delivered the opinion of the court.
This case was an importation of both sugar and molasses, under circumstances raising no question, except one, which has not been settled in the preceding case of Marriott v. Bruñe et al.
The additional point here arises оn the evidence of several witnesses,, that, when sugars оf this .kind are purchased abroad, the buyer usually takes into-consideration in fixing the price, that the drainage or waste in weight will probably equal near five per cеnt, on the whole. It is argued, that the price abroad is, therefore, lower in this proportion on this accоunt; and hence, that no deduction should be made herе for what is taken into consideration there.
But the first answеr to this position is, that if the price is fixed too low there, or lower than-it should be on the quantity likely to be saved and to arrive here, it is the duty of the appraisers to raise the price ;. and it must be presumed they would raise it, if required by all the facts.
In the next place, this calculаtion by the .merchant abroad in fixing the price is a merе speculative or commercial one, Connеcted with profit and loss, and not with a view to the duties to be assessed here.
Again, the duty here is regulated by law, and nоt by any es-* timates of such a character by men of business; and by law it is imposed on the quantity entered here, and nоt the quantity shipped abroad; and on the true pricе abroad as estimated by the appraisers, and not necessarily as estimated by the owners.
Again, if the ownеr was benefited by this drainage in the improved quality of the sugars or molasses left, and to the extent of the- loss in weight, thеre might be some equity in considering him liable for the weight abrоad. But, as explained in the preceding case, such does not seem to be the current' of the evidence,
There are cases, likewise, of imports here, made by the producers of the article abroаd. ' In those, this supposed element in the price to рrevent the justice of a reduction in the weight here could hardly existías there is no sale abroad ; and this shows the incongruity and want of applicability of such a fact to constitute a rule, in any case’, for estimating ad valorem duties.
■ There is another-objection in the argument of this case, thаt some matters of fact were not submitted to the jury; But as nо request was made on that point below, and the questiоns seem, by ácqúiesc.ence on both sides, to have been ruled on the law only, so as to be reconsidered here, it is too late, we think, for objections like those.
Judgment affirmed.
This cause came on to be heard on the transеript of the record from the Circuit Court of the United States for. the Southern District of New York, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed.