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the merchandise is dutie ble under the former provision. This contention is supported by decisions of the Supreme Court of the United States and by various decisions in this circuit. The precise question, however, as applied to this merchandise, has been decided adversely to these appellants by the Circuit Court of Appeals in the Third Circuit in the case of Thomas v. Wanamaker (C. C. A.) 129 Fed. 92. It appears that the decision therein was based upon other grounds, and it is claimed that the question herein was not presented to the court in the Third Circuit. In accordance with the established rule I feel obliged to follow the decision of the Court of Appeals in the Third Circuit, and solely on that ground I am constrained to affirm the decision of the Board of General Appraisers.
J. R. SIMON & CO. v. UNITED STATES.
B. ULMANN & CO. v. SAME.
(Circuit Court, S. D. New York. May 25, 1904.)
Nos. 3,307, 3,361. 1. CUSTOMS DUTIES–CLASSIFICATION-DRAWN WORK-FLAX FABRICS-IMITA
IIeld, that articles of so-called "drawn work," composed of flax, made by drawing some of the threads and tying and looping them with other threads to form figures, are not dutiable as articles made in imitation of lace, under Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 339, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1662), but as fabrics of flax under paragraph
346 of said act (30 Stat. 181 (U. S. Comp. St. 1901 p. 1663]). 2. SAME-COUNTABLE FLAX FABRICS-DRAWN WORK-VARIATION IN THREAD
In construing the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule J, par. 346, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1663), of different rates of duty on fabrics of flax, varying according to thread count, etc., held that it is not necessary that a fabric should be homogeneous throughout in order to bring it within said paragraph, and that the paragraph may include so-called “drawn work" from which some of the threads have
been removed. Appeal by the Importers from a Decision of the Board of United States General Appraisers.
On application for review of decision of the Board of General Appraisers. These proceedings were brought by J. R. Simon & Co. and B. Ulmann & Co. for review of two decisions of the Board of General Appraisers which affirmed the assessment of duty by the collector of customs at the port of New York. Note G. A. 5,329, T. D. 24,373, and G. A. 4,643, T. D. 21,944.
Howard T. Walden, for J. R. Simon & Co.
TOWNSEND, Circuit Judge. The articles in question are linen doilies and similar articles, made by drawing some of the threads and tying and looping them with other threads to form figures. They were
assessed for duty at 60 per cent. ad valorem as articles made in part of imitation of lace, made of flax, not otherwise specially provided for, under paragraph 339 of the act of July 24, 1897, c. 11, § i, Schedule J, 30 Stat. 181 (U. S. Comp. St. 1901, p. 1662], and are claimed to be dutiable as woven fabrics of flax, etc., under paragraph 346 (30 Stat. 181 (U. S. Comp. St. 1901, p. 1663]), of said act. The articles in question are woven fabrics of flax (U. S. v. McBratney, 105 Fed. 767, 45 C. C. A. 37), and it is not necessary that the fabric should be homogeneous throughout in order to be dutiable under the countable provisions of the act (Hedden v. Robertson, 151 U. S. 521, 14 Sup. Ct. 434, 38 L. Ed. 257; United States v. Albert, 60 Fed. 1012, 9 C. C. A. 332). The Board of General Appraisers has found as a fact that the merchandise in question is imitation of lace. Inasmuch as there is not a particle of testimony to support this finding of the board, and inasmuch as a mere inspection of the articles confirms the testimony that they are not imitation of lace, this finding cannot be sustained. Furthermore, it appears from an examination of paragraphs 312, 388, and 390 of the act that Congress is legislating concerning the duty on handkerchiefs, has specifically provided for a duty on handkerchiefs having drawn threads by virtue of the provisions of paragraph 388, while in paragraph 390 they have imposed a similar duty on laces and articles made wholly or in part of lace. This distinction between drawn work and lace supports the foregoing conclusion.
The decision of the Board of General Appraisers is reversed.
NISHIMIYA V. UNITED STATES.
(Circuit Court, s. D. New York. May 25, 1904.)
L. Customs DUTIES–CLASSIFICATION-SARÉ-SIMILITUDE.
Tariff Act July 24, 1897, c. 11, $ 0, 30 Stat. 205 (U. S. Comp. St. 1901, p. 1693), provides that any unedumerated article "which is similar either in material, quality, texture or the use to which it may be applied to any article enumerated
as chargeable with duty, sliall pay the same rate of duty which is levied on the enumerated article which it most resembles in any of the particulars before mentioned.” In regard to sake', a Japanese alcoholic beverage made from rice by processes similar to those employed in making beer, which resembles still wine in its percentage of alcohol, which in quality is only remotely similar to wine or beer, though In some respects like either in point of use, held, that the article is not sufficiently similar to wine to warrant its classification as such under Act July 24, 1997, c. 11, § 1, Schedule H, par. 296 (30 Stat. 174 (U. S. Comp. St. 1901, p. 1654]), nor to beer or ale to permit its classification as either under paragraph 297 of said act (30 Stat. 174 (U. S. Comp. St. 1901, p. 1655)), but that its proper classification is as an unenumerated manu. factured article under section 6 of said act (30 Stat. 205 (U. S. Comp. St.
1901, p. 1693]). Appeal by the Importers from a Decision of the Board of United States General Appraisers. On application for review of a decision of the Board of General Ap
a praisers. The decision under review affirmed the assessment of duty by the collector of customs at the port of New York on an importation by W. Nishimiya. Note G. A. 5,334, T. D. 24,410, and Murphy. v. Arnson, 96 U. S. 131, 24 L. Ed. 773.
Albert Comstock and Percy W. Crane, for importer.
TOWNSEND, Circuit Judge. The merchandise in question is sakė, imported from Japan. The Board of Appraisers finds that it is a beverage made from rice by processes similar to those employed in making beer, but which in alcoholic strength, quality, general appearance, and otherwise resembles still wine, and therefore held it to be dutiable at 50 cents per gallon, by similitude to still wines containing more than 14 per cent. of absolute alcohol, under the provisions of paragraph 296 of the tariff act of 1897. Act July 24, 1897, c. 11, § 1, Schedule H, 30 Stat. 174 [U. S. Comp. St. 1901, p. 1654). The importer protests on the ground that the beverage is dutiable either as ale or beer, under the provisions of paragraph 297 of said act, either directly or by similitude; or as a nonenumerated manufactured article under section 6 of paid act. This beverage is neither ale, beer, nor still wine. It is similar to ale or beer, in that the material from which it is made is rice, and in the fact that it is, like beer or ale, fermented with yeast. It is more like wine than beer in its quality, as the percentage of alcohol contained in it is about 17 per cent., while the percentage of alcohol in beer ranges between 31/2 and 9 per cent., and in wine between 772 and 16 per cent. A test of the sample by taste and smell and examination indicates that it is only remotely similar in quality to either wine or beer. In use it is like either liquid, being drank for flavor and exhilaration. It is unlike them in that it is ordinarily drank hot. In quality it is more like wine in the sense that it is still, as distinguished from the ordinary effervescent ale or beer. In these circumstances saké is not sufficiently similar to still wine to warrant its assessment for duty under paragraph 296 of the act; and because of the high percentage of alcohol therein, the absence of effervescence, and its quality, taste, and use, as aforesaid, it does not seem to be sufficiently like beer or ale to permit of its inclusion under paragraph 297. The conclusion reached is that it is so radically different from the articles covered by both of said paragraphs that it should have been classified for duty as a nonenumerated manufactured article under section 6 of said act.
The decision of the Board of Appraisers is reversed.
TILGHMAN et al. v. EIDMAN, Internal Revenue Collector.
(Circuit Court, S. D. New York. May 25, 1904.) L SUCCUSHION TAX-REPEALSAVING CLAUSE.
Where no succession tax provided for by Act Cong. June 18, 1898, c. 448, 80 Stat. 450 (U. S. Comp. St. 1901, p. 2291), was due, payable, or a lien on the property of the deceased at the time the act was repealed by Act Cong. April 12, 1902, c. 500, 32 Stat. 97 (U. S. Comp. St. Supp. 1903, p. 279), in effect July 1, 1902, the tax to which the estate would otherwise have been subject was not "Imposed” at the date of the repeal within the saving clause of section 8 of the repealing act, providing that taxes pre
viously imposed should not be affected by the repeal.
LACOMBE, Circuit Judge. I am unable to distinguish this case from Mason v. Sargent, 104 U. S. 689,26 L. Ed. 894. Under the stat
, ute and amendments and the principle enunciated in that case, no tax was due or payable, nor was there a lien for any tax upon
the property of the deceased, at the time the repealing act of April 12, 1902, went into effect (July 1, 1902). Under these circumstances it cannot be said that any tax was "imposed” within the meaning of the saving clause, section 8 of the act last cited. Act April 12, 1902, c. 500, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 279).
The demurrer is overruled, with leave to answer within 10 days after entry of order,
JOHN CHURCH CO. et al. V. ZIMMERMANN.
(Circuit Court, E. D. Wisconsin. July 11, 1904.) 1. FEDERAL COURTS_EQUITY-BILL-INTERROGATORIES-FAILURE TO ANSWER—
Where a bill in the federal courts for infringement of copyright prayed the usual discovery in an answer by the defendant both to the allegations and interrogatories, the waiver of an answer under oath did not entitle defendant to file an answer consisting of a mere general denial neither responding to the interrogatories nor stating “the circumstances of which the defendant intends to avail himself by way of defense," as required by the federal equity rules; and an answer so filed was subject to exceptions. In Equity. On exceptions to the answer for insufficiency.
. Bloodgood, Kemper & Bloodgood, for complainants. Voigt & Voigt, for defendant.
SEAMAN, District Judge. The bill in this case is founded on an alleged copyright and alleged infringements thereof by the defend
the usual discovery is sought in an answer by the defendant, both to allegations and interrogations, oath thereto being waived. The answer is a mere general denial, neither responding to the interrogatories nor stating “the circumstances of which the defendant intends to avail himself by way of defense" (1 Daniell's Ch. Pl. & Pr. [6th Am. Ed.] 712), nor otherwise complying with the fundamental rule in equity that "he shall answer fully to all the matters of the bill” (rule 39) when he "submits to answer.” On exception thereto for manifest insufficiency the question is raised whether the answer is subject to such exception when oath is waived. That this exception is well taken under the equity practice of the federal jurisdiction is settled by the equity rules adopted by the Supreme Court (pursuant to sections 913, 917, Rev. St. UU. S. Comp. St. 1901, pp. 683, 684]) and the line of decisions thereunder. 1 Bates on Federal Eq. Prac. $$ 118, 334, and citations; 1 Foster's Fed. Prac. $$ 148, 153; 3 Desty's Fed. Prac. 1757. Confusion has arisen upon this question through the rulings in various state courts and statements in text-books of a general rule in equity that no exception for insufficiency lies where the answer is not under oath. The decisions pro and con in the several states are largely, though not in all instances, due to special provisions by statute or rule, and, however instructive, cannot govern the federal procedure. Of the text-books cited it is sufficient to refer to a leading authority, Daniell's Chancery Pl. & Pr., wherein it is remarked in the text (volume 1, p. 737 [6th Am. Ed.)) that “no exception can be taken to an answer put in without oath or signature or attestation of honor," citing in the note Hill v. Earl of Bute, 2 Fowl. Ex. Pr. 10, and New York and Tennessee cases; and the same view is repeated in the notes, page 760. The rule thus stated, however, cannot prevail under the rules of equity practice promulgated by the Supreme Court to supplant "the slow and oppressive procedure of the English practice for compelling an appearance and answer" with the “simple, speedy, and effectual procedure” established by the rules. 1 Bates on Fed. Eq. Prac. $ 334. Preserving the original and inherent power of equity to enforce discovery, these rules are unmistakable in requiring the defendant “to search his conscience,” and answer fully, with or without oath. Waiver of oath to the answer "is not a waiver of the right to a full answer,” and affects only the evidential character of the pleading. 1 Bates, $ 118, and cases cited. The single instance of departure from this view in U. S. v. McLaughlin (C. C.) 24 Fed. 823, is disapproved in the cases thus cited, including Whittemore v. Patten (C. C.) 81 Fed. 527, in the same circuit.
The exceptions to the answer are sustained, and the defendant is required to answer fully on or before the next rule day.
UNITED STATES v. R. F. DOWNING & CO.
SAME V. GODILLOT & CO.
(Circuit Court, S. D. New York. May 23, 1904.)
Nos. 3,440, 3,441, 1. CUSTOMS DUTIES-MARKET VALUE-REMISSION OF LOCAL TAXES-DROIT DE
Held, in regard to merchandise imported from France, that its “market value," as defined in Customs Administrative Act June 10, 1890, c. 407, 8 19, 26 Stat. 139 (U. S. Comp. St. 1901, p. 1924), does not include the amount of certain internal revenue imposts of that country known as the "octroi tax" and the “droit de ville," which are not general in their application, but vary with the locality, and which are not collected if the merchandise is exported. On Application for Review of Decisions of the Board of General Appraisers.
The decisions under review reversed the assessment of duty by the collector of customs at the port of New York on merchandise imported by R. F. Down