United States v. Southmayd (9 How., 637); Austin v. Peaslee (2 Fed. Cas., 235); Weaver v. Saltonstall (38 Fed. Rep., 493).

In our opinion, the importers are entitled to relief for the shortage of 97 out of 175 hides, and to a pro rata deduction of the duties assessed by the collector.

The protest is sustained and the decision of the collector reversed, with instructions to reliquidate the entry.

(T. D. 25966-G. A. 5892.)

Pearls strung for convenience in transportation.

Pearls pierced and strung for convenience in transportation are not pearls strung as understood in the jewelry trade, and are by similitude dutiable at the same rate as pearls in their natural state-i. e., at 10 per cent ad valorem under paragraph 436, act of July 24, 1897.-Tiffany v. United States (112 Fed. Rep., 672) cited and followed.

United States General Appraisers, New York, January 12, 1905. In the matter of protests 61719 b, etc., of T. Jefferson Coolidge against the assessment of duty by the collector of customs at the port of Boston.

Before Board 1 (LUNT, SHARRETTS, and MCCLELLAND, General Appraisers). SHARRETTS, General Appraiser: The merchandise in question consists of pearls pierced and strung on cotton cords. They were assessed for duty at 60 per cent ad valorem under paragraph 434, act of July 24, 1897, and are claimed by the importer in his protest to be dutiable at 10 per cent ad valorem under paragraph 436.

The evidence taken in this case is to the effect that these pearls have not been matched or selected, nor has their value been increased by drilling and stringing; and were it not for the fact that they are strung on cotton cords in bunches, the Board would have no difficulty in reaching the conclusion that they fell within the scope of the decision of the circuit court of appeals, second circuit, in Tiffany v. United States (112 Fed. Rep., 672).

In G. A. 876 (T. D. 11885) and numerous other decisions, the Board held that beads strung on cotton cords were not dutiable as beads loose, unthreaded, or unstrung, but in those cases the beads were strung within the trade meaning of the term, whereas the evidence shows that the pearls in this case were not strung as understood by the jewelry trade. Paragraph 436 provides for pearls in their natural state, not strung or set. Pearls set would be jewelry, and it is reasonable to assume that Congress had this fact in view when it coupled the word "strung" with pearls set. This conclusion is strengthened by reference to paragraph 434, which provides for articles commonly known as jewelry, including pearls set or strung.

The bunch of unselected pearls in the case now before us does not partake of the nature of jewelry, and on the authority of the decision

in the Tiffany case we hold they are by similitude dutiable at the same rate as pearls in their natural state.

The protests are sustained and the decision of the collector reversed.

(T. D. 25967-G. A. 5893.)

Borate of soda-Borax.

Certain borax in which there has been mixed mechanically sufficient carbonate of soda to reduce the percentage of anhydrous boracic acid to less than 36 per cent, Held dutiable under the provision in paragraph 11, tariff act of 1897, for borax, and not under the provision in the same paragraph for borate of soda containing not more than 36 per cent of anhydrous boracic acid.

United States General Appraisers, New York, January 13, 1905. In the matter of protest 134893 of Charles E. Scholes Company against the assessment of duty by the collector of customs at the port of New York.

Before Board 1 (LUNT, SHARRETTS, and MCCLELLAND, General Appraisers). LUNT, General Appraiser: We find that the Charles E. Scholes Company imported into the port of New York August 19, 1904, certain merchandise which was assessed for duty as borax at 5 cents per pound under paragraph 11 of the tariff act of 1897, and which is claimed to be dutiable under said paragraph at 3 cents per pound as borate of soda containing not more than 36 per cent of anhydrous boracic acid. The evidence in this case shows that the merchandise in question is a mechanical mixture of borax, which is much the more valuable per pound, with about 10 per cent of carbonate of soda of much less value per pound than borax; that by such mixture the percentage of anhydrous boracic acid in the pure borax was reduced from over 36 per cent to 33.56 per cent; that the article in question contains 91.65 per cent of crystallized borax and is borax adulterated, and we so find.

The protest is overruled.

(T. D. 25968-G. A. 5894.)

Artificial fruits-Fancy soap.

Artificial fruits in the forms of apples, pears, peaches, and oranges made of soap, coated and colored with substances that render the forms impervious to water and impracticable for use as soap, found to be not fancy soap, and held to be dutiable as artificial fruits.-G. A. 4250 (T. D. 19985) overruled.

United States General Appraisers, New York, January 13, 1905. In the matter of protest 131319 of Victor Spitz against the assessment of duty by the surveyor of customs at the port of St. Louis.

Before Board 1 (LUNT, SHARRETTS, and MCCLELLAND, General Appraisers). MCCLELLAND, General Appraiser: The merchandise covered by this protest, as shown by the official samples, consists of artificial fruit in the forms of apples, pears, peaches, and oranges. It was assessed for duty at the rate of 50 per cent ad valorem under the provisions of paragraph 425 of the tariff act of 1897. It is claimed. that the merchandise is subject to duty only at the rate of 15 cents

per pound, under the provisions of paragraph 72 of said act, as fancy soap. When the protest was called for hearing, it was submitted on the record without other evidence than the official samples to sustain the claim of the protestant.

Examination of the samples shows that regardless of what material the merchandise is made of, the forms are coated and beautifully colored with some substance to make them impervious to water. In its present condition the merchandise is certainly unfitted for use as soap.

Our attention has been directed to G. A. 4250 (T. D. 19985), wherein it was held that merchandise in cakes or pieces in the forms of peaches, pears, and other fruits was dutiable as fancy soap; but an examination of the record in that case discloses the fact that when the protest covered thereby was called for hearing there was no appearance on behalf of the protestant, and therefore no evidence other than the appraiser's return on which to base the finding therein. We regard the decision as having been erroneously made, and going upon the assumption that the merchandise covered thereby was in all things similar to that involved herein, said decision is hereby overruled.

The protest is overruled and the decision of the surveyor is affirmed.

(T. D. 25969-G. A. 5895.)

Fishing rods-Walking canes.

Bamboo fishing rods, consisting of an outer section in the form of a walking cane, containing two smaller sections, the whole, when drawn out in the manner of a telescope, forming a fishing rod, found not to be walking canes, and held dutiable as manufactures of wood.

United States General Appraisers, New York, January 16, 1905. In the matter of protest 134245 of A. Hamburger & Sons, incorporated, against the assessment of duty by the collector of customs at the port of Los Angeles.

Before Board 1 (LUNT, SHARRETTS, and MCCLELLAND, General Appraisers). MCCLELLAND, General Appraiser: The merchandise covered by this protest is invoiced as bamboo fishing tackle. It was returned by the examining officer as "walking canes," and duty was assessed thereon at the rate of 40 per cent ad valorem under the provisions of paragraph 462 of the tariff act of 1897. It is claimed to be dutiable as a manufacture of wood at 35 per cent ad valorem under paragraph 208 of said act.

The official sample of the merchandise before us shows it to be in the form of a walking cane, but when the ferrule at the lower end thereof is unscrewed the section which forms the cane is found to contain two smaller sections, and when the whole is drawn out in the manner of a telescope it forms a fishing rod. Each of the sections is bamboo.

The evidence before us shows that the merchandise is never sold as walking canes, and that it is used as fishing rods. Manifestly, these fishing rods are so made as to be capable of being reduced to the form of a walking cane simply for convenience in carriage, and their use as walking canes is at most only incidental. The United States circuit court of appeals has held in United States v. China and Japan Trading Company, Limited (71 Fed. Rep., 864), that bamboo is wood, and we, therefore, think that the claim in the protest is well founded.

We find the merchandise to be fishing rods made of wood. The protest is sustained and the decision of the collector reversed.

(T. D. 25970-G. A. 5896.)

Duty on seized goods.

1. SEIZURE AND FINE FOR FRAUDULENT ENTRY-DUTY.

Where goods are seized for fraudulent or false entry under section 9, act of June 10, 1890, and released upon the payment of a fine equal to the amount of the duty, the importers are not thereby relieved from the payment of the duty. The fine is a penalty incurred by reason of a violation of a law. The duty accrues under the law by the act of importation. They are separate and distinct and bear no relation to each other.-Dana's case, G. A. 5147 (T. D. 23749); United States v. One Case Paintings (99 Fed. Rep., 426); United States v. Sixteen Hundred and Twenty-One Pounds Fur Clippings (106 Fed. Rep., 161); Gray v. United States (113 Fed. Rep., 213), and Baldwin v. United States (113 Fed. Rep., 217).

2. VALUE UPON WHICH AD VALOREM DUTY SHOULD BE ASSESSED.

It is the final action of a duly authorized appraising officer which fixes the dutiable value of imported merchandise. The collector is as much bound by this action as are the importers. In liquidating an entry of merchandise subject to ad valorem duty, the collector must ascertain the amount of duty by applying the rate which the law provides to the value as stated in the invoice, unless the same is raised upon entry or by an appraising officer and then to the value as stated in the entry or in the final appraisement.

3. SAME.

Certain imported merchandise subject to an ad valorem duty was entered at an invoice value of 400 lire and advanced by the local appraiser to a value of 600 lire. An appeal was taken to a General Appraiser, who found that the value was that stated in the invoice, but reported that the price paid was 600 lire, and hence the invoice was fraudulent. The goods were seized, and released upon the payment of a fine equal to the amount of duty. Duty was then assessed upon the merchandise upon the value of 600 lire. Held that 400 lire being the market value as found by the last appraisement, duty should have been assessed upon this amount.

United States General Appraisers, New York, January 17, 1905. In the matter of protest 99968ƒ of J. G. Metzger & Co. against the assessment of duty by the collector of customs at the port of New York.

Before Board 3 (WAITE, SOMERVILLE, and HAY, General Appraisers). HAY, General Appraiser: The merchandise in question was entered at an invoice value of 400 lire and advanced by the local appraiser to a value of 600 lire. From the action of the local appraiser the

importers appealed to a General Appraiser. The finding of the General Appraiser is as follows:

Actual market value February 7, 1901, in wholesale quantities, 400 lire, and packing, 7 lire.

The amount actually paid for the merchandise, as shown by statement of purchaser, is $200 or 600 lire. The invoice is fraudulent inasmuch as the price actually received for the merchandise is not truthfully set forth therein.

As a result of this report the merchandise was seized under the provisions of section 9 of the act of June 10, 1890. Upon application of the importers to the Department, the merchandise was released upon the payment of a fine equal to the amount of the duty. In addition to this fine, the collector, in liquidating the entry, imposed the regular duties upon the merchandise under the provisions of paragraph 100 of the act of July 24, 1897, upon a value of 600 lire. No additional duty under section 32 of the act of July 24, 1897, was assessed for the reason that the reappraised value, 400 lire, did not exceed the invoice or entered value. It is against the action of the collector in imposing duty that the importers protest.

Two questions are fairly presented by this protest. (1) Were the importers relieved from the payment of duty by the payment of a fine equal to the amount of duty? (2) If not, then should duty be assessed upon the merchandise at a value of 400 lire, the amount stated on the invoice and found to be the market value by the General Appraiser, or upon 600 lire, ascertained to be the actual price paid?

The first question is no longer an open one. In Dana, Estes & Co.'s case, G. A. 5147 (T. D. 23749), the Board said:

The obligation to pay the duty is incurred by the act of importation; and the importer is not relieved from such obligation by the violation of a different provision of the customs law, although he thereby incurs as a penalty a forfeiture of the entire importation.

We do not think this rule is changed by any compromise settlement that may be effected between the importers and the Government. The proceeding for forfeiture is entirely distinct and apart from the collection of duties. It is a penalty for a wrong done, and whether the importers are required to bear the full force of that penalty or are relieved from a part of it by the leniency of those charged with the administration of the law, they are under the same obligation to pay the duties lawfully accruing upon this importation. The penalty is incurred by reason of a violation of the law. The duty accrues under the law by the act of importation. They are separate and distinct and bear no relation to each other. Dana, Estes & Co.'s case (supra); United States . One Case of Paintings (99 Fed. Rep., 426); United States v. Sixteen Hundred and TwentyOne Pounds of Fur Clippings (106 Fed. Rep., 161); Gray r. United