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At Law. Appeal by importers from decision of United States gen. eral appraisers. Affirmed.

The Standard Varnish Works imported by the steamer California on May 18, 1891, certain merchandise known as “candle tar” or “palm pitch," which was classified and assessed for duty by the collector of customs at New York as a nonenuinerated manufactured article, at 20 per cent. ad valorem, under section 4 of the act of October 1, 1890. The importers duly protested, claiming the same to be dutiable at 10 per cent. ad valorem, as "waste," under paragraph 472 of said act. The board of United States general appraisers affirmed the assessment of the collector, and an appeal was taken by the importers to the United States circuit court, under the provisions of the act of June 10, 1890. The subject of the importation was produced by subjecting tallow, animal grease, and palm oil to treatment in closed retorts or boilers to superheated steam, whereby the stearine and the candle tar were separated, the stearine carried out of the retort by distillation, and the candle tar remaining in the retort. This manufacture resulted in the two products,-stearine and candle tar; the latter of which is used for waterproofing barrels, covering roofs, and also for increasing the body of varnish. The importers claimed it to be mere waste, and not a biproduct.

Edward Mitchell, U. S. Atty., and Henry C. Platt, Asst. U. S. Atty., for collector.

W. Wickham Smith, for importers.

COXE, District Judge, (orally.) The merchandise in this case is a manufactured article, and is imported, bought, sold and used, as an article of trade and commerce. It is not a natural product, and there is no evidence in the record to show that it can be made, except by the process described.

The decision of the United States general appraisers is affirmed.

In re WHITE et al. (Circuit Court, S. D. New York. January 5, 1893.) 1. Customs DUTIES-APPEAL FROM GENERAL APPRAISERS, EVIDENCE.

The decisions of the board of Unit.d States general appraisers on dis

puted evidence as to the facts will not be disturbed by the court. 2. SAME-CLASSIFICATION-BURLAPS.

Paddings or canyos, from 18 to 24 inches in width, and used chiefly in the clothing trade, and for making small bags, and for similar purposes, are dutiable, under the act of October, 1890, as “burlaps," at 158 cents per pound, under paragraph 364, and not as "manufactures of jute,” at 40 per

centum ad valorem, under paragraph 374 of said act. 3. SAME-CONSTRUCTION OF Acts.

The act of March 3, 1883, provided specially for a duty upon "padding" and "canvas" (paragraph 334) different from “burlaps,” (paragraph 338,) but the act of October 1, 1890, omitted any special mention of paddings or canvas in any paragraph. Held that, as jute paddings or canvas are a species of "burlaps,” they are now dutiable, as such, under the latter act. At Law. Appeal from decision of the United States general appraisers. Affirmed.

The imported merchandise in this suit consisted of jute goods woven, from 18 to 24 inches in width, commonly known in the trade as "paddings” or "cantas,” which were classified by the collector as "manufactures of jute, dutiable at 40 per cent. ad valoremn, under paragraph 374 of the tariff act of October 1, 1890. The importers duly protested, claiming said merchandise to

be properly dutiable as “burlaps," of jute, not exceeding 60 inches in width, at 18 cents per found, under paragraph 364 of said act. The board of United States general appraisers sustained the protest of the importers, that the goods in controversy were burlaps, and reversed the decision of the collector. The collector appealed from their decision to the United States circuit court, under the provisions of the act of June 10, 1890.

It was contended, on behalf of the collector, that the merchandise in suit was of that character and make which had always been known, prior to the passage of the act of October 1, 1890, in trade and commerce, as paddings or canvas, and was chiefly used in the clothing trade; that congress in the tariff act of March 3, 1883, had differentiated canvas and paddings from burlaps and placed a different rate of duty thereon, (quoting paragraphs 334 and 338 of the tariff act of March 3, 1883;) that prior tariff acts'had also made the same distinction between the two articles; that the decisions of the treasury department had for many years made his distinction; that under the act of 1883 several cases had beer. tried in the United States circuit court wherein juries had found that paddings and canvas, under the act of 1883, were a different article from the burlaps of commerce; that congress, in the act of 1890, must be presumed to have legislated in view of the prior decisions of the department and the courts, and of the distinction always made in prior legislation; that as congress had seen fit in the act of October 1, 1890, to omit the paddings and can. vas paragraph of the act of 1883, and had not provided specifically for a duty thereon, they interded such articles to fall under paragraph 374, and to be included within the terms “all manufactures of jute," and under the principles of construction laid down by the supreme court in the case of Robertson v. Rosenthal, 132 U. S. 460, 10 Sup. Ct. Rep. 120, paddings and canvas, such as those in suit, were not relegated to the burlap clause (paragraph 364) of the act of October 1, 1890.

It was contended, on behalf of the importers, that "burlaps" was a general name for a class of goods that were used by various trades, such as the upholstery bagging, oil cloth, clothing trades, etc., and that the different trades used different widths and makes of the same articles of “burlaps; " that in the clothing trade the narrow burlap was known as canvas or padding, and as congress had seen fit to omit any special mention of canvas or paddings, by nime, in the act of October, 1890, the most specific description thereof to be found in that act was the term “burlaps” in paragraph 364, which more specifically described and designated the articles in suit than the more general term “manufactures of jute.”

Edward Mitchell, U. S. Atty., and Henry C. Platt, Asst. U. S. Atty., for collector.

Stephen G. Clarke, for importers.

COXE, District Judge, (orally.) The only question in this cause is one of fact. It is conceded on all sides that the term “burlaps,” (paragraph 364,) found in the act of 1890, is a more specific designation of the imported goods than the term, "manufactures of jute or other vegetable fibre, etc., not specially provided for in this act," (paragraph 374.) Are they burlaps? This question of fact was thoroughly tried out before the board of appraisers, and the board has reported that all of the articles in controversy are burlaps. Giving to their decision only the weight which would be given to the report of a master in chancery, it does not seem to me that this court, sitting in review, would be justified in reversing their finding upon this question of fact. They have advantages which an appellate tribunal cannot have. They see and hear witnesses and can better determine what weight should be given to their testi. mony. Witness after witness called by the importer testified that these articles were commercially known as "burlaps;" and, stating the case as favorably for the appellant as the facts warrant, there was simply a dispute upon the evidence before the board. They having reached a conclusion, which I think was amply sustained by the proof, it seems to me that their decision should be undisturbed. The decision of the board is affirmed.

FACHRI V. MAGONE. (Circuit Court, S. D. New York. November 22, 1892.) CUSTOMS DUTIES ALLOWANCE OF TARE--JUTE IN BALES.

Under section 2898, Rev. St. U. S., which provides that "actual tare shall be allowed," an allowance must be made, in estimating the duty on jute in bales, for the weight of jute tie ropes with which the bales are bound up; it appearing that between buyer and seller these ropes are regarded as tare, and are never charged for, a deduction equal to their weight being made from the total weight of the bale, and only the net weight being billed.

At Law. Action to recover duties paid. Verdict directed for plaintiff.

Plaintiff imported at the port of New York, in 1886 and 1887, certain bales of jute secured by tie bands or ropes, also of jute, but so tangled, knotted, and broken as to be worthless except for paper stock. The bales were invoiced at prices per bale of 400 pounds; and the United States weigher reported to the collector of customs their gross weight only, omitting to report the weight of the tie bands and the net weight of jute in each bale. Duty was assessed by the defendant, as collector of customs, at 20 per cent. ad valorem on the value stated in the invoices, under the provision for "jute" contained in paragraph 333, Schedule J, Heyl, (Act March 3, 1883; 22 St. at Large, p. 507;) and the importer, having duly protested and appealed, as required by law, brought this action to recover the same percentage of the duty exacted which the weight of the tie bands represented of the total weight of the bales. The importer cited Rev. St. 8 2898, which provides that in certain cases invoice tare, or an agreed tare, may be allowed, and then that "in all other cases the actual tare should be allowed." Upon the trial evidence was given, and not contradicted, that the tie bands weighed, invariably, six pounds per bale of jute; that they were useless except as paper stock,--for which the tariff act then in force provided free entry, (paragraph 754, Heyl;) that they were regarded by all weighers as “tare," and also by dealers in jute, who, selling it by the pound, always made an allowance of six pounds from th total weight of each bale, and charged only for the remainder.

Defendant's counsel then moved for a direction of verdict for defendant, and plaintiff's counsel made a similar motion in his behalf.

Comstock & Brown, for plaintiff.

Edward Mitchell, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for defendant.

LACOMBE, Circuit Judge, (orally.) I direct a verdict for the plain. tiff for the amount of duty exacted on these tie bands.


(Circuit Court, S. D. New York. December 31, 1890.)


Letters patent No. 291,606, issued January 8, 1884, to John L. L. Knox, for "an improvement in methods of and tools for blasting rocks," was not invalidated by any prior use of the invention therein described. In Equity. Bill by the Knox Rock-Blasting Company against Drake and Stratton for infringement of a patent. Decree for complainant.

"he bill charged defendants with infringement of letters patent No. 291,606, i ranted on January 8, 1884, to John L. L. Knox, for an improvement in anethods of, and tools for, blasting rocks. Defendants alleged that the patent was invalid by reason of prior use of the invention by others. The claims of the patent, of which infringement was charged, are: “(1) The withindescribed method of blasting rock, whereby the alignment of the fractures upon the opposite sides of the bore is insured, which consists, essentially, in forming longitudinal grooves in the opposite sides of a cylindrical bore, said grooves having equal sides, and so situated as that a plane bisecting twoopposite grooves will bisect the axis of the cylindrical bore, substantially as and for the purposes described. (2) The within-described instrument for cutting grooves in cylindrical blasting bores, said instrument having a hexagonal flat cutting face, two sides, c, parallel, and of the length and distance apart, equal to the sides of a square inscribed within the circle of the cylindrical bore to be operated upon, and cutting edges, a, of equal length, and so situated as that a line joining the points, b, will pass through a point equidistant from the ends of the sides, c, substantially as and for the purposes described."

W. Bakewell & Sons and Kerr & Curtis, for complainant.
Arthur C. Butts, for defendants.

WALLACE, Circuit Judge, (after stating the facts.) It is altogether unlikely that an invention which is so useful and meritorious as the one which is the subject of the patent in suit, and which, as soon as it was patented, and introduced to the notice of quarrymen, was so immediately and generally recognized as an extremely valuable one, would have made no mark, and slumbered in obscurity, if it had been known and used by intelligent quarrymen any considerable length of time before it was patented. The defense of prior use made by the evidence for the defendants is an unusually weak one, tested by the rules which apply to such a defense, and falls far short of the satisfactory demonstration which is required to overcome the presumption of novelty arising from the grant of letters patent. American Bell Tel. Co. v. People's Tel. Co., 22 Blatchf. 531, 536, 22 Fed. Rep. 309. A decree is ordered for the complainant.


(Circuit Court of Appeals, Third Circuit. January 27, 1893.)

No. 16.


A circuit court should follow the decision of another circuit court upholding a patent, except when new evidence of invalidity is introduced, and in the latter event should confine its investigation to the additional evidence. National Cash Register Co. v. American Cash Register Co., 53

Fed. Rep. 367, followed. 2. SAME-CIRCUIT COURT OF APPEALS.

The rule of comity between circuit courts in respect to decisions in patent cases does not apply to the circuit court of appeals, and the latter court will examine independently all the questions presented by the

record. 8. SAME.

The first claim of letters patent No. 271,398, issued to John G. Baker. January 30, 1883, for improvements in mechanism for cutting up plastic or yielding substances, consisting of a machine in which the sole reliance for cutting is upon a knife or other cutting device, operating in conjunction with a perforated plate at the points of discharge from the casing, and in which there is no intentional disturbance of the substance to be cut other than to force it forward before it reaches the plate, is not invalid because of anticipation. 46 Fed. Rep. 854, affirmed. Enterprise Manuf'g

Co. v. Sargent, 28 Fed. Rep. 185, and 34 Fed. Rep. 134, approved. 4. SAME-INFRINGEMENT.

This claim is infringed by a machine which contains all of the elements enumerated therein, although there is some unintentional disturbance caused by the forcing apparatus in the substance to be cut before it reaches the plate. 46 Fed. Rep. 854, affirmed. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

In Equity. Bill by the Enterprise Manufacturing Company against John Wanamaker, as a seller of a meat-cutting device, for infringement of letters patent No. 271,398, issued January 30, 1883, to John G. Baker, for improvements in mechanism to cut up plastic or yielding substances. The circuit court found that the first claim was valid, and that defendant infringed the same, but that he did not infringe the second claim, and accordingly entered a decree for infringement of the first claim. See 46 Fed. Rep. 854. Defendant appeals. Affirmed.

The first claim of the patent reads as follows: “The combination, in a machine for cutting up plastic or yielding substances, of the following instrumentalities, namely: First, a casing for containing the substances to be cut up; second, a perforated plate at or near the end of the casing; third, a device for forcing the crude mass forward in the casing and against the said plate without otherwise disturbing the integrity of the said mass; and, fourth, a knife operating against the inner face of the plate, and serving as the sole means, in connection with the said plate, of cutting up the mass by severing therefrom the portions which enter the perforations; all substantially as set forth.”

In the opinion delivered by the circuit court it is said: "The first claim is clearly and precisely stated. Its essential elements are the casing; the perforated plate; the forcing device, which drives the mass forward without otherwise disturbing its integrity; and the knife operating

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