ctlnts per:pouhdmore'than when sold in'the plain ones. If that is 80.' is it not plain that these boxes have a use independent altogether of the protection of the crackers in their importation to this county? If they enhance the value of the crackers contained therein, and increase the facilities for selling, then that is a use independent of their employment in the importation of the merchandise. It is for you to pass upon the evidence, and I say nothing that is binding, but I do not hesitate to say that, in the judgment of the court, if the evidence is believed, and, there is no contradiction, it being all from the plaintiff's witnesses and fr6m the plaintiff himself, the:5e boxes have a merchantable value outside their use in traLlfporting the crackers, and that value is ·obtained.in selling them . . The plaintiff requests the court to instruct the jury; tbat if they nr:ld the boxes upon, duties were imposed in this case had no,; other purpose. Or use than to enhallcethe coD,'7 tained to find a verdict for plaiQtiff, subject to the right.!>f . the court to enter judgment for the defendant non obstante veredicto, if the court be of ppinion, as matter of law, that a package or covering designed to increase the salability of the article therein contained, but, ha'ving' no o,tJ1er c,omrnerical use, is dutiable withi;!l se9tion70f the aet ; of congress, entitled "An act," etc., passed March 3, 1883.. This.point is refused. Verdict for defendant.
(Circuit Oourt, E. D. Pennsylvania.
October 8, 1889.)
CUSTOMS DUTIES-COl'lSTRUCTION OF LAWS-COVERINGS OJ!' MERCHANDISB
The purpose of section 7, Act Marcb 3, 1883, (customs duties,) was to entitle lin· porters of merchalldise to relief from payment of duty upon the genuine means ot preservation of merchandise in cour\le of transportation, by removing the duty upon ' the box, wrappings, or coverings that were usual and necessary in inclosing, protecting, and carrying the goads, and imposing a duty amounting to a penalty on packages which we113 intended for a SUbsequent use. Cubical blocks, capable of being arranged in a series of pictures, were imported in a box which also contained pictures from wjlich the pictures iJ;ltowhich the blocks were arranged, were found and a similar picture on tbe top of the lid: Testimony was given that the picture was placed on the. lid to save va.rnillhing it. Held, in the opinion of the court, as the pi,'ture alon.e is used, and It.di1fers in its use in nowise from tbe use of tbe other pictures contained in the box, the importer . is not liable to the 100 'per cent. penalty.
BoXES-PBN4L'l'lES. ;. . . ' .
Assumpsit by Anton Winters against John Cadwalader, Collector. This was a suit brought by the plaintiff to recover certain duties alleged by himtQ have been improperly exacted upon an importation of .cubic picture;blocks in boxes, upon the lids of which was pasted a picture into which the, contents could be arranged. . The 8:ppraiser returned
u'}Seihg fQ1'; tQSe 'other" tha'nthe b07ia' fidt t,ransportation goodsjand lisseissedthe:drtty at 100 per 'cent. The other five· pictures inm which the b16bks could be arranged were upon separate sheets placed inside ofthe box', and the plaintiff teJ3tified that the reason why the sixth picture .was pasted upon ,the lid of the box was merely to save the expense of varnishing, and did. not affect the price of the article, but that wheJithe. contents were being used as toys tht! lid of the box was also· used.,: The:verdict was'ill favor of the plaintiff. Frank P.J?richard, for ,plaintiff. . .J·· R.,Read, U. S. Dist. Atty.,and,W. Wilkins Carr, Asst. U.S. Dist. Atty 0" for 'defendant. The court need not repeat the general made in your presence in t;be preceding case. The defend.. ant,tpego\7ernment of the United States, for the purpose of getting be- ' its views of the law. has asked the court to charge you as fol· lows: :
"(1); If,foubelieve that the bOxes in question in this suit, are of a material or form' desillned for lise otherwise than for the bonajide transportation of tht-goods to the United States, your verdict should be for the defendant."
"(2) If you believe from the evidence, and an inspection of the sample box, that there was a substantial, material, and valuable use which these boxes were designed to subserve, and which was otherwise than to preserve the blocks and carry them in security, then your verdict must be for the defendant."
That is substantially the same thing, and is true.
"(3) If you believe that the material, the form, and pictnre upon the lid of the box, was so substantially a part of the dt'slgn of the box, as to materially affect Its value and t.he value:Of its contentll,and is so regarded both by the buyer and the seller, and is designed for that pU1'l,ose, then your verdict should be for the defendant." .
That is true, also.
"'(4) Even if you believe that the box or covering involved In thIs suit, is tile and necessary covering of slIch goods, yet if you also believe that material and lorm of box was designed for use otlll'l'wise than for the bQna.fidetranSp9l'tation of tbegooos, then.your verdict should be for the defendant." ,
That is but a repetition of the same thought c9ntained in the points already read, and is affirmed·
."(5) If you believe that these boxes or coveringsure constrncted upon a plan which fs,i1itfltes and contemplates their use in connt'ction with their con. tents, while such ('ontt>nts are being th.emselves lIsl'd,then theyaredl'signed for a lise other thlln for transportation to the United merely, and your veluictshould be for the defendant."
. Tha,t is another fOl'Dl,.pf stating the same thing.
:!'(6)If'youbelleve tbat:there is ause:mllde of the boxes, disconnected transportl\tion, then your verdict should be for the defeudant.'·
:That is but a repi;!tiHon of the same thing, and is true.
WINTERS 11. CADWALADEBo
II (7) If there is a .use for wbich tbese I>oxes are designed otherwise than ,for was also designed. transportation only, altbQllgh the use for tbenyour verdict should be for the defendant. " That is the same thing slightly varied, simply in verbiage. «(8) Your verdict should be for tbe defendant." The eighth point asks us to take the case from the jury, and direct a verdict for the defendant, and;.this we decline to do. The purpose of the ee:venth section of the act of ·1883 was to entitle importers of merchandise to relief from payment of duty upon the means of preservation of the merchandise in COurse of transportation. It was to relieve them from duty upon the box,wrappings,or coverings that are usual and necessary inclosing, protecting, and carrying the goods in course of transportation. It' was intended for nothing more. It was not in· tended'to relieve any part of the mercha.ndise from taxation, but was intended to relieve this covering from liability to taxation. Wherever it Js:rnl\de to appear that the covering, :boxes, wmppers, or bags are not ,honestly intended simply for that use, but for an additional or other use, 'or where it is shown that they are designed-that is, that they are ap· plicable and intended, judgiBgby their construction and subsequent use ---for another additional .use, then the law punishes the use of such · 'wrapper or covering or box by subjecting itto a very high rate of duty, a duty amounting to a.-penalty, 100 per cent. This provision of the statute is entitled to a reasonable construction. It is not to be forced. . Where it is shown with, plainness that the covering is designed for another use than that of prot-ecting the goods, securing them in the course , of transportation, the importer who uses such covering is subjected to ,the penalty provided by this proviso to the seventh section. Unless that the importer'should not be subjected to the penalty. The question here is whether or not, in this instance, it appears by the evidence that these boxes were desigJled for any other use than that · ofcovel'ing and protecting the merchandise in the course of transportation. The merchandise consisted of blocks and pictures. Was the box designed for any other purpose than covering, protecting, and them? The pictures especially needed protection. You see what they are. They are laid out in the form in which you see them. The blocks might possibly be huddled into a box of any form,but the pictures require better care. The testimony is that it is the universal custom to transport them in boxes of this kind; and it does not seem to be questioned here, and probably is not open to question, that if the boxes were plain, (and they are plain except as respects the lid,) if they did not have one of the pictures pasted upon the lid,the.government would 4aye no case.. If that was so, the duty would be improperly exacted, and '. should be returned. blocks are designed to forDlsix distinctpict, ures, and the pictures for which are designed accompany the box; five of them are placed inside, and:.one on the lid. The is "that thepictnre placed upon the lid, being itself vamished" serves the ofvli;tnishingthe lid, ;tmt Vtlie picture was notplacedithere it impervious to '-th<did' ftselfwotild ha\'e'to be'varnish"Eid, so
-th&m:()iBttll1El '01 the Sea atmosphere. Therefore the picture is pasted 'upon: it.·' that boxes are used for a purpose other than that of protection and conveyance,in transportation? It is not contended that any part of the box is used but the lid. Is the lid used? The picture is used; and it is on the lid. If it was not on the lid, it WQlilld be insi4·e the box; the child would take it out, and place it on the lid, or on,1he floor, a table, OJ: anythipg else large enough to support it. Is it a justifiable conclusion that,. because the manufacturer pastes a picture. Qq,the lid instead of putting it inside, and allowing the child, whenheopeJ)s the box,. to place the picture on the lid, that the box, or . any part of for any other ;purpose than of tnmsportatlon? I donQt hesitll.te to say to you that in the judgment of tbe court it is Jlot. The qpestion is one of fact, however, and is for you; but it seems to me to be so plain that I am not only justified in saying this, but called upQnto say it.. It is the pictilre that is used; it is not _the lid of the _box, any more than the"ljd oUhebox would be ul;led.if it was merely _,employed as a support for the paper by ,the child. The picture belongs in the set.. If not on the outside oftbe box, it would be inside. Of what importance is it whether it is attltchced to the lid of the box, in so .far;astlle use of the picture is concerned? The other pictures are used; they are all su bject to the necessity of being placed upon a support. It is for YO.u to say wheth.er it would be just to conclude that this box, becau,se one of the pictures.is pasted upon the surface, to avoid the necessity of'!arnishipg, is dt'signedfor other use than that of transportation. In the judgment of the court it is not, but the question is for you, !1nd you will decide it. The provision ofthe statute is intended to punish. a pllrty who uses coverings for the double purpose of importation and II subsequent and other use, and must have a reasonable construction, not a forced one. It subjects importers to the payment of a penalty ,and unless it is clear they have violated the law they should not be thus punished. The case differs altogether in its aspects from the case previously decided. Martindale v. Cadwalader, 'ante, 403.
Verdict for plaintiff.
(Circuit Court, E. D. New York. L
April Term, 1890.)
TRADE-YARD-WHAT WILLBB PROTECTBD...."WARRBN HOSE SUPPORTBR."
... While the words "Warren Hose Supporter," when .used· alone, may not CODstitute a valid trade-mark, yet when used in connection with a cut of a hose supporter engaged with a stocking, and placed. as labels, on boxes containing hose supporter/l, they are suftlciently arbitrary to fairly denote the origin of the goods, and are entitled to proteetionas a trade-mark. :'While,after the expiration of a patent, anyone has the right to manufacture the -at1.icle, and. to designate it by the name by which it has become known to the pUblIc,yet no one has the right to represent in any manner that his goods are actually .manufactured by the. p a t e n t e e . -
2. PATENTS :POR .INVENTiON8--ExpmATION-RIGHT8 OJ' PA'l'IllNTBB.