under paragraph 65, it is a healing or curative plaster under paragraph 66, which we here insert:

66. Plasters, healing or curative, of all kinds, and court-plaster, twenty-five per centum ad valorem.

and is therefore an enumerated article, not dutiable under paragraph 480, and therefore prays that the decision of the Board of General Appraisers be reversed and the assessment of the collector affirmed.

The importer in this court rests his case upon the contention that the merchandise should be assessed at $2 per ton as an earth, wrought or manufactured, under paragraph 90, which, as already appears, was one of the claims made in his protest. The material part of this paragraph is as follows:

90. Clays or earths, * * * wrought or manufactured, * * * not specially provided for in this section, two dollars per ton. * * *

It is apparent therefore that the real question here is, under which, if either, of paragraphs 65, 66, or 90 the importation should be classified?

Naturally we are brought to the consideration of the term "medicinal preparations," as used in paragraph 65. Do these words describe this merchandise? In United States v. Roessler & Hasslacher Chemical Co. (79 Fed., 313) the Circuit Court of Appeals, Second Circuit, said:

It is not disputed that the words "medicinal preparations" have, and always have had, the same meaning in trade and commerce as in common speech. They are descriptive, and refer to substances used in medicine, and prepared for the use of the apothecary or physician, to be administered as a remedy in disease.

This definition of the term was included in the case certified to the Supreme Court, Fink v. United States (170 U. S., 584), but the Supreme Court did not, in disposing of the certified question have occasion to consider its correctness, evidently for the purposes of that case assuming the same.

We have been referred to some, and there are a great many, cases in which it has been said that this or that article was dutiable as a "medicinal preparation," but it has not often been therein attempted to define the ordinary meaning of that term. In these cases, it has often been agreed that the merchandise under consideration was in fact a medicinal preparation, and, if the fact was controverted, it has usually appeared that the importation, either in itself or in the compounded or other form in which it was presented in the particular case, was possessed of antiseptic or therapeutic qualities.

Earth like this does not appear to have been so adjudged. Lexicographers define "silica" as, "a white or colorless, extremely hard, crystalline silicon dioxid, found pure, as quartz, tridymite, or

opal, in many rocks and sands," and as already appears the chemist in this case testified that most earth is composed largely of silica and that this importation would be correctly described as earth.

It is common knowledge that a great many articles of every day use, but which are never suspected of being, and are not in fact, medicinal preparations, are, when warm or hot, applied externally to the human body for the purpose of alleviating pain, and that the relief in such cases comes from the heat applied and exclusion of air thereby accomplished, and not from any medicinal properties in the articles so employed. This earth, which is used as a sort of mud bath, we think, is of that class, and is not a medicinal preparation within the meaning of that term as used in the paragraph.

We are not unmindful that upon cross-examination by the Government's attorney, the importer was asked the following question: Has it any medicinal properties in it-does it help to make people well if you put it on their body?

To which he answered:

Yes; in this place there are over 20,000 applications in one bathing place.

But in view of what has already been suggested, we do not think upon the whole record it can seriously be claimed that this earth is a medicinal preparation, and it surely is not a substance "used in medicine and prepared for the use of the apothecary or physician to be administered as a remedy in disease."

Neither do we think it is fairly within the scope of paragraph 66, as claimed by the Government, a plaster, healing or curative. It was not when imported a plaster in the ordinary meaning of that term; it was simply dry, finely pulverized earth.

The importer here concedes that it is dutiable as an earth, wrought or manufactured, under paragraph 90. It is an earth and has been subjected to a grinding process, which we think fairly brings it within the language of that paragraph.

The importer having made this claim in his protest, and it being now conceded by the Government that the collector's classification was erroneous and, also, in effect that the judgment of the Board of General Appraisers was not well founded, it remains for this court to order reliquidation upon the basis of the valid claim made in the protest, as was done in United States v. Strauss (3 Ct. Cust. Appls., —; T. D. 32464), and United States v. Strauss (3 Ct. Cust. Appls., -; T. D. 32621).

It is, therefore, ordered that the judgment of the Board of General Appraisers be reversed, and the cause remanded, with directions that reliquidation be had at the rate of $2 per ton under paragraph 90 of the act of 1909, in accordance with the views herein set forth.

(T. D. 33201.)

Glycerin.

UNITED STATES v. ALPERS & MOTT (No. 1044).

ANALYSIS WITHOUT SAMPLE OF THE MERCHANDISE.

There was a chemical analysis of the glycerin of the importation. Proof of this was excluded because a sample of the glycerin analyzed was not produced. To make the production of a sample a condition precedent to the admission of proof of the analysis was error. The failure to produce a sample might affect the weight, but not the competency of the evidence offered.

United States Court of Customs Appeals, February 12, 1913. APPEAL from Board of United States General Appraisers, Abstract 29966 (T. D. 32847). [Reversed.]

Brown & Gerry for appellants.

William L. Wemple, Assistant Attorney General (Charles D. Lawrence, special attorney, on the brief), for the United States.

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

The material facts necessary to a decision of this case, appearing of record, are substantially as follows: The entry was made June 1, 1911. It consisted of glycerin contained in ten iron drums, marked "A. M. S.," and was brought to this country from Germany by the S. S. Volturno.

The glycerin was described in the invoice as "crude saponification glycerin," and was, under date of August 5, 1911, returned by the appraiser as "refined glycerin according to United States chemist's report," and duty was thereupon assessed at 3 cents per pound under the last clause of paragraph 24 of the tariff act of 1909. It was before the board and is here claimed by the importers to be dutiable under the first clause in the same paragraph as "glycerin, crude, not refined."

The Board of General Appraisers found the merchandise to be as claimed by the importers and sustained their protest, whereupon the Government appealed to this court.

When the case came on for hearing before the board, neither party produced any sample of the importation. The importers, however, produced a sample of glycerin, and their evidence tended to show that it was substantially like the importation and was crude glycerin.

The assignments of error raise several questions, chiefly those relating to the admission or rejection of evidence, but we find it unnecessary to consider any except as hereinafter stated.

A chemical analysis of the glycerin was required by the appraiser in order to determine whether it was crude or refined, and his report that it was refined was based upon what was assumed to be an

analysis thereof made by a Government chemist and which showed it was refined.

A sample of the importation was drawn in the usual manner, marked, numbered, and identified as such and left with the proper officer to be forwarded to the Government chemist for analysis. There was no direct evidence that this sample reached him. The Government offered to show by the chemist, and as to his competency as an analyst there is no question, that shortly after the date when the sample was drawn and marked he analyzed a sample of glycerin which had upon it identifying numbers and marks corresponding to those which had been placed upon the sample of the importation, and also that he subjected it to such tests as enabled him to determine if it had been refined. There was no question that the chemist truly reported to the appraiser as a result of this test that the glycerin was refined or that the assessment of the importation as refined glycerin was based upon such report.

Under these circumstances the importers' counsel objected to the offered evidence, not that it did not tend to prove the identity of the sample, but because no portion of the sample examined had been retained and produced at the hearing. The board excluded the evidence upon the theory that it was incumbent upon the Government to first produce a part of the sample which the chemist had analyzed in order that the importers might have an opportunity to test the correctness of his analysis.

The importers' present claim relating to the exclusion of the evidence is best stated in the language of their brief:

If the Government had been allowed full latitude, the best that could have been accomplished by their witnesses upon their own representations would have been to show that Dr. Ozias, the chemist, was competent to determine whether glycerin was crude or refined and that he analyzed a sample of glycerin properly and found that it was refined glycerin and that he reported his conclusion to this effect in Chemist's Report No. 8881.

There is nothing in the record to show that the glycerin so analyzed and reported upon was out of the importation in question. This is a phase of the situation which the Government has entirely overlooked.

But this contention, it is obvious, begs the issue.

If the offered evidence had been received, it would have had a legal tendency to show that the chemist did examine a sample of the importation, and it appearing that his test showed it to be refined. glycerin, the evidence excluded, if admitted, would have tended to support the correctness of the collector's classification and assessment. The board then, upon the evidence of both parties, would find whether the chemist in fact analyzed a sample of the importation; and if it found he did, would give such probative effect to his analysis as in its judgment it was entitled to receive.

We think the board erred in its ruling that the Government, as a condition precedent to the admission of the evidence as to the analysis, must produce a sample of the substance analyzed. Such a failure to produce, if it was to be given any effect whatever, and that question was wholly for the board, related not to the competency of the evidence, but to the weight thereof.

The offered evidence referred to was erroneously excluded.

The judgment of the Board of General Appraisers is reversed and the cause remanded for a new trial.

(T. D. 33202.)

Horse killed while in United States under exhibition bond.

Referring to the decision of the Board of United States General Appraisers, G. A. 7412 (T. D. 33049), the department instructs the collector to cancel the entry for consumption and cause application for cancellation of the exhibition bond to be forwarded for action under T. D. 31999 of November 11, 1911.

TREASURY DEPARTMENT, February 18, 1913.

SIR: Your attention is invited to the decision of the Board of United States General Appraisers of December 27, 1912, published in G. A. 7412 (T. D. 33049), upon a protest against your collection of duty on a certain horse imported under paragraph 493 of the tariff act of August 5, 1909.

The horse was entered free of duty for exhibition purposes under that paragraph of the tariff act, and bond given for its exportation within six months. Before the expiration of that period the horse was killed on a railroad. Subsequently a consumption entry was filed, duty was collected, and the bond canceled. Thereupon the importer filed a protest which was sustained by the board in the decision cited above.

You are informed that under the circumstances the consumption entry should not have been accepted, but that upon the expiration of the six months limited in the bond, demand should have been made upon the importer for the payment of the amount named in the bond, leaving him to apply to the department for relief under T. D. 31999 of November 11, 1911.

You are therefore directed to cancel the said consumption entry, to inform the importer that he may apply to the department under T. D. 31999 for the cancellation of the bond, and to suspend refund of the duty pending action by the department upon such application. JAMES F. CURTIS, Assistant Secretary.

Respectfully,

(93223.)

COLLECTOR OF CUSTOMS, Plattsburg, N. Y.