not at all touch the merits of the plaintiffs' claim, which is confessedly just j for it is for the recovery of money which was confessedly illegally exacted. It is true that the action given only upon condition that it be brought within 90 days after decision of the secretary. This action was not so brought as to include the items in question until after that decision, and it was so brought as to include them within the 90 days after. What was done about it before the decision did not subject the defendant or the government to any additional costs', charges, or expense. If the suit ic overthrown on this ground, money illegally exacted of the plaintiffs will be left in the hands of the government; if it is sustained, the plaintiffs will ,only recover, that. The rules of law do not appear to stand in the way of doing justice by sustaining this recovery. Motion denied.
MAsON and others .". ROBERTSON, Collector.
(Oif'cuit Oourt. S. D. New York. January 26, 27, 1867.)
CUSTOMS DU'1'tES:-:CHEMICAL COMPOUNDS A.ND SALTS-REV; ST.
The term "chemical compounds and salts, " in Schedule A of the tariff act of 1688, does 'not enumerate bichromate of Boda, within the meaning of the statute. Bichromate of Boda is a non-enumerated article, and in its similitude to bichromate of potash is provided for under Rev. St. § 2499, and dutiable at three cents per pound. '
This action was, brought by Mason, Chapin & Co. against William H. 'Robertson, collector of the port of New York, to recover an alleged excess of duties upon 30 casks of bichromate of soda, imported into the port of New York from Antwerp, by the steamer Westernland, on The collector assessed the duty thereon at three cents March 3, per pound, under the provision for bichromate of potash contained in Schedule A of the tariff act of March 3, 1883, (22 St. at Large, c. 121, p. 493,) and under section 2499, Rev. St., as follows: Schedule A, 22 st. at Large, 493. Bichromate of potash, three cents per pound. ' Sec. 2499. There shall be levied, collected, and paid on each and every non-enurnerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this title as chargeable with duty, the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the particulars before mentioned, etc. , The plaintiffs protested as follows: "NEW. YORK, March 31, 1885. "We protest against your decision as to the rate and amounto,f duties to be paid on the bichromate of soda entered by us for consumption, March 3, 1885, ' per Westernland, 26,214, from Antwerp, because it is a chemical compound and salt, not specially enumerated or prOVided for, dutiable at 25 per cent. as such,under tariff Schedule A. We pay the excess exacted under compulsion, solely to get the goods. ' MASON, CHAPIN & CO. By HARTLEY &. CoLEMAN. Attys. "To the qollector of Oustoms, New York
MASON "'. ROBERTSON.
The clause of the tariff act in Schedule A, under which tj.·e plaintiffs protested, reads: "All preparations known as essential oils, expressed oils. distilled oils. rendered oils, alkalies, alkaloids, and all combinations of any of the foregoing, and all chemical compounds and salts, by whatever name known, and not specially enl;lmerated or provided for in this act, twenty-five per centum ad tlalo1·em. " . Upon the trial, these facts were established by evidence: (I) That bichromate of soda, as a commercial commodity, was not known in this country prior to or at the time of the passage of the tariff act of March 3. 1883. (2) That since March 3, 1883. it has been introduced and imported as a substitute for bichromate of potash, and it bears a.substantial similitude to bichromate of potash in the uses to which it is applied. (3) 'fhat both are mordants. used in the manufacture of colors, for dying. for oxidizing purposes, in galvanic batteries, and in the formation of artificial alizarine. (4) That both are chemical compounds and salts. Chromic acid is the useful and (lffective ingredient in the uses to which they are applied. Soda is the base of bichromate of soda. and potash the base of bichromate of potash. but the soda and the potash are the mere vehicles for carrying and making the chromic acid available as an article of commerce. for the uses to which it is applied. Both articles are used interchangeably, and for the same purposes, with generally the same results. . At the close of the trial, the defendant moved for a direction for a verdict in favor of the defendant. Stephen A. Walker, U. S. Dist. Atty., and Henry a. Platt, Asst. tJ. S. Dist. Atty., for defendant, quoted Stuart v. MaxweU, 16 How.l50; Arthur v. Fox, 108 U. S. 125; S. C. 2 Sup. Ct. Rep. 371; Cohen v. Phelps, "2 Sawy. 531; Cummins v. RobertSon, 27 Fed. Rep. 654; v. Hart1f'anjt, 29 Fed. Rep. 90. Hartley &: Coleman, for plaintiffs, quoted U. S. v. U. S. Tel. Co., 2 Ben. 362; U. S. v. Clarke, 5 Mason, 30; Arthur v. Suss.field, 96 U. S. 128; Smith v. Field, 105 U. S. 53. SHIPMAN, J. The only question in this case is whether bichromate ()f soda is an ennmerated article. The only enumeration is that stated in the statute as a "chemical, compound and salt." A chemical pound enumerates nothing, any more than the general term "manu... facture." A chemical salt is, speaking generally, and not with scientific precision, the combination of an acid and a base. A base is the union -of a metal and oxygen. It is a most general term. I cannot think that, within the meaning of the statute, the term "chemical compound and salt" enumerates the article of bichromate of soda. There is no question in my mind, from the testimony, that bichromate of soda has .a similitude, in the uses to which it is applied; to bichromate of potash; It is not. perhaps as valuable or beneficial iu the manufacture of chrome yellow as the bichromate of potash, but the universal testimony of both plaintiffs' and defendant's witnesses is that the general uses to which the two articles are applied are substantially identical. The point of differ.. .ance is that the plaintiffs' witnesses testify that ,bichromate of soda cannot be used to much lIdvantage in the production of chrome yellow, and
of some other shades, or perhaps many other shades, of colors, giving to the testimony as much latitude as it will bear. But the general purposes for which it is used, the witnesses, starting with the testimony of Prof. Morton,agree, are substantially same. In my opinion, there is no questioI) of fact to go to the jury. There is only a question of law. By direction of the court, the jury rendered a verdict in favor of the defendant.
(Oirevit Court, 8. D. New York. January 21, 1887.)
CuSTOMS DimEs-FISH PREPARED-SOHEDULE G, TARIJ'F Acr OF MARCH 8, 1888·
.Herringspreserved in a brine of vinegar, salt, and spices, with onioDs, carrots, peppers, or other and ready for food In their imported state, found by the jury to be · fish prepared," and not merely "herrings, pickled or salted, .. within the meaning of the tariff act of 1888.
This was an action to recover alleged excessive duties, exacted by the collector of customs at the port of New York from Peter F. T. Hansen, the plaintiff, on his importation by the. steamer Moravia, December 5, 1883, of certain fish, known in the trade as "Russian Sardines." The oollector levied duty thereon at 25 per cent. ad valorem, under Schedule G. of the tariff act of March 3, 1883, (22 St. at Large, '0. S. 504,) under the following clause: "Salm.on, and all other fish, prepared or preserved, and prepared meats of all kinds, not specially enumerated or provided for in this act, twenty five per centum ad valorem." The plaintiff protested, and claimed the same to be dutiable under another clause the same schedule, to-wit: "Herrings, pickled or salted, one-half of one cent per pound." The merchandise in suit was shown to be herrings imported in small wooden kegs or barrels, stamped "Pickled Herrings," but known in the trade as "Russian Sardines." They were pickled in salt and vinegar, and in addition thereto mixed with spices, onions, carrots, and red peppers, and prepared and ready to be eaten in their imported condition. Chas. Ourrie and Stephen G. Clarke, for plaintiff. Stephen A. Walker, U. S. Atty., and Henry a. Platt, Asst. U. S. Atty., for defendant. SmPMAN. I., (charging jury.) The plaintiff takes the burden of proof, and must satisfy you by a fair preponderance of evidenc.e that the goods should have been classified as "herrings, pickled or salted." They ate herrings, and are pickled; that is to say, they have been preserved in a brine of vinegar, salt, and spices. But the government claims that they are more than that, and are "fish prepared;" that is to say, prepared with vegetables, and that they· have passed beyond the stage of "herrings pickled." The plaintiff, on the other hand, says that a pickle