Page:Federal Reporter, 1st Series, Volume 8.djvu/244

 230 FEDERAL REPORTER. �and the purchaser, the deduction be one authorized by law, the shipper or importer would, of course, be entitled to it on the face of his invoice. �I conclude, therefore, as already stated, that the discount or draw- back must be one actually allowed to the purchaser, or absolutely authorized by law. In this case it was neither. It waa not allowed to the Schlitz Brewing Company ; for not only does the bill rendered to it by the claimant show that the purchaser was charged for the malt at the contract price, namely, one dollar per bushel, but the oral testimony shows that there was no deduction made or to be made for dust in the amount which the brewing company was to pay. The parties did not contract with reference to any such deduction. Look- ing next for statutory authority to make the deduction, without refer- ence to the contract of the parties, it is found to be wanting. Some of the testimony tends to show that in London malt is sold at a cer- tain price, less a certain per centage for dust. Other testimony tends to show that in other localities in Canada no such discount is made. Taking the proofs as a whole, I am of opinion that no established custom or usage is shown, but that it must be regarded as purely matter of contract between sellera and purchasers as each trans- action arises. In this case, therefore, I think it can hardly be claimed that the question of deduction for dust entered into the value of the malt so as to make its general market value, at the time of exportation in the principal markets of Canada, 80 cents per bushel, less 2J per cent, for dust, and thereby sanction the discount as an element entering into the fact of market value, and therefore author- ized by law. �But it appears as a fact in the case that this deduction was not objected to, but on the contrary appears to have been tacitly sanc- tioned by the consular agent at London and the collector of the port at Port Huron; and the testimony shows that at the latter port, and at other points of entry on the frontier, the claimant had previously made varions shipments of malt under invoices containing the same deduction for dust, which were passed without objection; and it is contended, not without a good deal of force, that since the practice bas been recognized and treated as regular by the customs offieers with whom the claimant bas previously dealt, the present proceeding to enforee a forfeiture of his property, on theground that the deduc- tion is one not authorized by law, does not accord with justice and Icgal right. If the court were at liberty to deal with the case in the light of what appear to be equitable considerations, such as that just ��� �