NIX V. HEDDEN.
and the defendant, and you have heard their evidence. Taking into consideration what they have told you with regard to the trade understanding touching these particular articles (Exhibit S-L) imported by the plaintiffs, it is for you to determine whether they are sardines or anchovies or not. !fyou find that they are sardines or anchovies, your verdict must be for the defendant; otherwise your verdict must be for the plaintiffs. Upon that question the burden of proof is upon the plaintiffs, for the case comes into court. after a finding by the collector that they are sardines or anchovies, and that finding, which makes out a primn facie case, is to be overthrown by the plaintifls oy a iilirpreponderance of uroof. The jury rendered a verdict for the plaintiffs.
et al. v.
(Circuit Court, S. D. Neln Y01·k.
CUSTOMS DUTIES-CONSTRUCTION OF STATUTES.
Where the words in a statute imposing duties on imported merchandise are not technical, their interpretation is a matter of law for the court. Following jJ1arvel v. Nel'ritt, 116 U. S. 11, 6 bup. Ct. Hep. 207. The legislature must be presumed to have chosen language with regard to those for whom it is designed to constitute a rule of commerce, viz. the community at large. Following Arthur v. Jl1orl'ison, 96 U. S. 108. In the absence of proof that words have a different acceptation in other parts of the conn try from that which they have in the district where the court is sitting. it will be assumed that the use of the words is the same throughout the community at large. In the common and popular acceptation of the words, the term" vegetables" includes "tomatoes," and the term "fruits" does not.
Tomatoes imported from Bermuda are not free of duty by virtue of the provi'sion)n the free list for "fruits, green, ripe. or dried." bnt are dutiable at 10 per cent. under the provision in Schedule G of the tariff act of 3, 1883, for" vegetables in their natural state. "
At Law. This was an action against a former collector of the port of New York to recover duties alleged to have been improperly exacted. The plaintiffs in the spring of 1886 imported tomatoes from the island of Bermuda. The collector classified them as" vegetables in their natural state," and assessed them for duty at 10 per cent. under the provision therefor in Schedule G of the tariff act of March 3, 1883. The importer protested, and claimed that by virtue of the provision in the free-list of the same act for "fruits, green, ripe, or dried,"they were exempt from duty. This suit was brought to recover the duties exacted. Upon the trial the
plaintiffs, having adduced the testimony of various importers and dealers to the effect that the W9rdS "fruits" and" vegetables" had no other or different meaning in trade and commerce from their ordinary and popular meaning, and having put in evidence the definition of the terms " fruit, " "vegetables," and "tomatoes" from Webster's, Worcester's, and the Imperial Dicth,naries, rested their case. The defendant put in evidence from Webster's Dictionary the definitions of the terms" beans," "peas," "cucumbers," "peppers," "egg-plant," and "squash," and then moved for the direction of a verdict in his favor on the ground that, according to the common and popular meanings of the terms "fruits" and "vegetables," tomatoes belonged to the latter, and not to the former, class. Comstock & Broum and Stephen G. Clarke, for plaintiffs. Stephen A. Walker, U. S. Atty., and W. Wickham Smith, Asst. U. S. Atty., for defendant.
LACOMRE, .T., (omlly.) In Marvel v. Merritt, 116 U. S.ll, 6 Sup. Ct. Rep. 207, the principle is laid down that where the words used in a tariff act are not technical, either as having a special sense by commercial usage, or as having a scientific meaning different from their common meaning. they are the words of common speech, and as such their interpretationis within the judiciill knowledge, and therefore matter of law. That case was one touching minerals, and the same rule must apply to vegetables. In Arthur v. Morrison, 96 U. S. 108, the proposition is laid down that when the legislature adopts such language to define and prom ulgate their action the just conclusion must be that they not only themselves comprehend the meaning of the language, but choose it with regard to those for whom it is designed to constitute a rule of commerce, namely, the community at large. The community at large, of course, are the people of the United States. In the absence, however, of any evidence tending to show a different acceptation of words elsewhere than what we find in the community residing in this particular district, or of any knowledge on the part of the court that there is such different acceptation, it will be assumed that the use of the words is the same throughout the community at large. With regard to this particular community, the word" vegetable," in its popular and received meaning, is used to cover a class of articles whic:h includes tornatoes, and the word "fruit," irrespective of what the dictionaries may lay down as to its botanical or technical meaning, is not in common speech uSbd to cover tomatoes. For these reasons I shall direct a: verdict in Javor of the defendant.
The jury found a verdict fOl" the defendant as directed by the court.
ZlNSBER V. KREMER.
"Circuit Court, D.:New Jersey.
Reissued letters patent No. 9,129, granted March 23,1880, the claim of which process of charging beer and other liquids of a similar nature with carbiJllic acid, by dropping into and through the liquid lumps of bicarbonate of soda, or of other alkali, thereby causing the acid discharged from the lumps to pass through the entire column of liquid, "the process consisting of compressing lumps of bicarbonate of soda or other alkali so that they would drop to the bottom of the vessel containing the. liquid, instead of being thrown on top of the liquid in powdered form, as theretofore, thus causing waste, are not void for want of invention. In a suit for infringement, where defendant's evidence of "prior use" is met by as much evidence to the contrary, and defendant's evidence shows that the prior use was strictly secret, the defense of "prior use" is not sustained.
2. SAME-PRIOR USE.
The use of artificially compressel[ lumps of bicarbonate of soda for the purpose mentioned in complainant's claim is an infringement of their patent though the lumps are not compressed with the aid of cement which is reo ferred to in complainants' specifications as an available aid for that purpose, but which is not mentioned in the claim. On bill for infringement of patent.
Arthur v. Briesen, for complailiants. Joseph M. Deuel, for defendant.
BUTLER, J. This suit is for infringement of re-issued letters patent No. 9,129, granted to the plaintiffs March 23,1880, "for a new and useful improvement in treating beer and other liquids." The claim is stated as follows: "The process of charging beer and other liquids of a similar nature with carbonic aci<l, by dropping into and through the liquid lumps of bicarbonate of soda, or of other alkali, thereby cauHing the acid discharged from the lumps to pass through the entire column of liqUid, substantially as specified." The specifications are as follows: "This invl'ntiol1consists in treating beer and other liquids of a similar nature with lumps of bicarbonate of soda 01' other alkali, said lumps being compacted by means of a suitable cement, so that they are heavy enot1gh to at once drop through the liquid to be treated, upon the bottom of the vessel containing the liqUid. The carbonic acid evolved from said lumps is thus compl-'IJed to permeate the entire column of liquid above it, and at the same time to gi ve up the requisite qnantity of alkaline matter. Together with the lumps of bicarbonates. of alkali may be used lumps of tartaric or other suitable acid, compacted in the same manner as the lumps of bicarbonate of alkali, as the amount of carbonic acid evolved from the latter can be easily controlled, It is a common practice with brewers and others to use bicarbonate of soda, either alone or together with tartaric acid, in the manufacture of beer, sparkling wines,atld other effervescent liquids, for the purpose of increasing the life of such liquid; The mode of applying such article or articles-by brewers, for instance-is to apply, about one ounce of the bicarbonate of soda to each quarter-barrel with a tablespoon, the bicarbonate being in the form of a