only for the excess over and above 3 per cent., the allowance here should have been, not for 5, but for the excess

213. Straw, 50 cents per ton.

above 3, per cent., namely, 2 per cent. U. S. v. Baker Castor Oil Co. (1911) 2 Ct. Cust. App. 338.

1. Beans and lentils.

2. Beets, sliced and kiln-dried.

3. Cucumbers and cauliflower, packed in salt.-Cucumbers and cauliflower packed in salt, held not dutiable as vegetables in their natural state. See paragraph 200.

4. Fungus.-An edible fungus, that grows on the bark of trees and has been merely dried and packed loose, bears a greater similitude to vegetables in their natural state, enumerated in Act 1897, par. 257, than to mushrooms prepared, enumerated in paragraph 241. Sun Kwong On v. U. S. (C. C. 1909) 176 Fed. 930.

5. Melon seeds roasted.-Melon seeds roasted held not dutiable as vegetables. See paragraph 385.

6. Mushrooms. Evaporated mushrooms held dutiable as vegetables in their natural state. See paragraph' 199.

7. Onions. In passing Act 1897, par. 249, where onions are made dutiable "per bushel," congress must be assumed to have known the practice of the treas

ury department to consider 57 pounds as a bushel and to have intended to accept that as a standard. Hills Bros. Co. v. U. S. (1906) 151 Fed. 476, 81 C. C. A. 14, affirming judgment (C. C. 1906) 143 Fed. 695.

8. Tomatoes.-Tomatoes are "vegetables," rather than "fruits," in the common and popular acceptation of such words, and were not free of duty under the provision of the free list for "fruits, green, ripe, or dried," but dutiable under Act 1883, as "vegetables in their natural state." Nix v. Hedden (1893) 13 Sup. Ct. 881, 882, 149 U. S. 304, 37 L. Ed. 745, affirming (C. C. 1889) 39 Fed. 109.

9. Yams.-In Act 1897, Free List, par. 704, the provision for "yams" includes a vegetable (pueraria roots) which, though not scientifically known as a yam, has always been so called in the trade that deals in it, and was the only vegetable so known that was imported prior to the passage of the act. Kwong Yuen Shing v. U. S. (C. C. 1909) 175 Fed. 317.

A leguminous plant of the genus Pueraria, grown in China, though occasionally designated a "yam" in commerce, as such designation is not definite, uniform, and general, held not a yam, but dutiable under paragraph 257, Act 1897, as a vegetable in its natural state. U. S. v. Kwong Yuen Shing (1910) 1 Ct. Cust. App. 14.

10. Wai san.-Wai san, an edible root used by the Chinese as a vegetable, held because edible, removed from the provision for "drugs," in Act 1897, par. 20, and dutiable as "vegetables," under paragraph 257. Wing On Wo v. U. S. (C. C. 1909) 175 Fed. 891.

(affirming judgment [C. C. 1909] 172 Fed. 295); Loggie v. Same (1905) 137 Fed. 813, 70 C. C. A. 433; Wieland v. Collector of Port of San Francisco (1900) 104 Fed. 541, 44 C. C. A. 23; La Manna v. U. S. (1895) 67 Fed. 233, 14 C. C. A. 381; U. S. v. Yamashita (C. C. 1910) 175 Fed. 1018; L. Gandolfi & Co. v. U. S. (C. C. 1907) 152 Fed. 656; Harvey v. Same (C. C. 1905) 137 Fed. 816, judgment reversed U. S. v. Harvey & Outerbridge (1906) 142 Fed. 1039, 71 C. C. A. 685; Reiss v. U. S. (C. C. 1902) 113 Fed. 1001; Meyer & Lange v. Same (C. C. 1900) 124 Fed. 293; Leggett v. Same (C. C. 1900) 99 Fed. 426; In re Wieland (C. C. 1899) 98 Fed. 99; Meyer v. U. S. (C. C. 1898) 86 Fed. 120; Reiss v. Magone (C. C. 1889) 39 Fed. 105; U. S. v. Yamashita (1911) 1 Ct. Cust. App. 341.

3. Fish boned.-Salmon from which large part of backbone had been removed held not dutiable as fish boned. See paragraph 483.

The term "boned," according to its common signification, does not necessarily mean boneless, but substantially freed of bone. Whether or not an article is boned cannot be determined by the process employed. A process, for instance, which will render a flat fish like the halibut boned may not have the same result when applied to a fish of different anatomical construction, such as the salmon. Woodward & Son v. U. S. (1915) 6 Ct. Cust. App. 372.

4. Fish roe or caviar.-Fresh roe packed in tins after running through solution of brine held not dutiable as fish roe preserved for food purposes. See paragraph 478.

Fish roe, or caviar, in tin packages, held by virtue of the similitude clause of Act 1897 dutiable at the rate applicable to fish in tin packages, enumerated in paragraph 258, which article it resembles in quality, texture, and use, especially use, within the meaning of said section. Menzel & Co. v. U. S. (1906) 142 Fed. 1038, 71 C. C. A. 685, affirming judgment (C. C. 1904) 135 Fed. 918.

The constant presence and application of heat or cold as an arresting agency of decomposition does not constitute preservation. Moscahlades Bros. v. U. S. (1915) 6 Ct. Cust. App. 399.

Fish roe, salted sufficiently to preserve it during the winter, but not during the summer, in the climate of New York, is not "preserved" within the meaning of paragraph 216, Act 1913. Id.

When fish are dried, whether by means of the heat of the sun or otherwise, being thereby saved from decomposition for a substantial period of time, they are "preserved" within the common meaning of that term. U. S. v. Kagawa & Co. (1914) 5 Ct. Cust. App. 388.

The term "preserved" in paragraph 270, Act 1909, does not bear a restricted interpretation, and the provision there for "caviar, and other preserved roe of fish" was intended to classify all fish roe, which had been treated in any manner for preservation for food purposes, as preserved fish roe. Id.

An examination of the legislative record shows that the "situation as it existed" was known when the paragraph making caviar dutiable under Tariff Act 1909 was "pressed upon the attention of the legislative body"; and the words "other preserved" employed in that paragraph are not to be taken to defeat a manifest intention of the congress, and there being no evidence to show what process the caviar of the importation may have been subjected to, it was dutiable under paragraph 270, Act 1909. U. S. v. American Express Co. (1911) 2 Ct. Cust. App. 25. See, also, Kelly v. People (1890) 24 N. E. 56, 132 Ill. 363; U. S. v. Cohn (1899) 52 S. W. 38, 2 Ind. T. 474; Hubbard v. City of Taunton (1886) 5 N. E. 157, 140 Mass. 467.

5. Fish skinned and boned.-Herring in tins, which have been pickled, salted, skinned, or boned, held dutiable as "fish * * * in tin packages," under Act 1897, par. 258, rather than as "herrings, pickled or salted," or as "fish, skinned or boned," under paragraphs 260, 261. The fact of importation in tins controls over the other conditions set forth in the two latter paragraphs. Benson v. U. S. (1907) 159 Fed. 118, 86 C. C. A. 308.

So-called cream of codfish, consisting of codfish skinned and boned, and subjected to the further process of cutting or shredding, held dutiable as "fish, skinned or boned," under Act 1897, par. 261. H. B. Teed & Co. v. U. S. (C. C. 1903) 126 Fed. 447.

Act 1897, par. 259, providing that the duty on fresh-water fish, not specially provided for in the act, shall be a quarter of a cent a pound, does not apply to skinned fish, which are provided for in paragraph 261, relating to "fish, skinned or boned." Lake Ontario Fish Co. v. U. S. (C. C. 1900) 99 Fed. 551. Boned or skinned fish, packed in tin packages, but not in oil or in oil and other substances, is dutiable as "all other fish in tin packages," at 15 per cent. ad valorem under the second clause of paragraph 216, Act 1913, and not at three-fourths of 1 per cent. per pound as "fish, skinned or boned," under the last clause. Tokstad-Burger Co. v. U. S. (1915) 6 Ct. Cust. App. 441.

6. Haddock.-As to haddock and other material combined, fish being conceded to be the article of chief value in the compound, the mixed-material clause of paragraph 481, Tariff Act of 1909, applies. It must be taken to be

cially known as preserved fruits, and is intended to apply to fruits treated so as to become a preserve or comfit, and not to such as merely remain temporarily in their natural juice. Causse Mfg. Co. v. U. S. (1906) 151 Fed. 4, 80 C. C. A. 461.

The first part of paragraph 262, Act 1897, imposing a duty per bushel on cherries and other fruits, "green or ripe," applies to those fruits, ripe or unripe, when imported in their natural condition. Id.

The term "fruits preserved in sugar," as used in Act 1883, par. 302, held, under the evidence, not a trade term having a peculiar trade meaning as applied to preserved fruits. U. S. v. Nordlinger (1903) 121 Fed. 690, 58 C. C. A. 438, reversing judgment Nordlinger v. U. S. (C. C. 1902) 115 Fed. 828, and writ of certiorari denied Id. (1903) 24 Sup. Ct. 848, 191 U. S. 575, 48 L. Ed. 308.

The words "fruits preserved in sugar, molasses, spirits, or in their own juices," occurring in paragraph 263, Act 1897, were not there employed in a commercial or trade sense, but in the sense attaching to these words in common, ordinary usage. Acker v. U. S. (1911) 1 Ct. Cust. App. 328.

Fruits and berries that are put up in hermetically sealed containers in sirup composed of invert sugar, cane sugar, glucose, dextrose, and levulose in amounts varying from 43.39 to 67.56 per cent. of the sirup, constitute fruits preserved in sugar under paragraph 263, Act 1897. Austin v. U. S. (1911) 1 Ct. Cust. App. 287.

* *

2. Preserved or prepared.-Fruit hermetically sealed in bottles, which is preserved by the sealing rather than by the sugar, etc., in the surrounding fluid, held dutiable as "fruits prepared," under Act 1897, par. 262, rather than as "fruits preserved in sugar," etc., under paragraph 263. U. S. v. Reiss & Brady (1909) 166 Fed. 746, 92 C. C. A. 408, affirming judgment Reiss & Brady v. U. S. (C. C. 1908) 163 Fed. 65.

Under Act 1897, par. 262, relating to fruits "dried, desiccated, evaporated or prepared in any manner," the scope of the expression "prepared in any manner" is not, upon the rule of noscitur a sociis, to be so limited as to embrace only fruits prepared by a drying process. Causse Mfg. Co. v. U. S. (1906) 151 Fed. 4, 80 C. C. A. 461.

The process of hermetically sealing fruit in tin cans, thus preserving it from decay until the cans are opened, constitutes "preservation," rather than "preparation"; and fruit pulp that has been cooked and subjected to such sealing process held dutiable under Act 1897, par. 263, as fruit "preserved

* in its own juices," rather than under paragraph 262, as fruit "prepared in any manner. Habicht, Braun

& Co. v. U. S. (C. C. 1910) 175 Fed. 1009.

3. Alcohol.-Under Act 1897, par. 263, relating to fruits in spirits and imposing a duty "per proof gallon on the alcohol contained therein in excess of ten per centum," the duty is to be levied on all such excess, whether absorbed by the fruit or supernatant. Mihalovitch, Fletcher & Co. v. U. S. (C. C. 1908) 160 Fed. 988.

The president's proclamation of May 30, 1898, relating to reciprocity with France, and affecting the rate of duty on brandies and other spirits, does not apply to the excess of alcohol above 10 per centum used in preserving fruits, specially dutiable under paragraph 263, Act 1897. Rheinstrom v. U. S. (C. C. 1902) 118 Fed. 303.

Under paragraph 263, Act 1897, relating to fruits in spirits which imposes a duty of $2.50 "per proof gallon on the alcohol contained therein in excess of 10 per centum," the duty is to be computed on all such excess, whether absorbed by the fruit or supernatant. Id.

There is an acknowledged difficulty in determining the precise percentage of alcohol that is necessary to constitute a preservative of cherries in maraschino, when these are packed in hermetically sealed bottles or tins; but where alcohol in amounts from 3.10 per cent. to 5.45 per cent. appears to have been used, and the evidence showing that alcohol in such proportions retards fermentation when the fruit is exposed to air, it is held this amount serves a purpose in preserving the fruit for use, the fruit was so preserved in spirits, and was dutiable under paragraph 263, Act 1897. Godillot v. U. S. (1911) 1 Ct. Cust. App. 239. See, also, U. S. v. Reiss & Brady (1909) 166 Fed. 746, 92 C. C. A. 408.

4. Berries.-Held, that the expression, "berries, edible, in their natural condition," in paragraph 262, Act 1897, means berries which are in their natural condition as imported, and are edible either in that state or after cooking, and that foxberries imported in barrels filled with water are in their natural condition, and are included within said provision in paragraph 262, and not within paragraph 559, Free List, relating to "berries, green, ripe, or dried, * not specially provided for." Boak v. U. S. (1903) 125 Fed. 599, 60 C. C. A. 335.

* *

As to foxberries in barrels, with water added to act as a cushion, so as to prevent crushing, held that, in assessing the duty "per quart," provided in paragraph 262, Act 1897, the dutiable quantity should be ascertained by the use of the dry quart and not the liquid quart. U. S. v. Boak Fish Co. (C. C. 1906) 146 Fed. 104.

5. Cherries.-Act 1897, par. 262, enumerates in the first part of the para