"While one of them was the true onyx of modern mineralogists, as described above, the other was merely a stalagmitic variety of carbonate of lime, a mineral much softer, less precious, and much more widely distributed than the chalcedonic onyx, yet resembling it in so far as it also presents a parallel banded structure. This mineral is known as onyx marble.'' The proof shows that the material from which the goods in question are manufactured is used for substantially the same purposes as the finer kinds of marble. Its chemical composition is almost identical with that of the statuary marbles, and its general use is in the manufacture of mantels, table tops, clock cases, pedestals or columns, and, in fact, all varieties of ornamental articles which have been usually manufactured of the finer varieties of marble. There is no specific provision in the customs law for a duty upon "onyx" or "onyx marble," but the proof shows that the onyx from which cameos are cut, and which is treated and considered as a gem, is classed for duty by the custom-house authorities among the "precious stones," (480, Heyl,) at a duty of 10 per cent. ad valorem; and that articles similar to the goods in question, manufactured of marble, are classed as manufactures of marble not specially enumerated or provided for, etc., under clause 468, Heyl, and assessed for duty at 50 per cent. ad valorem. There being no specific duty upon "onyx marble," as such, or articles manufactured therefrom, I am very clear that the collector rightfully classed the goods in question as a manufacture of marble, and assessed them for duty at 50 per cent. ad valorem, under the assimilating clause, (section 2499, Rev. St.,)' as, if not actually marble, the material more nearly resembles marble in its composition than it does any other material, while the manufactured goods in their uses are almost identical with manufactures of marble. The issue is therefore found for defendant. 'Rev. St. U. S. & 2499: There shall be levied, collected, and paid on each and every non-enumerated 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; and if any non-enumerated article equally resembles two or more enumerated articles, on which different rates of duty are chargeable, there shall be levied, collected, and paid on such non-enumerated article the same rate of duty as is chargeable on the article which it resembles paying the highest duty; and on all articles manufactured from two or more materials the duty shall be assessed at the highest rates at which any of its component parts may be chargeable. ANGLO-AMERICAN PORTLAND CEMENT Co. v. SEEBERGER, Collector of Customs. (Circuit Court, N. D. Illinois. July 18, 1889.) CUSTOMS DUTIES-CLASSIFICATION. Merchandise invoiced as "chalk slags," consisting of raw chalk and a small proportion of mud, mixed, dried, and kiln burned, and afterwards crushed into lumps and used in the manufacture of Portland cement by grinding to a fine powder, which in itself makes a fair low order of cement, is assessable for a duty of 20 per cent. ad valorem under act Cong. March 3, 1883, (Heyl's Arrangement, cl. 44,) "as cement, Roman, Portland, and all others. At Law. Action by the Anglo-American Portland Cement Company against Anthony F. Seeberger, collector of customs, to recover excess duty levied upon certain merchandise imported by them. Shuman & Defrees, for plaintiff. W. G. Ewing, U. S. Dist. Atty., and G. H. Harris, Asst. U. S. Atty., for defendant. BLODGETT, J. Plaintiffs imported a quantity of what was designated in the invoice as "chalk slags," which the collector assessed for duty at the rate of 20 per cent. ad valorem, under clause 44 of Heyl's Arrangement of the act of March 3, 1883, "as cement, Roman, Portland, and all others, 20 per centum ad valorem." Plaintiffs insisted that said merchandise was dutiable under clause 95, Heyl, as "non-dutiable crude minerals, but which have been advanced in value or condition by refining or grinding, or by other process of manufacture, not specially enumerated or provided for in this act, ten per centum ad valorem;" paid the duties so assessed under protest; appealed to the secretary of the treasury, by whom the action of the collector was affirmed; and brought this suit in apt time to recover the excessive duties claimed to be paid. The merchandise in question consists of raw chalk from the Dover cliffs in England, and mud taken from the bottom of the Medway river in England, the mud being the smaller proportion of the two ingredients; but the proof does not show how much smaller. These ingredients are thoroughly mixed, then dried and burned in kilns, and afterwards broken or crushed into lumps of about the size of the ordinary chestnut coal used in this country. This commodity is used by the plaintiffs in this country in the manufacture of what they call Portland cement, which is done by reducing the merchandise in question to a very fine powder, and then thoroughly mixing it with a certain percentage of carbonate of lime. The proof also shows that, in the condition imported, the merchandise in question, by being pulverized, makes a fair low order of cement, like the Portland cement, but it does not set as quickly and is not as hard as the good quality of Portland cement. I do not see how this commodity can be classed as "a non-dutiable crude mineral," and made dutiable under clause 95, as insisted upon by the plaintiffs. Neither of its constituent parts comes within the description of "minerals," but are strictly earths or earthy materials. The clause invoked seems to me to have been intended to cover ores of various minerals, which may be found profitable to import into this country, and which may have been purified of their rocky or earthy substances in order to save expense in transportation. It is further quite apparent from the proof in this case that, even in the condition imported, the commodity in question is a cement within the meaning of clause 44 of Heyl, which includes, not only Portland and Roman cement, but all other cements. It is, as the proof shows, a cement as imported, only requiring to be ground to make it fit for use, but probably is improved and made better by the addition of the carbonate of lime. The provision of the law under which the collector acted, however, does not seem to have reference to any special quality of cement; but all cements are made dutiable at the same rate, whether of the higher order of Portland and Roman cement, or of the more common and cheaper sorts. I am, therefore, of opinion that the collector was justified in the classification and assessment of duty in this case, and that the plaintiffs should not recover. UNITED STATES v. LEIGH. (Circuit Court, D. Massachusetts. September 11, 1889.) CUSTOMS DUTIES-APPRAISEMENT-ROYALTY FEES. Where machinery subject to letters patent in the United States and Great Britain, has been manufactured and sold to the importer in England, the royalty fees for its use paid by the purchaser in this country, which formed no part of the price in England, are not a part of its dutiable value under section 2906, Rev. St. U. S., which requires the collector to cause the market or wholesale price of the article, in the country from which it is exported, to be appraised for the purpose of assessing the duty. At Law. Action to recover additional duties on machinery. J. P. Tucker, for defendant. COLT, J. This is an action brought by the United States for additional duties upon certain machinery imported into the port of Boston by the defendant. Parts of the machinery, at the time of importation, were the subject of letters patent issued by the governments of Great Britain and the United States, the owners being the same in both countries. The government contends that the royalty fee paid by the purchaser in the United States to the defendant for the right to use the machinery in question is a part of the dutiable value of the machinery. It is admitted that the defendant, at the time of making the contract of sale to his purchaser in this country, agreed to furnish the machines at a round price, which included the royalty fee for the right to use the machinery. The sole question presented in this case is whether such a fee, under these circumstances, should enter into the dutiable value of the importation. Section 2906 of the Revised Statutes provides that, when an ad valorem duty is imposed on any imported merchandise, the collector shall cause the actual market value or wholesale price thereof at the period of the exportation to the United States in the principal markets of the country from which the same has been imported to be appraised, and such appraised value shall be considered the value upon which the duty shall be assessed. The machinery in question was subject to a duty ad valorem, and, if the collector is right, his justification must be found under this provision of the law. The question, therefore, which arises is whether, under this statute, the wholesale price or market value of a machine in England includes a fee paid by a purchaser from the importer in this country to the owners of patents applicable to parts of the machine for the right to use the machine in the United States. It is agreed that in the purchase by the defendant in England of the machine the royalty fee formed no part of the purchase price paid by him. It is difficult, therefore, to see how it can be held to be a part of the market value or wholesale price there, simply because the purchaser from the defendant was obliged to pay a royalty fee for its use in this country. Suppose a machine had been purchased in England for use in some country where there was no patent upon it, could it be held that the royalty fee exacted for its use in the country where it was patented should be added in estimating the market price? A royalty fee paid for the right to make and the right to sell might be considered as a part of the market value for the reason that it is a part of the cost to the maker or vendor, and therefore becomes a factor in the selling price of the article; but a fee paid for use, which in this case it is agreed did not form any part of the price paid by the defendant, cannot, it seems to me, be any part of the wholesale price or market value of the import in the country from which it was imported, because it is a fee accruing only after manufacture and sale in that country, and payable after importation into the United States. Judgment for defendant. THE CARGO EX LADY ESSEX. A (District Court, E. D. Michigan. July 15, 1889.) 1. CUSTOMS DUTIES-UNLOADING CARGO WITHOUT PERMIT - VESSEL DRIVEN ASHORE. A vessel which has been driven ashore by stress of weather has not "arrived" within the limits of the collection district, within the meaning of Rev. St. U. S. § 2867, and the unlading of her cargo without authority of the customs officer does not subject it to forfeiture. 2. SAME-FAILURE TO GIVE NOTICE. The failure to give notice of the contingency which makes such unlading necessary does not authorize a forfeiture of the cargo. 8. SAME-FORFEITURE-ACT OF TRESPASSER. A forfeiture of goods for a violation of the revenue laws will not be imposed unless the owner of such goods or his agent has been guilty of an infraction of such laws. The act of a mere trespasser, or of one having no interest in the goods, will not have that effect. (Syllabus by the Court.) In Admiralty. On exceptions to libel on information. This was an information against 8,000 feet of lumber, being the cargo of the schooner Lady Essex, a forfeiture of which was claimed upon two grounds: First, that the lumber had been unladen from the schooner Victor without a permit; second, that this lumber had been fraudulently and knowingly imported into the United States without payment of duties, and contrary to law. The information averred, in substance, that the schooner Victor, laden with a large quantity of lumber, and bound from a Canadian to an American port, arrived within the limits of the collection district of Port Huron, and was there stranded; that 8,000 feet of her cargo were sold to the master of the schooner Lady Essex, and were unladen from the Victor upon the Essex before the Victor had been duly authorized by the customs officers to unload, contrary to Rev. St. § 2867; that although this might have been a case of unavoidable accident, necessity, or stress of weather, yet neither the master of the Victor, nor the master of the Essex, gave notice to the collector or any officers of customs of the unloading of such lumber, nor did the master of the Victor comply with any of the provisions of section 2867; that the lumber so unladen was received upon the Lady Essex with the consent and procurement of her master, although the notice and proof required had not been given; that the said lumber was subject to a duty of two dollars per thousand, yet the master of the Lady Essex, knowing that such duty had not been paid, fraudulently and knowingly assisted in importing such lumber into the United States, and concealed such lumber in the hold of his vessel, proceeding from where the Victor was stranded to Mt. Clemens, where he began to unload his cargo without reporting to the customs that he had such lumber on his vessel, although he knew the duty had not been paid; and that the same was thus imported contrary to law. The information prayed for a forfeiture of the Lady Essex and of her cargo. The owner of the cargo excepted to the information upon the ground that it set forth no cause of action against his property. C. P. Black, U. S. Dist. Atty. H. H. Swan, for claimant. BROWN, J. By Rev. St. § 2867, if after the arrival of any vessel within the limits of a collection district any part of her cargo shall be unladen without authority of a customs officer, the master in command shall be liable to a penalty of a thousand dollars, and the merchandise so unladen shall be forfeited, except in case of unavoidable accident, necessity, or stress of weather. In such case, it is made the duty of the master, or other person in command, to make proof upon oath before |