inspection laboratories shall be established, this declaration shall be attached to the invoice on which entry is made. In other cases the declaration shall be attached to the copy of the invoice sent to the Bureau of Chemistry. R. O. BAILEY, Assistant Secretary.

(T. D. 31848-G. A. 7268.)

Dress buttons.

1. Dress buttons composed of a composite metal known as "tombac," containing 86.47 per cent of copper and 13.1 per cent of zinc, are not composed of copper, but are composed of a variety of brass and are dutiable at 85 per cent ad valorem under paragraph 448, tariff act of 1909, as dress buttons.

2. Dress buttons composed in chief value of paste, imitating jet and gallilith, are dutiable at 50 per cent ad valorem as buttons not specially provided for, under paragraph 427, tariff act of 1909.

United States General Appraisers, New York, September 8, 1911.

In the matter of protests 459053, etc., of Rothschild Bros. & Co. against the assessment of duty by the collector of customs at the port of New York.

Before Board 1 (SHARRETTS, MCCLELLAND, and CHAMBERLAIN, General Appraisers).

on

SHARRETTS, General Appraiser: The goods in question consist of three descriptions of fancy dress buttons, designed to be worn apparel for display, and valued at more than 20 cents per dozen pieces. Duty was assessed upon these buttons at the equivalent ad valorem rate of 85 per cent under paragraph 448 of the tariff act of 1909, the claim relied upon by the importers being that they are dutiable at the appropriate rate named in paragraph 427 of said act.

We find that the buttons indicated in the invoices as items 2103 and 9693 are composed in chief value of paste, imitating jet and gallilith, respectively. As to such buttons we sustain the claim in the protest that they are dutiable at 50 per cent ad valorem under paragraph 427 of said act.

Regarding the remaining buttons, if composed in chief value of brass, they are, under the decision of the United States Court of Customs Appeals (1 Ct. Cust. Appls., 542; T. D. 31549), dutiable as assessed. If, on the other hand, the composite metal of which the buttons are composed is not brass, they are dutiable at three-fourths of 1 cent per line per gross and 15 per cent ad valorem under paragraph 427, as claimed by the protestants.

The testimony of the importer is not material. When asked what was the component material of chief value in the buttons represented by Exhibits 1 and 3, he answered "copper." Later on he testified that the buttons were made of copper (the manufacturer having so informed him). Inasmuch, however, as it may be asserted without

fear of contradiction that copper is the component material of chief value in almost all brass, and as the testimony shows that all of the buttons represented by Exhibits 1 and 3 are made of a composite metal consisting of copper and zinc, it is apparent that the importers' testimony must be disregarded.

Dr. Beans, consulting chemist to the Columbia University, the only other witness who appeared in behalf of the protestants, testified that he made an analysis of certain buttons of which those included in item 9763 alone were taken from the importation in question. These buttons he found were composed of copper 86.47 per cent and zinc 13.10 per cent. This witness when asked on cross-examination, "It [the material of which the button was composed] would be known as 'brass' among people?" answered, "It is known among the metallurgical profession as 'tombac.'" The inference derived from this answer is that the witness did not regard tombac as brass, and that his testimony relative to the minimum percentage of zinc in brass usually had reference to what he termed ordinary brass to the exclusion of tombac and other descriptions of brass containing a lower percentage of zinc. The witness further testified that the composition metal of which the buttons in question were made would not be commercially known as brass. Inasmuch, however, as the phrase "composed wholly or in chief value of brass" is used in a descriptive sense, it follows that whether a certain metal is or is not brass is a question of fact that can not be established by commercial testimony. Bearing directly upon this point, we refer to the following decision of the United States Circuit Court of Appeals, Second Circuit, where it was held that jet, which is an organic substance, does not include imitation jet composed of glass or paste, although commercially known as jet. Goldberg et al. v. United States (61 Fed. Rep., 90). So, too, india-rubber sponges, although commercially known as sponges, were held to be dutiable as manufactures of india rubber and not as sponges. Smith v. United States (149 Fed. Rep., 1022; T. D. 27746.) Aside from these decisions, Dr. Beans did not qualify as a commercial witness, and his testimony that the metal in question is not commercially known as brass is incompetent.

Turning to the popular or dictionary meaning of the word "brass," we find:

Ure's Dictionary of Arts, Manufactures, and Mines, page 470:

The chief properties of value in brass are its colour, hardness (which is superior to that of copper), and power of taking delicate impressions when cast in a mould. Tombac (tombak), or red brass, contains from 82 to 97 per cent of copper.

Standard:

Included

Brass. 1. An alloy of copper and zinc harder than copper. * * * among the named varieties of brass is "red-yellow brass" containing 90 per cent copper and 9.6 per cent zinc.

Century:

Tombac. One of the many names of brass; Prince's metal, Mannheim gold. Similor and tombac are names indiscriminately applied to varieties of brass used for mock jewelry. Various analyses of alloy sold under the name of tombac show from 82 to 99 per cent of copper and corresponding amounts of zinc.

Dr. Beans testified that the metal in question contained 86 per cent of copper and 13 per cent of zinc, and that it was known as tombac. All of the authorities agree that tombac is a variety of brass (red brass), and they all agree that the same percentage of copper and zinc as that contained in the metal in question would not be unusual in the varieties of brass especially used in mock jewelry. The United States chemist, who is called upon almost daily to analyze and classify metal of different kinds, testified that the buttons represented by Exhibits 1 and 3 are composed of brass. We so find as a fact and overrule the protest relative thereto. The collector's decision is reversed only so far as it relates to the buttons enumerated as items 2103 and 9693. In all other respects it is affirmed.

Protest 461077, having been abandoned, is overruled.

(T. D. 31849-G. A. 7269.)

Articles wholly of celluloid.

Articles made wholly of celluloid are dutiable as finished or partly finished articles of which collodion or any compound of pyroxylin or of other cellulose esters is the component material of chief value at 65 cents per pound and 30 per cent ad valorem under paragraph 17 of the tariff act of 1909.—Cauvigny Brush Co. v. United States (1 Ct. Cust. Appls., 118; T. D. 31118) followed.

United States General Appraisers, New York, September 9, 1911.

In the matter of protest 398956 of F. B. Vandegrift & Co. against the assessment of duty by the collector of customs at the port of New York.

Before Board 1 (SHARRETTS, MCCLELLAND, and CHAMBERLAIN, General Appraisers).

SHARRETTS, General Appraiser: The merchandise in question consists of dress protractors made wholly of pyroxylin. Duty was assessed on these articles at the rate of 65 cents per pound and 30 per cent ad valorem under paragraph 17 of the tariff act of 1909.

The contention of the importers is that inasmuch as paragraph 17 provides for articles composed in chief value of pyroxylin articles composed wholly of that substance are not included in the paragraph named, and hence are dutiable at 20 per cent ad valorem under paragraph 480 as manufactured articles not enumerated or provided for elsewhere in the act. The same issue as herein presented was decided adversely to the importers by this board in

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G. A. 7022 (T. D. 30634), and the board was affirmed by the United States Court of Customs Appeals (1 Ct. Cust. Appls., 118; T. D. 31118), based upon which we overrule the protest now before us and affirm the collector's decision.

(T. D. 31850-G. A. 7270.)

Wantage on ale in casks--Consolidation of hearings.

1. CONSOLIDATION OF PROTESTS ON HEARING.

It is a matter of discretion with the board to consolidate the hearing of protests when the goods imported are of the same kind and the question of law to be tried is the same, and especially when the importers are the same persons.

2. ALLOWANCE FOR WANTAGE.

A minimum allowance will be made of 3 gallons on every hogshead, 2 gallons on every barrel, half hogshead and kilderkin, and 1 gallon on every firkin which contains Bass' imported ale, caused by reason of failing to fill the casks bung full, and of loss by fermentation during the transit to this country.

3. NO OTHER ALLOWANCE PERMITTED.

But no deduction will be made for the hops, sediment, and lees which are contained in the casks, and are eliminated by a costly process for bottling purposes on this side by the importers.

United States General Appraisers, New York, September 9, 1911.

In the matter of protests 391987-1145, etc., of W. C. Cummings et al. against the assessment of duty by the collectors of customs at the ports of Boston, New York, and Chicago.

Before Board 3 (WAITE, SOMERVILLE, and HAY, General Appraisers; HAY, G. A., absent).

SOMERVILLE, General Appraiser: These importations consist of ale. The question at issue is, How much of this ale arrived at the ports of entry in this country so as to be subject to duty? The testimony in the case is quite voluminous, much of it having little bearing on the question under consideration.

It is a well-settled rule often recognized by the board that only so much of the merchandise is subject to duty as arrives in this country. Marriott v. Brune (9 How., 619); Lawder v. Stone (187 U. S., 281.) The proviso to paragraph 307 of the tariff act of August 5, 1909, has no such application to ale or beer. In re King, G. A. 7072 (T. D. 30796). The article was assessed for duty under paragraph 308 of the tariff act of 1909, which reads as follows:

308. Ale, porter, stout, and beer, in bottles or jugs, forty-five cents per gallon, but no separate or additional duty shall be assessed on the bottles or jugs; otherwise than in bottles or jugs, twenty-three cents per gallon.

This was done on the largest amount authorized by the department circular T. D. 29929.

The importers make two claims: First, that a minimum allowance should be made for wantage or ullage upon the importations in question at the rate of 3 gallons on every hogshead, 2 gallons on every barrel, half hogshead, and kilderkin, and 1 gallon on every firkin

and pin. This claim is based upon loss by reason of not filling the casks bung full and of loss by fermentation during the transit to this country. Secondly, that an allowance on the same basis as stated above should be made by way of deduction on account of the hops, sediment, and lees which are found in the ale, and is disclosed by the bottling process of the Bass Ale Co. in this country, who are the owners and importers of the goods.

The Government, in the first place, objects to the consolidation of the protests, and claims that each protest is a specific matter to be determined by itself. It is a matter of discretion with the board to consolidate the hearing of protests where the goods imported, the issue in dispute, and the owners are the same persons. There is nothing in this objection. Powell v. Gray (1 Ala., 77); Jackson v. Chamberlain (5 Cow., N. Y., 252); Thompson v. Shepherd (9 John., N. Y., 262); In re Leerburger, G. A. 5437 (T. D. 24715.) The ale is invoiced in imperial gallons, which may be converted into American gallons by adding one-fifth. Thomas McMullen & Co. do business on Burton-on-Trent. They manufacture the ale there and ship it to this country for bottling purposes. They ship about 93 per cent of the total bottling ale imported.

It appears from the testimony without any conflict whatever that the department made an allowance of 3 gallons per hogshead or cask, and other amounts proportionally, from 1879 up to August 5, 1909-a period of 30 years-when the present tariff act went into effect. This was done in accordance with department circular relating to the gauge of imported liquors reported as T. D. 6055, where it is stated that there is no accurate method for definitely ascertaining the quantity of beer actually received in any shipment, for the reason that if the cask be opened for gauging the liquor will thereby be spoiled. It is further stated in said circular:

When necessary, packages containing malt liquors may be gauged for capacity by "outside measurement," the length and also the head and bung diameter being separately measured on the outside of the package, and from the length the thickness of the heads and from the diameter the mean thickness of the bung and bottom staves being deducted. The equivalent of the inside measurements being thus ascertained, the capacity will be calculated as in ordinary gauging.

When the bung is not removed, the gauger should ascertain the wantage by sounding the line at which the liquor stands in the package, and then computing the capacity of the empty space. The department understands that when the outage of a package of malt liquors is as much as 3 or 4 gallons, the bung can be safely removed and the package be gauged in the ordinary manner.

On August 2, 1909, this ruling was revoked by the department in T. D. 29929, giving instructions for the gauging of beer imported in barrels or casks, which reads as follows:

On and after August 15, 1909, duties will be assessed on beer imported in barrels or casks on the basis of the invoice quantity whenever the same is equal to or exceeds the capacity branded on the barrels or casks in liters. Fractions of a liter will not be considered.