composed in chief value of leather, the second provides only for such cases so composed as are used by smokers. Therefore, in so far as these two paragraphs respectively touch upon such leather cases, the first paragraph includes all, and the second only a part; the first is the genus and the second the species.

In Knauth v. United States (1 Ct. Cust. Appls., 334; T. D. 31432) the court, endeavoring to define under the language of earlier decisions and the statutes what constituted a smoker's article, said:

The phrase as used in the statute, "all smokers' articles whatsoever," is exceedingly、 comprehensive. The use of both words "all" and "whatsoever" seems to leave little doubt as to the intention of the legislature.

* * *

The intensified form of the expression used, together with the far-reaching effect of the qualifying words stated, manifests to our mind a purpose on the part of the legislature to reach out into all branches of trade and commerce and to gather within the dutiable provisions of this paragraph everything used chiefly by smokers, in that pursuit and for that purpose, wherever else they may occur or within whatever other provisions of the tariff law the merchandise may be included.

In the light of these decisions, and that common knowledge and observation which is the experience of every one in every day life in cities and places where these goods are sold and used, convinces us beyond any peradventure of doubt that such articles as are the subject of decision here are reasonably included within the term "all smokers' articles whatsoever" as used in paragraph 475, and heretofore defined by this and other courts.

In this respect, the case is similar to Robertson v. Salomon (130 U.S., 412, 414), wherein the Supreme Court said:

Beyond the common knowledge which we have on this subject, very little evidence is necessary or can be produced. Nix v. Hedden (149 U. S., 304).

The decision of the Board of General Appraisers is affirmed.

(T. D. 32112.) Teddy-bear muffs.

CARSON, PIRIE, SCOTT & Co. v. UNITED STATES (No. 684).

TEDDY-BEAR MUFFS-TOYS.

The articles, "Teddy bears," have the shape of dolls with heads representing bears; the testimony shows they are sold to and handled by toy dealers almost exclusively; they are not reasonably fit for any use except to amuse children; they are toys and are dutiable as such under paragraph 431, tariff act of 1909.Illfelder v. United States (1 Ct. Cust. Appls., 109; T. D. 31115).

United States Court of Customs Appeals, December 19, 1911. APPEAL from Board of United States General Appraisers, G. A. 7214 (T. D. 31540). [Decision reversed.]

McLaughlin, Russell, Coe & Sprague (Edward P. Sharretts of counsel) for appellants. Wm. L. Wemple, Assistant Attorney General (Charles Duane Baker on the brief), for the United States.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges. DE VRIES, Judge, delivered the opinion of the court:

This appeal involves the dutiable classification of so-called "Teddybear muffs." They were assessed for dutiable purposes by the collector at the rate of 44 cents per pound and 60 per cent ad valorem as

wool wearing apparel under the provisions of paragraph 382 of the tariff act of 1909, which reads:

382. On clothing, ready-made, and articles of wearing apparel of every description, including shawls whether knitted or woven, and knitted articles of every description made up or manufactured wholly or in part, felts not woven, and not specially provided for in this section, composed wholly or in part of wool, the duty per pound shall be four times the duty imposed by this section on one pound of unwashed woo of the first class, and in addition thereto sixty per centum ad valorem.

Appellants here, who were protestants below, maintained that. they were toys within the language of paragraph 431 of the same act, which is as follows:

431. Dolls, and parts of dolls, doll heads, toy marbles of whatever materials composed, and all other toys, and parts of toys, not composed of china, porcelain, parian, bisque, earthen or stone ware, and not specially provided for in this section, thirtyfive per centum ad valorem.

The articles are in the shape and form of so-called "Teddy bears" and range in size from 12 inches high and 7 inches wide to 14 inches high and 8 inches wide. One of the official samples is white and the other is of a tan color. While they are characterized "Teddy. bears" they are in fact and in the shape and form of dolls with heads representing bears.

This court in Illfelder v. United States (1 Ct. Cust. Appls., 109; T. D. 31115) laid down a rule of decision as to what constituted a toy in the following language:

In common speech, and as popularly understood, a toy is essentially a plaything, something which is intended and designed for the amusement of children only, and which by its very nature and character is reasonably fitted for no other purpose. Although an article may be chiefly used for the amusement of children, if its nature and character are such that it is also reasonably fitted for the amusement of adults, or if it is reasonably capable of use for some practical purpose other than the amusement of children, it can not be classed as a toy unless it is affirmatively shown by the importer that it is so known and designated by the trade generally.

That definition in its pronouncement of essentials and their limitations, we think, is in complete accord with the theretofore adjudicated

cases.

In

While the testimony in this record is scant and unsatisfactory there is sufficient, when taken in conjunction with the samples, to indicate the purpose and uses of the imported articles. If they are intended for a useful purpose that purpose is as a fur muff. construction they are far short of such. They are made of an exceedingly poor quality of pile fabric which from the nature of its construction is not only a very poor representation of a fur or bear skin, and in strength and durable qualities would seem to permit of but little wear. That this was the intention of the manufacturers is further manifested by the fact that the articles are sewn together in what might be properly characterized little better than temporary construction.

In order to conserve the appearance of a doll or bear, the width is made so narrow that but little if any warmth could be afforded

the hands of a child during cold weather. The muff aperture is made from side to side.

The uncontradicted testimony in the record is that these articles are sold to and handled by toy dealers almost if not exclusively; that when they are dealt in by department stores they are found in the toy department.

There is no testimony of trade use. The Board of General Appraisers was divided in its opinion and we are constrained to approve the opinion of the dissenting general appraiser, Chamberlain. It is conceded by all parties to the record that the articles are chiefly used for the amusement of children, but it is contended that they are also designed and used for the practical purposes of muffs. With the dissenting general appraiser we do not think they are reasonably fit for any other use than that of the amusement of children. Their size, construction, apparent durability, and every appearance, in our mind, conduces to this conclusion.

While they are incidentally useful, they are a plaything that can not with comfort be enjoyed except in seasons and in a manner that inevitably conduces in a slight measure to a useful purpose. This, however, we take as an incidental use growing out of the very nature of the article itself and necessitated by the character of the toy in order that it may be devoted to the amusement of children. The article is plainly so designed and constructed that while not in use as a muff it could be and probably is used as a doll. Its proportions, structure, and appearance are indeed more those of a doll than of a muff. The decision of the board is reversed.

(T. D. 32113.)

Peeled melon seed.

UNITED STATES . SHING SHUN & Co. (No. 699).

PEELED MELON SEED USED AS FOOD.

Melon seed which have been reduced in size by peeling, that have been roasted and salted for food, their germinating quality disappearing in these processes, are not to be deemed vegetables proper or as unmanufactured, but come within the category of manufactured articles and are dutiable as a nonenumerated manufacture under paragraph 480, tariff act of 1909.-United States v. Kauffman (84 Fed. Rep., 446).

United States Court of Customs Appeals, December 19, 1911. APPEAL from Board of United States General Appraisers, Abstract 25572 (T. D. 31589). [Decision reversed.]

Wm. L. Wemple, Assistant Attorney General (Wm. K. Payne, Deputy Assistant Attorney General, on the brief), for the United States.

Joseph G. Kammerlohr and John Giblon Duffy for appellees.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges.

DE VRIES, Judge, delivered the opinion of the court:

This importation was peeled melon seeds. We are here called upon to decide whether such merchandise may be properly classi

7680 VOL 21-11--48

fied as a "vegetable, cut, sliced, or otherwise reduced in size," or "a vegetable, parched or roasted, or prepared in any way"; or, whether it is an unenumerated manufactured or unmanufactured article. The Board of General Appraisers held it dutiable as a nonenumerated unmanufactured article, and this is an appeal from that decision.

The facts in the case are exceedingly meager. There is no brief for the respondent, appellee. The testimony in the record, when read in conjunction with the return of the appraising officer at the port of San Francisco, whereat the merchandise was imported, shows that the merchandise consisted of watermelon seeds, the hulls of which have been peeled off, and the seeds have, therefore, been reduced in size.

The protestant alleges in his protest, however, that the merchandise consists of "watermelon seed meats salted and roasted, which are eaten by the Chinese as a relish and are not suitable for planting, as they will not germinate." While this is not testimony in the case, it may be taken in the nature of an admission against interest, where it is such, and be so considered by the court.

The fact that they are prepared for and eaten as a relish would seem to put them beyond the category of vegetables as that term is used in customs acts. They are cut, shelled, and dried, and are also parched or roasted; but they are not "vegetables" so treated, but "seeds" so cut, roasted, etc., an entirely distinct tariff entity. Paragraphs 252 and 266, act of 1909. They are at most the seed of a vegetable so far as derivation is concerned. Robertson v. Salomon (130 U. S., 412); Nix v. Hedden (149 U. S., 304).

We are impressed with the reasoning of the United States Circuit Court of Appeals for the Second Circuit in the case of United States v. Kauffman (84 Fed. Rep., 446), and that the words of the court there adopted are applicable here and in principle decisive of this case. The subject under consideration was hulled millet seeds. The question was whether they were dutiable as "seeds" or a manufactured article. The court said:

The merchandise is millet pulp from which the hull has been removed, and therefore it will not germinate and can not be used for agricultural purposes. It has been destroyed as a "seed," according to the common understanding of the word or according to the meaning given to it by lexicographers, and has been removed by the removal of the hull to a different condition and to be used for different purposes. It is used largely, especially by persons of German birth, for food, as oatmeal is used, and it is also used for food for birds. Millet seed not hulled is not used for human food.

Based upon the facts as they appear and must be taken in this record, we think a melon seed which has been peeled, and thereby reduced in size, and roasted, whereby its germinating power has

been destroyed, if it had not already been destroyed by the peeling, and salted, whereby it is prepared for immediate use as a food and so eaten, is clearly within the category of manufactured articles, and that this merchandise is, therefore, properly dutiable as a nonenumerated manufactured article.

The decision of the Board of General Appraisers is reversed.

(T. D. 32114.)

Amendment of section 11 of Department Circular No. 54 (1910), relative to reinsurance on engineering and construction contracts with the Government.

[Circular No. 73.]

TREASURY DEPARTMENT, December 20, 1911. To bond-approving officers of the United States, and others concerned: Section 11 of Department Circular No. 54 (1910) is hereby amended to read as follows:

No portion of any recognizance, stipulation, bond, or undertaking shall be included in determining the limitations herein prescribed which shall have been reinsured, at the time of execution and delivery of the original obligation, or within 20 days thereafter, in a company authorized to do business under the acts above referred to, within the limitations herein prescribed, or in such companies organized under the laws of the United States, or of any State, having a capital stock paid up in cash of not less than $250,000, or in such corporations of other countries as are licensed in any State of the United States to do a fidelity and surety business, and have a deposit capital or other assets in this country of not less than $250,000, available to holders in the United States of fidelity and surety policies: Provided, That all such companies, domestic or foreign, shall submit themselves to all the regulations of the Treasury Department applicable to certified companies, including such examination, at the companies' expense, as the Secretary of the Treasury may deem it necessary and proper to make. The limit of reinsurance which may be accepted from any such company on any one bond shall be determined and fixed by the Secretary of the Treasury, but shall not exceed in any case 10 per cent of the capital stock and net surplus of domestic companies, or 10 per cent of the deposit capital or other assets in the United States available to the holders in the United States of fidelity and surety policies of alien corporations. The Secretary of the Treasury reserves the right to refuse at any time to further approve or accept reinsurance from any of such companies if, in his judgment, such company does not afford the United States or the policy holders of such companies in the United States the protection contemplated by this regulation: And provided further, That hereafter reinsurance will not be accepted on any bond or other undertaking running to the Government whereon persons furnishing labor and material for the construction or repair of any public building or public work are given a right of action under the provisions of the act of Congress approved August 13, 1894 (vol. 28, Stat. L., p. 278), as amended by the act of February 24, 1905 (vol. 33, Stat. L., pp. 811-812).

FRANKLIN MACVEAGH, Secretary.