in 1922 a class of merchandise at wholesale which was commercially considered as toys and that that was a definite, uniform, and general class; that the term "toy" was known throughout the United States and that Exhibit 1 was included within the class; that he had seen articles like Exhibit 1 used by children and that they played with them; that this kind of merchandise was usually sold to the mother of the family; that the dogs he bought and sold were like Exhibit 1 in form, appearance, and material; that he could not say but what the material in some of them might be a little bit better or cheaper than others and that he retailed them at from 25 cents apiece up-as high as $2.50 or $3. He expressed himself as not being certain about the price he received. One Arnold E. Kegelman testified to substantially the same facts as were testified to by Mr. Schondelmeier. The court below, in its decision by Justice Sullivan, held that the importation was not a toy under the definition of a toy in the case of Illfelder v. United States, 1 Ct. Cust. Appls. 109, T. D. 31115, and said: In view of the very positive testimony of Messrs. Schoemann and Dooley that this merchandise has a practical use, and being without samples of the competing merchandise, we can not attach weight to the testimony as to commercial designation. The court, therefore, rejected the proffered commercial proof as not showing that the importation was a toy within the commercial understanding. The commercial testimony is not only subject to the objection to which the lower court has referred, but, in our view, falls short of meeting the requirements of the law for other reasons, all of which need not be pointed out here. We have frequently indicated the character of proof which ought to be required to show commercial designation in tariff classification. Suffice it to say that the requirements are not met by testimony, as in the case at bar, to the effect that toys belong to a class of merchandise sold at wholesale in 1922 which was commercially considered as toys, definitely and uniformly, and that the papier-mâché dog belonged to that class. In a case of this character where it is claimed that the commercial meaning of a term differs from its common meaning, the fact to be elicited from the witness is how the article is designated, named, or called in the trade. If it is not called, designated, or named a toy, how could a commercial designation of "toy" be established? The shortcoming of this character of proof and its lack of probative effect was, we think, most aptly illustrated in this court recently by a colloquy which occurred between a lawyer and a member of the court, when this same phase of proof of commercial designation was under consideration. Pointing to a gold finger ring which the lawyer was using in illustrating what jewelry meant commercially, the judge asked: "Why do you not ask him what that article is called in the trade." The lawyer replied: "The trouble with that kind of question is, he would answer, 'It is called a ring.' It seems plain that if, in the trade, it was always called a ring and designated as a ring, and that it was not called or designated as jewelry, the article had no commercial designation as jewelry. If the witness never knew of its being called jewelry but had always heard it called a ring, certainly his testimony as to commercial designation of the term "jewelry" would have no probative value. Following this line of reasoning in the instant case, if the witness had been asked, "What is this papier-mâché dog called? he would probably have answered, "A papier-mâché dog," or "cotton-cloth dog," or "dog." If he had replied that it was called a toy, abundant opportunity for cross-examination as to where and when he had heard. it spoken of or designated as a toy would have been afforded, which might have elicited the fact that he had never heard it called a toy but that from his own definition of a toy he regarded it as such. In the Illfelder case, supra, the late Judge Smith, speaking for the court, said: In common speech, and as popularly understood, a toy is essentially a plaything, something which is intended and designed for the amusement of children only, and which by its very nature and character is reasonably fitted for no other purpose. Although an article may be chiefly used for the amusement of children, if its nature and character are such that it is also reasonably fitted for the amusement of adults, or if it is reasonably capable of use for some practical purpose other than the amusement of children, it can not be classed as a toy unless it is affirmatively shown by the importer that it is so known and designated by the trade generally. The papier-mâché dog at bar is reasonably fitted for, and is reasonably capable of, a purpose other than the amusement of children and is not essentially a plaything. It is capable of use and is used for a practical purpose other than the amusement of children. Its use for a practical purpose is a substantial and not a fugitive one. In the common sense, therefore, it is not a toy. The Government has failed to prove that it is known and designated by the trade generally as a toy. The finding of the court below that the goods should have been classified as manufactures in chief value of cotton, and dutiable at 40 per centum ad valorem under paragraph 921 is correct and its judgment is affirmed. HATFIELD, Judge, concurs in the conclusion. (T. D. 43779) Schedule of hearings Schedule for hearings of cases by the United States Customs Court at ports other than the port of New York for the calendar year 1930 TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, Washington, D. C., December 28, 1929. To Collectors of Customs and Others Concerned: The appended schedule of hearings by the United States Customs Court is published for your information. F. X. A. EBLE, Commissioner of Customs. Schedule for hearings of cases by justices of the United States Customs Court at ports other than the port of New York for the year 1930 UNITED STATES CUSTOMS COURT, 201 Varick Street, New York, December 23, 1929. Pursuant to the provisions of section 518, tariff act of 1922, the following schedule has been prepared for the hearing by justices of the United States Customs Court of cases at ports other than the port of New York, and is hereby promulgated: Port San Juan. Jacksonville.. Miami.. Tampa.. Chicago.. Seattle. Tacoma. Portland, Oreg. San Francisco.. Los Angeles. San Diego. Philadelphia. Buffalo Cleveland.. Columbus. Detroit Norfolk. Richmond. Charleston. Savannah. Atlanta. Dallas. San Antonio. Rochester. Spokane.. Portland, Me. Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. 27 30 1 4 6 21 22 24 28 11 18 24 26 28 Whenever it shall appear to the chief justice of the United States Customs Court that there are not pending at any port in the schedule herein a sufficient number of cases to warrant the visitation of a justice, or that it will not be practicable to hold the hearing on the date fixed in said schedule, he will, after due notice, fix a different date for such hearing. Whenever a hearing as fixed herein falls on a holiday, the calendar for such hearing shall be called on the day following. The calendar for each hearing shall be called at the hour designated in the notice of such hearing, and all cases pending shall be heard or set for trial as the justice in attendance may direct. When transmitting records from ports other than New York to the United States Customs Court in cases in which local hearings are to be had, the samples, if any, after being properly carded (Cat. No. 183 or 184) for identification with such records, shall be retained in the local office for use at such hearings, and thereafter be immediately indorsed with the court numbers and transmitted with such records to the United States Customs Court. I. F. FISCHER, Chief Justice. (T. D. 43780) Foreign currencies-Rates of exchange Rates of exchange certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under the provisions of section 522 (c), tariff act of 1922 TREASURY Department, OFFICE OF THE COMMISSIONER OF CUSTOMS, Washington, D. C., January 4, 1930. To Collectors of Customs and Others Concerned: The appended table of the values of certain foreign currencies as certified to the Secretary of the Treasury by the Federal Reserve Bank of New York, under the provisions of section 522 (c) of the tariff act of 1922, during the period from December 26 to 31, 1929, inclusive, is published for the information of collectors of customs and others concerned. (103512.) FRANK DOW, Acting Commissioner of Customs. Values of foreign currencies as certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under the provisions of section 522 (c), tariff act of Glass frostings-White crystal ballotini Appeal from decision of the United States Customs Court (T. D. 43663) involving the classification of merchandise consisting of particles of glass obtained by grinding glass and thereafter heating the ground particles and dropping them into the interior of a tower heated to a high temperature TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, ASSISTANT ATTORNEY GENERAL, New York. SIR: I am in receipt of your letter of December 19, 1929, inviting attention to the decision of the United States Customs Court (T. D. 43663) holding that certain merchandise consisting of minute particles of glass in globular form, obtained by first grinding glass and then heating the ground particles in suspension by dropping them through |