vol. 38. '
Another ground-of demurrer is that the chromo upon which the word "copyrighted" was placed wag. not the subJect of copyright. The law is clear that no offense' is committed when the word "copyrighted" is placed upon an article that is not the sabject-rnatter of copyright·.,-that cannot be copyrighted. The law is designed to guard against deception, and no one is deceived when the word "copyrighted" is placed upon an article that cannot be copyrighted, such as a kitchen stove, or a railroad car. Now, the plaintiff in this case describes the chromo, and the description disCloses an :article which could be copyrighted, and, if the petition sWpped with this description, it would doubtless be sufficient. But it goes further, and alleges that "said printing and chromo has not been copyrighted by the defendant or any other person, nor was the same subject to copyright under said laws." Thus it appears that the averment of disability is not limited to the person, but is cast upon the print. It.was not the subject of copyright. There is in this an apparent contradiction to that which might be inferred from the language of description. Counsel suggests that the thought he had was that under the particular circumstances this print could not be copyrighted, and it is possible that there might be circumstances which would thus at the tirne exclude this print from copyright, although in its nature it was the subject-matter of copyright. But in a criminal or qu01!i criminal action the pleading should be clear and consistent. The court.is not called upon to strain any language to rel:nove dou bt or secure consistency. There Should be no labored effort at reconciliation 9f apparentlyconhadictory averments. at least when the pleading is challenged before trial. So, because it is alleged that the print was not the subject of copyright, we think the demurrer should be sustained, and it is so ordered. Stlbsequent pleading may be prepared with referellce to the views of the offense as above expressed. Plaintiff will be granted 30 days in which to file an amended petition, and defendant 30 days thereafter to plead thereto.
(Circuit Court, 8. D. NeU! Y01'k.
Otl'STO:M:S DUTIES-DRESS GOODs-ACT MARCH
January 7, 1889.
3, 1883. SCHEllULE L Women's dress goods composed chiefly of wool, with 'from 1.119 to 4.74 per cent. of cotton introduced intbe warp and selvedges thereof for tbe purpose of changing the classification, in the form of a tlber,the warp being a mixed or compound thread of wool' and cotton, held not to have been made "with threads of other materials." within the meaning df said schedule. ' ..t1lao, held, that the language of said paragraph in said Schedule K explicitly restricts the operation of said clause to threllds wholly composed of other materials than WQol oI'worsted. --,' (81111abu8 by tke Court.)
Action to recover customs duties.,
The plaintiffs; !thefirm of- Luckemeyer, Schefer & Co." of the city of New York, on November 14, 1887, imported certain women's dress goods, composeqchiefly of wool, with a very slight pe,i'centllge of cotton, and valued at not exceeding 20 cents per square yard. , Theliefendant, as collector of customs at the port of New York, levied and collected duty at 9 cents per sq1l!a,reyll;rd, 40 per centum ad valorem, Schedule K qIthe tariff act of March 3, 1883, (Heyl, 365,),claimingthat such goods were made with threads of other illlJ,terials than WQol,or worsted, introduced for the purpose of changing the classification; and. also claimof ing that the selvedges of said goods were made wholly or other\materials.. Plaintiffs claimed that these dressgoodl! were.composed in part of wool, and under the same schedule were dutiable at 5 cllnts per square yard and 35 per centum ad valorem. The merchandise in suit was manufactured in France at the. request of by a peculiar process, by which the cotton was introduced into the warp of the fabric prior to. the spinning process. .The warp coni;!,isted of -woolen ahd wool. The cotton fibers twfsted together. The ,filling was selvedges of the goods were composerr of wool and cotton. ,No sepllrate, single, and entire thread of cotton was traceable in the goods,. . appearance, fiexture, quality,and use they were indistinguisha,blefrom wOI;Ilen's dress goods cOIn posed wholly of wool. The cotto;n iii the fabric could only be discovered by chemical analysis. The original purpose of iptroducing such cotton in the warp of the goods was for,the purpose of cqanging tlle classification. The percentage of. cotton in these goods varied from 1.99 to 4.74. The fibers of cottOl). in the warp of these goods were continuous,Qut irregular in size. Tbeparagraph of the tariff act of 1883, under which duty :was assessed, is as follows:
"Women's and children's dress goods, coat linings,ltalian cloths, !loud goods of like description, composed in part of wool. worsted, the hair of. the alpaca, gOat, or animals, valued at not exceeding twenty cents per square yard, five cents par square yard, and in addition thereto, thirty-five per centum ad 'baZo1'em; valued at above twenty cents per square yard, seven cents per square yard, a,nd forty per centum ad, valorem,. if composed wholly of wbool. worsted, the hair of the alpaca, goat, or other animals, or of a mixture of them, nine cents per square yard and forty pez: centum advaZorem " but all such goods with selvedges, made wholly orin part of other materials, or with othermaterials introduced. for the purpose of changing the classification, shall be dutiable at uine cents per'sq,uare yard and forty per centum ad 'Oalorem: prOVided, that all such goods weighing over four ouneespersquare yard shall pay a duty of thirty-five cents per pound and forty per centum·adoolorem."
.JitanclsLynae Stet8o»:, for' plaintiffs. ' . '. . Stephen A. Walker, n.' S. Att,r.! and Henry a. Plau, U. S. Atty.!
J., (oraUy jury.) . Before coming to, the particular which I shall submit to you, it is only right, in :view of the gl:l;lat eiaboratelless andeare with· which this case has qelm presented by counsel, that I should briefly state the reasons which leaq me to. the conclusion I,hll:ve reached.
What intent of congress was in enacting this particular paragraph seems reasonably plain from the common knowledge which we all possess, and from a comparison of it with the paragraph of the Revised Statutes, which was the law on the same subject immediately preceding the adoption of the act of 1883. Of course, it is a matter of common knowledge that our tariff acts are devised for more than the single purpose of raising. revenue. The creation, protection, and fostering of home industries, large, small, or yet unborn, is an element which is largely considered by the law-makers when they frame these statutes. And that some such object was intended here seems to me plainly apparent upon a comparison of the two paragraphs, No. 365 of this act, and thecorrespondingclause in the Revised Statutes. By the act of June 22, 1874, all women's and children's dress whether made of mixed materials, or made wholly of wool, were dutiable at 6 cents per square yard and 35 per centum ad valorem. The act of March 3, 1883, divided such articles into two groups,-the mixed goods, and the wholly wool goods. On the mixed goods it reduced the duty from 6 cents per square yard and 35 per centum ad valorem to 5 cents per square yard and 35 per centum ad valorem; but on the wholly wool goods it raised the duty very . materially, viz., from 6 cents per square yard and 35 per centum ad valorem to 9 cents per square yard and 40 per centum ad valorem. The mere comparison of these two paragraphs seems plainly to indicate that there was an intention, in fixing this new rate of duty, to accord some measure of protection to the wholly wool goods. Taking that into consideration, the plain, first meaning which anyone would draw from the' closing part of the paragraph which begins with the words "if composed wholly of wool, worsted," etc., is that congress intended to provide that if goods in reality of the wholly woolen class were so disguised as to masquerade as mixed goods, when in reality they were wholly of wool, they should not by that operatiolJ. avoid the heavy discrimination which, well satisfied, however, that such was the intent of congress, and with due appreciation of the great lengths to which the courts have repeatedly gone in applying the doctrine of interpretationaccording to intent, I do not feel warranted in interpreting this la.st clause of the paragraph according to the intent exprel1sed above unless we can find within the plain language used, when fairly construed, such words as will warrant the application ofthat interpretation. In what way, then, do they provide for the goods which, although in reality of one class, may be claimed, ' inorder to evade the operation of the tariff act, to be another? By the enumeration of certain kinds of goods in an excepting clause. First, the exception provides for "all such goods with selvedges made wholly or in part of other materials." The use of the word "such," and of the word "other," turns us back to preceding words in order to find outwhaf that particular Clause means. Turning to those words, we find the whole sentence to read thus: "If composed wholly of wool, worsted. etc., or of a mixture of them, 9 cents per square yard and 40 per centum ad valorem; but all such goods with selvedges made wholly or in part of
LUCKEMEYER fl. MAGONE.
other materials," etc. The only possible construction of that clause, standing by itseH, seems to be that goods composed wholly of wool, worsted, ora mixture of them, shall pay 9 cents per square yard and 40 per centum ad valorem, and that all goods composed wholly of wool, worsted, or a mixture of them, but which have selvedges made wholly or in part of other materials, (and to that extent are in fact of mixed material,) shall pay the same rate as provided further on. That disposes of the first clause of the exception. The other clause provides for "all s11ch goods * * * with threads of other materials introduced for the purpose of changing the classification." This is the clause I shall leave to the jury. It is undisputed that the threads of the 'warp are composed of a mixture of cotton and woolen, and for that reason the defendant asks for a direction in his favor. In my opinion, however, the clause does not cover goods with threads of mixed material, i. e., if the mixture is not itself a mixture of threads. The word "other," as we have seen above, means "other than wool, worsted," etc., and the abrupt change in the same sentence from the phrase "wholly or in part of other materials,'1 descriptive of the selvedges, to the phrase "of otp.er materials," descriptive of the threads, seems explicitly to restrict the clause to threads into whose composition neither wool nor worsted enter. . Now, gentlemen of the jury, the question before you is perhaps a simple one, but the task before me, in leaving it to you, I find to be extremely difficult. When we get away from the domain of science and the strictly accurate phraseology which it employs, one of the hardest tasks that can be laid u,pon us is to give an accurate definition of any particular word. 'I'haf with which you are here concerned is the word "thread." . It is a word which perhaps each of you uses more than once each day of his life. What are you to understand that word to mean when you come to deal with the facts of this case? Of course, when we are challenged to find the meaning for a word, however familiar we may be with it ourselves, it is our custom to go to the dictionaries; and so we may, in this instance, turn to them. Now, lexicographers have several functions which they undertake to discharge. They deal not only with the every-day meaning,-the received meaning in common speech Qf any particular word,-but they hunt down its antecedents; they trace its origin and its growth; they find in some syllable, or combination of its letters, the root from which it has sprung; and in preparing their _ definitions they take all these elements into consideration. That should be rememberE1d whenever we turn to a dictionary for a meaning. The most comprehensive meaning whioh I have found in any of the authorities which have been submitted-and we had best begin with the most comprehensive meaning-the most comprehensive definition of the word "thread" which I have found, is in Worcester: "A small line or twist of any fibrous or filamentous substance, as flax, silk, cotton, or wool, particularly such as is used for weaving or for sewing; a filament; a small string." Turning to the same dictionary for a definition of the word "filament" we find it defined as "a substance like a thread; a long thread-like process; a slender fiber." That is the most comprehensive and far-reachv.118F.no.l-'-3· .
ing definition of the word which r find in any of the dictionaries. It' indicates that a thread is produced by some process or other which gives to its constituent parts a twist; and even the alternative word which is used,-" Glament,"-which perhaps we would ordinarily, in common speech, not consider as importing a twist,-ev'en the word' used as its alternative by Worcester,-is defined as "a substance like a thread; a long thread-like process;" thus indicating some measure of twisting. Of course, the thread that we speak of in our every-day speech is not only twisted, but it istvvisted to such a degree thatit has an increased sustaining Thus this little piece of string which'lies on the edge of the desk will not only hold itself together, but will also bear a weight of greater or less amount which may be affixed to it. There is not, however, in the definition given above anything to indicate that a measure of self-sustaining .strength is necessarily imported in the strict idea of a thread; and, when using the word in its general meaning, (that is, in the broad meaning in which. we are entitled to take it when we find it iii an act of congress,. except for a qualification, to which I will call your attention later on,) we need not assume that the t:wisting, or . other operation which produces the twist, and which seems essential, according to the definition, should be continued so far, or to such an extent; as to make a filament of any particular resisting power. Be- . yond ,the de:finition thus given (and I feel that it is perhaps far from sat-' isfactory) lam unable to deriv;e any light from the dictionaries in 4lg to you the determination of the question whether these fabrics contain "lhreads" of other materials. 'branch' o,i,the case, however, which is entitled to There is consideration at your assumed to be used by conin the tlj.riff laws in their ordinary meaning, unless some Other meani!1g is attached to them. Usually that proposition is discussed as a question whether or not a particular trade meaning"":"a meaning differ- ' ent from its ordinary, illeaning-has been given to a word; a,pd thus we often receive the testimony of tradesmen as to the meaning ofwords in the acts of congress. But there is no question here of any such partict;llar trade use of the term. Under the decisions of the su-' premecourf, in theSqua1'e Yard Oases, 1 I do not think that the word is' here to be taken as used with any specific trade meaning; and I should have excluded anY,evidence ofsp'eoific trade meaning if it had been offered. . But I rhilysay to you that in applying to the facts of this case' the general definitions which I have given you, you are entitled to take into the fact that congress, when it used this general word in of the tariff act, was dealing with textile fabrics. To that extent I think that you are to consider the evidence which has been introduced. here as to the. methods of production of what, the witnesses here spoke of as," thread." The two questic)lls, and the only questions, for you to decide are: (1) Have there been introduced into these goods threads of material
v. Barney, 5 Sup. Ct. Rep. 624, and cases there cited.
tha,n wpolor"wPl'I'Ited?That is, threads, a, threads 'of ather terilll; not composition, compound threads composed of woo] and Qther materials, but, threads composed wh911y,of material other, than wool. (2) If you reach the conclusion that thj:1re has been introdu.ged in these goods threads of other material than wool, you have then to de-: termine with what purpose those threads were introduced. Under tIw, concession of counsel for the plaintiffs your task in determining as tothe will present but few difficulties. He concedes that originally the goods of this class were devised, in the first placejto escape the higher, rate of duty; but insists that as to the particular goolis in these eight case!'! there were operating upon the of the plaintiffs, who imported as least two causes to incluce them to import them in lar. shape. One cause was the, to them at a lower rate of duty; and the other was the circumstance that they were more rell-dily salable, or better adapted to the purposes of his customers. In determining as to the purpose with which they were introduced,youare to consider the predominant purpose. You are to take in to tion the testimony here,-not only the statement of the particular porter, but a}sq all,su,ch facts as have been shown in the evide.nce from which you may fairly infer what his intent was jand, considering the entire body of testimony, you are to determine whether the predominant operating cause which induced him to bring in the goo>dsin this character and form, was the purpose of changing the classification, or the other purpose or purposes which he has indicated. Those two are the only questions which you will have to consider. Should you decide both those questions in the affirmative,-that is, that threads 'of materials other than wool have been"introduced here, and that they were introduced with the intent of changing the classification, -then your verdict sho1;lldbe for the defendao.t. Should you answer either question in the negative,-that is, should you find that there were not threads of other materials than wool in these goods j or, even if answering that in the affirmative, you should find that they were not introduced with the intent to undertake to change the classification,-then, your verdict will be for the plaintiff. You need not concern yourselves with the amount in dollars, because that can be. written into your dIet when it is rendered. The defendant has requested me to charge that the collector is presumed to .have assessed the duty according to law; and that the burden of proof is on the plaintiff, to show by preponderance of evidence that the collector was wrong. I so charge.. The plail;ltiff requests me to charge that "it is established that the filling of those goods was composed wholly of wool," and that "it is established that no separate thread of the watp of these goods was cOrilp6sed wholly of wooL" I so charge. You will understand that the warp of· the goods are the threads or yams which run parallel to each other, and lengthwise through the goods. No single one of those threads was itself composed wholly of wool. I also charge you that the warp of these goods was composed of qo.th.cotton and wool in union..
the plaintiffs' last request, viz., that" the plaintiffs are not prohibited from so manufacturing goods as to conform to a lower, rather than higher, exaction of the tariff; and though they may have adopted a very technical device to escape the higher rate, the question presented by the case is only whether their goods are embraced within the higher rate, and is not whether the plaintiffs have evaded the law." The defendant requested the court to charge: (1) That if the jury find that the selvedge of these goods was made wholly or in part of cotton, introduced for the purpose of changing the classification, there should be a verdict for the defendant; (2) that if the jury find that the plaintiffs' goods were made with threads composed of wool and cotton, introduced for the purpose of changing the classification, verdict should he for the defendant; (3) that if the jury find that these goods are women's dress goods, substantially composed of wool, and known in trade and commerce as "all-wool fabrics," the defendant is entitled to a verdict; (4) that if the jury find that the quantity of cotton introduced in these goods is so insignificant as not to alter the character of the goods and remove them from the category of" all-wool dress goods," as known in trade and oommerce, the defendant is entitled to a verdict,-each of which requests were denied by the court. Verdict tor plaintiffs.
ee al. tI. THREE
HUNDRED TONS OJ' IRON
MARVEL tI. THE SCANDINAVIA.
(DilfJriet Court, S. D. NWJ York.
February 5, 1889.)
FOR DETENTION-WHEN ACCRUES.
The steam,ship S. arrived at New York with iron ore. The bill of lading receipted for 300 tons, "weight unknown, " to be delivered to the libelant M.,· freight payable on amount delivered. It was unladed into libelant's lighter along-side. and weighed in transit by a custom-house weigher. This weight could only be obtained at the custom-house after the returns were filed. There is no settled custom here as to payment of freight before or during discharge. Before discharge notice was sent to the consignee. requiring payment of freight before delivery. He replied that he would pay When the weight was ascertained. As soon as the ore was on the lighter, and before the exact. weight was ascertainable, the vessel attached the ore for the freight; and on the next day a cross-libel was filed for damages for refusal to deliver, no tender having been made. Held. that both actions were prematurely brought. and that the libelant should pay all costs and expenses incident to the premature filing of the original libel. . . A libel (atally defective cannot be sustained through a supplemental bill letting up matters .but a supplemental libel may, for Quse,be allowed to stand as an orlgfnal lIbel as of that date.
'Reportedb,y Edward G. Benedict, Esq., of the New York bar.