highway can properly be said to be within the scope of the driver's employment, taking into consideration also the fact that the injury was done while the driver, for a purpose of his own, was deviating from the ordinary route. Upon the question suggested by these facts, the authorities cannot be reconciled. They are collected in an exhaustive note to Ritchie v. Waller, 27 L. R. A. 161, 63 Conn. 155, 28 Atl. 29, 38 Am. St. Rep. 361, and in an earlier discussion of the same subject in the note to Ware v. Canal Co., 35 Am. Dec. 192, 15 La. 169. In view of the numerous and elaborate opinions dealing with the subject of the master's liability under such circumstances, which are to be found in both the English and the American reports, it would be superfluous for me to marshal the arguments that have been put forth on one side and the other, and to repeat the reasons that commend themselves to me as the weightier. Reference to these arguments has already been made in the notes just referred to, and further consideration of the subject may also be found in 20 Amer. & Eng. Enc. of Law (2d Ed.) p. 163, and in the various text-books upon torts, and upon the relation of master and servant. .

There is no serious dispute about the general rules that govern a master's liability. They are well expressed in the following quotation from the note in 35 Am. Dec.:

Page 192. "The master is liable for the wrongful and negligent acts of his servant, performed while engaged in the pursuit of the master's business, within the scope of his employment, or which, from all the circumstances, may be reasonably, fairly, or necessarily included, or by implication embraced. within the objects of the business the execution of which has been confided to the servant's charge. O'Connell v. Strong, Dudley's Law (S. C.) 265; Andrus v. Howard, 36 Vt. 248, 84 Am. Dec. 680; Luttrell v. Hazen, 3 Sneed, 20; Patten v. Rea, 2 C. B. (N. S.) 606; Jones v. Glass, 13 N. C. 305; Priester v. Augley, 5 Rich. Law (S. C.) 44; Wanstall v. Pooley, 6 Cl. & Fin. 910, note: Gass v. Coblens, 43 Mo. 377; Shaw v. Reed, 9 Watts & S. 72; Smith v. Webster, 23 Mich. 298; Allison v. Western N. C. R. R., 64 N. C. 382; Chicago, St. Paul & F. R. R. v. McCarthy, 20 Ill. 385, 71 Am. Dec. 285; Stone v. Cheshire R. R., 19 N. H. 427. 51 Am. Dec. 192; Carman v. S. & I. R. R., 4 Ohio St. 399; Corrigan v. Union Sugar Refinery, 98 Mass. 577, 96 Am. Dec. 685; Byram v. McGuire, 3 Head (Tenn.) 530; Barlow v. Emmert, 10 Kan. 358; Tuel v. Watson, 47 Vt. 634. The liability of the master in these cases proceeds from the maxim: 'Qui facit per alium facit per se.' The general rule expressed above is permanently established. The only disagreement manifested by the authorities is in regard to the manner in which the principle governing cases of this character is to be applied to meet the special exigencies of particular cases. The liability of one, who has created an agency, or authorized an act, for all the consequences which may ensue from the exercise of the one, or the performance of the other, is undisputed. This liability depends, however, upon the existence of a particular relation. The principal question arising in cases involving the liability of one person for the wrongful or tortious act of another, is, whether the particular act, out of which the injury complained of arose, was either expressly or impliedly authorized by the person whose accountability it is sought to establish."

Page 194. "Servant's deviation from the business of his master for the sake of accomplishing a personal or individual object, disconnected with his master's business, will relieve the master from liability for injuries occasioned by the servant's wrongful or negligent acts committed while such deviation continued. The question, how far a servant's willful and malicious act is deemed to be by implication a departure from his master's business, is considered in another portion of this note. If a servant abandons or departs from the business of his master and engages in some matter suggested solely by his own pleasure or convenience, or pursues some object which relates to an end or purpose

which may be said to be the servant's individual and exclusive business, and, while so engaged, commits a tort, the master is not answerable, although he was using his master's property, and although the injury could not have been caused without the facilities afforded to the servant by reason of his relations to his master."

With these rules no one quarrels. The difficulty has been, to determine whether they are applicable to a given state of facts, and upon a question of this kind opinions will always differ. To take the case in hand, it would be easy to cite decisions that hold the master to be liable under similar or analogous facts, and it would be just as easy to cite cases--for example, the recent case of McCarty v. Timmins, 178 Mass. 378, 59 N. E. 1038, 86 Am. St. Rep. 490-in which his liability has been denied. I shall not extend this opinion by taking up either class of decisions, but shall content myself with saying that my opinion is against the master's liability under the facts now before the court. As it seems to me, the driver had temporarily abandoned his employment, and had gone off upon an expedition of his own, for a purpose in no way connected with his duty, but, on the contrary, opposed thereto, and I do not think that he could bind his master while he was engaged about his private affairs. Of course, he had no express authority to turn back for such a purpose, and I am unable to see upon what ground the master's assent to his deviation can be fairly implied.

In each case judgment may be entered for the defendant, notwithstanding the verdict.

F. W. WOOLWORTH & CO. v. UNITED STATES.
(Circuit Court, S. D. New York. January 18, 1907.)
No. 4,140.

CUSTOMS DUTIES-CLASSIFICATION-SPLASHI MATS-PAINTINGS.

Splash mats or screens, which have been crudely decorated at an expense of about 21⁄2 cents apiece by stenciling and by hand painting, which are worth about 4 cents apiece, and which primarily are articles of utility rather than for decoration, are not dutiable as "paintings in oil or water colors" under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 454, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1678].

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

The question at issue concerns the classification for tariff purposes of so-called splash mats or screens, which the collector of customs at the port of New York classified as "manufactures of wood," and which the importers contended should have been classified as "paintings in oil or water colors" under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 454, 30 Stat. 194 [U. S. Comp. St. 1901, p. 1678]. A further description of the articles and the views of the Board of General Appraisers appear from the following extract from the board's opinion;

McClelland, General Appraiser. The maximum invoice value of the mats in question is 2 marks, 25 pfennigs, per dozen, or about an average of 4 cents United States currency each; and it appears that the cost of stenciling the colors thereon is from 1 mark to 1 mark, 25 pfennigs per dozen. We think it wholly immaterial, however, to a determination of the issue involved what may be the comparative value of the material from which the mats are made

or the cost of placing the color thereon. It is conceded by the importing company that these mats are bought and sold as splash mats, and they are commonly known in the trade as such. They are unquestionably articles of utility, being used either as a protection to the wall behind a washstand, or as receptacles for newspapers when doubled in pocket form. The evidence before us is that the coloring on the mats, which is in oil, is mainly placed thereon by the stenciling process, and in some instances the figures are touched up with a brush by hand. We do not think that articles such as these mats, of such insignificant value and decorated in such a crude, cheap way, rise to the dignity of paintings. It is manifest that it requires no artistic skill to place the decorations upon them.

Our attention is directed to a decision of the United States Circuit Court of Appeals in the case of United States v. China & Japan Trading Co., Limited, 58 Fed. 690, 7 C. C. A. 433, wherein certain Japanese wall decorations made of paper, or of paper and cotton, or of narrow strips of bamboo joined together with a cotton cord, and upon which représentations of flowers, birds, or human figures were painted in water colors, a large part of the color being applied by stenciling, while the features of the work, which were delicate and ornamental and gave character to the article, were placed thereon by hand, were held to be paintings in oil or water colors; but we think there is a marked difference between the issue here involved and that which was before the court in the case cited. The court said, among other things: "The articles were made for the purpose of hanging upon the wall of a room, and were not intended to be objects of utility, but to be merely decorative. * * In our opinion, the samples are by far the most important part of the testimony, and show that while the large bodies of color may have been applied by stenciling, the features of the work, which are delicate and ornamental and which give character to the article, were added by hand."

Here there is no question that the mats in question are not articles of utility, but merely decorative. On the contrary, it appears that their general use is as articles of utility; nor does it appear that the features of the work as the result of the appliance of the brush by hand, nor any part of the work on the mats, is delicate and ornamental. The question involved is very similar to that before the board in T. D. 21,406 (G. A. 4,492), wherein certain mats and covers similarly made for similar use were held to be manufactures of wood.

Our conclusion is the same in this case, and we overrule the protest, and affirm the collector's decision.

Comstock & Washburn (Albert H. Washburn, of counsel), for importers.

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

HAZEL, District Judge. The articles in question consist of wood strips joined or sewn together and known in trade as splash mats or screens. They were correctly assessed for duty by the collector at 35 per cent. ad valorem as manufactures of wood, under paragraph 208 of the act of July 24, 1897, c. 11, § 1, Schedule D, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1647]. The articles are not paintings, as claimed by the importers, even though pictures or landscapes appear thereon. The testimony shows that the outlines of the pictures are first stenciled and then painted by hand; but the mats or screens are articles of utility, and the decorative or coloring feature is secondary. As a precedent for holding that the articles in fact are dutiable as "paintings" under paragraph 454 of said act, the importers cited United States v. China & Japan Trading Co., Limited, 58 Fed. 690, 7 C. C. A. 433. In that case the articles were wall decorations and were not "objects of utility."

The decision of the board is affirmed.

KRESHOWER v. UNITED STATES.

(Circuit Court, S. D. New York. January 8, 1907.)

No. 4,088.

1. CUSTOMS DUTIES-CLASSIFICATION-ORNAMENTAL LEAVES-PREPARED LEAVES -WREATHS.

Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 425, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675], relating to artificial or ornamental leaves, held to include leaves elaborately prepared so as to restore their natural appearance and prevent decomposition; also to include them when made up into wreaths and attached to wire frames.

2. SAME "MANUFACTURE"-PRESERVATION OF LEAVES.

As to palm leaves which have been subjected to processes that restore their natural appearance and prevent decay, and some of which have been arranged in wreaths on wire frames, held that, as there had been no advance in manufacture that destroyed the original articles or made them useful for other purposes or altered their trade designation, they still remained dutiable as "leaves," under Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 425, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675], rather than as "manufactures" of palm leaf, provided for in paragraph 450, 30 Stat. 193 [U. S. Comp. St. 1901, p. 1678].

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

The decision below affirmed the assessment of duty by the collector of customs at the port of New York on goods imported by L. J. Kreshower; the Board of General Appraisers following a former decision reported as G. A. 5,800 (T. D. 25,630).

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

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

HAZEL, District Judge. The articles in question, consisting of cycas palm leaves and of wreaths made of such leaves, were assessed for duty at 50 per cent. ad valorem under paragraph 425 of the present tariff act (Act July 24, 1897, c. 11, § 1, Schedule N, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1675]), which includes artificial or ornamental leaves, flowers, and stems of whatever material composed, not specially provided for. The protest states that the leaves and wreaths are dutiable at 30 per cent. ad valorem under paragraph 449, which includes manufactures of palm leaf or of which the same is the component material of chief value, or, in the alternative, at 20 per cent. ad valorem under section 6, as nonenumerated manufactured articles. The importers contend that the leaves and wreaths, having passed beyond the condition of mere leaves, are not properly dutiable as artificial or ornamental leaves. The proofs show that the natural leaves are first dried, then boiled in a solution of glycerin, and after again being dried are varnished; the purpose being to restore their natural appearance and prevent decomposition. The single question is whether the articles are more specifically described in the paragraph under which the im→ porters claim they are dutiable, or whether the classification of the collector was correct. It seems to me that, as the object of the treatment of the leaves was to prevent decomposition and to retain or restore their

original appearance, they are more appropriately included in the category of artificial or ornamental leaves, and cannot be classed as an article of manufacture. The wreaths of leaves, it is true, were made in part of metal; that is, the leaves were suitably attached to a circular thin wire frame. The collection of leaves in a wreath was not a transformation or alteration of them, and the wire attachment certainly was not a component part of the wreath, but it seems to have been merely an incidental part thereof. No new branches or parts were added. The treatment did not result in a change of the leaves from their former appearance. There was no advance in manufacture in the sense that the process of preservation destroyed the original articles or made them useful for other purposes or altered their trade designation. Hartranft v. Wiegmann, 121 U. S. 609, 7 Sup. Ct. 1240, 30 L. Ed. 1012.

In the cases of In re Sheldon, G. A. 4,247 (T. D. 19,982), and G. A. 4,560 (T. D. 21,625), which counsel for the importer points out were followed by the Circuit Court in the cases of G. W. Sheldon & Co. v. United States, No. 3,364 (T. D. 26,101), and No. 3,281 (T. D. 26,462), single palm leaves that had been chemically treated were held to be dutiable under paragraph 449 as manufactures of palm leaf, but the question as to whether such articles were dutiable under paragraph 425 was not presented or considered in those cases.

The principle of De Jonge v. Magone, 159 U. S. 562, 16 Sup. Ct. 119, 40 L. Ed. 260, is not inapplicable, and therefore the decision of the Board of General Appraisers is affirmed.

SAHADI BROS. v. UNITED STATES.

(Circuit Court, S. D. New York. December 14, 1906.)

No. 4,218.

CUSTOMS DUTIES-CLASSIFICATION-"GHEE."

"Ghee" is within the provision for "butter, and substitutes therefor," in Tariff Act July 24, 1897. c. 11, § 1, Schedule G, par. 236, 30 Stat. 170 [U. S. Comp. St. 1901, p. 1649].

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

For decision below, see G. A. 6,307 (T. D. 27,180), in which the Board of General Appraisers affirmed the assessment of duty by the collector of customs at the port of New York.

The opinion filed by the board reads as follow:

WAITE, General Appraiser. The merchandise in question was imported from Beirut, Syria, and is an oily substance with a melting point of 75 degrees Fahrenheit, produced from the milk of sheep. It is invoiced as "salted butter," and is described by the importer in his testimony as "ghee." The testimony also shows that "ghee" may be produced from either goats' or cows' milk as well. The collector assessed duty upon the article at 6 cents per pound under Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 236, 30 Stat. 170 [U. S. Comp. St. 1901, p. 1649], providing for "butter, and substitutes therefor." It is claimed to be dutiable as "tallow," at three-fourths of 1 cent per pound, under paragraph 279; at 2 cents per pound as "lard," under paragraph 277;