collector, the board, and the courts are all equally entitled to avail themselves of such information as may be derived from an inspection of the articles in connection with the facts of common knowledge and experience, of which judicial notice may be taken. U. S. v. Strauss, (C. C. A. 1905) 136 Fed. 185. Objection to additional evidence when taken. On appeal from the Board of General Appraisers, under this section, the importers had taken some evidence in the Circuit Court, when the government objected to the introduction of further evidence because none had been offered before the board. It was held that the fact that this objection might have been raised at an earlier stage of the proceedings did not estop the government from relying on it when raised. Plummer v. U. S., (C. C. A. 1908) 166 Fed. 730, affirming (1907) 160 Fed. 284.

Further cumulative evidence. - Importers should present to the Board of General Appraisers all the evidence which they can produce, and on appeal to the Circuit Court little weight should be given additional cumulative evidence which could easily have been laid before the board. Bromley . U. S., (1907) 154 Fed. 399.

Excluded evidence. Under section 15, where it is desired that evidence excluded by the Board of General Appraisers should, on appeal to the Circuit Court, be passed on by the court, it is requisite either that an exception should be taken to the board's ruling excluding the evidence, and the matter brought before the court in the assignments of error, or that the evidence should be offered as additional evidence in the manner provided in said section. Harris v. U. S., (1910) 177 Fed. 475.

Hearing de novo. Under this section a Circuit Court has power, on appeal from a decision of the Board of General Appraisers, to direct additional testimony to be taken and to hear the case de novo; and this may be done notwithstanding the entry of a default against the importers, who were the appellants, by the Board of Appraisers, where such default has been waived. In re Myers, (1903) 123 Fed. 952.

Assignments of error.-On appeal from the Board of General Appraisers the Circuit Court will not consider whether a protest decided by the board was sufficient, unless the question of insufficiency is raised by the assignment of errors. U. S. v. Hempstead, (1910) 180 Fed. 956.

In U. S. v. Hempstead, (1910) 180 Fed. 956, on an appeal from the Board of General Appraisers, error was assigned on the point that the board had erred in holding the merchandise in question to be free of duty. It was held that this assignment related to the merits, and was not sufficiently comprehensive to include the point of the sufficiency of the protest passed on by the board.

On appeal from the Board of General Appraisers an importer made eight assignments, in none of which was the point ultimately relied upon referred to more specifically than by two general assignments that the board had erred "in overruling the protests" and

"in not sustaining the protests." It was held that as the protests did not contain the point relied upon, there had been a sufficient compliance with the requirement in section 15, of "a concise statement of the errors of law and fact complained of." U. S. v. Loewenthal, (1909) 175 Fed. 777, 99 C. C. A. 349.

In U. S. r. Hatters' Fur Exch., (1907) 153 Fed. 595, it appeared that the board sustained the more favorable of the two alternative contentions made in an importer's protest. The government appealed to the Circuit Court, asserting in the assignment of errors that the board's decision was erroneous, and that the merchandise should have been held to have been properly assessed. It was held that the court might decide the merchandise to be dutiable in accordance with the importer's alternative contention, notwithstanding the absence of a specific assignment on that point by the government.

In making the assignments of error, on appeal from a decision of the Board of General Appraisers, under section 15, an importer omitted from his specific assignments a reference to the provision of law under which his merchandise should have been classified, though such provision had been referred to in his protest, which was passed on by the board; but he added a general assignment that the protest should be sustained and the collector's decision reversed." It was held that said general assignment did not raise any questions additional to those raised by the specific assignments, and that it did not, by referring to the protest, have the effect of making the protest a part of the petition so as to remedy the omission of the correct contention. Vandegrift r. U. S., (1907) 154 Fed. 923.

In U. S. r. Brown, (1903) 127 Fed. 793, 62 C. C. A. 473, affirming 121 Fed. 605, it appeared that on an appeal from a decision of the Board of General Appraisers, a statement of twenty-one errors was made, nineteen of them relating to the merits, while the last two were general, alleging only that the "board erred as a matter of law." It was held that these two assignments should be construed with reference to the preceding nineteen, and not as raising the question of the validity of the protest on which the proceedings before the board were based; it was hold also that statements so general in form were not in compliance with the requirements for appeals under this section wherein "a concise statement of the errors of law and fact complained of " is prescribed.

- On

Amendment of assignments or error. appeal from a decision of the Board of General Appraisers under this section, in which the time for taking further evidence has expired and which has come to trial in the Circuit Court, the assignments of error may not be amended. Vandegrift v. U. S., (1907) 154 Fed. 923.

Shifting membership in board of general appraisers. On review of a decision of the Board of General Appraisers the regularity of the board's procedure may not properly be challenged on the ground of the presence or absence of different general appraisers while

the testimony is being taken. U. S. v. Pierce, (1905) 140 Fed. 962, affirmed (C. C. A. 1906) 147 Fed. 199.

No evidence against classification of appraisers. Where, on appeal from the decision of the Board of General Appraisers affirming the collectors' classification of imported merchandise, there is no evidence to overthrow the classification, the decision of the board must stand. Bailey v. U. S., (1903) 122 Fed. 751.

Taking testimony beyond jurisdiction of court. Where a referee has been appointed by the Circuit Court to take further testimony on appeal from the Board of General Appraisers, under this section, the court is without authority to direct the referee to take testimony beyond its territorial limits, irrespective of the referee's willingness to go. Nordlinger. U, S., (1900) 174 Fed. 833.

Return of record. The provision in this section that on appeal to the Circuit Court the Board of General Appraisers shall return "the record and the evidence taken by them," does not require the return of evidence which was excluded. Harris v. U. S., (1910) 177 Fed. 475.

Weight given opinions of general appraisers, -The opinions of experts like the General Appraisers, who are especially familiar with such controversies, should in close cases be given considerable weight by the courts in reviewing decisions of the Board of General Appraisers. U. S. v. Leigh, (1908) 159 Fed. 314.

Vol. II, p. 630, sec. 19.

Remedies are exclusive. Under this and the preceding sections, containing a system for the correction of errors in the exaction of import duties, and providing that when the duty on imported merchandise is based on the value thereof the duty shall be assessed on the actual market value or wholesale price in the principal markets of the country from whence imported, an importer of wool subject to a duty under Schedule K, dividing wool into classes and fixing a duty based on valuation, must conform to the statutory method, on the appraiser's increasing the valuation over the amount stated in the invoice, and thereby subjecting the importer to a higher duty, and where he fails to take the requisite steps to secure a correction of the errors. if any, the decisions of the appraisers and collector as to value, classification, rate, and amount are final, and the importer may not recover excessive duties paid. Gulbenkian . U. S., (C. C. A. 1911) 186 Fed. 133, affirming (1909) 175 Fed. 860.

Apportionment of cost of coverings. — This section provides no method for apportioning the cost of the coverings when they contain merchandise of different kinds. In Rice v. U. S., (1892) 123 Fed. 195, it was held that such method of apportionment must be adopted as seems most equitable and just, and that with regard to hosiery in lots of different values, contained in the same outside cases, where each dozen of the hosiery

Rulings in other circuits. In suits of the character of customs litigation, uniformity in the judgments of the courts of first instance, as well as in those of the appellate tribunals, is desirable, and where no direct attack has been made upon a prior adjudication by a Circuit Court of the questions subsequently sought to be raised in a similar suit in the Court of Appeals in another circuit, such prior adjudication should be followed, unless clearly erroneous. Hill v. Francklyn, (1908) 162 Fed. 880, 89 C. C. A. 570.

Burden of proof. Where an importer challenges by legal proceedings the correctness of the assessment of duty by a collector of customs, the question to be decided is not whether the collector was wrong, but whether the importer is right, and therefore the burden is on him to establish the correctness of his contention. Legg v. U. S., (C. C. A. 1908) 163 Fed. 1006, affirming (1907) 154 Fed. 858.

Review of findings when record incomplete. - Where, on review by a Circuit Court of a decision of the Board of General Appraisers, under this section, the record returned by the board was defective by reason of the loss of the evidence on which the board's findings were based, it was held that no other evidence being presented, it must be conclusively presumed that the findings by the board were proper and justifiable. Schoellkopf v. U. S., (1906) 147 Fed. 855.

occupied about the same space, the cost of the cases should be distributed among the different lots according to the number of dozens of the hosiery, and not according to value.

Under this section it has been held as to importations of goods in bottles, which are dutiable under one provision of the Tariff Act and the bottles under another, that the value of the cases containing the goods should be distributed between the bottles and their contents according to the value of each, the value of the bottles for this purpose being inclusive of the cost of their fittings, consisting of corks, caps, capsules, labels, and wiring. Leggett v. U. S., (1905) 138 Fed. 970.

Presumption as to inclusion of coverings. - A reappraisement return by a Board of General Appraisers as to the value of imported chocolate failed to state whether the value of the coverings was included in the value stated in the return. It was held that under this section it should be presumed that such value was included, notwithstanding that paragraph 281 provides that the dutiable value of chocolate shall not include the value of plain wooden coverings. U. S. v. Leeming, (1907) 153 Fed. 489.

Converters' commissions. Under this section requiring appraised value to include, besides coverings, etc., "all other costs, charges, and expenses incident to placing the merchandise in condition, packed ready for shipment to the United States," an invoice item described as a "converter's commission" was

so included. It was held that this inclusion was proper, so far as it covered converters' services in having the goods dyed and finished, and in the absence of evidence to the contrary it would be presumed to be correct as to any other elements of the item. Erlanger v. U. S., (C. C. A. 1907) 154 Fed. 949, affirming 152 Fed. 576.

Excessive invoice value. The provisions in sections 7, 19, that "duty shall not be assessed upon less than the invoice value," and that "duty shall be asscssed upon the actual market value. at the time of exportation," when construed together, mean that the dutiable value shall in no case be fixed at less than the purchase price of the goods; and where subsequently to the purchase of goods for import to the United States the market value of such goods decreases, the goods are nevertheless dutiable on the basis of the price paid. Ullmann v. U. S., (1910) 177 Fed. 567.

Market value.-In U. S. v. Downing, (1904) 131 Fed. 653, affirmed (C. C. A. 1905) 139 Fed. 1, 3, it was held in regard to merchandise imported from France, that its "market value," as defined in this section, does not include the amount of certain internal revenue imposts of that country known as the "octroi tax" and the "droit de ville," which are not general in their application, but vary with the locality, and which are not collected if the merchandise is exported.

"Condition.” — Where practically all the output of a china manufacturer was sold to the United States, it was held that special classes manufactured for European trade could not be said to be in "condition" to supply the American trade, within the meaning of section 19, providing that dutiable value shall be determined according to the "condition in which ... merchandise is there bought and sold for exportation to the United States." U. S. v. Haviland, (1909) 167 Fed. 414, affirmed (1910) 177 Fed. 175, 100 C. C. A. 637.

Principal market. - In U. S. v. Haviland, (1909) 167 Fed. 414, affirmed (1910) 177 Fed. 175, 100 C. C. A. 637, it appeared that the entire output of a china manufacturer in Limoges was exported to the United States directly from Limoges, except a small amount of special classes, which was disposed of in Paris to European trade; the wholesale business in Paris being less than four per cent. of said exportations to the United States. It was held that for the goods shipped to America, Limoges, and not Paris, was the " principal market," within the meaning of section

19.

Mixed wools purchased at same price. - In Gulbenkian v. U. S., (1907) 153 Fed. 858, 83 C. C. A. 40, it appeared that white and colored wools were sold together in the Bagdad market at one price, without any distinction as to color; this being in accord with im-* memorial practice in that market. It was held that in finding "the actual market value in the principal markets of the country whence imported, and in the condition in which such merchandise is there bought and sold for exportation to the United

States," under section 19 both kinds of wool should be appraised at the same price, in accordance with the manner of purchase, without regard to any difference in value which may attach to each kind in any other country. Unusual coverings — Duties additional. The "additional duty" provided for in this section for unusual coverings is not a substitute for the usual duty on coverings which accrues by including their cost in the dutiable value of their contents, as also provided in this section; but both duties should be imposed, the latter because the coverings subserve a use in transportation, and the former because they subserve an additional use after transportation. U. S. v. Park, (C. C. A. 1907) 152 Fed. 142, reversing (1905) 142 Fed. 202. Tea caddies. Certain patent tin cases or chests known as "Toohey's Patent Excelsior Tea Caddies," which are used as coverings in the transportation of tea, and which, after having subserved that purpose, are used, and are designed to be used, for other purposes, are subject to the additional duty provided in section 19," for any unusual article or form designed for use otherwise than in the bona fide transportation" of merchandise to the United States. Jackson v. Siegfried, (1901) 126 Fed. 837.

Filled bottles. That part of this section which prescribes that the dutiable value of imported goods subject to an ad valorem rate of duty shall include the cost of the coverings, and other expenses incident to preparing the goods for exportation, does not apply to filled bottles containing olive oil, which is subject to a specific duty though filled bottles are specifically enumerated as subject to an ad valorem duty in paragraph 99. Hayes v. U. S., (C. C. A. 1906) 150 Fed. 63.

Gelatin capsules containing a medicine are not "coverings," within the meaning of the tariff laws, not being for transportation, but an essential part of the article. U. S. r. Lehn, (1909) 172 Fed. 171.

Stone bottles. The value of stone bottles filled with ad valorem goods (ink) should not be added to the dutiable value of their contents, to make up the dutiable value of the imported merchandise, under section 19, such bottles not being "coverings," within the meaning of the Act. Kimpton v. U. S.. (C. C. A. 1909) 171 Fed. 78, reversing (1908) 165 Fed. 236.

Vol. II, p. 632, sec. 20.

Rate of duty applicable. The provision in section 20, that merchandise in bonded warehouses may be withdrawn for consumption "on payment of the duties and charges to which it may be subject by law at the time of said withdrawal," means such payment as the merchandise would be subject to if im ported at the time of withdrawal. Mosle v. Bidwell, (C. C. A. 1904) 130 Fed. 334, reversing (1902) 119 Fed. 480.

Importations from Porto Rico - Foraker Act. In De Pass v. Bidwell, (1903) 124 Fed. 615, it was held that section 5 of the Foraker Act, providing a temporary government and revenues for Porto Rico (Act April 12, 1900, ch. 191, 31 Stat. L. 77, 5 Fed. Stat.

Vol. II, p. 632, sec. 22.

Fees on packed packages. — Under this section abolishing "all fees exacted upon the entry of imported goods and the passing thereof through the customs," it is not legal to require the payment of a fee on packed

Vol. II, p. 633, sec. 23.

Measurement of damage. -In Courtin v. U. S., (1906) 143 Fed. 551, it appeared that for the purpose of ascertaining the percentage of decay in importations of fruit, the importers opened at least one package in ten of the consignments from each shipper; and the percentage thus estimated was assumed to prevail throughout the other packages, and was accepted by the bidders at the auction sales held immediately on the dock. It was held that this method of averaging constituted a reasonably certain and sufficient mode of proof, and should be accepted by the customs officers as a proper basis for making allowance for the decayed fruit.

In Denunzio Fruit Co. v. U. S., (1908) 164 Fed. 909, the evidence as to the amount of decay in imported rotten fruit consisted merely of proof as to the percentage of decay in five per cent. of the packages imported. It was held that as the exact facts relative to the entire importation might have been ascertained, the evidence as to the packages examined should not be extended to the packages not examined.

In proof of the amount of decay in an importation of fruit in packages, evidence was given as to the percentage of decay in certain sample packages which represented each of the lots in question, had been used as the basis of auction sales, and consisted of at least ten per cent. of all the packages. It was held that the percentage thus shown for the sample packages might be taken as showing the amount of decay in the other packages also. U. S. v. Villari, (1907) 160 Fed. 77, 87 C. C. A. 233, affirming (1906) 147 Fed. 766, on opinion in Stone r. Shallus, (1906) 143 Fed. 486, 74 C. C. A. 506.

Fruit in packages. — The. rule that fruit imported in a rotten and wholly worthless F. S. A. Supp.-66

Annot. 764), which provides that on and after the day of its taking effect all goods, wares, and merchandise previously imported from Porto Rico, for which no entry has been made, or entered without payment of duty, and under bond for warehousing, etc., shall be subject to the duties imposed by the Act upon the entry or withdrawal thereof, is constitutional; and therefore that goods brought from Porto Rico after its cession, and when there was no duty thereon in force, and voluntarily placed and allowed to remain in a bonded warehouse by the owner until after such Act went into effect, became subject to the duty thereby imposed when withdrawn for consumption.

packages to defray the expense of adminis tering the law relating to such packages. U. S. v. American Express Co., (1907) 154 Fed. 996.

condition does not constitute dutiable merchandise applies as well to fruit in packages as to fruit in bulk, and in the assessment of duty on fruit imported in packages allowance should be made for the decayed portions. Stone v. Shallus, (C. C. A. 1906) 143 Fed. 486, affirming (1905) 137 Fed. 674; Courtin v. U. S., (1906) 143 Fed. 551; U. S. v. Villari, (1907) 160 Fed. 77, 87 C. C. A. 233, affirming (1906) 147 Fed. 766. on opinion in Stone r. Shallus, (1906) 143 Fed. 486, 74 C. C. A. 506.

Rotten fruit condemned by health officers.

In U. S. r. Courtin, (1907) 153 Fed. 594, it appeared that before being unladen, but after being free from customs supervision, certain imported fruit was condemned by local health authorities whenever a considerable portion of any crate appeared to be decayed, and the entire contents of such crates were condemned and required to be dumped in the sea, no portion thereof becoming a subject of commerce within the United States. It was held that such condemned fruit should be treated as a nonimportation, and as not dutiable.

Breach of bond for return of unexamined packages. Breach of a bond given under section 2899 R. S., 2 Fed. Stat. Annot. 679. for the return of goods not examined by customs officials, does not affect the right of the importer to an allowance for damaged mer. chandise. No other or different penalty is contemplated by the bond or by said section than the damages provided by the bond. Habicht v. U. S., (1909) 171 Fed. 441.

Time for examination. In Cuccio Di G. v. U. S.. (1909) 172 Fed. 304, it appeared that an importation of lemons was not entered until six days after arrival, and was not examined until they had lain on the dock for a

week. It was held that as much loss probably occurred by rotting during that period, the loss discovered at such examination was not a sufficient basis for determining the condition of the fruit at the time of importation.

Goods destroyed before importation. Where portions of an importation were so damaged on the voyage as to be entirely valueless, there was nothing left to abandon, under the provision of section 23. Stone v. Shallus, (C. C. A. 1906) 143 Fed. 486, af

Vol. II, p. 634, sec. 24.

Voluntary payment. -In Flint Eddy, etc., Trading Co. v. Bidwell, (1903) 123 Fed. 200, it was held that the owner of a cargo of sugar brought from the Philippine Islands, who voluntarily paid the duty assessed thereon as imported merchandise, without objection or protest, could not maintain an action against the collector to recover the same on the ground that the sugar was not imported, and the duty was therefore wrongfully and illegally exacted.

Mistake of law.

Where excessive customs

duties are paid under a mistake of law and without protest, the payment is voluntary and there can be no recovery. Gulbenkian v. U. S., (1909) 175 Fed. 860.

Clerical error. Where, in liquidation, the clerk miscalculated the number of square yards in an imported fabric, it was held that it constituted a "manifest clerical error," within the meaning of section 24. U. S. v. Vandegrift, (C. C. A. 1909) 175 Fed. 772, affirming (1908) 166 Fed. 1017.

In Delapenha v. U. S., (1909) 175 Fed. 311, it was held that allowance should have been made in the dutiable value of an importation on the ground of clerical error, where it appeared that the shippers had failed to note on the invoice that the value included certain nondutiable charges.

Inasmuch as this section, relating to the correction of "manifest clerical errors," is the latest deliverance on that subject and relates most specifically thereto, it controls over Act June 22, 1874, ch. 391, sec. 21, 18

Vol. II, p. 636, sec. 30.

firming (1905) 137 Fed. 674; Habicht c. U. S., (1909) 171 Fed. 441.

In Villari . U. S., (1906) 147 Fed. 766, the importers in ascertaining the quantity of decay in imported fruit did not avail themselves of the provisions of regulations prescribed by the Secretary of the Treasury under section 23. It was held that they were not obliged to do so, as that section relates to abandonment, and not to cases of allowance for nonimportation, as for fruit worthless on importation,

Stat. L. 190, 2 Fed. Stat. Annot. 760, relative to the "settlement of duties," and Act March 3, 1875, ch. 136, sec. 1, 18 Stat. L. 469, 2 Fed. Stat. Annot. 729, relative to the "correction of errors in liquidation." U. S. v. Vandegrift, (C. C. A. 1909) 175 Fed. 772, affirming (1908) 166 Fed. 1017.

Reliquidation after one year. A manifest clerical error in a liquidation made within one year after original entry cannot be corrected more than one year after such entry, because not within the provision in this section authorizing the Secretary of the Treasury to correct such errors "within one year of the date of such entry," as the term "entry." as here used, refers to the document filed by the importer on entry. U. S. v. Vandegrift, (C. C. A. 1909) 175 Fed. 772, affirming (1908) 166 Fed. 1017. Acceptance of principal waiver of interest. On the refund of duties that had been improperly exacted, interest was withheld on the ground that there was no appropriation for payment of interest, so that the sum repaid was the exact equivalent of the principal. It was held that the acceptance of this sum by the importer was tantamount to a waiver of the claim of interest, and could not be considered as a general payment on ac count, which the payee was entitled to apply, first to the extinguishment of the interest, and next to part payment of the principal. Bidwell r. Preston, (C. C. A. 1908) 160 Fed. 653.

Vol. II, p. 636, sec. 2766.

Vol. II, p. 636, sec. 2767.

"Port of Chicago" defined. — The statutes of Illinois provide that the city of Chicago shall have jurisdiction over Lake Michigan for a distance of three miles beyond the city limits, and the ordinances of that city give the city harbor master control over lake water

outwardly for the same distance, between the north and south lines of the city. It was held as to certain barges in tow, which had reached a place within these limits, within the outer harbor works, where it was usual for such a tow to be broken up so the barges might be