be no cargo, a manifest in duplicate so stating.

The manifest will be sworn to

by the master before the collector, who will indorse thereon his certificate of clearance and will deliver one copy to the master and retain the other for his office files.

The master or owner of every vessel shall file a report at the end of each month with the collector of customs in each customs district in which he has had transactions, showing the whole cargo for domestic ports which he has laden or unladen during the month. This report must be under oath and should be on the form or forms provided for the purpose.

(In the marginal citation add "Act of July 3, 1926." Strike out in marginal citation "R. S. 3116 and 3117.")

(92819-178.)

CARL T. SCHUNEMAN, Assistant Secretary.

(T. D. 42036)

Foreign currencies-Rates of exchange

Rates of exchange certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under the provisions of section 522 (c), tariff act of 1922

TREASURY DEPARTMENT, March 14, 1927.

To Collectors of Customs and Others Concerned:

The appended table of the values of certain foreign currencies as certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under the provisions of section 522 (c) of the tariff act of 1922, during the period from March 3 to 9, 1927, inclusive, is published for the information of collectors of customs and others. concerned. (103512.)

L. C. ANDREWs, Assistant Secretary.

Values of foreign currencies as certified to the Secretary of the Treasury by the Federal Reserve Bank of New York under the provisions of section 522 (c), tariff act of 1922

EUGENE NEUMAIER & Co. (INC.) v. UNITED STATES

1. Clerical error, as distinguished from manifest clerical error, must be established by competent evidence.

2. The record examined, and found to contain no admission by the collector of clerical error, nor testimony in support thereof.

.

3. The responsibility of reliquidating or refusing to reliquidate is by law reposed in the collector, and admissions of departmental officials at Washington, at least so far as the issues involved in the case at bar are concerned, can not bind the Government.

United States Customs Court

Third Division

Protest 115138-G against the decision of the collector of customs at the port of New York [Affirmed.]

(Decided March 9, 1927)

Walden & Webster for the plaintiff.

Charles D. Lawrence, Assistant Attorney General, for the United States. Before WAITE, ADAMSON, and YOUNG, Justices; ADAMSON, J., dissenting

YOUNG, Justice: The merchandise consists of Irish point curtains invoiced for a total of 2,599.65 paper francs, which included a 5 per cent commission. The merchandise was entered with a deduction of 13.75 paper francs for consular fee, but no deduction was made covering the commission item. Duty was assessed on the entered

value. Reliquidation was requested upon the ground of clerical error, and the protest herein was filed against the refusal of the collector to reliquidate.

Manifest clerical error was neither claimed nor shown.

No evidence was offered in support of the allegations contained in the protest, but it is contended that no such evidence was necessary because the importer was misled by department letters and because the appraiser reported that the 5 per cent commission was a purchasing commission and that full market value would be covered if the commission were deducted.

We find nothing in the department letters likely to mislead the importer, much less attorneys of long practice at this bar. Departmental officials at Washington are not parties to this action, and the defendant is not bound by their admissions, either express or implied, even if there were such admissions of clerical error, which the letters in fact do not show. Consequently such letters are not competent evidence in this cause. Nor was there any admission of clerical error contained in the report of the appraiser made after the protest had been filed. The collector would not have been bound by it even if there had been such a report. It is noticeable, too, that the appraiser appraised the merchandise at the entered value.

When the collector refused to reliquidate and the plaintiff filed its protest alleging clerical error the question of clerical error was placed squarely in issue. No proof in support thereof having been offered, the protest is overruled.

Let judgment be entered accordingly.

DISSENTING OPINION

ADAMSON, Justice: The protest in this case presents a model protest under the new provision in section 514 of the act of 1922 against the refusal of the collector to reliquidate for a clerical error discovered within a certain prescribed time. The merchandise was entered December 10, 1924. On June 9, 1925, the importers through their counsel addressed the following letter to the collector of customs at the port of New York:

We hereby request a reliquidation of the entry below for a clerical error discovered within one year after the date of entry under section 514, tariff act of 1922. The error consisted of the addition by mistake of one of the clerks in the office of the customhouse broker, M. J. Corbett & Co., of a 5 per cent commission for St. Gall curtains or other merchandise purchased through a commissionaire. This commission should have been deducted, as it is clearly nondutiable.

On June 30, 1925, the assistant collector at the port of New York addressed the following letter to importers' counsel:

I inclose copy of a decision by the Director of Customs dated June 25, 1925, on your application for the reliquidation of entry 782897, S. S. Nieu Amsterdam,

November 10, 1924, in the name of E. Neumaier & Co. (Inc.), and refund of the duties assessed on a so-called commission charge said to have been erroneously included in the entered declaration of value.

In view of the decision of the department holding that commissions are not uniformly nondutiable charges and that the reduction of the entered and appraised value is specifically prohibited by sections 489 and 503 of the present tariff act of 1922, this office affirms the assessment as made and declines to make the reliquidation as requested by you.

The copy of the decision of the department referred to in the letter just copied was written by E. W. Camp, Director of Customs, addressed to the collector of customs at New York and is as follows:

Receipt is acknowledged of your letter of the 19th instant (5D-S/O’C), transmitting an application of Walden & Webster, attorneys for Eugene Neumaier & Co., for correction of a claimed error in entry 782897 of November, 1924.

The entry covers one case of Irish Point curtains invoiced at a total cost of 2,599.65 paper francs, which amount was carried to the entry and reduced by a deduction of 13.75 francs for consular fees. The appraiser approved the entered value.

The applicants claim that a 5 per cent commission was included in the entered value through error. As commissions do not fall within a class of uniformly nondutiable charges, the department is unable to hold that its inclusion in the entered value, in the absence of a definite indication on the entry record of an intention to exclude it, constitutes a manifest clerical error. It is accordingly without authority to reduce the entered value.

Furthermore, the appraiser having approved the entered value, such value became final and binding, as the appraiser valued in the absence of an appeal to reappraisement under section 501 of the tariff act. Section 503 provides that duty shall be assessed upon the value returned by the appraiser, general appraiser, or Board of General Appraisers, as the case may be.

The protest was filed July 15, 1925. It will be noted that the request for reliquidation, like the protest in the case, was a model of its kind. It fully stated the case in exact conformity with the provisions contained in section 514 of the tariff act. It clearly stated how a clerical error occurred and what the error was, to wit: A 5 per cent commission, nondutiable. Purchased through a commissionaire. The importer had a right to have action on that claim if the facts stated were not denied. The collector did not deny the allegations of fact, but based his refusal to reliquidate on entirely different grounds. The entirely irrelevant statement that commissions are not uniformly dutiable, taken with the failure to deny the real allegations in the letter, was calculated to mislead the importer into believing that the allegation was admitted, as avoidance was undertaken on another ground. The letter from the department bears out that idea. In addition to that statement relied on by the collector, the Director of Customs makes the further suggestion that the entry should itself show an intention to include it in order to constitute a manifest clerical error, and the further irrelevant suggestion that there was no appeal to reappraisement. How reappraisement could have relieved the importer from the consequences

of such clerical error is not apparent, and the general conclusion that the law forbids taking duty on less than the entered value is not only irrelevant but befogs the issue.

As the collector refers to the department letter, the collector's answer to the protest must be understood in the light of that letter. Without any reference to the allegations in the case, which are neither admitted nor denied, the collector proceeds to describe the entry and the deduction and the approval by the appraiser, but he does say that according to the report of the appraiser the "5 per cent commission is a purchasing commission, full market value would be covered if the same is deducted," and then by various citations he justifies liquidation at the entered and appraised value. Practice of law should be fair, if not legal, and every effort should be made to make it legal, and whenever no violence is done to the law, fair construction should always endeavor to render justice.

The collector's statement, "5 per cent commission is a purchasing commission, full market value would be covered if the same is deducted," is copied from the report of the appraiser, June 13, 1925. The invoice shows that the commission of 5 per cent was included in the aggregate. The whole question is, under the evidence, should the case be considered as proved. There had been a succession of misleading views and acts throughout the case. The clerk misled every body by marking the jacket "Entered value" and placing it so as to sound that way on the calendar. It is plainly a case under the new provision contained in section 514, authorizing the importer o protest the refusal of the collector to grant a request made undercertain prescribed circumstances to reliquidate for the correction of a clerical error. It has no reference to entered value. It has no reference to manifest clerical error. In order for an importer to succeed on that protest properly filed, the following facts must be established: That he made the request with proper allegations; that he satisfied the collector of the truth of those allegations and that the collector refused to reliquidate in order to correct the clerical terror claimed to have been made.

Divesting the case of all the irrelevant matter herein before set out, and coming square to the issue, we find that a plain proposition was made to the collector with categorical statements of fact. The collector took the letter and, relying on instructions from the department, refused to reliquidate, basing his refusal on grounds entirely foreign to the case clearly presented therein. The only rational construction the importer could place on that was that the collector acquiesced in the allegations made but declined for other reasons stated. We have the entire record before us. We have a right to consider those facts, the reply of the collector, the erroneous instruction of the department, the way in which the collector treated the