REPORTER, vol. 41.
that wlien he delivered thepi'operty to Bourgeois the defendant acted under a mistake, supposing him to be the representative of the plaintiff. If this is the case to be tried, the answer sets up a good defense. The demurrer is overrttled.
GROMMES d al.
(Cireuit Court, N. D. DHnoiB. July 18,1889.)
CuSTOMS DUTIES-CLASSIFIOATION-PROPRIETARY MEDIOINES.
Arp's Pepsin Bitters, which are prepared under the direction of a sworn chemist, and protected by a trade·mark".and are used, not as a beverage, but as a tonic, mixed with water or wine, in <iaseo'f'certain diseases, their chief medical ingredient being- pepsin prepared chemically frOm the stomachs of animals, are dutiable as "proprietary,preparations, " under clause 99 of Hey!'s Arrangement of the Customs Act of ,March 8,1883, and not as "bitters oontaining spirits. "'under clause 818 of said Arrangement. ' .
&- Defrees. for plaintiffs. W. G. Ewing, U. S. Dist; Atty., and G. H. Har'f'i8, Asst. U. S. Atty.,
BLODGETT, J. Plaintiffs a quantity of bitters, known to the trade as" Arp's Pepsin Bitters,"upon which the collector assessed a duty at the rate of two dollars per pi.'dof gallon, under clause 313 of Heyl's Arrangement of the Customs Act df March 3, 1883, which reads: "Cordials, liquors, arrack, absinthe, kirschwasser, ratafia, and other spirituous beverages or bitters coritaining spirits, and 'not specially enumerated or prOVided for in this act. $2 per proof gallon." Plaintiffs paid the duty upon these goods under protest, and appealed to the secretary of the treasury, by whom 'the action of the collector was affirmed, and in apt time brought this suit to recover the excess of duty imposed. Plaintiffs contend by their protest that the goods in question are a "proprietary article," within the Illeariingof clause 99 of Heyl's Arrangement bf the Customs Law of March 3, 1883, which reads: "Proprietary preparations, to-wit, all cosmetics, pills, powders. troches, or lozenges, sirups; 'corrlials, bitters, anodynes, tonics, plasters, liniments, salves, ointments, pastes,drops, waters, essences, spirits, oils, or preparations, or compositions recommended to the public as proprietary articles, or prepared according to some private formula, as remedies or specifics for any disease or diseases or aft'eetions whatever, affecting the human or animal body," etc. The proof shows that the goods in question are prepared under the direction and supervision of a swor.n chemist; that they are protected by' a trade-mark; that they are recommended for use as a tonic; that their .chief medical ingredient is pepsin. prepared chemically from the stomlReported by Louis Boisot; Jr., of the Chicago bar.
aehs of animalll;and that they are specially benefidal in casell of d:tspepsia, diarrhea, and all stomach difficulties. arising from indigestion; that they are not sold alone as a drink or beverage, but are taken as a tonic medicine .mi:xed with water, and sometimes with wine or spirits. I am therefore of opinion that these bitters Come within the description ora proprietary preparation, and should have been admitted at a duty of 50 per cent. ad valorem under clause 99, as insisted by plaintiffs. I do not intend to be understood as holding that all goods protected by a trade-mark come, for that reason alone, within the description of "pro. prietary preparations," ·but only that these goods, by reason of the care bestowed upon their preparation, the directions for their use, and the special Use forwhich they are intended,.are brought within the m.ercial meaning of those words.
(Circuit Court, D. Ma/l8achU8ett8.
CuSTOMS DUTIES-CLASSIFICA.TION-CARD CLOTHING.
January 9, 1890.)
Card clotIVng whif;lq ie attached by means of rivets.to iron flats, for the purpose of being attached to machines for carding cotton, does not come within the provisions of tariff act of 1883, (22 St. U. S. 511. Schedule N,) relating to the duty on ca,rd. clothing, is assessable qnder 22 St. u. S. 501, Sched mil "C, relating to the duty upon composed wholly or in part of iron, steel, etc.
·At LaW.' Actions to reoover customs duties upon importation of card clothing. Thomas H. Talbot, Asst. U. S. Atty. Joseph H. Robinson, fot defendants. t!:
COLT, J. The importation in these suits consisted of card clothing attached by means of rivets to "iron flats," which are pieces of meta, about 41 inches long, with a rib caston their back, showing in section a shape like this: 1. These iron flats, when covered with card clothing, are attached to machines for carding cotton, but not necessarily to any particular C8l'd.ing machine which may be imported with them. When imported, thecllrd clothing was riveted to the, Iron flats, but it was de. . spribed in the invoices as "tops," which is another name for card clothing. It was separately bought in the foreign market, and was separately valued in the invoices as "tops," and it, was packt0 by itself in cases separately marked and numbered. Upon this article the collector. assessed a duty of 45 per centum ad valorem, under Schedule C of the act of March 3, (22 St. 501,) as a manufacture composed wholly or in part of iron, steel, etc. The importer contends that the duty should have been assessed under Schedule N (If the same act, (22 St, 5U,) which provides as follows: "Card clothing, twenty-five cents per square foot; when manufactured from tempered steel wire; forty-five cents per square foot." v.41F.no.1-3