The report of the master shows there are no funds in the hands of the trustee to conduct what, in his judgment and that of the master, appears to be very uncertain litigation; but the petitioner, by his counsel, claims to be in possession of information which will enable the trustee to recover, and offers to conduct such suits and provide for costs. There is due the master in this case the sum of $25, costs incurred in the matter before him, which were to be paid by the petitioner.

The order of the court is that upon the payment of the $25, the balance due the master, and the filing of a bond in this court in the sum of $500, conditioned for the payment of costs that may accrue in any litigation which the petitioner may require the trustee to institute for the recovery of property alleged to belong to the bankrupt's estate, that the trustee is hereby directed to institute such suits for the recovery of property as the petitioner and his counsel may direct, and any litigation so instituted to be directed and conducted for the trustee by petitioner's counsel; and it is so ordered.

C. B. RICHARD & CO. v. UNITED STATES.

(Circuit Court, S. D. New York. February 17, 1907.)

No. 4,267.

CUSTOMS DUTIES-CLASSIFICATION-BRONZE STATUARY-RECIPROCAL AGREE

MENTS.

The provision for "statuary" in Tariff Act July 24, 1897, c. 11, § 3, 30 Stat. 203 [U. S. Comp. St. 1901, p. 1692], and in the reciprocal commercial agreement with Italy (Act July 18, 1900, 31 Stat. 1979), negotiated under said section, has the same meaning as in section 1, Schedule N, par. 454, of said tariff act (30 Stat. 194 [U. S. Comp. St. 1901, p. 1678]), where it is prescribed that "the term 'statuary' as used in this Act shall be understood to include only such statuary as is cut, carved, or otherwise wrought by hand from a solid block or mass of marble, stone or alabaster, or from metal." Bronze statuary, not being covered by this definition, is therefore not covered by said reciprocal agreement.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Customs Duties, 143.]

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

This case involves the construction of the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 454, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1678], reading as follows:

"Statuary, not specially provided for in this act, twenty per centum ad valorem; but the term 'statuary' as used in this act shall be understood to include only such statuary as is cut, carved, or otherwise wrought by hand from a solid block or mass of marble, stone, alabaster, or from metal."

Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for importers.

D. Frank Lloyd, Asst. U. S. Atty.

HOUGH, District Judge (after stating the facts). The subject of this protest is an art object brought from Italy and belonging to the

class of metal statuary ruled upon in Tiffany v. United States, 71 Fed. 691, 18 C. C. A. 297. In the ordinary acceptation of the word it is "statuary," but that word is given by paragraph 454 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1678]) a specifie and peculiar definition, to be construed in accordance with the Tinany Case, supra.

The protesting importer contends that the commercial agreement between the United States and Italy (Act July 18, 1900, 31 Stat. 1979), made pursuant to "the provisions of the third section of the tariff act" (of 1897), has so changed the statutory definition of the word "statuary," as to admit the article under consideration at the reduced rate of duty therein provided for. It was remarked in United States v. Wile, 130 Fed. 331, 64 C. C. A. 577, that a "commercial agreement cannot legally extend the scope of section 3 of the tariff act" (of 1897). The agreement there considered was with France, but the Italian agreement is entirely similar; and it cannot change the definition of "statuary" contained in paragraph 454, nor does it purport so to do. In the Wile Case, supra, the court found two categories to which the article under consideration could be referred-one general and one specific. The agreement with France modified the duty upon all articles in the general category, and that necessarily contained and controlled the more specific description. Such is not the case here. Statuary is mentioned in and defined by paragraph 454 only, and the word must mean the same thing in section 3 as it does in paragraph 454 of the same statute, and such signification is not and cannot be varied by the commercial agreement above referred to.

The decision of the Board of Appraisers is affirmed.

NAIRN LINOLEUM CO. v. UNITED STATES.

(Circuit Court, S. D. New York. February 21, 1907.) '

No. 4,230.

1 CUSTOMS DUTIES-CLASSIFICATION-WOOD FLOUR.

Wood flour, produced by grinding small pieces of wood obtained by breaking or cutting waste wood, etc., is dutiable as a manufacture of wood under Tariff Act July 24, 1897, c. 11, § 1, Schedule D, par. 208, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1647], and not as "wood pulp," under Schedule M, par. 393, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1671], nor as "waste" under Schedule N, par. 463, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1679].

2 SAME-MANUFACTURES OF WOOD-EJUSDEM GENERIS.

The provision for "house or cabinet furniture, of wood. wholly or partly finished, and manufactures of wood," in Tariff Act July 24, 1897, c. 11, § 1, Schedule D, par. 208, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1647], is intended to cover all finished manufactured wooden articles, however different they may be in nature or appearance from "house or cabinet furniture"; and wood flour, a completed product, already prepared for use, is therefore not to be excluded under the rule of ejusdem generis. On Application for Review of a Decision of the Board of United States General Appraisers.

For decision below, see G. A. 6,325 (T. D. 27,242), affirming the assessment of duty by the collector of customs at the port of New York.

Comstock & Washburn (J. Stuart Tompkins, of counsel), for importers.

J. Osgood Nichols, Asst. U. S. Atty.

HOUGH, District Judge. This appeal brings up for review a decision of the General Appraisers declaring an article commercially known as "wood flour" to be dutiable under paragraph 208 of the tariff act of 1897 as a "manufacture of wood." Act July 24, 1897, c. 11, § 1, Schedule D, par. 208, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1647]. This substance is the same as received consideration in Goldman v. United States (C. C.) 87 Fed. 193. The testimony shows that it is produced by grinding in an appropriate machine containing millstones "waste wood, scrub wood, second growth timber." Before being fed into the mill, the wood is reduced to small pieces either by breaking or cutting. The substance, when completed, is perfectly dry and of about the consistency of meal.

The importer claims that it should have been assessed under paragraph 463 as waste, as was ground cork in Gudewill v. U. S. (C. C.) 142 Fed. 214 (T. D. 25,917), the testimony in which case is submitted as an exhibit in this proceeding. In the ground-cork case it was clearly shown that the only purpose of grinding the cork was to put it in convenient shape for transportation, and it was also shown that the cork so ground distinctly came within the meaning of the word "waste," as adopted in Standard Varnish Works v. United States, 59 Fed. 456, 8 C. Č. A. 178. It also appeared that the ground cork was principally used for the manufacture of linoleum, and to fit it for that purpose it had to be "reground, pulverized and mixed with other materials." The wood flour under consideration is already prepared for use, and is a completed product.

*

*

The importer claims, in the alternative under paragraph 393, that the substance is known as "wood pulp." It does appear to be sometimes called "wood pulp" by those who sell it in this country, but the evidence falls far short of establishing any general commercial usage sufficiently clear to overthrow the decision below. Paragraph 208 enumerates "house or cabinet furniture, of wood, wholly or partly finished, and manufactures of wood * not specially provided for." Under this language the rule of ejusdem generis is invoked, and claim made that a substance such as wood flour should not be put in the same category with furniture. The article is undoubtedly of wood, and it is a finished manufacture, and it is not a waste or byproduct. Paragraph 208 is the omnibus, or catch-all clause, of the wood schedule in the tariff, and appears to me to be intended to cover all finished manufactured wooden articles, however different they may be in nature or appearance from "house or cabinet furniture."

The decision of the appraisers is affirmed.

DIECKERHOFF, RAFFLOER & CO. v. UNITED STATES.

(Circuit Court, S. D. New York. February 19, 1907.)

No. 4,152.

CUSTOMS DUTIES-CLASSIFICATION-FURNISHED NEEDLECASES-ARTICLES COMPOSED CHIEFLY OF NEEDLES.

Needlecases in which steel needles constitute the element of chief value should be considered as manufactures in chief value of needles, rather than as articles composed in part of steel under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, par. 193, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645]; and as needles are on the free list, and there is no tariff provision for manufactures of needles, such articles are dutiable as unenumerated manufactured articles under section 6, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].

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

For decision below, see G. A. 6,220 (T. D. 26,887), affirming the assessment of duty by the collector of customs at the port of New York. Note U. S. v. Mathews, 78 Fed. 345, 24 C. C. A. 127, and Guthman v. U. S. (C. C.) 148 Fed. 332.

Curie, Smith & Maxwell (W. Wickham Smith, of counsel), for importers.

J. Osgood Nichols, Asst. U. S. Atty.

HOUGH, District Judge. The imported object is a needlecase of ornamented paper furnished with needles, and seems to be identical with the article considered in Wanamaker v. Cooper (C. C.) 69 Fed. 465. In consonance with that decision the importer admits that, although needles are free under the tariff act of 1897 (Act July 24, 1897, c. 11, § 2, Free List, par. 620, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685]), the needlecase with its contents is to be regarded as an entirety, and is assessable as a whole.

It has been assessed under paragraph 193 as an article not specially provided for, and composed in part of steel; i. e., needles. Wanamaker v. Cooper, supra, arose under the tariff act of October 1, 1890, which contains substantially the same proviso as paragraph 193 of the present statute (Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645]). Act Oct. 1, 1890, c. 1244, § 1, par. 215, Schedule C, 26 Stat. 582. But the report of that decision does not show under what paragraph or schedule of the act the assessment upon needlecases was made.

It appears to me that the reasoning of Hartranft v. Sheppard, 125 U. S. 337, 8 Sup. Ct. 920, 31 L. Ed. 763, is conclusive on the present case. Act March 3, 1883, c. 121, 22 Stat. 488 [U. S. Comp. St. 1901, p. 2247], was there under consideration, and that statute also contained provisos as all-embracing as any found in the present statute, and, to paraphrase the conclusion of the court in that case, I am of opinion that as needles are the component material of chief value in the needlecases involved in this suit, and, as needles are free, it follows that the needlecases with their contents are manufactured articles not provided for, and therefore chargeable with the duty of 20

per cent. ad valorem under section 6 of the tariff act of 1897 (Act July 24, 1897, c. 11, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693]).

Paragraph 193 I think wholly inapplicable, because the metal of the needles entering into the composition of the needlecases is immaterial. These needles happen to be made of steel. They might just as well be of any other metal or substance not depriving them of the name "needles, hand-sewing, and darning." It is as needles that they (with paper envelopes) comprise the raw material for the needlecases at bar; and the sole question for consideration is what is the proper tariff upon an article composed of needles and paper. Inquiry as to the tariff position of an article of steel and paper is inappropriate.

The decision of the Board of General Appraisers is reversed, and judgment directed in accordance with the above opinion.

AGIUS, Limited, v. PERKINS CO.

(Circuit Court, S. D. New York. March 11, 1907.)

COSTS-FEES AND MILEAGE OF WITNESSES-TESTIMONY TAKEN ON COMMISSION. Where the prevailing party, in an action at law in a federal court, has taken testimony in a foreign country under a dedimus potestatem pursuant to Rev. St. § 866 [U. S. Comp. St. 1901, p. 663], he is entitled to tax as a disbursement the fees and mileage of the witnesses at the same rate as though they had attended upon the trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Costs, § 731.1

On Appeal from Clerk's Taxation of Costs.

Convers & Kirlin, for plaintiff.

Shearman & Sterling, for defendant.

HOUGH, District Judge. The prevailing party herein, having taken testimony in London by commission, offered to tax as a necessary disbursement, in assumed compliance with Rev. St. § 848 [U. S. Comp. St. 1901, p. 654], an attendance fee and mileage for each witness examined on its behalf before the commissioner. The clerk allowed the fees charged and mileage not exceeding 100 miles by analogy to the rule of this circuit in respect of witnesses attending on the trial. The Syracuse (C. C.) 36 Fed. 830. The appellant contends that no warrant of law exists for the allowance of such a disbursement in respect of witnesses examined in foreign countries.

The testimony was taken under a dedimus potestatem pursuant to Rev. St. § 866, and the exact point here presented seems to be new. The statute requires that depositions under a commission such as this be taken "according to common usage," which means in accordance with the usual practice in equity or at common law as the case may be. Bischoffschein v. Baltzer (C. C.) 10 Fed. 1; Jones v. Oregon, etc., Co., Fed. Cas. No. 7,846. This case is at law, and the common usage referred to is therefore the practice in similar cases of the courts of New York. Jones v. Oregon, etc., Co., supra. I perceive ho reason why the reasonable expense of procuring witnesses does not rank as a taxable disbursement with the reasonable expense of securing the services of a commissioner to take the testimony of such witnesses. This has long been regarded as a taxable disbursement, though the