Opinion of the Court. might be had on the rule of construction in respect to such grants laid down by the Court of Appeals. Langdon v. New York City, 93 N. Y. 129, 144. "But when the sovereign grants land under water, which cannot in its natural state be subjected to any of the uses to which dry land may be devoted, then a different rule of construction must be applied to the grant, so as to make it effectual for some purpose. Such a grant may be made to give an exclusive right of fishery, or of navigation, or to enable the grantee to fill up the land for wharves and docks or other buildings. The purpose may be plainly expressed in the grant; if it be not, then the intent of the parties must be ascertained from the nature and situation of the land granted and all the circumstances surrounding the grant which may properly be considered for the purpose of ascertaining such intent." Proper notice to quit was served upon the defendant, and hence it follows, that the judgment was rightfully entered against him, unless he has shown some affirmative title or right in himself. He pleads possession and use of the premises for the purposes of oyster cultivation for more than twenty years, but in order to create a title springing out of possession such possession must be adverse and exclusive, and of that the defendant makes no pretence. There was in evidence an application made by him on October 10, 1887, to the commissioner of fisheries of the State of New York for a perpetual franchise for planting and cultivating shellfish on the premises, which application was denied, and in respect to it he testified: "The lands described in that exhibit are the lands embraced in this suit. These are the lands I occupy now. I did not get any grant on that application. The town put in a demurrer. When I commenced to plant oysters on these grounds, I claimed that the bottoms were owned by the State. I do yet. I don't claim to own the ground at all. In the year 1867 I planted probably well, I never measured. I staked off a square what I thought would be competent to hold 3000 bushels or 2500, the amount I had money enough to buy and plant on it, indiscriminate of the number of acres. I didn't plant more than 3000 bushels then. I did not plant Statement of the Case. more than ten acres in 1867. I don't think I planted more than ten acres in 1868." In other words, all that he claims is that he had an implied license from the State, but such license (if one existed) was subject to revocation, and was revoked by the notice served upon him by the plaintiff, to whom the State had ceded all its rights. These are the material questions in the case, and in the decision of them there was no error. Therefore the judgment is Affirmed. MR. JUSTICE WHITE was not a member of the court when this case was argued, and took no part in its decision. SEEBERGER v. CASTRO. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 296. Submitted March 19, 1894,- Decided April 16, 1894. The purchaser of an imported article in bond, pending an appeal from the assessment of duties upon it which is subsequently overruled, can, on paying the duties as assessed, maintain an action in his own name against the collector to recover an excess in the payment exacted. Hager v. Swayne, 149 U. S. 241, distinguished. Tobacco scrap, consisting of "clippings from the ends of cigars and pieces broken from the tobacco, of which cigars are manufactured in the process of such manufacture," "not being fit for any use in the condition in which the same are imported, and their only use being to be manufactured into cigarettes and smoking tobacco," was, under the tariff act of March 3, 1883, c. 121, subject to a duty of 30 per cent ad valorem as unmanufactured tobacco, and not to a duty of 40 cents per pound as manufactured tobacco. THE defendant in error (plaintiff below) sued to recover duties which, he claimed, had been illegally exacted on certain importations of tobacco. The case, by stipulation, was submitted without the intervention of a jury. The court found Counsel for Parties. the facts to be as follows: The Rayner & Baxter Cigar Company imported the tobacco in question, which consisted of "clippings from the ends of cigars and pieces broken from the tobacco of which cigars are manufactured in the process of such manufacture, the said clippings and pieces not being fit for any use in the condition in which the same are imported, and their only use being to be manufactured into cigarettes and smoking tobacco." The collector assessed upon the tobacco a duty of forty cents per pound, under Rev. Stat. § 2502 as amended by the act of March 3, 1883, c. 121, 22 Stat. 488, 491, 503, which took effect on March 3, 1883, including it within the terms of the fifth paragraph of Schedule F of that act, which reads as follows: "Tobacco, manufactured, of all descriptions, and stem tobacco, not specially enumerated or provided for in this act, forty cents per pound." The importer seasonably protested, contending that the tobacco was not dutiable under the above paragraph of Schedule F, but was so under the seventh paragraph of the same, which reads as follows: "Tobacco, unmanufactured, not specially enumerated or provided for in this act, thirty per centum ad valorem." From an adverse ruling of the collector an appeal was duly brought to the Secretary of the Treasury. Pending this appeal, the importer sold the tobacco, in bond, to the plaintiff below, who, upon the affirmance of the collector's ruling by the Secretary, paid the duties, and in due time brought this suit to recover. Upon the facts thus found the defendant asked the court to rule, first, that the plaintiff, as purchaser pending the decision of the Secretary, could not maintain the suit; second, that the defendant was, as a matter of law, entitled to a judgment. Reserving these questions, which were adversely decided, the defendant brought the case here. Mr. Assistant Attorney General Whitney for plaintiff in error. No appearance for defendant in error. VOL. CLII-3 Opinion of the Court. MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court. That a stranger, suing solely on an assignment of a claim from those who did not see fit to prosecute it themselves, cannot recover duties averred to have been illegally assessed, is settled by Hager v. Swayne, 149 U. S. 242. That case, however, has no application to the present one because the facts of the two are different. Indeed, in Hager v. Swayne, reference was made to this case as then reported, 40 Fed. Rep. 531, and we said: "Castro had purchased the merchandise of the importer while it was in bond, and pending an appeal, and after the decision of the appeal paid the duties assessed in order to obtain possession of the property, and thereupon brought the suit, the purchaser obtained an interest in the thing itself" - thus plainly distinguishing between the case of an assignment of a claim, as exemplified in Hager v. Swayne, and the case of an assignment of the thing, such as is here involved. Whether such tobacco as that with which we are here concerned is manufactured, in the sense of the word as used in the tariff act of 1883, is a question which has given rise to some contrariety of opinion. Attorney General Brewster, on January 25, 1884, held that it was, reaching his conclusion by a comparison of the provisions of the tariff act with those of certain internal revenue laws, holding that the two were in pari materia, and hence that the classification of tobacco scraps as manufactured tobacco in the internal revenue laws must be taken to indicate the intention of Congress to include them under the head of manufactured tobacco in the tariff law. 16 Ops. Attys. Gen. 646. On the other hand, in Cohn v. Spalding, 24 Fed. Rep. 19, decided May 26, 1885, the Circuit Court for the Northern District of Illinois decided that scrap tobacco was not manufactured within the meaning of the tariff act of 1883. And in a still later case, which arose under the provisions of the tariff act of 1890, Sheldon v. United States, 55 Fed. Rep. 818, it was held by the Circuit Court of Appeals for the Seventh Circuit that scraps like those Opinion of the Court. now in question were manufactured tobacco within the meaning of that act, the court calling attention to the fact that these scraps had a commercial value, and were the subjects of importation in the way of business. It seems to us, however, that both the meaning of the word "manufactured" and the analogy of the internal revenue provisions require us to hold that these scraps are not manufactured tobacco. The court below found in this case that the scraps were "clippings from the ends of cigars and pieces. broken from the tobacco of which cigars are manufactured in the process of such manufacture; that said clippings and pieces are not fit for any use in the condition in which the same are imported, and that their only use is to be manufactured into cigarettes and smoking tobacco." It is thus evident that the clippings are the mere waste resulting from a process of manufacture, and not in themselves manufactured articles. In Lawrence v. Allen, 7 How. 785, 794, the process of manufacturing was defined to be "making an article either by hand or machinery into a new form, capable of being used and designed to be used in ordinary life." A like view of what constitutes an article of manufacture had been previously announced by the Court of King's Bench: "The word 'manufacture' has been generally understood to denote either a thing made which is useful for its own sake and vendable as such," etc. Rex v. Wheeler, 2 B. & Ald. 349. In Holden v. Clancy, 58 Barb. 590, the test of whether an article was manufactured is thus defined: "A manufacture is defined as the process of making anything by art, or of reducing materials into a form fit for use by the hand or by machinery; and it seems to imply a proceeding wherein the object or intention of the process is to produce the article in question. The residuum or refuse of various kinds of manufactories is more or less valuable for certain purposes, and may be, and often is, the subject of sale; but it is not expected that the skill and attention of the manufacturer is to be devoted to the quality of the refuse material. This is not the object of the process, and its quality is wholly subordinate and disregarded, when attention to it would interfere with the most profitable mode or material to |