evidence discloses that it may be devoted to the same uses to which the substance resulting from the first carding is devoted. It may be spun, or it may be felted, or it may be used without further manipulation for stuffing horse collars.

The evidence further discloses that before it can be put to the use of spinning it must be again recarded and the product of this recarding is that which is used for spinning. The so-called jute card waste is necessarily much cheaper than the natural substance, as the better part of it has been extracted.

Does the fact that this substance, which is called in one sense a waste, make it dutiable, or does it come, so long as it retains its native characteristics of jute and is susceptible of the same uses, more properly under the provisions of paragraph 566 of the tariff law of 1897 and paragraph 578 of the law of 1909, respectively?

We think the case of United States v. Hatters' Fur Exchange (1 Ct. Cust. Appls., 198; T. D. 31237) rules this question. In that case the court had under consideration fur gathered as scraps or waste from the first treatment of skins. It was claimed to be dutiable as waste not specially provided for, under paragraph 463 of the act of 1897. It was shown, however, that it could be used as undressed fur. After reviewing the evidence in the case, the opinion, by Judge Hunt, proceeds:

With this evidence before the court, the case has been somewhat simplified by the fact that counsel for the respective parties agree generally that it proves the articles involved to be a waste. We can therefore move forward upon this assumption and at once proceed to the question whether, being waste, they are clippings or refuse scraps and pieces, dutiable merely as waste not specially provided for, or whether, although waste, they are yet articles of undressed fur specially provided for under the paragraphs of the tariff act of 1897, heretofore quoted.

The finding of the Circuit Court that the articles are undressed clippings of rabbit skins and portions of fur that have become detached from the pelt by reason of heat and other means is amply sustained by the evidence, and, as was said by Judge Martin, the evidence shows that they are all "used for the same purpose to which the skin as usually cut up is employed, and that it comes from the rabbit pelt, which of itself is treated as free under the tariff act."

It is waste in a sense-that is, it is primarily a refuse in so far as the first treatment of the skin goes, and it may be that the object of the first treatment of the skins is not to obtain this refuse; it is a residuum. But, on the other hand, it is not at all a worthless quantity, as it has a commercial value for use in hat making and is imported for such purposes. The intent of the tariff law of 1897 was explicitly expressed by providing for free entry of skins and furs undressed, and it would seem to us that it was not meant to impose duty upon pieces or inferior kinds of furs, themselves valuable, and gathered as the scraps or waste from the first treatment of the skins, for they are still furs undressed.

It is equally true in the present case that the merchandise involved is in one sense a waste. It is a residuum after the first treatment of the native product. But, as in the case referred to, this residuum is

not a worthless quantity. It has a commercial value and is used for the purpose which the better quality is devoted to, except that it produces an inferior article. We think that case is decisive of this point.

So in Patton v. United States (159 U. S., 500), Mr. Justice Brown, after reviewing the definitions of waste found in the dictionaries, concludes:

The prominent characteristic running through all these definitions is that of refuse, or material that is not susceptible of being used for the ordinary purposes of manufacture. It does not presuppose that the article is absolutely worthless, but that it is unmerchantable and used for purposes for which merchantable material of the same class is unsuitable.

In Myers v. United States (110 Fed. Rep., 940) the court held that mica in small pieces or sheets which fall off in the process of thumb trimming are dutiable as mica unmanufactured, and not as waste not specially provided for. The court said:

The merchandise does not lose its character as merchantable mica because it is of an inferior grade. The material called "waste" at the mica mines is refuse thrown out on the dumps, having little value and being incapable of use for any of the purposes for which mica is used.

It is contended that even if this be held to be jute waste it is not free because it has been dressed. The evidence discloses that the first process of carding is not with the purpose of getting this substance. The carder does not desire to get any. But it comes about from the presence of inferior fibers. It is a by-product and not the substance sought, just as was the case in the Hatters' Fur Exchange case, supra. But what is more significant is the fact that before it can be devoted to the same purpose that the superior quality is, namely, spinning, it must be subjected to a new process of carding and treated in precisely the same manner that the native substance is required to be treated.

Authoritative rulings are not wanting upon this question. In Seeberger v. Castro (153 U. S., 32) tobacco scrap consisting of clippings from the ends of cigars and pieces broken from the tobacco of which cigars are manufactured in the process of such manufacture, not being fit for use in the condition in which the same are imported, were held to be dutiable as unmanufactured tobacco. And in the case of Patton v. United States (159 U. S., 500), Mr. Justice Brown said: Waste in its ordinary sense, being merely refuse thrown off in the process of converting raw wool into a manufacture of wool, can not be considered a manufacture simply because it acquires a new designation, and if it be artificially produced by the break ing up of the tops it is with even less reason entitled to be so considered. Unless natural waste can be treated as a manufacture, artificial waste should not.

Our conclusion is that this importation is more accurately described as jute unmanufactured than as waste not specially provided for. The decision of the Board of General Appraisers is reversed.

32354-VOL 2-12-28

UNITED STATES v. VANDEGRIFT & Co. (No. 730).1

PETITION FOR Rehearing aND TIME LIMITATIONS ON APPEALS.

Where a motion for a new trial has been entered within the time fixed by law, the limitation of 60 days within which it is permitted to take an appeal begins to run not from the date of the original decision, but from the date the motion for a new trial is disposed of.

United States Court of Customs Appeals, January 11, 1912.

[Motion denied.]

Wm. L. Wemple, Assistant Attorney General (Frank L. Lawrence on the brief), for the United States.

Walden & Webster for the motion.

Before MONTGOMERY, SMITH, BARBER, De Vries, and MARTIN, Judges. MONTGOMERY, Presiding Judge, delivered the opinion of the court: This is a motion to dismiss the appeal taken by the Government on the ground that the time for an appeal had elapsed when application for appeal was made to this court.

The original decision by the Board of General Appraisers was rendered June 16, 1911. A petition for rehearing was filed within the 30 days provided by law, and was denied by the board on July 6, 1911. The petition for review was filed in the office of the clerk of this court on August 29, 1911, which, though more than 60 days after the original decision, was less than 60 days after the decision denying the rehearing, and the question presented is whether the pendency of a motion for rehearing before the board arrests the running of the time fixed by statute for appeal to this court.

Subdivision 29 of section 28 of the tariff act of 1909 provides that— If the importer, owner, consignee, or agent of any imported merchandise, or the collector or Secretary of the Treasury, shall be dissatisfied with the decision of the Board of General Appraisers as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, or with any other appealable decision of said board, they, or either of them, may, within sixty days next after the entry of such decree or judgment, and not afterwards, apply to the Court of Customs Appeals for a review of the questions of law and fact involved in such decision.

If this section stood alone, it would require no interpretation. But section 12 of the act relating to proceedings before the Board of General Appraisers provides:

The board of three general appraisers, or a majority of them, who decided the case, may, upon motion of either party made within thirty days next after their decision, grant a rehearing or retrial of said case when in their opinion the ends of justice require it.

1 Reported in T. D. 32197 (22 Treas. Dec., 112).

A similar question arose in Kingman v. Western Manufacturing Co. (170 U. S., 675), in which case the authorities are reviewed at length. Circuit courts of appeal were empowered by section 6 of the act of March 3, 1891 (26 Stat. L., 826), to review final decisions of the district and circuit courts except in certain cases. By section 11 of that act it was provided:

No appeal or writ of error by which any order, judgment, or decree may be reviewed in the circuit courts of appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judgment, or decree sought to be reviewed.

The question presented in that case was whether, a motion for a new trial having been entered and later denied, the time for suing out a writ of error was limited to six months from the date of the original entry of the judgment sought to be reviewed or should date from the denial of the motion for a new trial. The court held that the trial court had not, while a motion was pending for a new trial, lost its jurisdiction over the case, and having power to grant the motion, the judgment is not final for the purpose of taking out the writ, saying:

The question before us is merely whether a judgment is final so that the jurisdiction of the appellate court may be invoked while it is still under the control of the trial court through the pendency of a motion for new trial. We do not think it is, and are of opinion that the limitation did not commence to run in this case until the motion for new trial was overruled.

It is equally true that in this case the entry of a motion for a rehearing and its consideration by the Board of General Appraisers must have of necessity left the case within their jurisdiction for determination. Subsection 29 of section 28 of the act of 1909 confers upon this court "exclusive appellate jurisdiction to review by appeal

* *

*

final decisions by a Board of General Appraisers * * *" the pro

vision corresponding to that above referred to conferring appellate jurisdiction upon circuit courts of appeal. The question in this case is, where rehearing is moved within the time fixed therefor by statute, whether the judgment or decision previously rendered is to be deemed final. The question in this case was whether, where a motion for a new trial had been entered within the time fixed by law, the previous decision was to be considered final. This question was answered in the negative. The present case is in all respects analogous.

It follows that the motion to dismiss should in this case be denied.

UNITED STATES v. DIDIER-MARCH Co. (No. 751).1

EXHAUSTERS, COMPOSED WHOLLY OR IN PART OF METAL.

The exhausters are composed of stoneware and iron, stoneware being the component material of chief value. The iron couplings and screws that connect the stoneware parts are, however, substantial and material constituents of the machines, and this fact is sufficient to bring them within the terms of paragraph 193, tariff act of 1897. They were dutiable under that paragraph.

United States Court of Customs Appeals, January 11, 1912.

APPEAL from Board of United States General Appraisers, Abstract 26371 (T. D. 31832). [Reversed.]

Wm. L. Wemple, Assistant Attorney General (Frank L. Lawrence on the brief), for the United States.

No appearance for appellee.

Before MONTGOMERY, SMITH, Barber, De VrIES, and MARTIN, Judges.

SMITH, Judge, delivered the opinion of the court:

The Didier-March Co. imported into the country at the port of New York certain machines which are utilized in chemical works to remove or expel therefrom the fumes of nitrous acid. The machines are called exhausters and are composed of stoneware and metal, stoneware being the component material of chief value. The appraiser returned the goods as manufactures of metal and earthenware, with earthenware as the constituent of chief value. Accordingly the collector of customs laid a duty on the exhausters of 55 per cent ad valorem under the provisions of paragraph 96 of the tariff act of July 24, 1897, which paragraph is as follows:

96. All other china, porcelain, parian, bisque, earthern, stone, and crockery ware, and manufactures thereof, or of which the same is the component material of chief value, by whatever name known, not specially provided for in this act, if painted, tinted, stained, enameled, printed, gilded, or otherwise decorated or ornamented in any manner, sixty per centum ad valorem; if not ornamented or decorated, fifty-five per centum ad valorem.

The importing company protested that the machines were not manufactures of earthenware, and as grounds of objection to the classification set up the claim that the exhausters were either saltglazed common stoneware, dutiable at 25 per cent ad valorem under paragraph 94, or articles or wares composed wholly or in chief value of earthy or mineral substances dutiable at 35 per cent ad valorem under paragraph 97, or articles or wares not specially provided for composed wholly or in part of metal dutiable at 45 per cent under paragraph 193, or nonenumerated manufactured articles dutiable at 20 per cent ad valorem under section 6.

1 Reported in T. D. 32198 (22 Treas. Dec., 114).