vision is declaratory of the law, and that the value of the materials should be taken, not as they go into the hands of the manufacturer, but when they are in the condition that nothing remains to be done upon them by the manufacturer, except putting them together, to make the completed product. It appears from the opinion of the board, quoting Ure's Dictionary of Arts, Manufactures & Mines, that the process of warping must precede that of weaving, and that its object is to prepare the threads or yarns for the weaving process, and that such warping must be completed before the weaving process commences. It would seem, therefore, that the silk was not ready to be combined and put together with the cotton until the process of warping was finished, and that then only are the silk threads in a condition where nothing remains to be done except to put them and the cotton threads together. The expert witness for the government states that the cost of warping is a proper and necessary expense of preparing the material for the weaving process. The contention of the government that the value of the thread is not increased by the warping process, provided it should thereafter be decided not to use it for that purpose, is immaterial. The same might be said of the shells of the mother of pearl in the opera glasses of the Seeberger Case, supra. The question is as to the value of the material as it goes into the article for the purpose to which it is devoted. As Mr. Justice Brown says in Seeberger v. Hardy, supra:

"Thus, in appraising the value of a piece of furniture made of wood and silk plush, it would be obviously inequitable to take the value of the lumber as it comes from the tree, and the silk from the worm or the spinner. The true rule would seem to be to take each of them as they go into the furniture."

In this case the value of the silk, as actually computed, included its conversion into yarn. It is difficult to conceive upon what theory the line can be drawn between the process of converting the raw product into yarn, in order to prepare it for weaving, and the further process of warping which is equally necessary for said purpose.

The decision of the Board of General Appraisers is reversed.

UNITED STATES v. PEARSON & EMMOTT.

(Circuit Court, S. D. New York. May 23, 1904.)
No. 3,024.

1. CUSTOMS DUTIES-CLASSIFICATION-WOOLEN RAGS-WASTE.

Clippings of woolen material, produced in the process of making up garments, are "rags," within both the popular and the commercial signification of the term, and are more specifically provided for as "woolen rags," in paragraph 363, Tariff Act July 24, 1897, c. 11, § 1, Schedule K, 30 Stat. 183 [U. S. Comp. St. 1901, p. 1666], than in paragraph 362 of said act (30 Stat. 183 [U. S. Comp. St. 1901, p. 1666]), as "wastes composed wholly or in part of wool, not specially provided for."

On Application for Review of a Decision of the Board of General 'Appraisers.

These proceedings were brought by the United States in the matter. of an importation by Pearson & Emmott, with regard to which the

assessment of duty by the collector of customs at the port of New York had been reversed by the Board of General Appraisers. Note G. A. 4,555, T. D. 21,595, and U. S. v. Cummings (C. C.) 65 Fed. 495. D. Frank Lloyd, Asst. U. S. Atty.

William B. Coughtry and Walter K. Griffin, for the importers.

TOWNSEND, Circuit Judge. The articles in question comprise the portions of woolen material clipped from the piece in the course of making up garments. They are commercially designated by dealers in waste and by hosiery manufacturers, specifically, as "clippings" or "clips," and are included by them within the designation "waste," as a generic term. They are waste in the sense that they are refuse portions of the fabric, which cannot be used by the woolen mill. They are "rags" in the dictionary and popular signification, and are commercially designated and dealt in as rags by rag dealers. The evidence shows that the greater part of their business consists of dealings in this class of rags. The evidence fails to show that the term "rags" is confined, in trade and commerce, generally to pieces of old, worn-out garments. There is considerable evidence tending to show that this merchandise is known as "new rags," as distinguished from “old rags." Several of the witnesses for the government admit that these pieces are commercially known as "rags." It further appears that during the last 10 years such merchandise has always been passed by the customs authorities as rags.

It would seem, from the class of articles specifically designated as varieties of waste under the provisions of paragraphs 361 and 362 of the tariff act of 1897, and from the evidence herein, that the term "waste" is generally applied to threads or yarn either before they have been woven into a fabric, or to such threads or yarn reduced by the disintegration of the refuse fabric.

The merchandise was assessed for duty, under the provisions of paragraph 362, of said act of July 24, 1897, c. 11, § 1, Schedule K, 30 Stat. 183 [U. S. Comp. St. 1901, p. 1666], as "waste, not specially provided for." The importers have protested on the ground that the article's are woolen rags, and dutiable as such under the provisions of paragraph 363 of said act (30 Stat. 183 [U. S. Comp. St. 1901, p. 1666]), which provision covers woolen rags, and is not qualified by the term "not specially provided for."

Inasmuch as the evidence fails to show any such extensive commercial designation of this merchandise as waste as would take it out of the general class of woolen rags, it must be held to be specially provided for under said paragraph 363, and therefore not dutiable as "waste, not specially provided for."

The decision of the Board of General Appraisers is affirmed,

DICKSON v. UNITED STATES.

(Circuit Court, S. D. New York. May 23, 1904.)

No. 3,456.

1. CUSTOMS DUTIES-LEGALITY OF PROTEST-RELIQUIDATION UNDER DECISION OF GENERAL APPRAISERS.

In reliquidating an entry under a decision of the Board of General Appraisers sustaining an importer's protest, the collector withheld a portion of the duty that had been improperly assessed, and within 10 days thereafter the importer filed a protest against the collector's action. Held, that the protest was within the requirements for protests as established by section 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933].

1

On Application for Review of a Decision of the Board of United States General Appraisers.

The decision under review overruled a protest made by George M. Dickson against the action of the collector of customs at the port of New York in reliquidating an entry under a decision of the Board of General Appraisers. The decision under which the collector proceeded had sustained a protest which the importer had filed at the time of the original liquidation of the entry, and which made the contention that the collector, in assessing duty on certain ginger ale in bottles, had erred in including the value of the bottles in that of the ale. As in this liquidation the bottles and their contents had been subjected to the same rate of duty, no question bad arisen as to whether the amount of certain items in the invoice for corking, wiring, etc., should be treated as part of the value of the bottles, or of that of their contents. The importer did not raise that point in his protest, and the board made no reference to it when, in deciding the protest, it held that no duty should have been assessed on the bottles. The collector, in reliquidating the entry under the decision of the board, treated said items as pertaining wholly to the ale, and refused to include their value in the value of the bottles on which duty was refunded. Thereupon the importer, within 10 days after reliquidation, filed the protest which is the subject of these proceedings; contending that said items should have been treated as part of the value of the bottles, and have participated in the refund. It was insisted on the part of the collector that this contention should have been made at the time of the original liquidation, in the protest then made, and that a protest filed at the time of a reliquidation made in response to a decision of the Board of General Appraisers does not meet the requirements of section 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], where it is provided, that protests shall be filed within 10 days after the collector's ascertainment and liquidation of duties. This contention was upheld by the board in an opinion reading as follows (Somerville, General Appraiser):

"This protest covers an importation of bottles containing ginger ale, and claims that the items of corking and wiring are not dutiable under paragraph 248 of the tariff act of August 27, 1894, c. 349, 28 Stat. 526. This claim is well founded, under previous decisions. In re King, G. A. 5,290, T. D. 24,262; West v. United States (C. C.) 119 Fed. 495. The collector, however, reports, and the importer has not sought to controvert the statement, that the present protest is filed against a liquidation made by him under a decision and order of this board on previous protests filed by the same importer. In short, it is shown that the present proceeding is an attempt to recover on claims not made in the preceding protests. Under the ruling of the courts and this board, the importers cannot be permitted to raise new questions by a second protest. Stern v. United States (C. C.) 77 Fed. 607; In re Duke, G. A. 3,823, T. D. 17,948. The present protest having been filed more than ten days after the liquidation of the entry and the collector's decision contemplated by section 14 of the act of June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], it comes

too late for consideration. It is overruled, and the decision of the collector affirmed."

Edward Hartley, for importer.

Charles Duane Baker, Asst. U. S. Atty.

TOWNSEND, Circuit Judge. The appellant herein imported under the act of 1894 ginger ale in bottles, upon which the collector im posed a duty of 20 per cent. on the total value of bottles and contents. The board of general appraisers sustained a protest of the importer, holding the bottles to be free, on the authority of U. S. v. Dickson, 73 Fed. 195, 19 C. C. A. 428. The collector, in refunding the excess duty, on the order of the board, withheld the duty collected on the value of corking, wiring, etc., against which the appellant herein had protested. The board found that the claim was well founded, on the authority of West v. U. S. (C. C.) 119 Fed. 495, but held that, as the protest was filed against the liquidation by the collector under a decision of the board, the importer cannot now raise any new questions by a second protest.

This conclusion does not seem to be well founded. In the first place, this protest does not raise a new question, because the decision that no additional duty could be assessed covered the corks and wires as well as the bottles. Furthermore, upon a reliquidation the previous liquidation is abandoned, and the time to protest does not begin to run until such reliquidation. Robertson v. Downing, 127 U. S. 607, 8 Sup. Ct. 1328, 32 L. Ed. 269. The technical objections made to this claim seem to be contrary to the decisions of the courts, and are confessedly contrary to the decisions of the Board of General Appraisers. See G. A. 5,346, 5,406.

The decision of the Board of General Appraisers is reversed.

GARTNER & FRIEDENHEIT v. UNITED STATES.

(Circuit Court, S. D. New York. June 2, 1904.)
No. 3,439.

1. CUSTOMS DUTIES-CLASSIFICATION-SILK RIBBONS-TRIMMINGS.
Held, that certain silk ribbons, of which some were, and others were
not, in the nature of trimmings, but which, whenever used for trimmings,
are required to be further fashioned for such use, and which are not in
fact or commercially within the class of goods known as "trimmings,"
are not dutiable as silk trimmings, under paragraph 390, Tariff Act 1897,
c. 11, § 1, Schedule L, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], but as
manufactures of silk, not specially provided for, under paragraph 391
of said act (30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]).

On Application for Review of a Decision of the Board of General Appraisers.

These proceedings were brought by Gartner & Friedenheit to secure the reversal of an affirmance by the Board of General Appraisers (G. A. 5,460, T. D. 24,756) of the assessment of duty by the collector of customs at the port of New York.

C. A. Mountjoy (James M. Beck, of counsel), for the importers.
Charles Duane Baker, Asst. U. S. Atty.

TOWNSEND, Circuit Judge. The merchandise in question is represented by 13 samples of ribbons, differing in quality and character, all of silk, or of which silk is the material of chief value. They were classified for duty as silk trimmings, under the provisions of paragraph 390 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule L, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]). The importers claim that they should be classified under paragraph 391 (30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]) of said act as "manufactures of silk or of which silk is the component material of chief value, not specially provided for."

The single question presented is whether these articles are in fact trimmings. The Board of Appraisers found that the ribbons were applied to a variety of uses, some of which were of the character of trimmings, while others such as the use for tying bonbon boxes, and as drawing strings for underwear and in corsets, were not in the nature of trimmings. The board also found that, in most instances where used for trimming, they were cut, tied, and otherwise fashioned for their ultimate use. In these circumstances, I should feel inclined to follow the decision of Judge Wheeler in Robinson v. U. S. (C. C.) 121 Fed. 204, where it was held that such articles did not become trimmings until they were so fashioned as to be applied to the articles to be trimmed. The counsel for the United States contends, however, that Judge Wheeler's opinion is contrary to the decisions of the Supreme Court of the United States in the Hat Trimmings Cases, and in support of said contention cites the following: Hartranft v. Langfelt, 125 U. S. 128, 8 Sup. Ct. 732, 31 L. Ed. 672; Robertson v. Edelhoff, 132 U. S. 614, 10 Sup. Ct. 186, 33 L. Ed. 477; Cadwalader v. Wanamaker, 149 U. S. 532, 13 Sup. Ct. 979, 983, 37 L. Ed. 837; Walker v. Seeberger, 149 U. S. 541, 13 Sup. Ct. 981, 37 L. Ed. 839; Hartranft v. Meyer, 149 U. S. 544, 13 Sup. Ct. 982, 983, 37 L. Ed. 840. It appears, however, that in each of these cases the question as to whether the articles were or were not trimmings was not decided by the court as a matter of law, but was left as a question of fact to be determined by the jury, and that, the jury having determined this question of fact, the court applied the law to such finding. In the present case the testimony establishes that the chief uses of these articles are not for trimming hats or dresses, and that they are not in fact or commercially within the class of goods known as trimmings. It further appears by a comparison of paragraph 339 (Schedule J, 30 Stat. 181 [U. S. Comp. St. 1901, p. 1662]) and paragraph 320 (Schedule I, 30 Stat. 179 [U. S. Comp. St. 1901, p. 1661]) of said act that Congress has made a distinction in the case of cotton goods between trimmings and ribbons. It also appears from the rulings of the Treasury Department that ribbons of the kind in question here have been uniformly held to be dutiable as manufactures of silk.

The decision of the Board of General Appraisers is reversed.