cause of action arose would result in all cases where the debtor for two years after the loan failed to pay interest, even though he subsequently discharged the debt, principal and usury. If the final payment of the debt is the "usurious transaction" and suit must be brought in two years from that date, then there could never be a recovery in those cases where the debtor had paid usury, but was not able to pay the debt in full.

That the statute does not begin to run from the date of the loan, nor from the date of the satisfaction of the debt, but from the date interest is paid, appears from an analysis of the two classes of cases referred to in Rev. Stat., § 5198, noting that "interest paid" in the last clause is used in contradistinction to interest "reserved or charged," in the first sentence of the section. Banks may make ordinary loans and charge interest to be collected at the maturity of the note. But, as they usually reserve and deduct it in advance, by way of discount, the statute is framed so as to apply to cases where the interest is paid by the debtor as well as to those in which it is reserved by the bank. These deductions by way of discount are not treated as payments. They do not come out of the debtor's pocket, though they lessen the amount which he receives when the loan is made, and when sued he may plead usury and escape liability for the amount thus charged or retained. But, such reservation by the bank, not being a payment made by the debtor, he, of course, cannot avail himself of the right to maintain a suit given only to those who have paid interest.

But when the debtor actually makes a payment, as interest, and the bank knowingly receives and appropriates it as such, the usurious transaction is complete, the right of the one and the liability of the other is fixed, the cause of action arises and the statute of limitations begins to run. There is no locus penitentiæ. That privilege is only granted to those banks which, having charged

usury, may, by a refusal to accept interest when tendered, show that they will not carry the illegal contract into execution, and thus escape the two-fold penalty.

Those courts which hold that the statute begins to run from the payment of the debt, instead of the payment of the interest, have been influenced by statements of Mr. Justice Harlan in McBroom v. Investment Co., 153 U. S. 318, which involved the construction of the usury statute of the Territory of New Mexico. That act differed in several respects from Rev. Stat., § 5198. But that case did not rule that in a suit under the act of Congress the statute did not run from the date usury was paid and received as such. This court did not understand that such was the meaning of that case, as appears from his opinion in Brown v. National Bank, 169 U. S. 416, which involved a construction of Rev. Stat., § 5198. For he there points out the difference between "paying" and "agreeing to pay," and says that, "if at any time the obligee actually pays usurious interest, as such, the usurious transaction must be held to have then and not before occurred, and he must sue within two years thereafter."

The Supreme Court of South Dakota properly held that the recovery of interest paid more than two years before suit was brought was barred, and its judgment is

Affirmed.

223 U.S.

Argument for Appellant.

LATIMER v. UNITED STATES.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR PORTO RICO.

No. 151. Submitted January 15, 1912.-Decided February 19, 1912.

Congress, in framing a tariff law, will be presumed to use words of a former tariff law as having the same meaning which this court has already given to them.

This court, having held that "unmanufactured tobacco" as used in the Tariff Act of 1883, included sweepings of factories and warehouses used after importation in manufacturing cigarettes and stogies, the same meaning will be given to the same words as used in the Tariff Act of 1897. Seeberger v. Castro, 153 U. S. 32. "Waste" as used in a tariff act generally refers to remnants and by-products of small value that have not the quality or utility either of the finished product or of the raw material. "Scrap" does retain the name and quality. Patton v. United States, 159 U. S. 503. 5 Porto Rico Fed. Rep. 138, affirmed.

THE facts, which involve the classification of tobacco scraps under the Tariff Act of 1897, are stated in the opinion.

Mr. Walter F. Welch, with whom Mr. Edward S. Hatch was on the brief, for appellant:

The merchandise involved in this suit is waste. Merchandise is classifiable for the purposes of duty in its condition as imported. Worthington v. Robbins, 139 U. S. 337; Dwight v. Merritt, 140 U. S. 219; United States v. Schoverling, 146 U. S. 82. It is not, therefore, a fact material to the classification of this merchandise that there are recoverable portions of it suitable, when recovered, for making cheap stogies.

All waste has a value through the recovery from it of more or less valuable constituents. A levy of ten per

Argument for Appellant.

223 U. S.

cent. ad valorem on waste under the Tariff Act presupposes that waste materials are valuable.

Whether this waste is properly classifiable as waste or as tobacco unmanufactured has never been authoritatively decided. Seeberger v. Castro, 153 U. S. 32, did not decide that a tariff provision for unmanufactured tobacco is more specific than a provision for waste. See United States v. Baversdorfer, 126 Fed. Rep. 732.

The Seeberger Case is not an authority on the issue now here for determination and is not binding in deciding this

case.

This court does not review, upon a writ of error, errors of law which do not appear of record or by bill of exceptions. Clausen v. United States, 142 U. S. 140; Kreshower v. United States, T. D. 27,826; Sears-Roebuck & Co. v. United States, T. D. 32,055.

A decided case, holding goods dutiable under a particular paragraph of a tariff act, is not binding in a later case which raises an issue as to the applicability of a paragraph not drawn to the attention of the court nor discussed in the decided case relied on.

The merchandise is more specifically provided for as "waste" than as "tobacco unmanufactured."

As the issue stated in this point has never been decided by any court previous to the decision of the court below herein, the question is open whether these tobacco sweepings are more appropriately classifiable and dutiable as "waste" than as "tobacco unmanufactured." Brennan v. United States, 136 Fed. Rep. 743.

The rule applied by the board in the case of cork bark waste, marble waste, ramie waste, jute waste and mica waste, should be applied equally to tobacco waste. United States v. Reiss, 136 Fed. Rep. 741; Nairn Linoleum Co. v. United States, 142 Fed. Rep. 214; T. D. 16,324, G. A. 3153; T. D. 23,347, G. A. 5017; T. D. 23,637, G. A. 5115; T. D. 28,050, abstract, 14,869; T. D. 31,739, G. A. 7242.

All doubtful questions must be resolved favorably to the importer. Hartranft v. Wiegman, 121 U. S. 609, 616; Powers v. Barney, 5 Blatchf. 202.

Mr. Assistant Attorney General Wemple for the United States.

MR. JUSTICE LAMAR delivered the opinion of the court.

In the process of manufacturing and handling tobacco small pieces are broken from the brittle leaves and fall to the floor of the warehouse or factory. These scraps are not treated as worthless, but are swept up, and, when cleaned, are used in the manufacture of a cheap grade of cigarettes and stogies.

The plaintiff in error shipped to Porto Rico a quantity of these sweepings, and the question arose as to whether the shipment was dutiable at 10 per cent. ad valorem as "waste, not specially provided for in this Act," under § 463 of the Tariff Act of 1897; or, at 55 cents a pound as "tobacco, manufactured or unmanufactured," under § 215 of the same statute. (30 Stat. 194, 169.) The customs officer classed it as "unmanufactured tobacco," and required the payment of a duty of 55 cents a pound. The importer protested and a case was made to test the question. On appeal the General Board' sustained the collector. It was affirmed by the District Court of Porto Rico, and to reverse that judgment the importer has brought the case here.

There has been some difference of opinion as to the proper classification of scrap tobacco under the various tariff acts. In United States v. Schroeder, 93 Fed. Rep. 448, a higher grade of scrap was held to be "waste" within the meaning of the Tariff Act of 1890. In Seeberger v. Castro, 153 U. S. 32, it was decided that the clippings from the ends of cigars were dutiable as unmanufactured tobacco under the Tariff Act of 1883.