In Equity. , On motion to make the Associated Company a party to this suit. '. . '. . Bill .by Herman Duden· against Michael· F. Maloy for an accounting of the partnership assets of Duden & Co. . Howard Y. Stillman, for complainant. J. M. liyddy, for defendant. LACOMBE, J. The Associated Lace-Makers' Company is not an: indispensableparty to this suit. The accounts of the firm of Duden & Co., of New York, the sole partners in which were the complainant and defendant,.canbe adjusted, and adecree for money judgment against either side entered, without the presence of the corporation. Defendant. however, claims that the Lace-Makers' Asssociation should be brought in because it has become possessed of property of the old partnership, which may be dissipated unless the court impounds it, and which should be the defendant may obtain applied to the payment of whatever against complainant upon the accounting; himself being, as defendant contends, irresponsible. Defendant has an action pending in the supreme court against the corporation for similar relief, in which by the filing of a liapendem he has impounded real estate worth from $10,000 to $15,000. The application now made is not of right, but addressed to the discretion of the court. It is essential to its granting that the defendant should show a reasonable probability of his obtaining a judgment against the complainant for a greater sum than that already secured by his lis pendens in the state.court. That he will be able tain such a decree .is vigorously disputed by complainant. The question is one which should not be decided upon affidavits. It appears that all the evidence upon that point deemed material by either party has been taken regularly before the master; but though the record was completed some time since, defendant has not pressed the case to a decision. and since the argument of this motion has. as the master informs me, asked for and obtained an adjournment. This fact, coupled with his long delay in moVing to make the corporation a party, is sufficient reason for denying the motion.
ROSSMAN "'. HEDDEN, Collector.
(Oircuit Oourt, B. D.]J'ew York. December 12, 1888.)
CuSTOMS DUTIES-CLASSJlI'ICATION-Gr,.AZED TILES-REV.
ST. U. S. § 2499. Plain glazed tiles of different colors. used for hearths, bath-rooms, walls, dadoes, wainscoting, and ornamental purposes, are not" paving tiles, "within the meaning of Schedule B of the tariff act of 1tl83, (Heyl, par. 130;) but arlt properly enumerated as "earthenware. * * * glazed, * * * composed of earthy or. mineral. substances, not especially enumerated or. prOVided for in this act," (Schedule B, Heyl, par. 127,) and dutiable at 55 per centum ad va,lorem. . '" . : , .
The words "earthenware * · · glazed" are a sufficient enumetatlon of the merchandise (plain glazed tile) to take it out of the operation of the simil.itude clause, (section 2499; Rev. St.,) as assimilating to either paving or encaustic tile. Duties paid after delivery of goods to importer cannot be recovered back in an action against the collector.
(Syllabu8 by the Oourt.)
At Law. Action to recover excess ot duty upon merchandise. This action was brought by Adolph Rossman against Edward L. Hedden, collector of customs at the port of New York, to recover an alleged excess of duty upon certain glazed tiles imported into said port from Scotland and from France, by the steamers Canada, Furnessia, and Rhoetia, in February, May, and June, 1886. rfhe collector assessed duty thereon at 55 .per centum ad t1alormn, under Sche<;lule B of the tariff act of March 3, 1883, (22 St. at Large, c. 121, p. 495,) Heyl, par. 127, which reads as follows: stone, and crockery ware, white, glazed, or edKed, com· "All other not specially enumerated or provided posed of earthy or mineral for in this act, 55 per centum ad valorem." \ The plaintiff protested as to the importation by the Canada and Rhoetin, as follows: "We protest against your decision as to the rate, 55 per centum, and amount of duties to be paid on the tiles entered by us for consumption, because they are dutiable at. 20 per centum, under Schedule B, as paving tiles directly, or by virtue of section 2499, Rev. st. If not so dutiable, then they should pay 35 per centum by similitude to encaustic tiles, under said section and'schedule. We pay the excess exacted under compulsion, solely to get possession of the goods." The protest on the importation by the Furnessia was as follows: "Weprotest against your decision as to the rate and amount of duties to be paid on the tiles entered by us for consumption May 25. 1886, per Fllrnessia, 71,315, from Glasgow, because they are dutiable at 35% ad 'oal., under sec. tion 2499, Rev. St., by similitude to encaustic tiles, prOVided for in Tariff Schedule B. We pay the excess exacted under compUlsion, solely to get the goods. " The paragraphs of Schedule B, referred to in the protest of the plaintiff, read: . "Encaustic tiles, 35 per centum ad valorem." Heyl, par. 129. "Brick, fire-brick, and roofing and paving tile, not specially enumerated or provided for in this act, 20 per centum ad valorem." He,}'l, par. 100. Section 2499, Rev. St., reads: "There shall be levied, collected, and paid on each and every non-enumerated article which bears a similitude, either in material, quality, texture, or the iIse to which it may be applied, to any article enumerated in this title as chargeable with duty, the same rate of duty which is levied and cbarged on the' enumerated article which if most resem bles in any of the particulars before mentioned," etc· . Upon the trial it was shown by evidence that the plaintiff's importations were plain white, cream, and br01vn glazed tiles, used for walls,
ROSSMAN II. HEDDEN.
dadoes, wainscoting, and also for the bottom and facing of hearths, for ornamenting the borders offloors, and for floors of bath-rooms and <ionservatories. They were not encaustic tiles. It was also shown as to the importation by the Canada that all of the goods were delivered to thE' importer on or before March 18, 1886, and the increased duty was not paid until May 10, 1886. At the close of the trial the plaintiff contended that the tiles in suit were "paving tiles," because in some of their uses they )Vere laid horizontally, and any tile laid horizontally was a paving tile; that they were not earthenware, within the meaning of the tariff act of 1883; that the term "earthenware" was too general to enumerate the goods in suit; that if the j1iry should find they were not in fact paving tiles, then the similitude clause would apply .. The defendant contended that they were not in fact "paving tiles," nor known as such at the time of the passage of the tariff act of March 3, 1883; that they were enumerated as "earthenware, * * * glazed, * * * composed of earthy or mineral suhstances," and that the similitude clause (section 2499, Rev. St.) had no application whatever to the merchandise, as that clause applied to non-enumerated articles only. Stephen A. Walker, U. S. Dist. Atty., and Henry Platt, Asst. U. S. Dist. Atty., for defendant, cited: Smith v. Field, 105 U. S. 53; A,·thur v. Sussfield, 96 U. S. 128; U. S. v.
Ola1'ke, 5 Mason, 30; U. S. v. Telegraph 00.,2 Bpn. 362; Jaffmy v. Murphy, 19 Int. Rev. Rec. 143; Newman v. Arthur, 109U. S. 132,3 Sup. Ct. Rep. 88; Reimer v. Schell, 4 Blatchf. 329; Marvel v. Mer1'ltt, 116 U. S. 11. 6 Sup. Ct. Rep. 207; Siemens v Sellers, 123 U. S. 276, 8 Sup. Ct. Rep. 117; U. S. v. Johnston. 124 U. S.253, 8 Sup. Ct. Rep. 446; Edwards v. J)arby, 12 Wheat. 210; Syn. Ser. 2419, 3352, 3705, 3714, 7051. Hartley &- Coleman, for plaintiffs, quoted: Mailla1'd v. Lawrence, 1 Blatchf. 504; Al'thur v. Fox, 108 U. S. 125, 2 Sup. Ct. Rep. 371; Oohen v. Pl ?lps, 2 Sawy. 531; Oummins v. Robertson, '27 Fed. Rep. 654; Biddle v. Hal'tranft, 29 Fed. Hep. 90; Mason v. Robertson, Id. 684; Lloyd v. McWilliams, 31 Fed. Rep. 261.
LACOMBE, J., (oraRy, charging j1try.) The lahoring oar of this case is with you, be<iause it is entirely and solely a question of fact, and I shall detain you but a few minutes in formUlating the precise question which you must answer under the evidence in the case. In the first place, as to the importation by the Can·ada, as I have before intimated, your verdict must be for the defendant, for the reason that the payment was not in fact made to obtain posf'ession of the goods. With regard to the importation by the Furnessia, the protest of the plaintiff restricted him to a single claim, to-wit; that these goods were similar in uses, quality, material, and texture to encaustic tiles, and ·should therefore pay the same duty as that paid by encaustic tiles. In the view whi<ih I take of the similitude clause, and guided by the decisions of Smith v. Field, 105 U. S. 53; Arthur v. Sussjield, 96 U. S. 128; and Arthur v. Butterfield, 125 U. S. 70, 8 Sup. Ct. Rep. 714,-1 shall, as to the importations by that particular vessel, direct a verdict for the defendant.
:FEPERAL . . R;EfORTER.
There. is left, then, for .your consideration,'only the importation by the Rhoetia. The .old English word "ware," with which you are familiar, in t!J.e combination of hardware,tinware, etc., isa comprehensive word. It, is defined by Worcester and Webster as "goods, commodities, merchandise," and in the same dictionaries the term "earthenware" is defined a8" ware made of earth or clay." Reading in for the word" ware" the qefinition which the dictionary gives it, we will find as the definition -of "earthenware," "goods, commodities, or merchandise made of. earth or clay!' That, you see, is a very general, broad, and comprehensive word-,and it was evidently used by congress in that same sense, for we find the word "earthenware" used as the heading of a schedule which contains articles as dissimilar as a porcelain teacup, a Parian vase, a firebrick, and a slat-e pencil. It is sufficiently broad, this word "earthenware," tocovar "tiles,"-to cover the articles imported by the plaintiff here as they appear and have been described by the witnesses. Therefore, unless they are covered by some other provision of the tariff act, they must be held dutiable as "earthenware," and the determination of the collector in that respect sust11ined. Now, the word "tiles" occurs twice in this tariff act,-once in combination with the word "encaustic," a specific and particular duty being laid upon encanstic tiles. It is COnceded practically by both sides,that these importations are not encaustic tiles. Encaustic tiles are composed of two or more kinds of clay in the same tile, moulded and mixed up together in somA way, and the articles before us contain but one kind of clay in each tile. Therefore the provision in regard to encaustic tiles has no bearing on this case. There is left, 'then, the clause No. 130: "Brick, fire-brick, and roofing and paving tile." The plaintiff contends that these goods fall fairly within that definition. Thewords "paving tile" have aplain, ordinary meaning, which any man of intelligence could determine for himself. A paving tile means a tile for paving. That is the way the word would be understood by anyone who heard it or saw it in a book or in a statute. Congress, however, legislates upon these tariff acts, only after a careful examination of the condition of affairs touching the particular industry, or the particular kind of goods, with regard to which it is legislating. It looks into the history, it looks into the present condition, the uses, the material, the composition, the usages of trade, and the general use to which the article is put in the community; and of course the interpretation of an act of congress should, so far as may be, be had in the same light as that in which congress passed the act, and it is for that reason that I have allowed so voluminous a body of testimony to be imported into this case, bearing upon the character of the article, its composition, the materials of which it is made, how it is made, its qualities. its uses, a,nd its history in the trade and commerce of this country. It was neo.· essallY to do that, in order, so far as might be, to enable you to answer the single question which goes to you; and in order that that question may be put so that you can readily carry it with you, I have reduced itto writing. It is this, and is the only question you will have to answer:
"On March 3, 1883, when this act was passed, was the character of these tiles such, and had their use up to that time been such, that they would fairly be included within the term' paving tiles,' as used by congress in the section quoted; that is, the section providing for a duty on brick, fire-brick, and r,:>ofing and paving tiles?" . Now, you will perceive, in the first place, that it is immaterial whether or not they are now used for paving. Congress legislated under thefacts as they were at the time; and you will further perceive that their use at that time for such purposes must have been sufficiently substantial, when compared with their other uses, if any, to suggest this particular kind of tile to anyone who might at that time be preparing an exhaustive list of paving tiles or tiles for paving. If-taking into consideration the condition of the trade at that time, the size, the composition,the character of these articles, their adaptability to uses, and the uses they were put to at the time the act was passed-you are satisfied that they were then paving tiles, your verdict will be for the plaintiff; otherwise it will be for the defendant. Verdict rendered for defendant.
BRIGHTLEY ". LITTLETON
E. D. Pennsylvania. November 24, 1888.)
CoPYRIGHT--WHAT WILL.BE PROTECTED-BLANE: LEGAL FORMS.
A blank form of aRplication for a license to sell liquor at retail. composed of threeblanks.-a · petition," a "bond and warrant, 'and a "justification,"all intended to be filled up and filed by the applicant, is included in the tem "book, " and is the subject of a valid copyright.
I. SAME-ORIGINALITY. A series of forms, prepared in accordance with a certain statute, minor parts in each being old, but so combined with parts drawn in pursuance of the statute as to make a complete form, possesses sufficient originality to be the ·subject of a copyright.
Where parts of a series of forms are identical with those of a former copyrighted series except for a word or two inserted in several places, the whole seriell showing a substantial identity, and the counsel employed to draw up the second series ackn9wledges having the first before him while so doing, the second series will be regarded as a copy of the first, and an infringement.
In Equity. Bill for infringement of copyright.. The plaintiff was the author of a series of blank forms intended to be filled in by the applicant for a license to sell liquor at the ll.Ct of 1887. Littleton, the clerk of the court which had jurisdiction to grant the licenses, caused a number of similar forms to be drawn up and printed by Geddes,and given or sold to the applicants. . ..
Reported by C. B. Taylor, Esq., of the Phlladelphiabar.