PLATT, District Judge.
The importations in controversy consisted of sugar, and were classified according to a so-called “settlement test.” It is not disputed that settlement tests are polariscopic tests; and when the Board say in their decision “it does not appear that any polariscopic test was ever made,” they probably mean that no test in accordance with the regulations was ever made. No settlement test could have been made, except by comparing and averaging polariscopic tests made by two experts, one representing the seller and the other representing the buyer.
The protestante fought to a finish another phase of the general contention (U. S. v. Bartram Bros., 65 C. C. A. 557, 131 Fed. 833), in which they insisted that the commercial tests were indispensable, and that tests in accordance with the treasury regulations were unfair and unlawful. They did not succeed in that contention, and, abandoning- tlieir protests in that respect, they still complain because the very test was used, which they had long insisted was the only proper one to he employed. The importers agreed to accept the settlement tests as the basis for levying duty, and the Secretary of the Treasury authorized their use by a definite order. There is nothing in the record which will warrant me in spelling out any fraud on the part of the examiner in obtaining the settlement tests from Dr. Sherer, or in getting his agreement as the duly authorized agent of the protestan! to have them used. It would be a horrible miscarriage of justice at this late day, when all possible means for reaching the necessary facts have been lost, to decide that the assessment was invalid.
The decision of the Board of General Appraisers is affirmed.