Opinion of the Court.

article of food, and not as an addition to anything to give zest to it, and was used only in a distinct forın, as in a sandwich or the like; and on cross-examination testified that "he had often eaten the same articles as those in suit with a cracker or cake, eating the paste alone first and the cracker afterwardsprobably within thirty seconds after — as soon as he was able to swallow." The two other witnesses testified that it had a spicy flavor, and would induce hunger and thirst, and was used as an appetizer before a meal. The witnesses also testified that they dealt in the article known as "anchovy sauce" or essence of anchovies," which was a liquid, and altogether different from these pastes, and never eaten alone or as an addition to bread, but as a condiment.

66

At the close of the plaintiffs' evidence, the court, upon motion of the defendant, directed a verdict for him, upon the grounds that "the plaintiffs had not proved facts sufficient to entitle them to recover;" that "the term 'sauces of all kinds,' in the tariff act, was a descriptive term of ordinary use, to be taken in its ordinary meaning, and not in any restrictive or trade meaning," and that "the ordinary use of the term 'sauces' included the articles in suit." 40 Fed. Rep. 226.

A verdict was returned accordingly, and judgment entered thereon; and the plaintiffs tendered a bill of exceptions, and sued out this writ of error.

Mr. Everit Brown for plaintiffs in error.

Mr. Assistant Attorney General Whitney for defendant in

error.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The word "sauce," as commonly used, designates a condiment, generally but not always of liquid form, eaten as an addition to and together with a dish of food, to give it flavor and make it more palatable; and is not applied to anything which is eaten, alone or with a bit of bread, either for its own

VOL. CLI-40

Opinion of the Court.

sake only, or to stimulate the appetite for other food to be eaten afterwards. For instance, cheese eaten with bread, or ham or chicken eaten in a sandwich, or anchovies or herrings, caviare or shreds of salt fish, eaten, whether with or without bread, as an appetizer before a meal, would hardly be called

a sauce.

In the dictionary of Webster, referred to at the trial, the primary definition of "sauce" is accordingly given as "A mixture or composition to be eaten with food for improving its relish; a relishing condiment; appetizing addition to the principal material of a dish." In a later edition, there is given, by way of additional definition, "Stewed or preserved fruit, eaten with other food as a relish; as apple sauce, cranberry sauce, etc."

In the tariff act of 1883, the clause relating to "sauces of all kinds," (unless affected by other clauses in the act, or by commercial usage,) may well be held to include all substances, whether solid or liquid, fairly coming within either of these two definitions. But the second definition has no application to the present case.

The three clauses, mentioned in argument as possibly applicable to the goods in question, are arranged in the act in a natural order, beginning with the most specific and restrictive, and ending with the most general; first, "anchovies," "imported in any other form" than "packed in oil or otherwise" in small tin boxes, forty per cent ad valorem; then, "all other fish, prepared or preserved," "not specially enumerated or provided for in this act," twenty-five per cent ad valorem; and lastly, "sauces, of all kinds, not otherwise specially enumerated or provided for in this act," thirty-five per cent ad valorem. 22 Stat. 503, 504. Any article which comes within two or more of these descriptions must therefore be assigned to the earlier one. Homer v. The Collector, 1 Wall. 486; Reiche v. Smythe, 13 Wall. 162; Seeberger v. Cahn, 137 U. S. 95; American Net & Twine Co. v. Worthington, 141 U. S. 468.

At the trial, the plaintiffs introduced evidence that the goods in question were manufactured out of anchovies or

Opinion of the Court.

bloaters, ground up and spiced; were used as food, in a distinct form, or as an appetizer, principally in a sandwich, or sometimes with a cracker, and not as a condiment; and were specifically known as "anchovy paste" and "bloater paste; and that, in trade and commerce in 1883 and previously, the word "sauces" was applied to liquids only, and not to these pastes.

The Circuit Court, in directing a verdict for the defendant, ruled, in substance, that as matter of law, and without regard to commercial usage, these articles came within the words 66 sauces of all kinds" in the tariff act. We are unable to concur in that view; or to say, either of our judicial knowledge, or in view of the evidence introduced, that these articles are necessarily "sauces" of any kind; still less, that this is so clear as to exclude the usual test of commercial designation. Cadwalader v. Zeh, 151 U. S. 171, 176.

On the contrary, we are of opinion that the evidence of the nature and the use of these articles, and of their commercial designation, would have warranted a jury in finding that they were not "sauces," and were "fish, preserved or prepared." If that fact were proved, it would follow that, as such, the bloater paste, at least, was subject to the duty of only twentyfive per cent ad valorem; but a question might arise, which does not appear to have been considered at the trial, whether the anchovy paste was not subject to a duty of forty per cent ad valorem, under the earlier and more specific clause of the act, as "anchovies" "imported in any other form" than packed, in oil or otherwise, in small tin boxes.

Judgment reversed, and case remanded to the Circuit Court with directions to set aside the verdict and to order a new trial.

MR. JUSTICE JACKSON did not hear the argument, and took no part in the decision of this case.

Statement of the Case.

SALTONSTALL v. RUSSELL.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

By the submission of a case to the judgment of the Circuit Court upon an agreed statement of facts, all questions of pleading are waived; and no finding of facts by the court is necessary.

By sections 2931 and 3011 of the Revised Statutes, as amended by the act of February 27, 1877, c. 69, if at the first port of entry, not being one of the ports at which the statutes authorize goods to be imported and shipped through without appraisement, goods imported by sea are entered for warehousing and immediate transportation by the same vessel to another port and are transported accordingly, and the duties thereon are assessed by the collector at the first port, and again by the collector at the second port and paid by the importers to the second collector to obtain possession of the goods, no part of the duties can be recovered back in an action by them against him, unless due protest is made within ten days after the decision of the first collector as to the rate and amount of duties.

THIS was an action, brought May 15, 1888, against the collector of customs for the port of Boston and Charlestown, to recover back duties exacted by him, and paid under protest, upon blueberries imported by the plaintiffs from New Brunswick. No answer was filed. But the case was submitted to the decision of the Circuit Court upon a statement of facts, in which it was agreed that the regulations of the Treasury Department might be referred to, and that the court might enter judgment as the law required upon the facts stated, which were in substance as follows:

On October 22, 1887, the plaintiffs imported from New Castle in the Province of New Brunswick, into the port of Eastport in the State of Maine, upon the steamship Cumberland, running regularly between St. John in New Brunswick, Eastport, and Boston in the State of Massachusetts, five hundred cases of canned blueberries, consigned to John Thompson, the master of the steamship, to be by him entered at the customhouse at Eastport, and thence to be immediately transported

Statement of the Case.

in bond to the port of Boston, consigned to the plaintiffs; and the goods were duly entered by him, as agent of the plaintiffs, at the custom-house at Eastport, for warehouse and immediate transportation, without being removed from the steamship. On the same day, the duties were assessed by the collector at Eastport, and the amount of duty fixed at $144, being twenty per cent of $720, the value of the blueberries, cases, cans, and cost of packing, added together, that being the amount of the entered value, as stated in the invoice. The value of the blueberries was $315, the value of the coverings was $330, and the cost of packing them $75. The cases were made of wood; each case contained twenty-four cans, made of tin; and each can contained one and a half pounds of blueberries. Both the cases and the cans were the usual and necessary coverings of such goods, and were not of any material or form designed to evade duties thereon, nor designed for use otherwise than in the bona fide transportation of the goods to the United States.

The goods were immediately transported by the same steamship to Boston. Upon examination of the goods by the United States appraisers in Boston, they reported to the defendant that the dutiable value of the same was $315, being the cost of the blueberries, without including the value of the coverings, or the cost of packing them; and the defendant wrote to the collector at Eastport, calling his attention to the fact that he had included the value of the coverings in his assessment; but he refused to correct it. Thereupon the defendant reported the case to the Secretary of the Treasury, informed the collector at Eastport of the fact, and meantime suspended the entry. On November 11, 1887, the Secretary of the Treasury wrote a letter to the collector at Eastport, instructing him to make the correction.

On November 18, 1887, the plaintiffs entered the goods at the custom-house in Boston for rewarehousing and withdrawal; and the defendant assessed the duties thereon, for the same amount and made up of the same items as the collector at Eastport, and exacted payment of the same from the plaintiffs. They contended that the merchandise was subject to a duty of