UNION.,N+,-T.
'/.1. SEEBERGER.
429
and so long as they are kept frozen they retain substantially their natural juices and flavors, without the aid of antiseptics or desiccation, and are in condition for imm.ediate \1se. I am therefore of opinion that fresh fish, that is, unsalted or uncured fish, imported in bulk, or otherwise than in barrels or half barrels, in a frozen condition, to be put upon thf. market and sold for immediate use, are entitled to admission to the ports of this country free of duty; and that the' importer is only obliged to furnish the collector at the port of importation with proper or .reasonable proof or assurances of his purpose in ,good faith to put them upon the market for immediate use, to be them ao, passE;d. . .entitled to The is.8u,,e ,is_.found foi the plaintiff. (
,
. UNION, NAT.
BA.NK OF CHICAGO
'l1.
SEEBERGER, Collector" etc. ,
(Oilrcuit Oowrt, N. D. Illinoia. :March 14, 1887.) OO!lTOMS' DtiTmS-POTATOSTARCH'-FARI:NA.
Starch made from potatoes, and pulverized or ground so as to take the,form of a, ti,ne fionr or invoiced as "sifted farina," is not wi$in. the meiming of the term "farina" as used in paragraph 694 of the Index to the New Tariff, and consequently free of duty, but is to be classified as "potato starch, " and subject to a duty of two cents per pound, under paragraph 269 Qf the act of March 8, 1888. ,'
.A;t Law. Action to reCover excess of duties paid under protest. , P. 1;." Shuman, for plaintiff. , W. G. Ewing, U. S. Dist. Atty., for BLODGETT, J. Plaintiff,imported a quantity of starch made froUl. potatoes, and pulverized or ground 80 as to be in the form of a fine flour or powder,. which was' invoiced by the name of" sifted farina.» The' collector' it as "potato atarch" under paragraph 269 of theta-riff act of March 3, 1883, as iIidexed by the treasury department) and assessed a duty upon it of two cents per pound. Plaintiff claimed' that it shoul,d be admitted: free of duty as "farina," under paragraph 694 of the New Tariff as indexed, or charged only with a duty of 20 per cent. ad valbrem under section 2513 as amended by the act ofMarch 3, 1883, as a manufactured article not enumerated or provided for., The dutiesexacte'd were, paid under protest, an appeal taken to the secretary ofthetreasury I where the action of the collector was affirmed; and this suit is broug?t, to recover the whole of the duties so paid, if the court shall hold, that the goods should have been admitted free, or the excess above 20 per cent. ad valO'f'ent,' if the court shall hold that they were properly chargeable under section, 2513. , His. but justice to in this case to say that its interest in the matter is merely nominal, the real party to the controversy being
, it,;
430
the & SUpply Company; the goods in question having been piirchased with n10ney advanced by the bank, and the invoices made in its, name for the purpose of securing the advances. It is admitted that the cOmmodity in question is chemically and microscopically potato starch, but it is contended in behalf of the plaintiff that by the grinding, Qr rElducing it to powder, it has acquired a new 90mme;rcial designation, .ll.nd)s known as "farina" or "Kartoffel Mehl" in Germa:ny, from whence this. 'iri)portation was made. Without taking ?me to the .in to whether the article 10 queshon. IS known anywhere as I farlOa," It IS enough to say that I am satisfied from the proof that the term "farina," as used in the customs law under consideration, doctloot apply to this commodity, but to a food preparation made from that portion of the wheat kernel which contains the largest percentage of gluten. Starch is one of the products of nearly all farinaceous grains and roots, but it is obtained by a process which, is to remove all the glutinous matter fl"Qm it. There was, as thifproof'shows, an article of commerce in common use at the made fr<;Jm the hard part of the wheat time this law, ",as kernel, and which was imported, known, and dealt in as "farina," and this -was undoubtedly the commodity which it was intended to admit tdttty free under paragraph 694 of the New Tariff Index.' 'The- proor Ilhows that the article in question is known in Germany by the name of Ii J{o,rtoffel Meh},," which means the same as the English words it is not generally known or dealt in there by the name of" farina" or" sifted farina," although I think it qUite probable that, if now sent to any of the correspondents of the Davis Warelioust>& Supply Company' for sifted farina, they,tilight send the article in question. but it be becau$e of the education, so to speak, which manufacturers' anildealers abroad have received from this compa.ny. rathe)." :than from the general application of the term, that it would be assumed as' proper to send pota0 flour on such an order. . The proor shows that this potato starch, both in lumps and ground, bas been quite extensively imported for many years, and had always been classed l;Ind chltrged with duty as potato starch until about 1883, when this Davis Warehouse & Supply Company made an importation to this port .of the. ground article; invoiced by the DAme of" sifted farina," which it. was c;:laimed should pass free, and after some hesitation and delay th,e9iaim was conceded,; .and from that tilne until the invoices now in question the article has been admitted at this port duty free, although the same commodity has paiddtity as potato starch at other ports. The proof also .shows that tor most of the useR to wbieh this potato starch ill applied inth;is country, it is or reduced to powder, so that )mporters may, "an.d very do, 'order the commodityin the con.'d,ition best adapted to the uses for which it is wanted, either inthe coarse lumps or and, whether in ll,l,lPPS or powdered; it is noth,ing more n<;lr than potato The. grirrding or pulverization did 'not its character, nor make It new product. It remained potato starbh, and, as such, subject to the duty imposed upon potato starch,
alter
UNITED STATES ". RHODES,
431
and was not,by the process of grinding, thrown outofthe list of enumerated articles, on which a specific duty is imposed, into the doubtful category ohinenumeratedarticles provided for by l:leCtion 2513. The issue is found for the defendant.
UNITED STATES t1. RHOD· · (Jourt,
w:
D. MillO'IWi. II. D. lanuary, 1887.)
§ 5488.. AD in4ictment charging the defendant with. making a false deposition In order to another to obtain pa,Yment of a fraudulent pension claim, In violation of section 5438 Of the Revised Statutes of the United States, need . ,. not allege that the fals6'deposition was ever used or attempted to be used, 'or · setout the fact that the claun had been presented and was pending before the ..governlP-ent at the time the deposition was
J'BAtJ1)1J'LJmT P.u'UOB OLAIX-FAL8B DBP08IT10.-hroIC'l'lQlft-RBT.
ST. U.8.
mad".
Indictment under Re... ·St. U. S. § 5438, for false affidavit to pension to . "M; E. Benton, for the Unlted Statea. Dda:TI4Jj Boyd, for defendant. l3 ,'J. AHbe Se}>temberterm, 1886, of the United States disthe Eastern division of the Western district ofMissouri, Thomas. W. Rhodes, under 5438 of the J:tevised Statutes..Q( the Vnfted States.. LSOIDuch of thlssection as refers to the charges against him is as follows:
nEwn
person wbo makes 9r causes to be made, or presents or causes to be 'pl"eselitei:I; for payment or .pprovlI.l, to or by any: person or officer in the 'civil, militaty,or naval service Of the United States·.any claim upon 01' against the ,government of tbe United States, or any departtJ1ent or officer thereof, kno.wiog such claim to be fallile, fictitious, or fraudulent, or who, for 1!he purpose .ofobtainiJ;lg,. or aiding. j;o obtain the payment or .apPJt0val of such claim, or to be made or used. any false bill, voucher, claim, certiftc,ate, affidavit, or deposition, knOWing the slime. to -eortta:ill any fraudulent l)rfiCtltious statementot entry, shall be imprisoned HAt hard labor for not less thlln'one nor moretban five years, orllned not leu ·than81,OOOnor more than $5,000.
The indictment contained 10·counts. The following is a copy of each -dount,except the date when the alleged affidavit was made, eaoh count .coveting a different date: UnUed,State8 of America,' Eastern Dt'Otst01& of the Wutern D£Btrlct ,of Mts. .
mtoN (j1l'Tlm Wl!'.STEBtfDtsTRIoT OF MISSOUkI-Septembel' Term. 1886. The ·graild jurors .of the 'United States of America duly cbosen; selected, 'impaneled, sworn, and charged to .inquire of and concerning oriIx1es and ofEastern ,of the .Western district: of Misso;uri·· on their -oaths ,present that oil tbe. eIeventhdar.of June, A. D.U!85, attbe said East4ivlsiol1 of. . . the Westefn'district otMissoutl, one , to, .'.
'INTHICDISTRICT COunT OFTnE UNITED STATES FOR THE EASTERN DI-
.ern
.