furnishes the general rule for the interpretation of public laws as well as of private and social transactions. The court added that, "if it should be conceded that, in the opinion of mercantile men, shawls were not considered wearing apparel, it would still remain to be proved that this opinion was sustained by the judgment of the community generally, or that the legislature designed a departure from the natural and popular acceptation of language."

The phraseology which is used here-"pickles and sauces of all kinds -seems to call for an exhaustive enumeration. There is nothing in the words themselves to indicate that they are used in a particular trade meaning; and there is nothing certainly shown in the record as to the facts which were laid before congress when the act was under discussion which would indicate that they were using the word in any particular trade meaning. The article before us here is, I think, plainly within the popular definition of the word "sauce." The testimony which we have as to its use, and what is known of its constituents, is sufficient to place it in that category. Following, therefore, the decision in Maillard v. Lawrence, and its affirmance in Greenleaf v. Goodrich, 101 U. S. 278, a verdict must be directed for the defendant.

The jury rendered a verdict for the defendant in accordance with the direction of the court.

FRITZSCHE et al. v. MAGONE, Collector.

(Circuit Court, S. D. New York. October 22, 1889.)

CUSTOMS DUTIES-CLASSIFICATION-FLORAL EXTRACTS.

Since the passage of the tariff act of March 3, 1883, (22 U. S. St. at Large, c. 121, p. 458,) floral extracts, which are articles composed of about 95 per cent of alcohol and 5 per cent. of sediment, and used in the manufacture of perfumery, are not dutiable at the rate of $2 per gallon and 50 per centum ad valorem as "alcoholic perfumery," under the subdivision of "Alcoholic Preparations," which provides for such perfumery, contained in Schedule A of said tariff act, but are dutiable at the rate of $2 per gallon for the alcohol contained, and 25 per centum ad valorem, as "alcoholic compounds not other wise specially enumerated or provided for" under the subdivision of "Alcoholic Preparations," which provides for such compounds contained in said Schedule A.

At Law. Action to recover back customs duties. The plaintiffs, on January 4 and April 27, 1888, made two importations from France into the port of New York of floral extracts,―jasmin and rose. These floral extracts were classified by the defendant, as collector of customs at said port, as "Alcoholic Perfumery," under the subdivision of "Alcoholic Preparations," which provides for "alcoholic perfumery," contained in Schedule A of the tariff act of March 3, 1883, (T. I. new, par. 100,) and duty thereon, pursuant to such provision, was exacted of the plaintiffs by him, as said collector, at the rate of $2 per gallon and 50 per cent. ad valorem. Against this classification and exaction the plaintiffs made sufficient and seasonable protests, claiming therein that these floral ex

tracts were "alcoholic compounds," dutiable at the rate of $2 per gallon for the alcohol contained and 25 per centum ad valorem under the subdivision of "Alcoholic Preparations," which provides for "alcoholic compounds not otherwise specifically enumerated or provided for," contained in said Schedule A, (T. I. new, par. 103.) Thereafter the plaintiffs, within the time required by law, duly made appeals to the secretary of the treasury, and, within 90 days after adverse decisions were made thereon by him, brought this suit to recover the difference in duties at the rate exacted by the defendant as said collector, and at the rate claimed by them in their protests. Upon the trial it appeared that these floral extracts were colored liquids, the jasmin being of a wine color, and the rose of an olive green color; were composed of about 95 per cent. of alcohol and 5 per cent. of sediment; were somewhat greasy or oily to the touch, and were of a heavy fragrant odor; and that, when applied to a linen handkerchief, etc., they both left a greasy or oily stain upon it. From the plaintiffs' testimony it appeared that at and prior to the passage of the aforesaid act of 1883 the term "perfumery" was a trade term, having a more restricted meaning than the dictionary definition, and, in trade and commerce of this country, meant the finished products manufactured from various raw materials differently combined, and made ready for use as perfumery by the consumer; that in the manufacture of such finished products the various raw materials used had to be reduced in strength and rendered volatile, so that the heavy smell of them, as it was called in the trade, was made to disappear; that their different smells and odors had to be compounded in such a way as to produce imitations of nature; and that the natural coloring matter in these raw materials had to be treated, and the oil or grease in any of them removed, so that the finished products would not stain the handkerchief or other article to which they were applied; that these floral extracts were not, at and prior to the passage of the aforesaid act of 1883, in trade and commerce of this country, perfumery, or included in the term "perfumery;" that they have always been in such trade and commerce regarded as, and used as, one of the materials employed in the manufacture of perfumery. From the defendant's testimony it appeared that, at and prior to the passage of the aforesaid act of 1883, in trade and commerce of this country perfumery was anything which gave a pleasant odor, and that floral extracts like those in suit were so known as, and included in the term, "crude perfumery."

Comstock & Brown, for plaintiffs.

Edward Mitchell, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for defendant.

LACOMBE, J., (charging jury.) These articles are compounds of alcohol. As such they were properly dutiable as alcoholic compounds, which is the plaintiffs' contention, unless they are otherwise specially enumerated in the tariff act. The government contends that they are otherwise specially enumerated by the term "alcoholic perfumery." The definition of the term "perfumery," as given to us from the dictionary

which was used here, is unsatisfactory. The word "perfumery" is there defined by a reference only, that is, "Perfumery. Perfumes in general;" and, when "Perfume" is turned to, we find that the only definition given is, "A substance that emits a scent or odor, which affects agreeably the organs of smelling." Of course new-mown hay is within this definition, but, while in one sense it may be said to be a perfume, yet the meaning which we attach to the word "perfumery" in daily life is much more restricted. The word, as generally used, means not only a substance which emits a scent or odor, but also one which is handled, bought and sold, and used for the purpose of obtaining from it such odor whenever required. But of course with the dictionary definition of the word we need not particularly concern ourselves. This tariff act is concerned with the trade and commerce of the country, and it is therefore proper to turn to that trade and commerce for the definition of words which are used in the act. Two definitions have been proffered here as to what the word "perfumery" means in the trade. One witness, called by the government describes it as "anything which gives a pleasant odor;" the articles in suit he calls crude perfumery. That is the claim of the government. The witnesses on the other side say that in trade the word "perfumery" is confined to the finished product that can be used by the consumer, and that until it is put into such a condition that the consumer into whose hands it finally comes can use it for the purpose for which perfumery is used by individuals, it is not "perfumery," as known in the trade.

It is for you to determine, in the first place, which of those definitions is established by the testimony in this case to be the trade definition. When you reach a conclusion upon that point, you will next say whether or not these particular articles fall within that definition.

Verdict for plaintiffs.

CLAY . MAGONE, Collector.

(Circuit Court, S. D. New York. October 28, 1889.)

CUSTOMS DUTIES-CLASSIFICATION-CELEry Seed.

Since the passage of the tariff act of March 3, 1883, (22 U. S. St. at Large, c. 121, p. 488,) such variety of celery seed as is not intended to be sown or planted to raise celery to be consumed by man, is not medicinal seed, but an aromatic seed, and is not edible, and is in a crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture, is not dutiable at 20 per centum ad valorem as "garden seed," under the provision for "garden seeds, except seed of the sugar-beet, " contained in Schedule N of said tariff act, but is free of duty as "seed," under the provision for "seeds" contained in the free-list thereof.

At Law. Action to recover back customs duties.

The plaintiff, on October 5 and December 12, 1887, and February 16, 1888, imported from Marseilles, France, into the port of New York 23 bales of celery seed. This celery seed, pursuant to the decision of the

treasury department, rendered March 23, 1887, and numbered 8,131, was classified by the defendant, as collector of customs at said port, as "garden seeds," under the provision for "garden seeds, except seed of the sugar-beet," contained in Schedule N of the tariff act of March 3, 1883, (Tariff Index, new, par. 465,) and duty thereon, pursuant to such provision, was exacted of the plaintiff at the rate of 20 per centum ad valorem. Against this classification and exaction the plaintiff made sufficient and seasonable protests, claiming that this celery seed was free of duty as "seeds of all kinds, except medicinal seeds, not specially enumerated or provided for" in the tariff act of 1883, under the provision therefor contained in the free-list thereof, (Tariff Index, new, par. 760,) or as "seeds aromatic, which are not edible, and are in a crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture, and not specially enumerated or provided for in this act" under the provision therefor contained in said free-list, (Tariff Index, new, par. 636.) Thereafter the plaintiff, within the time required by law, duly made appeals to the secretary of the treasury, and, within 90 days after adverse decisions were made thereon by him, duly brought this suit to recover the duties exacted as aforesaid.

Upon the trial of this suit it appeared that each of the aforesaid 23 bales contained about 200 pounds of celery seed; that this celery seed was a very cheap article, and was always purchased without statement from the seller, or marks on the bales or packages containing the same, to indicate what kind of celery it would produce if sown or planted, or that, if sown or planted, it would even germinate; that it could not, therefore, be sold to those who sow or plant celery seed to raise celery; that while, to some small extent, it was used in making medicinal preparations, it was generally used in making celery salt and other condiments for soups and other articles of food for mankind; that it was not medicinal seed, but aromatic seed; that it was not edible, and was in a crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture; that at and prior to the passage of the aforesaid act of 1883 the term "garden seeds" in trade and commerce of this country meant seeds that were sown or planted to produce plants, vegetables, or other crops that were generally eaten by mankind; that at that time in this country celery seed sown or planted was sown or planted to produce celery which was exclusively so eaten; that at that time much the greater portion of celery seed produced in this country was sown or planted for that purpose; and that at that time in this country celery seed sold to be sown or planted was sold with marks, etc., to indicate and guaranty the kind of celery it would produce. Comstock & Brown, for plaintiff.

Edward Mitchell, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for defendant.

LACOMBE, J., (charging jury.) The method of fixing rates of duty, by varying them according to the uses to which articles imported may be put, is, no doubt, a very philosophical and logical way of classifying articles for duty

under the tariff, but in practice it is at times extremely inconvenient; so much so that, unless the language of the tariff clearly indicates a plain intent on the part of congress that the article legislated upon should be classified according to its use, a court should be cautious in determining the rate of duty by the application of such test. Of course congress does repeatedly legislate in that way. Thus we have a provision for substances of all kinds used for manure, and one for animals imported for breeding purposes; and there are a number of other instances in the statute where imports are classified according to their use. But, unless the language of the statute plainly requires the test of use to applied to a particular article, the dutiable character of any particular importation is not to be determined by an inquiry into its ultimate use. In the case at bar we have a word, or a phrase rather, which, as used, leaves it somewhat uncertain as to whether congress did or did not mean to apply the test of use. The phrase is "garden seeds." This may mean either seeds intended for use in the garden, or the class of articles known commercially as "garden seeds." There is testimony in the case that there was a distinct trade meaning of the phrase "garden seeds," known in trade and commerce of this country, and that congress adopted the phrase and put it in the tariff act. With regard, however, to the determination of the question whether or not we should interpret that phrase here as meaning the same thing as "seeds used or to be used for the garden," there is nothing left for this court to decide. That question has been considered by the supreme court in the case of Ferry v. Livingston, 115 U. S. 542, 6 Sup. Ct. Rep. 175, and the rule there laid down is, of course, controlling here. There, this same section being before the court, and the question being whether certain seeds then under consideration were to be considered as "garden seeds" or as "agricultural seeds," the court held, indeed, that it would not be sufficient, to show that they were not "garden seeds," to show that they were used both in the garden and in the field, but they went further, and indicated that if it appeared that the seeds in question (the particular cabbage seed then before the court) belonged to a variety not intended to be used to raise cabbages to be consumed by man, then they could not be regarded as "garden seeds." Now the same construction is to be applied here; and if we find (and that is the question which goes to you for your determination) that the celery seeds imported here were of a variety of celery seeds which was not intended to raise celery to be consumed by man, then it is not within the provision for "garden seeds," and your verdict must be for the plaintiff.

Verdict for plaintiff.