMS DUTIES-SKEINING WORSTED-APPRAISAL.

Under section of Act March 8, 1883, referring to section 2907, Rev. St., if skeining worsted or mohair yarns is necessary to render them merchantable yarns, the cost of skeining is a part of the value of the goods, and subject to duty. If skeining is necessary only for convenience in transportation from the producer to the consumer, it is a charge for putting up, preparing, and packing for shipment, and the extra cost of skeining is not to be added to the other costs in computing the duty.

At Law.

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Plaintiff sought to recover the duty upon the cost of winding worsted and mohair yarns into skeins. Rev. St. § 2907, provides that "in determining the dutiable value of merchandise there shall be added to the cost or to the actual wholesale price or general market value at the time of exportation in the principal markets of the country whence the same is imported into the United States, * * all other actual or usual charges for putting up, preparing, and packing for shipment." In scction 7 (Act March 3, 1883) it was expressly stated that the above-mentioned charges should no longer be added in determining the value. In plaintiff's invoice the cost of skeining, together with the cost of hanking, bundling, packing, paper, and string, were deducted. These latter were allowed, but the cost of skeining was restored by the appraiser, on the ground that skeining was part of the finishing process, and necessary to put the yarn on the market. Upon trial the testimony of plaintiff's witnesses was to the effect that the skeining process, like the hanking and bundling processes, was merely for the purposes of transportation from the manufacturer to the consumer, and was part of the actual and usual charges for "putting up, preparing, and packing for shipment" of the article mentioned in the provisions of Rev. St. § 2907. The testimony of witnesses on behalf of the government was to the effect that yarn was not in a merchantable condition when it was upon the bobbin or cops, but only after it had been skeined, hanked, and bundled. Verdict for plaintiff.

Frank P. Prichard, for plaintiff.

William Wilkins Carr, Asst. U. S. Atty, and John R. Read, U. S. Atty., for defendant.

'Reported by Mark Wilks Collet, Esq., of the Philadelphia bar.

BUTLER, J., (charging jury orally.) At the time this merchandise was imported into the country by the plaintiff the statute in force, imposing duties upon imported goods, confined them to the value of the goods, excluding from the taxation or duty any cost of preparing them for transportation, either across the country abroad, or across the ocean to this country. I repeat, it excluded from taxation or duty any cost incurred for putting up, preparing, and boxing the goods for carriage either abroad or across the ocean. The value of the goods, which were subject to the import duty, was the value of the goods in the market as a merchantable article of commerce. Whatever was necessary to render the goods merchantable, in other words, adaptable to the uses for which they were designed, was a part of the value of the goods, and was subject to taxation. When these goods reached the custom-house, the importer claimed that the cost of skeining (taking the yarn from the bobbins and constructing skeins) was a part of the cost of putting up and preparing the goods for transportation, and that therefore this cost should be deducted from the price or value of the goods and be excluded in ascertaining the duty. The government answered that the cost of putting the goods in this shape is a part of the cost of rendering them merchantable, of preparing them for the uses of manufacture, and that it was, therefore, properly a part of the price or value of the goods, and consequently assessed a duty upon the price of the goods in this condition. The plaintiff paid the duty and brought this suit to recover it back. The question for your consideration is whether or not the skeining of the yarn was necessary only for convenience of transportation. If it was necessary alone for this purpose, then it is not to be reckoned a part of the price or value of the yarn itself, but as the cost of putting it up for purposes of transportation; and in that view, the government was wrong in subjecting it to duty. In such case the plaintiff is entitled to your verdict for the amount claimed. If, on the other hand, the skeining was necessary to render the yarn a merchantable article, in other words, if it was necessary to render the yarn suitable for the purpose of manufacture, for which it was intended, then it is a part of the value or cost of the yarn, and is subject to duty. In that view, your verdict would be for the defendant, the government. It is clear that wool may be twisted into thread, and not be merchantable yarn. If the spinner, instead of winding it upon bobbins, should allow it to fall into confusion. upon the floor, it would be yarn, but it would not be merchantable yarn -yarn in a merchantable sense; it would not be suitable for use in manufacture; it would be tangled and snarled, and virtually valueless. You can take a thread and say, "this is yarn," and it is rue in one sense, but it is not yarn in a mercantile sense. The thread thus in confusion and tangle upon the floor, would at least have to be turned into a bobbin before it would be fitted for use. The question is whether it is necessary to go further to render it adaptable to the uses for which it is intended, by turning it into skeins. That is the only question before you. You have heard the testimony and the comments of counsel upon it. If you believe from this testimony that it is necessary to render yarn a

merchantable article, adapted to the uses for which it is designed, the uses of manufacture, that it shall not only be made into bobbins but shall also be turned into skeins, the defendant is entitled to your verdict. If, on the other hand, the yarn is a completed article, fitted to the purposes for which it is designed, in the bobbin, and that the skeining is only necessary for convenience in transportation, then your verdict should be for the plaintiff, for the amount of his claim.

A new trial was granted, as the verdict was against the evidence.

MEYER v. COOPER, Collector.

(Circuit Court, E. D. Pennsylvania. October 8, 1890.)

1. CUSTOMS DUTIES-CHINA-WARE-DUTY ON WRAPPERS.

Cheap cups and saucers were imported in paper boxes, closed by brass clasps, each box containing only a single pair, wrapped in tissue paper. Held, under United States statute, finding that the coverings on imported goods designed for use other than in the bona fide transportation of the goods shall pay a duty, if said coverings were intended for use in transportation only, and for no other use, and were not intended to enhance the value, increase the sale, or facilitate the selling, they were free; otherwise, they were subject to duty.

2. SAME-PAYMENT IN FOREIGN MONEYS.

Austrian florins are to be received by the custom house at the rate fixed by the United States mint.

At Law.

This suit was brought to recover back duties upon certain coverings. and paper boxes in which cups and saucers were imported. The invoice described the articles as decorated china-ware. They were entered under the name, and duty paid thereon. The appraiser returned the coverings as "unusual" coverings, and subject to duty of 100 per cent. ad valorem. These coverings consisted of boxes, closed by a brass clasp, containing a single cup and saucer of inferior grade, and tissue paper surrounding the china. The testimony as to the usual and necessary coverings for china of that grade was conflicting. The plaintiff also sued to recover the excess of duty paid by the valuation of Austrian florins at a different rate from the valuation fixed by the United States mint. To this the government offered no defense. The verdict was for defendant for the coverings and for plaintiff for the florins.

Frank P. Prichard, for the plaintiff.

W. Wilkins Carr, Asst. U. S. Atty., and John R. Read, U. S. Atty., for defendant.

BUTLER, J., (charging jury orally.) There is not very much money involved in this case, but, inasmuch as it arises out of the administration of the tariff laws, it is important that it shall receive deliberate and careful consideration; because, if it is not properly decided, it will tend to produce confusion, embarassment and uncertainty hereafter. The case is very readily understood, and not difficult to decide. Upon the importation

of the invoice of merchandise, of which a sample is before you, the revenue officers subjected the box in which the ware was imported to a duty of 100 per cent. The amount was paid by the importer, the plaintiff here, under protest, who subsequently sued to recover back the duty assessed upon the box, claiming that it is not dutiable. Now, the question before you is: Is this box dutiable under the statute? The counsel for the plaintiff asks the court to say that, "If the article in question" (that is, the box) "was not of any material or form designed to evade the duties thereon," (there is no pretense that it is "designed to evade the duties;" the government does not so charge,) "or designed for use otherwise than in the bona fide transportation of the goods to the United States, the plaintiff is entitled to your verdict."

That is true. If this box was not designed for use otherwise than in the bona fide transportation of the goods to the United States, the plaintiff is entitled to recover. It was improperly taxed if the box was not intended for any other purpose than the transportation of the goods to the United States.

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The defendant, the government, asks the court to say to you that "If you believe the box involved in this suit is of material or form designed for use otherwise than in the bona fide transportation of the goods to the United States, your verdict should be for the defendant." That is equally true. If the box was designed, was intended, to have any other use than that of transporting the goods, the duty was properly levied. We are further asked to say "If the box in suit enhanced the value of the contents and increased the facilities for selling, that is a use independent of the transportation of the merchandise and is liable to taxation as the government taxed it." That is true. If the box was intended to have any other use or purpose in connection with the goods than that of transporting them-if it was designed to have any other use or purpose, it is liable to the tax imposed; and in that event your verdict must be for the defendant. The statute, under which the case arises provides that "The usual and necessary sack, crate, boxes or coverings of goods imported shall not be estimated as a part of their value in determining the amount of duties for which they are liable;" in other words, that the importer shall be taxed, or rendered subject to duty, only upon the value of the goods themselves, abroad, and that the boxes, crates or sacks in which the goods are packed for purposes of carriage shall not be estimated as a part of the value of the merchandise and subjected to taxation. The statute further provides that "If any package, sack, crate, boxes or coverings of any kind in which merchandise is imported shall be of material or form designed to evade the duties thereon * * *—the same shall be subject to a tax of 100 per cent." There is no charge of design to evade the statute here. I will read what is important, omitting what is not:

"That if any package, sack, crate, boxes or coverings of any kind shall be of material or form designed for use otherwise than in the bona fide transportation of the goods to the United States, the same shall be subject to a tax of 100 per cent."

The single question involved is, were the boxes designed for any other use than that of conveying the goods? If not, they were improperly taxed, and the plaintiff is entitled to recover back what he paid. If they were designed for any other use, then they are liable to the tax imposed by the officers, and your verdict must be for the defendant. Were they designed for any other use? The only other use for which the government claims they were designed was that of enhancing the value. of the goods themselves, increasing the facilities in making sales, presenting them in an attractive form. I have no hesitation in saying to you that if the purpose of using the boxes was to enhance the value of the goods when presented for sale, to a purchaser for use, then the boxes were intended for another use than that of transportation simply. Now you will say, from the evidence, whether they were intended simply for the purposes of transportation or not. If they were, your verdict will be for the defendant. If you find they were intended for other use, that they were intended to enhance the value of the goods, to aid in obtaining a better price, to increase the value on sale, then they are liable to the duty imposed by the government.

In re VETTERLEIN.

(District Court, S. D. New York. November 5, 1890.)

1. BANKRUPTCY-PREFERENCE OF THE UNITED STATES-ACCOUNTING-PROVISIONAL ORDER-RES JUDICATA.

A dividend warrant having been drawn in 1871 in favor of H., but never delivered, and the United States having thereafter established a claim against the bankrupts which is entitled to a preference, and the circuit court having thereafter, on the application of H., directed payment by the assignee of the warrant to H. upon her executing a bond for repayment to the assignee, if it should be determined thereafter that the assignee was bound to repay the United States any moneys previously paid out on similar warrants, and the district court, in an accounting by the assignee, on application of the United States for the moneys in his hands, having directed the payment to the United States of such moneys, not including the warrants which appeared on the credit side of the assignee's account, held, that neither order was res adjudicata in favor of the petitioner, H., because (1) the circuit court order was a provisional one, and did not pass upon the merits; and (2) the order of the district court, on accounting, did not adjudicate the dividend in question to any one, but left it undisposed of; and that the subsequent determination in the circuit court, in another suit, that the United States was entitled to all such moneys, deprived the petitioner of any equity.

2. SAME-PARTNERSHIP-BRANCH HOUSES-MARSHALING ASSETS-REV. ST. § 5074.

The law has never recognized branch houses, conducting different businesses at different places, under somewhat different firm names, as constituting distinct estates, whose assets were to be marshaled for the benefit of the different sets of creditors of each branch, where the copartners, carrying on both branches, were identically the same. The object of section 5074 of the Revised Statutes was not to create distinct estates in such cases to be marshaled separately, but to admit double proofs, upon double security, for the same debt. Accordingly held that, in such a case, the total assets are liable in solido for all the partnership debts, and that a claim of the United States was entitled to a preference upon the whole assets, though its claim arose solely out of the business of one of the branch houses.

Petition of Matilda Hare, as Administratrix.
Roger M. Sherman, for petitioner.

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