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woven fabrics . . . in the gum," under the first clause of a tariff paragraph, were asserted in an importer's protest to be duti able" at sixty cents per pound . . under the first clause, being woven fabrics in the piece, dyed." This rate and description (“dyed") pertained to the second clause, and not the first. It was held that the protest referred sufficiently to the first clause.

In Helmrath r. U. S., (1904) 135 Fed. 912, affirmed (C. C. A. 1906) 145 Fed. 36, it appeared that an importer protested against the payment of duty on ninety-nine skins, classified as hides, in regard to which he stated in his protest, "each of which weighs under twelve pounds; and looking to you for the refund of duty on these ninety-nine skins, I remain," etc. It appeared that twelve pounds is the dividing line between hides and skins, and that paragraph 664 is the only paragraph authorizing the admission of such skins free of duty. It was held that the protest was sufficient.

In Weil v. U. S., (1900) 124 Fed. 1006, it appeared that certain long-haired Russian calfskins were classified as dutiable as "hides of cattle," under paragraph 437, when they should have been classified as free of duty, under paragraph 664 of said Act covering "skins of all kinds, raw." The importers' protest against the assessment of the collector did not refer to the proper paragraph (664), but only to paragraphs 561 and 562 of said Act, which relate respectively to "furs, undressed," and "fur skins." It was held that this was a sufficient compliance with the requirement in section 14.

In U. S. v. Leerburger, (C. C. A. 1908) 160 Fed. 651, affirming (1 (1907) 155 Fed. 146, goods dutiable under one paragraph of a Tariff Act were asserted by an importer in his protest to be dutiable under another paragraph, but the language of the protest indicated an intention to cite the former. It was held that the protest should be construed as referring to the former.

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Protest held insufficient. — In Boker v. U. S., (1905) 140 Fed. 115, affirmed (C. C. A. 1906) 145 Fed. 1022, it appeared that certain importers protested against the assessment of duty on an importation, stating in their protest merely the contention that the merchandise was dutiable under a certain paragraph of the Tariff Act, with no mention of the grounds of their objections or of the rate of duty claimed to be applicable, and the paragraph cited was the one under which duty had been assessed, and was a long one, containing many subdivisions and different rates of duty. It was held that the protest was insufficient, under the rule in section 14 that protests must be specific and distinct in the statement of objections to the assessment of duty.

In U. S. v. Hartley, (1905) 140 Fed. 969, it appeared that certain imported merchandise, covered by an entry embracing three invoices, was all subjected to the same rate of duty, which, it appeared, was excessive as to one of the invoices. In protesting against the rate of duty the importer specified one of the two invoices on which duty was cor

rectly assessed. It was held that the protest should be considered restricted to the invoice which it specified.

In U. S. r. Bayersdorfer, (C. C. A. 1903) 126 Fed. 732, reversing 122 Fed. 968, it appeared that an importer filed a protest against the assessment of duty by a collector of customs, claiming therein that the merchandise was either dutiable at a less rate or was free of duty, under certain paragraphs of the dutiable and free lists of the Tariff Act, which he specified in his protest. The board of general appraisers decided that the assessment was erroneous, and that the merchandise should, have been classified as free of duty under another paragraph than those cited in the protest, but that the protest should be overruled on the ground that, in not referring to the proper paragraph, it failed to satisfy the requirements of section 14, which prescribes that an importer shall set forth in his protest "distinctly and specifically the reasons for his objections" to the assessment. It was held that this action was correct.

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In Corbitt, etc., Co. v. U. S.. (1907) 153 Fed. 648, it appeared that goods which should have been classified free of duty under a paragraph relating to "jute bagging" were asserted in the importers' protest to be free under a paragraph relating to "burlaps," and there was no suggestion that the importers at the time of filing the protest had in mind the former provision. It was held that the protest did not set forth the importers' objections "distinctly and specifically," within the meaning of section 14.

Where an importer protests against the assessment of duty on the ground of an alleged application of the similitude clause of the Tariff Act, unless the protest contains reference to said provision it is not suffi ciently distinct and specific to meet the requirements of section 14. U. S. v. Dearberg, (C. C. A. 1905) 143 Fed. 472, reversing (1904) 135 Fed. 245.

A protest referring to "hats made from so-called artificial silk " cannot be construed as relating to hats made from real horsehair. U. S. v. Wanamaker, (1910) 175 Fed. 900, 99 C. C. A. 390, reversing (1909) 169 Fed. 664.

In Rosenberg v. U. S., (1906) 146 Fed. 84, it appeared that certain imported merchandise was erroneously classified as wool wearing apparel, instead of as manufactures in chief value of fur. The importers, in protesting against the classification, stated as reasons for their objection merely that the merchandise was "dutiable at the appropriate rate and under the proper paragraph according to the component material of chief value." It was held that this did not meet the requirement of section 14 that an importer in protesting shall set forth "distinctly and specifically. . . the reasons for his objections."

Certain importers, in protesting against the assessment of customs duty, based their objections on an inapplicable paragraph of the Tariff Act, but named the correct rate of duty, it happening that the rate provided in

said paragraph was the same as in the paragraph that should have been referred to in the protest. There was nothing in the terms of the protest to direct the attention of the collector of customs to the proper paragraph or to suggest that the importers had inadvertently referred to the wrong paragraph and had intended to refer to the right one. It was held that the protest was not sufficiently distinct and specific. U. S. v. Fleitmann, (1905) 137 Fed. 476, 69 C. C. A. 624, affirming (1904) 131 Fed. 396.

Construction of protest.-In U. S. v. Bayersdorfer, (C. C. A. 1903) 126 Fed. 732, reversing 122 Fed. 968, it appeared that the Board of General Appraisers had before it several protests relating to the classification of certain merchandise, one of which stated objections to the collector's assessment that were not stated in the other protests. It was held that the presence of the former protest was of no moment as affecting the construction of the latter protests.

Time for lodging. This section, permitting protests against decisions of collectors of customs to be filed "within ten days after but not before" liquidation of the entries, fixes definitely the time within which a protest must be filed; and, if not filed within this period, a protest is invalid. U. S. v. Wyman, (1907) 156 Fed. 97, 84 C. C. A. 123.

In Sgobel v. Robertson, (1893) 126 Fed. 577, it appeared that at the time of the original liquidation of duty on an importation of merchandise, the importers failed to protest against the exaction of duty on certain charges; but later, on the reliquidation of the entry solely to include a damage allowance, they filed a protest against the duty on the charges, which had not been affected in any way by the reliquidation. held that the protest was within the requirement of section 2931, R. S. U. S. [repealed by Act of June 10, 1890, sec. 29, 2 Fed. Stat. Annot. 935] that protests against excessive exactions of duty shall be filed "within ten days after the ascertainment and liquidation of the duties."

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Where, under instructions of the Secretary of the Treasury, and upon due notice to the importers, an entry of imported merchandise was tentatively liquidated, while the final liquidation was held in abeyance over a year, pending the possibility of a change of rates, it was held that the final liquidation was the liquidation within ten days after which the importers might legally file a protest. U. S. v. Franklin Sugar Refining Co., (1905) 137 Fed. 677.

In Frost v. Saltonstall, (1887) 129 Fed. 481, it appeared that notice was posted in a custom house that it would be closed June 17th a holiday observed by local custom, but not established by law. Certain importers having notice of the closing of the custom house on that day, which was the tenth day after the liquidation of their entry, filed a protest on the day following. It was held that the protest was filed in accordance with the requirements of R. S. sec. 2931, providing that protests shall be made within ten days

after the ascertainment and liquidation of the duties.

For the purpose of ascertaining the date for filing protests, importers are bound to take notice of the dates given in the liquidation bulletin publicly posted as prescribed by the customs regulations; and, in case of a conflict between the bulletin and notations on the entry, they should be governed by the former. U. S. t. Wyman, (1907) 156 Fed. 97, 84 C. C. A. 123.

Pay duty as well as file protest. In U. S. v. Tiffany, (C. C. A. 1906) 151 Fed. 473, reversing (1905) 137 Fed. 971, it appeared that a collector of customs reliquidated the duty on imported merchandise at an increased rate, and brought an action for the amount thus becoming due. The importers defended on the ground that the rate assessed was illegal. It was held that questions as to rate could not be raised in such proceedings; that the Board of General Appraisers was created as a special tribunal having, subject to review by the courts, exclusive jurisIdiction over controversies as to the rate of duty on importations; that the importers' only remedy was to pay under protest the duties found due by the collector; and that unless they did this the collector's decision was "final and conclusive," as provided in said section.

Amendment of protest. — In U. S. v. Bayersdorfer, (C. C. A. 1903) 126 Fed. 732, rerersing 122 Fed. 968, it appeared that in appealing from a decision of the Board of General Appraisers, an importer set forth in his petition a claim based on a paragraph of the Tariff Act not referred to in his protest filed with the collector and passed on by said board. It was held that this was not permissible.

Waiver of defect. On appeal by the United States from a decision of the Board of General Appraisers, which reversed the assessment of duty by a collector of customs, where no statement of error was made by the appellant in regard to the sufficiency of the protest on which the proceedings before said board were based, it was held that this fact constituted a waiver by the United States of an alleged defect in the protest. U. S. v. Brown, (1903) 127 Fed. 793, 62 C. C. A. 473, affirming 121 Fed. 605.

Abandonment of protest. Where importers abandoned protests before the Board of General Appraisers without taking testimony, it was within the sound discretion of the board to refuse to reopen the cases or restore them for hearing; and on appeal to the Circuit Court the importers were not entitled to introduce further evidence. Strohmeyer, etc., Co. v. U. S., (1910) 180 Fed. 636.

Duty of collector to transmit protest.— It is a breach of duty for a collector of customs to refuse to forward to the Board of General Appraisers protests which have been filed under section 14, and for this breach the protestant is entitled to damages. Kendall v. Lyman, (1908) 161 Fed. 652.

But a collector of customs is not liable to importers for the failure of his predecessor to send the importers' protests to the Board

of General Appraisers. Gulbenkian v. Stranahan, (1907) 158 Fed. 836.

Damages for failure to forward protest. Only nominal damages are recoverable for a breach of the duty of a collector of customs to forward an importer's protest to the Board of General Appraisers, where the breach is technical. and actual damage has not been sustained. Kendall . Lyman, (1908) 161 Fed. 652.

Liability of government for delay in forwarding protest. - - Where there was a delay of several years by customs officers in for warding an importer's protests to the Board of General Appraisers for decision, and during this period the value of the importer's evidence became impaired, it was held that no right against the government arose by reason of this delay, particularly when not intentional or negligent. Franklin Sugar Refining Co. v. U. S., (1907) 153 Fed. 653.

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The Board of General Appraisers, under the authority given in this section to amine and decide the case" submitted to it by a collector of customs, is required first of all to determine its jurisdiction, including the validity of the protest. U. S. v. Brown, (1903) 127 Fed. 793, 62 C. C. A. 473, affirming 121 Fed. 605.

The Board of General Appraisers has jurisdiction over cases relating to the exaction of fees on packed packages, though no entry of such packages may ever have been made at the custom house. U. S. v. American Express Co., (1907) 154 Fed. 996.

Surrender of jurisdiction once acquired. Where a board of three general appraisers has, as provided in section 14, acquired jurisdiction over a case through the transmission by the collector of the papers in the case, it is then the duty of that board to "examine and decide the case thus submitted," as prescribed by said section; it may not afterward surrender its jurisdiction to another board; and a rule adopted by the general appraisers is invalid which, in order to prevent conflicting decisions, provides for the transfer of a case from one board to another when the majority of all the general appraisers is of opinion that a proposed decision in the case by one board conflicts with a previous decision. Prosser v. U. S., (C. C. A. 1907) 158 Fed. 971, reversing 154 Fed. 721.

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Evidence. In Knauth v. U. S., (1907) 155 Fed. 144, the Board of General Appraisers admitted as evidence in a case testimony taken previously in another case. This was done over the objection of counsel, who had not appeared in the previous case nor had opportunity of cross-examining the witnesses therein; and the articles involved in the two cases were not shown to be the same. It was held that such evidence should not have been admitted.

Decision in conflict with previous court decision. Where there is conflict between a

decision of the Circuit Court on appeal from the Board of General Appraisers, and a subsequent decision of the board, the Secretary of the Treasury should give greater consideration to the decision of the court. (1903) 25 Op. Atty.-Gen. 81.

How far binding on Treasury Department. -The Secretary of the Treasury and collectors of customs are bound by classification decisions of the Board of General Appraisers, when unappealed from, only so far as such decisions affect the goods immediately before the board for classification. (1903) 25 Op. Atty. Gen. 81.

Default on hearing of appeal - waiver by government. Where importers who failed through inadvertence to appear on the hearing of an appeal taken by them to the Board of General Appraisers, which entered a default, and affirmed the action of the collector, afterward applied for and obtained an order from the Circuit Court directing further testimony to be taken, and the government made no objection to such order, and appeared pursuant thereto. and cross-examined the witnesses, it waived the right to raise the objection thereafter that the appellants were concluded by the default before the board of appraisers. In re Myers, (1903) 123 Fed.

952.

"Decision" of collector.

Under this section which confers upon the Board of General Appraisers power to review decisions of the collector, it has been held that the board had jurisdiction to review the action of the collector in reliquidating an entry although it was done pursuant to an order of the Secretary of the Treasury. U. S. v. Beebe, (1903) 122 Fed. 762, 58 C. C. A. 562.

Correction of decision. In U. S. v. Leeming, (1907) 153 Fed. 489, it appeared that two months after a reappraisement decision had been made by a Board of General Appraisers, the board amended it in order to correct an error. It was held that the correction was illegal.

Suspension of trial until payment of duties. - In an action against an importer for unpaid duties, the Circuit Court has ample power to suspend the trial until the importer. by payment of the duties assessed, may put himself in position to try the question as to classification of the goods before the Board of General Appraisers. U. S. r. Tiffany. (1907) 153 Fed. 969, 83 C. C. A. 81; U. S. r. Tiffany, (1907) 154 Fed. 740.

Mere delay in the payment of duties on imported merchandise does not deprive the Board of General Appraisers of power to pass upon the question of the proper classification of imported merchandise under this section, where a protest has been filed within the time prescribed in said section. U. S. r. Tiffany, (1907) 154 Fed. 740.

Recovery of duties in Court of Claims. —Where importers had failed to proceed for the recovery of excessive duties by filing protests, and thus securing a decision by the Board of General Appraisers, as provided by this section, it was held that they were precluded from recovery in the Circuit Court as a Court of Claims under the Tucker Act

(Act of March 3, 1887, ch. 359, 24 Stat. L. 505, 2 Fed. Stat. Annot. 80). Gulbenkian v. U. S., (1909) 175 Fed. 860.

What constitutes record. — Reappraisement proceedings under section 13 are separate and distinct from protest proceedings under section 14, and where the legality of a re. appraisement is challenged by proceedings under the latter section, the entire reappraisement record does not become a part of the record in the latter proceedings, unless expressly admitted. Harris v. Ü. S., (1910)

177 Fed. 475.

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Custom house error. - In U. S. v. Wyman, (1907) 156 Fed. 97, 84 C. C. A. 123, it appeared that by a custom house error the date of liquidation was stated in an entry as being later than it was in fact, and a representative of the importer was thereby misled; but the correct date was given in both a notice sent to the importer and the liquidation bulletin posted for inspection by importers. It was held that the error did not have the effect of extending the period for filing protests, prescribed by section 14.

Conclusiveness of findings.- Findings of the Board of General Appraisers, unless unsupported or against the weight of evidence, or additional evidence has been taken, will not be disturbed by the courts on appeal. Vandiver v. U. S., (1907) 156 Fed. 961, 84 C. C. A. 522.

Conclusiveness of reliquidation. — A reliquidation of duties by a collector, like an original liquidation, is conclusive on the owner or importer under section 14, unless notice of objection is given within ten days. U. S. v. Mexican International R. Co., (1907) 151 Fed. 545, 81 C. C. A. 61.

Illegal appraisement not conclusive. - To the general rule that an appraisement by the local appraiser is final and conclusive, unless revived by reappraisement proceedings, there is an exception in case the appraiser proceeded on a wrong principle, as by advancing the value of merchandise not examined by him. In such case the importer may pursue the remedy prescribed in this section. U. S. v. Beer, (C. C. A. 1906) 150 Fed. 566, affirming (1905) 142 Fed. 199.

Mandamus of general appraisers. — In the event that a Board of General Appraisers, after acquiring jurisdiction of a case under this section, refuses to "examine and decide," as prescribed in said section, an importer would be entitled to apply to the proper court for a mandamus to require the board to exercise its jurisdiction. Prosser v. U. S., (C. C. A. 1907) 158 Fed. 971, reversing 154 Fed. 721.

Duty on repairs - review of assessment by general appraisers. The action of a collector of customs in assessing duty on the cost of repairs of vessels, as provided in R. S., sec. 3114, 2 Fed. Stat. Annot. 768, is subject to review by the Board of General Appraisers, under the provisions of this section giving said board jurisdiction to review decisions of collectors of customs "as to the rate and amount of duties chargeable upon imported merchandise, including all dutiable costs and charges, and as to all fees and

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Finality of assessment. In an action by a collector of customs against an importer for a balance of duties found due on reliquidation of an entry, it was held that the importer could not defend on the ground that the assessment was incorrect, because section 14 provides that the decision of the collector shall be final and conclusive against the importer, unless reviewed by the Board of General Appraisers. The importer could seek his remedy for erroneous assessment only through the method prescribed in said section, which requires that the duties shall be paid under protest and the matter brought before the Board of General Appraisers for decision. Louisville Pillow Co. v. Ü. S., (C. C. A. 1906) 144 Fed. 386.

A reliquidation has all the validity of the original liquidation, and, when made, becomes the liquidation in lieu of the original, and must be treated as such, under this section, providing that protests against the assessment of duty must be filed within ten days after "liquidation." Louisville Pillow Co. v. U. S., (C. C. A. 1906) 144 Fed. 386.

Action m court for recovery bars appeal to general appraisers. — In an action by importers against the collector of customs, in a Circuit Court, for the recovery of excessive duties, a verdict was directed for the importers for a part of the claims made, and against them for the remainder, judgment being rendered and satisfied on that basis. It was held that the entire matter thus became res adjudicata, and the importers could not by subsequent proceedings before the Board of United States General Appraisers have a further recovery on the merchandise as to which said verdict had been adverse. U. S. t. Johnson, (1906) 145 Fed. 1018.

Voluntary satisfaction of protest by collector. In Gulbenkian r. Stranahan, (1907) 158 Fed. 836, it appeared that a collector of customs sustained an importer's protest against the assessment of duty, instead of transmitting the protest to the Board of General Appraisers for decision, under section 14. It was held that the provisions of the Act were as well complied with by this action as they would have been by transmission of the case to the board.

Protest against tentative liquidation.— Where an importer filed a protest against a tentative liquidation of an entry, it was held * that this action did not preclude him from filing another protest against the final liquidation subsequently, regardless of whether at the time of making the first protest he regarded the first liquidation as final, and not

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Amendment. This section was amended by Act of May 27, 1908, ch. 205, 35 Stat. L. 403, 1909 Supp. Fed. Stat. Annot. 109.

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Time for filing applications for review. The provision in this paragraph that applications for review of decisions of the Board of General Appraisers should be filed 'within. thirty days next after such decision, and not afterwards," is mandatory; and a delay of one day beyond the period prescribed is as fatal as a longer period. An application filed after thirty days must be dismissed for want of jurisdiction. Carriere v. U. S., (1908) 163 Fed. 1009.

Finding of fact. On appeal from the Board of General Appraisers the Circuit Court should not disturb the board's findings on doubtful questions of fact, especially as to questions which turn upon the intelligence and credibility of witnesses produced before the board. Balaban v. U. S., (1909) 174 Fed. 832. Compare U. S. v. Proctor, (C. C. A. 1906) 145 Fed. 126, affirming (1905) 139 Fed. 586.

Where, on appeal from a classification for duty, the testimony as to the commercial designation of the article was not only conflicting, but so closely balanced as to render it difficult to say on which side the weight of evidence lay, it was held that the finding of the board of appraisers on such issue would not be disturbed. Gabriel v. U. S., (C. C. A. 1903) 123 Fed. 296.

The rule that, in reviewing decisions of the Board of General Appraisers under section 15, courts should not disturb the board's findings on doubtful questions of fact, does not extend to a case where there is no express evidence or express finding on the subject. Gallenkamp v. Wyman, (1906) 178 Fed. 460.

A finding of the Board of General Appraisers upon legitimate evidence will not be reversed, where the sole substantial statement relied upon for reversal consists of an informal acknowledgment made by a foreign merchant. Baldwin v. U. S., (1905) 139 Fed. 1005.

Effect of failure to give evidence before appraisers. The importers, in a protest case pending before the Board of General Appraisers, having failed, after due notice, to introduce the evidence necessary to sustain their contention, the board thereupon overruled the protest, and the importers appealed to the Circuit Court. It was held that the decision of the board should be affirmed, though it appeared that the contention of the

importers was correct. Donat ". U. S.,

(1900) 124 Fed. 463.

Sufficiency of petition. Under this section prescribing that petitions for review of

reviewed by the court on appeal, where it appeared that the decision was made by general appraisers who did not hear the testimony, which was all taken before another general appraiser, who did not himself sign the decision.

decisions of the Board of General Appraisers shall contain " a concise statement of the errors of law and fact complained of," a petition alleging that imported merchandise should have been held to be covered by a certain paragraph of the free list of a Tariff Act is not sufficient when in fact the merchandise comes within another paragraph of such list. Vandegrift v. U. S., (1907) 154 Fed. 923. Evidence Though this section makes competent evidence admitted by the board, the court may attach very slight weight to such evidence. Knauth v. U. S., (1907) 155 Fed. 144.

Competency.

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Ex parte evidence. There is no provision for any relaxation of the ordinary rules of evidence in taking proofs before United States general appraisers, and ex parte affidavits are not admissible before a general appraiser sitting as referee for the introduction of evidence in the Circuit Court as provided in section 15. White v. U. S., (1896) 154 Fed. 175; U. S. v. Zucca, (1909) 175 Fed. 578.

Additional evidence. - Where importers appeared before the Board of General Appraisers and submitted their protests, without introducing any evidence in support of their allegations, it was held that on appeal to the Circuit Court they would not be allowed to introduce any evidence. Allen v. U. S., (1904) 127 Fed. 777; Plummer v. U. S., (C. C. A. 1908) 166 Fed. 730, affirming (1907) 160 Fed. 284.

The rule that no evidence may be introduced on appeal from the Board of General Appraisers by the importer, where he offered none before the board, has been held to apply even though he failed to receive the board's notice of hearing, where the failure was due to his own fault. Maurer v. U. S., (1907) 160 Fed. 228.

The court will permit the importer to introduce evidence on the appeal, if it appears that it was not the importer's fault that the evidence was not presented to the board. Cowl v. U. S., (1900) 124 Fed. 475.

An importer is not precluded from introducing new evidence in the Circuit Court, on appeal from the Board of General Appraisers, if he introduced some new evidence before the board. Mendelson v. U. S., (C. C. A. 1907) 154 Fed. 33, reversing (1906) 146 Fed. 78; Wolff v. U. S., (1909) 168 Fed. 970.

Where a decision of a collector of customs as to the dutiability of imported merchandise is under review by the Board of General Appraisers or the courts, his findings of fact, when based on no other evidence than that afforded by the articles themselves, may be reversed without any further evidence. The

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