*

SOMERVILLE, General Appraiser: * * Making due allowance for manifest clerical errors in the alleged variations between the description of the goods on the catalogues and those contained in the invoices, we are of opinion that the testimony satisfactorily shows that the percentages of decay are correctly stated in importers' Exhibit 1, which gives the numbers of the protests, the invoice and catalogue marks, and the quantity of the fruit as shown by the weigher's return. In some cases, however, the estimates of rot or decay as stated by the importers are of a larger percentage than that claimed in the protest. We are of the opinion therefore that no claim can be allowed on any amount greater than the largest percentage specified in the protest. These protests are in the nature of pleadings, and the rule is well settled that a complainant is never entitled to recover more than he claims, although the testimony may show him to be entitled to a larger amount.

Schedule A, which embraces the protests covered by this decision, sets forth the various percentages of decay against the different quantities of the fruit, as shown by the testimony and the record. Each of the protests is sustained, but not to an extent greater than 25 per cent of any item, to which the claim of the importers is limited in the protests. Neither is reliquidation to be made on a greater quantity of the merchandise than covered by the entry.

No. 20684.-SUGAR TEST.-Protest 323390 of American Sugar Refining Company (New Orleans) and protests 17266h, etc., of J. E. Kerr & Co. (New York). Opinions by Somerville, G. A.

Protests overruled as to sugar test.

American Sugar Refining Company v. United

States (211 U. S., 155; T. D. 29411) followed.

No. 20685.-PROTESTS 'ABANDONED.-Protests 310177, etc., of Jos. Battaglia & Bro. et al. (New York).

Protests abandoned.

(T. D. 29560.)

Drawback on hose supporters.

Drawback on hose supporters manufactured by the I. B. Kleinert Rubber Company, of New York, with the use of imported elastic webbing.

TREASURY DEPARTMENT, February 19, 1909. SIR: On the exportation of hose supporters manufactured by the I. B. Kleinert Rubber Company, of New York, with the use of imported elastic webbing, a drawback will be allowed equal in amount to the duty paid on the imported material so used, less the legal deduction of 1 per cent.

The preliminary entry must show the marks and numbers of the shipping packages and the contents thereof separately and in the aggregate. Each shipping package, in addition to the usual marks and numbers, shall be marked with the number of dozen pairs of hose supporters of each style contained therein.

The drawback entry must show the total number of dozen pairs of hose supporters of each style exported and the total number of yards of elastic webbing appearing in the exported product. In addition to the usual averments, said entry must further show that the exported articles were manufactured of the materials and in the manner set

forth in the sworn statement, dated January 16, 1909, transmitted herewith for filing in your office.

In liquidation, the quantities of imported elastic webbing which may be taken as the basis for the allowance of drawback may equal the quantities appearing in the exported supporters, as declared in the drawback entry, after official verification of exported quantities, provided such quantities shall not exceed those set forth in the sworn statement for each dozen pairs of supporters of the several styles. JAMES B. REYNOLDS,

Respectfully,
(27550.)

COLLECTOR OF CUSTOMS, New York.

Assistant Secretary.

(T. D. 29561.)

Drilled pearls Necklace.

Appeal directed from decision of Board of United States General Appraisers, G. A. 6864 (T. D. 29542), involving the classification of drilled pearls.

TREASURY DEPARTMENT, February 19, 1909.

SIR: I have to acknowledge the receipt of your letter of the 16th instant, relative to the decision of the Board of United States General Appraisers of the 6th idem, G. A. 6864 (T. D. 29542), wherein the Board held that certain loose drilled pearls which had been assembled and matched abroad, and which were assessed with duty by you under paragraph 434 of the tariff act at the rate of 60 per cent ad valorem, were properly dutiable, either directly or by similitude, at the rate of 10 per cent ad valorem, as "pearls in their natural state" under paragraph 436 of the said act.

In view of the importance of the issue, you are hereby directed to file an application for a review of the said decision in accordance with the provisions of section 15 of the act of June 10, 1890.

Respectfully,
(38319.)

COLLECTOR OF CUSTOMS, New York,

JAMES B. REYNOLDS,
Assistant Secretary.

(T. D. 29562.)

India-rubber braids.

Decision of the United States circuit court of appeals, second circuit (suit 4787), Horrax . United States (T. D. 29505), acquiesced in.

TREASURY DEPARTMENT, February 20, 1909.

SIR: The Department is in receipt of a letter from the United States attorney for the southern district of New York, dated the 23d ultimo,

in which he states that suit 4787, Edwin Horrax v. United States (T. D. 29505), was recently decided by the United States circuit court of appeals for the second circuit adversely to the Government.

The merchandise in suit, which consisted of braids made of cotton and india rubber, was assessed with duty by the collector as cotton elastic braid at the rate of 60 per cent ad valorem under the provisions of paragraph 339 of the tariff act. The Board and circuit court affirmed the decision of the collector, but upon review the circuit court of appeals reversed the decision of the circuit court and sustained the contention of the importer that the merchandise was properly dutiable under paragraph 449 as manufactures in chief value of rubber. The United States circuit court of appeals holds that cotton braid, composed in part of india rubber, to fall within the provisions of paragraph 339, must be composed in chief value of cotton.

The Attorney-General advises the Department that no further proceedings will be directed in this case, and you are, therefore, hereby authorized to take the necessary steps looking to the refund of the duties collected in excess upon the merchandise the subject of the suit. JAMES B. REYNOLDS, Assistant Secretary.

Respectfully,
(57867.)

COLLECTOR OF CUSTOMS, New York.

(T. D. 29563.)

Zinc ores- -Calamine.

Decision of the United States circuit court of appeals, fifth circuit (suit 1961), United States v. Brewster (T. D. 29547), acquiesced in.

TREASURY DEPARTMENT, February 20, 1909. SIR: The Department is in receipt of a letter from the AttorneyGeneral, in which he states that no steps will be taken looking to a review of the decision of the United States circuit court of appeals for the fifth circuit in suit 1961, United States v. Brewster (T. D. 29547), involving the classification of zine ore, known as carbonate, silicate, and sulphide of zinc.

The carbonates and sulphides were assessed with duty under paragraph 183 of the tariff act as crude metallic mineral substances, and the court affirms the decision of the Board and circuit court that the carbonates are free of duty under paragraph 514 as "calamine" and the sulphides are free of duty as minerals crude under paragraph 614. You are, therefore, hereby authorized to forward a certified statement for the refund of the duties collected in excess in this case.

While the circuit court of appeals affirms the decision of the Board and circuit court that the ores are free of duty, it sustained your

assessment of duty under paragraph 181 upon the lead contents without regard to the percentage of lead contained therein, and you are hereby instructed to assess duty upon the actual lead contents in future importations of such ores.

So-called streuperlen, consisting of diminutive globules of glass and imitating seed pearls, are found to be commercially known as "frostings" and held dutiable as such under paragraph 58, tariff act of 1897.

United States General Appraisers, New York, February 23, 1909.

In the matter of protest 320238 of B. F. Drakenfeld & Co. against the assessment of duty by the collector of customs at the port of New York.

Before Board 1 (SHARRETTS, MCCLELLAND, and CHAMBERLAIN, General Appraisers). SHARRETTS, General Appraiser: The goods in question are diminutive globules of glass, imitating seed pearls. They are invoiced as "streuperlen"--a compound German word which means to sprinkle ("streu”) pearls ("perlen"). Duty was assessed on the merchandise at the rate of 45 per cent ad valorem under paragraph 112 as manufactures of glass, while the importers claim the same to be dutiable at 20 per cent ad valorem under paragraph 435 as imitation precious stones, or at 30 per cent ad valorem under paragraph 58 as "frostings." The testimony of the two importers' witnesses was to the effect that the term "frostings" was not limited to a single article, but included several kinds of goods, of which streuperlen were one. The witnesses for the Government limited their testimony to a single description of frosting which they handled. They frankly admitted, however, that streuperlen might be known in other branches of trade as frostings. Hence, on the evidence, we hold that the merchandise in question is commercially known as frostings. Were this not the fact there would seem to be force in the importers' contention that the articles were dutiable at 20 per cent ad valorem under paragraph 435 as imitation precious stones, some of the goods imitating pearls, while others imitate rubies, garnets, emeralds, etc. Having found, however, that the merchandise is commercially known as frostings, we do not regard any other phase of the case material.

In consonance with our findings and the views herein expressed, we sustain the claim in the protest that the merchandise is dutiable at 30 per cent ad valorem under paragraph 58, tariff act of 1897, to which extent the collector's decision is reversed.

(T. D. 29565.)

Abstracts of decisions of Board of General Appraisers.

Board 1-Sharretts, McClelland, and Chamberlain. Board 2-Fischer, Howell, and De Vries. Board 3-Waite, Somerville, and Hay.

BEFORE BOARD 1, FEBRUARY 18, 1909.

No. 20686.-TOY MIRRORS.-Protest 331228 of Geo. Borgfeldt & Co. (New York). Opinion by Sharretts, G. A.

Protest sustained, certain mirrors being held dutiable as toys under paragraph 418, tariff act of 1897.

No. 20687.-PROTESTS OVERRULED.-Protests 326916, etc., of American Express Company, protests 330944, etc., of A. D. Matthews' Sons et al., and protest 335573 of Leon Rheims Company (New York). Opinions by Sharretts, G. A. Protests overruled for want of merit.

No. 20688.-OLIVE OIL NOT EDIBLE.-Protest 330658 of Vincenzo Merendino (New York). Opinion by McClelland, G. A.

The merchandise was held to be free of duty under paragraph 626, tariff act of 1897, as olive oil fit only for manufacturing or mechanical purposes.

No. 20689.-BALATA BELTING.-Protests 330686, etc., of New York Leather Belting Company (New York). Opinion by McClelland, G. A.

Protests sustained as to balata belting. G. A. 6640 (T. D. 28298) followed.

No. 20690.-MOWRAH OIL-NUT OIL.-Protest 338186 of John L. Vandiver (Philadelphia).

A substance invoiced as mowrah oil and classified as an expressed oil under paragraph [3, tariff act of 1897, was claimed to be free of duty under paragraph 626, relating to nut oil. Protest sustained.

*

MCCLELLAND, General Appraiser: * * According to the attitude of the Government as shown by the record, the question turns on whether this oil is made from what is recognized botanically as seeds or nuts of the mahwa tree, the contention being that, if made from the seed, it is not nut oil within the meaning of the provisions of paragraph 626. The Government evidently relies upon certain definitions of mahwa butter and mahwa oil; but on the hearing a witness was called who had evidently given extended study to the subject of botany, and he expressed it as his opinion that the fruit or seed of the mowrah or mahwa tree is a nut, and he describes it as having a leathery or parchment covering, dark brown in color, and about as thick as a piece of cardboard or bristol board. We think that this description brings the case within the ruling of the Board in G. A. 5479 (T. D. 24787) and Hills v. United States (127 Fed. Rep., 970; T. D. 24871).

No. 20691.-FIRE BRICK.-Protests 211941, etc., of General Chemical Company et al. (Chicago) and protests 267172, etc., of Balfour, Guthrie & Co. et al. (San Francisco). Opinions by McClelland, G. A.

Protests sustained as to fire brick. United States v. Behrend (T. D. 29499) followed.

7983-09-11 c