ton is subject to a duty of $5 per ton. (2) The barrels as containers should be added in appraising the cement. The duty being based upon or regulated by the value thereof, subsection 18 of section 28 of said act requires that, in appraising the value of such merchandise, the value of the containers, which are barrels, should be added to the per se value of the cement, and duty should be assessed accordingly on the gross weight of the merchandise as thus ascertained. United States General Appraisers, New York, April 8, 1912. (T. D. 32378; G. A. 7346.)

No. 25621. Paper coverings.-Protests 384366, etc., of Cooper, Coate & Casey Dry Goods Co. et al. (Los Angeles). Opinion by Hay, G. A. The usual coverings of hosiery, which were classified as manufactures of paper under paragraph 420, tariff act of 1909, were held dutiable at the rate applicable to their contents by virtue of section 28, subsection 18, of said act. (T. D. 31616.)

Vegetable tins.-United States v. Garramone (No. 636). (1) Cylindrical or tubular containing tanks or vessels defined. It would seem cylindical or tubular tanks or vessels appearing in paragraph 151, section 1, tariff act of 1909, must be taken to refer to containers made in part at least of metal and of such strong and permanent construction that on being emptied of their contents they might properly be devoted to further similar use and possessing appreciable value for such purposes. (2) Vegetables imported in tin containers. In view of the legislative history of the clause and its judicial interpretation, and in view of the common significance of the language employed, the cylindrical containers as described in paragraph 151, section 1, tariff act of 1909, can not be taken to remove small tin cans with contents of tomatoes and of tomato sauce from the operation of subsection 18 of section 28 of that act, though these tins are cylindrical in shape and they were dutiable ad valorem under said subsection 18.United States v. Marx & Rawolle (T. D. 31210). United States Court of Customs Appeals, May 10, 1911. (T. D. 31577.)

Paper wrappers or containers.-See T. D. 31406, paragraph 195.

SUBSECTION 19, SECTION 28.

Merchandise entered under act of 1897 and withdrawn from bond under act of 1909.—(1) No new or second appraisement allowable. Where certain merchandise was imported, entered, and appraised under the tariff act of 1897, and having been placed in bonded warehouse, was withdrawn from bond after the tariff act of 1909 went into effect, no new or second appraisement of such merchandise can be demanded by the importer. (2) Deductions from invoice value must be made at time of entry. The right conferred by subsection 7 of section 28, tariff act of 1909, authorizing the importer to deduct from the invoice value to make market value, must be exercised at the time of entry and before appraisement of the goods, and not afterwards. Such deduction is properly refused by the collector of customs if demanded after entry of the goods. (3) Subsection 19 refers to rate, not amount of duty. Subsection 19 of section 28, tariff act of 1909, providing for the withdrawal of merchandise in bonded warehouse "on payment of the duties and charges to which it may be subject at the time of withdrawal," like section 20 of the customs administrative act of 1890, refers to the rate and not the amount of duty assessed. (4) Rights of Government already accrued. The rights of the Government having accrued under the appraisement already made were preserved unaffected by the new act amending previous laws. United States General Appraisers, New York, April 13, 1910. (T. D. 30542; G. A. 7008.)

SUBSECTION 22, SECTION 28.

Abandonment.-Abandonment by importer-Liability for duties as affected by. An importer can not, by exercising the right of abandonment given him under section 28, subsection 22, tariff act of 1909, escape the payment of additional duties which, by reason of undervaluations, have accrued under the provisions of section 28, subsection 7, of the same act; nor can he by abandonment be relieved from the payment of regular duties upon the appraised value of the goods when such appraised value is an advance of more than 75 per cent over the entered value, which latter is thus made presumptively fraudulent by the terms of section 28, subsection 7. United States General Appraisers, New York, December 7, 1911. (T. D. 32072; G. A. 7308.)

Abandonment of goods lost by collision of lighter.-Abandonment of goods lost by collision of lighter not allowed where they have left the custody of the Government. Although the law provides for the abandonment of goods falling within the description of subsection 22 of section 28, act of 1909, the right of abandonment is gone when the goods have left the custody and control of the Government and have been delivered, duty paid, to the importers prior to their being lost by sinking on a lighter in which the Government had no interest. United States General Appraisers, New York, February 13, 1912. (T. D. 32273; G. A. 7329.)

No. 27241. Shortage-Broken demijohns.-Protest 509167 of Dodge & Olcott Co. (New York).

SOMERVILLE, General Appraiser: The deputy collector reports in this case as follows: "This importation included 150 demijohns of floral water, of which the discharging officers reported '9 demijohns landed broken and empty.' In the liquidation of the entry allowance was made for the floral water, for the reason that it was not landed. In view of the instructions of the department as set forth in T. D. 30816, which preclude any allowance for damage, except on merchandise of a perishable nature and upon which the importer has complied with the requirements of T. D. 30023, construing subsection 22 of section 28, act of August 5, 1909, the 9 broken demijohns were assessed with duty as landed merchandise." (T. D. 32046.)

Rotten fruit-Lemons condemned by board of health.-Certificate of condemnation must be filed. In the case of lemons condemned and destroyed by the board of health, a failure to file the certificate of condemnation within 15 days thereafter is fatal to a recovery of duties on such merchandise. The Secretary of the Treasury, in his regulations which he is authorized to make, requires it. United States General Appraisers, New York, October 23, 1912. (T. D. 32881; G. A. 7398.)

Rotten fruit-Tariff act of 1909.-Subsection 22, of section 28, act of 1909. This provision of the new tariff act of 1909 so abrogates the principle decided by the Supreme Court in Lawder v. Stone (187 U. S., 281; 23 Sup. Ct, Rep., 79) as to abolish all allowances by way of deduction of duties for decayed or rotten fruit, either caused by damage or constituting a nonimportation, unless on compliance with statutory requirements as a condition precedent to such allowance. United States General Appraisers, New York, March 21, 1910. (T. D. 30446; G. A. 6997.)

Rotten fruit--Act of 1909-Regulations of Secretary of the Treasury.—(1) Subsection 22, section 28-Regulations of Secretary of the Treasury. The Secretary of the Treasury is authorized to prescribe regulations to carry out the provisions of subsection 22 of section 28, tariff act of 1909, relating to allowances for decay, destruction, or injury to imported fruit. (2) Lawder v. Stone abrogated. This provision was designed to abrogate the principle decided by the Supreme Court in Lawder v. Stone (187 U. S., 281) giving such allowances under previous tariff acts. (3) Issuance of regulations necessary before allowance. The promulgation of such regulations is a condition precedent to allowances for decay or destruction of imported fruit arriving in this country after. the enactment of the present act of August 5, 1909. (4) Ibid. Protests filed prior to October 4, 1909, the date of promulgating such regulations (T. D. 30023), are properly overruled. (5) Proof filed too late. An affidavit making proof of decay in such fruit and not filed with the collector within ten days after the landing of such merchandise, is properly disregarded by him in making his liquidation. United States General Appraisers, New York, February 27, 1911. (T. D. 31349; G. A. 7180.)

Rotten fruit-Act of 1909-Filing of proof.-(1) Proof must be filed with the collector. Where a claim is made by protest of an importer for shortage or nonimportation caused by decay in imported fruit, the proof to ascertain such decay is required to be lodged with the collector of customs within 10 days after the landing of such merchandise, and where no such proof is lodged the board will not allow any evidence to be introduced challenging the return of the appraiser as made under the regulations of the Secretary of the Treasury. (2) Failure of compliance. This requirement will prevent any proof being made before the board which has not been lodged with the collector within the time required by law. United States General Appraisers, New York, January 15, 1912. (T. D. 82148; G. A. 7316.)

Rotten fruit-Time of examination.—Cuccio & Co. v. United States (No. 319). Importation and nonimportation. Whether all, or a portion only, of a cargo of fruit constitutes an importation depends on the facts established by evidence in the particular case. In this particular case the board based its decision on the ground that the evidence offered by the importers was not convincing of error in the return made by the collector, and no reason here appears to disturb that finding. United States v. Shallus, supra (T. D. 32074). United States Court of Customs Appeals, November 28, 1911. (T. D. 32075.)

Rotten fruit.—Vandegrift & Co. v. United States (No. 843). (1) Subsection 22, section 28, tariff act of 1909. Subsection 22 of section 28 makes express provision for an allowance in the estimation and liquidation of duties upon fruit, when by reason of decay, destruction, or injury during transportation there is a shortage, or in fact a nonimportation thereof, its commercial value being destroyed. (2) Proof of nonimportation, before whom. The Secretary of the' Treasury is empowered to make regulations relative to shortage or nonimportation of merchandise, but the law itself requires that "proof to ascertain such destruction or nonimportation shall be lodged with the collector of customs within 10 days after the landing of the merchandise." A regulation intended to exclude from the consideration of a collector proof that had been so duly filed would be invalid. (3) Case here. The importer here duly filed his proof and it will be presumed the collector made his decision in the light of it. The board on review affirmed that decision; it will not now be disturbed. United States Court of Customs Appeals, April 22, 1912. (T. D. 32470.)

Rotten fruit.-United States v. Zito (No. 591). (1) Nonimportation. Subsection 22 of section 28, tariff act of 1909, relating to allowances on nonimportations, was not founded upon any previous tariff act, but originated in the absence of any express statute levying duty upon the described commodities. Lawder v. Stone (187 U. S., 281). (2) Goods condemned in importers' hands. No allowance can be made for goods that have gone into the possession of the importer and that are later condemned by a board of health. (3) Allowance for nonimportation. What allowance, if any, should be made on an importation is primarily a question of fact, to be determined like any other relevant fact in the case.-United States v. Shallus (2 Ct. Cust. Appls., 332; T. D. 32074). United States Court of Customs Appeals, May 8, 1912. (T. D. 32531.) Allowance for rotten fruit.-Harris & Co. et al. v. United States (No. 852). Grapes in barrels. Subsection 22 of section 28, tariff act of 1909, was intended to provide and does provide for an allowance in the estimation and liquidation of duties upon fruit when, by reason of decay, destruction, or injury during transportation, a shortage occurs, resulting, in fact, in a nonimportation, the commercial value of a designated and reasonably ascertainable quantity of the goods having been destroyed. United States Court of Customs Appeals, May 17, 1912. (T. D. 32570.)

Seizure and condemnation of imported fruit.-Limitations of time run from condemnation and not destruction of the goods. Where fruit was condemned by the board of health on August 4, 1910, and was subsequently destroyed on August 12, 1910, the limitations of time fixed by subsection 22 of section 28 of the act of 1909 run from the date of condemnation and not from the date of destruction. The seizure of the fruit cut off the right of the importers to take possession of or assert any control over the goods as their own. United States General Appraisers, New York, February 13, 1912. (T. D. 32270; G. A. 7326.) Decayed macaroni condemned-Act of 1909.-(1) Macaroni not a perishable article under subsection 22, section 28, act of 1909. Macaroni is not a perishable article within the meaning of subsection 22 of section 28, tariff act of 1909, relating to allowances for the decay or destruction of “fruit or other perishable articles," on the ground of shortage or nonimportation, nor under sections 2962 and 2975, Revised Statutes, excepting from warehouse privileges merchandise of a perishable nature. (2) Allowance for same condemned by health department. Hence the regulations of the Secretary of the Treasury designed to carry out the provisions of said subsection 22, which are embodied in T. D. 30023, have no reference to the article of macaroni, the nonimportation of which by reason of destruction by decay must be governed by the principle enunciated in Lawder v. Stone (187 U. S., 281; 23 Sup. Ct. Rep., 79), followed in board decision In re Courtin, G. A. 6356 (T. D. 27324), and affirmed by the circuit court in United States v. Courtin (153 Fed. Rep., 594; T. D. 27970). United States General Appraisers, New York, June 5, 1911. (T. D. 31650; G. A. 7228.)

Nonimportation and damage allowances-Act of 1909-Subsection 22 of section 28 Jurisdiction of board—(1) Method of procedure prescribed. When fruit or other perishable articles are imported under the present tariff act of 1909, the method of ascertaining the amount of an article so decayed or destroyed that is not subject to any duty is provided for by subsection 22 of section 28 of said act, and the regulations of the Secretary of the Treasury made to carry out the provisions of the statute, as found in T. D. 30023. (2) Such method exclusive. This statute and the regulations apply as well to losses by reason of nonimportation or shortage as to losses by damage or condemnation by health boards. And the methods there prescribed are exclusive of all other methods, and unless such regulations are complied with by importers no recovery can be had. (3) The findings of examiners as reported final. The findings of the examiners detailed to investigate claims under said statute, as reported by the appraiser, are final and conclusive, and will not be reinvestigated by the board on protest filed by the importer. (4) No jurisdiction of board. Such protests should be dismissed by the board on appeal for want of jurisdiction. (5) Protest overruled. The majority of the board are of opinion that although the regulations of the Secretary are not properly complied with the board has jurisdiction of the protest, and in this case it should be overruled and not dismissed. United States General Appraisers, New York, December 4, 1911. (T. D. 32071; G. A. 7307.)

Grapes-Act 1909-No allowance for nonimportation produced by decay.—(1) Paragraph 276, act 1909. Grapes imported in barrels or other packages are dutiable under paragraph 276, tariff act of 1909, at 25 cents per cubic foot of capacity of barrels or packages. (2) No allowance for decay under subsection 22 of section 28. This paragraph levies a duty on the packages containing the grapes, and not on the quantity of grapes contained in such packages. Hence no allowance can be made as a nonimportation for decay in the fruit prior to arrival in this country. United States General Appraisers, New York, December 19, 1911. (T. D. 32108; G. A. 7310.)

Allowance, on nonimportation.-United States v. Pastene & Co. (No. 745). Decayed macaroni. It is not contended by either party that macaroni is a perishable article within the meaning of the first part of subsection 22 of section 28, tariff act of 1909. The evidence disclosed by the record justifies the conclusion that the macaroni for which allowance was made was, before arrival in port, not merely damaged, but destroyed, and that therefore as to the destroyed portion there was no importation. United States Court of Customs Appeals, April 17, 1912. (T. D. 32458.)

No. 29532. Rotten onions.-Protest 557087 of the Hills Bros. Co. (New York). Opinion by Waite. G. A. Onions were held to be perishable articles within the meaning of subsection 22, section 28, tariff act of 1909. A claim that an allowance for certain rotten onions should have been made overruled for the reason that the regulations of the Secretary of the Treasury had not been complied with. Vandegrift v. United States (T. D. 32470) cited. Pineapples-Grapes-Decay.-Pineapples in barrels or graph 279, tariff act of 1909-No allowance for decay. March 12, 1912. (T. D. 32306.)

SUBSECTION 29, SECTION 28.

(T. D. 32767.)

other packages-ParaTreasury Department,

Motion to dismiss.-United States v. Vandegrift & Co. (No. 730). 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. (T. D. 32197.)

Sufficiency of record-Millboard.-Sheldon v. United States (No. 518). Hempstead v. United States (No. 519). (1) Court of Customs Appeals-Powers to review. The act creating this court empowers it to review not alone the law, but, when the findings of the Board of General Appraisers are made an issue, to review the facts presented upon appeal to this court. (2) A record used as a basis for opinion below should be incorporated here. To enable this

court fairly to review a finding of fact by the board, when this finding is made an issue on appeal, it is essential that the court should have before it all the testimony that influenced the board in reaching its conclusion. (3) Same. This is not to say the board may not, in the course of its oftentimes necessarily summary determinations, rely in its findings on proof in other like cases heard on earlier dates by the board. United States Court of Customs Appeals, May 8, 1911. (T. D. 31594.)

Power to remand for rehearing.-Stegeman v. United States (No. 458). (1) Power to remand to have additional testimony taken. The power to remand a case for the purpose of having additional testimony taken is not incident to the right of appeal itself, but must depend upon express statutory authority. (2) Ibid. The organic act establishing this court embodies all provisions relative to appeals to this court now in force, and in determining whether the authority to remand a cause and direct a rehearing resides here, the provisions of the organic act are decisive. (3) Ibid. There is no such authority directly conferred by that act, it may not be brought in by construction, and the terms of the statute contemplating as speedy a determination of causes here, as properly may be, a motion to remand to take additional testimony will be denied. (4) Rule 11 of this court. Rule 11 of this court relating to amendments, orders, and judgments should be construed in connection with the statute giving authority to remand a case to the board by an order made on the final hearing before this court. If open to a broader interpretation, it must be held that in so far as it attempted to extend the power of the court beyond the limit here prescribed it was in excess of authority. United States Court of Customs Appeals, January 18, 1911. (T. D. 31240.)

Thymol.-United States v. National Aniline & Chemical Co. (No. 511). (1) Incompetent evidence. The board admitted in evidence a certain certificate "for what it is worth." Without determining whether this was equivalent to holding the certificate had probative force of some sort, it is clear that subsection 29 of section 28, tariff act of 1909, relating to the powers of this court does not exempt testimony admitted by the board from the application on its review here of accepted principles governing the competency of evidence; and it is not true that if through error the board has admitted and considered as evidence that which has no tendency to support an issue of fact, such error, aided by the statute, imparts a character and force to that evidence which under no other circumstances could it possess. The word "competent" in the law, as applied to evidence before this court on appeal, does not clothe testimony improperly admitted below with any new quality or give it a probative force never inherently possessed by it.-Knauth, Nachod & Kuhne (155 Fed. Rep., 144) distinguished. (2) Unattested declaration abroad. An unsworn ex parte statement made abroad and deposited with a vice consul is in no sense the equivalent of a deposition under oath and taken where there was an opportunity to crossexamine the witness; and such a statement can not be held to overcome the presumption of correctness in a collector's classification; especially is this so when such ex parte statement lacks relevancy. (3) Motion to remand. Under the circumstances and upon request therefor the rule is applied that a cause may be remanded for a new trial when necessary for the purposes of justice. United States Court of Customs Appeals, February 17, 1912. (T. D. 32287.)

SECTION 29.

Entry-Animals.-Van Treese v. United States (No. 484). Where no actual tender of entry was made. It is unnecessary to determine whether the absence of an inspector would validate on a later day a tender of entry made during the inspector's absence, it appearing here no actual tender of entry was made of certain horses it was desired to import on August 5, 1909, and that the tender of entry was made in fact on August 6, 1909; the horses were rightly held dutiable as of that date under the act in force that day. United States Court of Customs Appeals, November 22, 1911. (T. D. 32036.)

Entry, when actual.—United States v. Cordero (No. 95). Entry sought before completion of voyage. Entry implies the presence of the merchandise at the time entry is sought to be made and where a consignment of gin on board a mail steamer reached Key West August 3, 1909, and entries of the gin were presented by the importer on August 4, the commodity itself remaining on board ship while the vessel proceeded to another destination, but, returning, called again at Key West on a later day and subsequently to the going into full force