quire the filing ofatranscript ora judgment of a United States courtin' the county clerk's office of the county in which the judgnjent was rendered, in order that such judgment may be a lien on any property within States court in such county. The result is that a judgment in a this state is a lien on the lands of the debtor only in the county in which the court wali held and the judgment rendered j but the lien may be extended to any other county, in the mode provided by section 419 of the General Statutes oftbe state above quoted. , . The defendants' judgment was not a lien on the lands of the debtor in Wabaunsee county, and the plaintifl' is entitled to an injunction, 88 prayed for in its hill. Decree
Oourt, D. MasBach'UBett8. December 28, 1890.) .
PICON. . ..
L CUSTOIlIS DUTIE&-CoNSirBUOTION 011'
Tbe preparation known as "Amer Picon, " which is prepared by Picon & Co. according to a private, formula used by them, which contains from 30 to 40 per cent: of&1cohol, and wllich is advertised as a specific against ID,alaria, and also as a tonio j is .dutiable under ,act Cong. March 3, 1883, Schedule H, as "bitters epntaining spirits, " and not under Schedule A of said act, as a "proprietary preparation, " though it is not used as an intoxicating beverage. . The glass bottles cQntaining "Amer Picon" are Q.utiable under said Schedule B as bottles containing spirituousliquora.· . .'
At Law. This was an action at law by Hennan A.Curiel against Alanson W. Beard, collector of customs for the port of Boston, and was heard by the court without a jury. The facts in the case were agreed to be as follows:"
"That plaintiff, on September 30, 1889, imported into the port of Boston from Rouen, France, the prepal'ation known as' Amer !'icon,' and entered it for warehouse at 50 pl'r cent. ad valorem, under the clause. in Schedule, A of, the act of' March 3, 1883. prOViding for' proprietary preparatioOfi; '. tl)at collectorclassilied said merch,mdise as 'bitters containing at two dollars a gallon, under theclanse in ule H of said act, providing for · cordials" liquors, arra<:k. absinthe, kirschwasser, ralalia, and other similar spirituoui.\ beverages or bitters containing spirits;' that due prutest and appeal were made, and that the secretary of the treasury 4ecideq that said merc!lf!nqise was duly assessed with duty at two dullars a gallon, and affirmed the decision of the collector; tha:tthel1eupon plaintiff withdrew froin warehouse partot sl1id merchandise for consumption, paid dutil'S thereot) at the rate of two dollars ai gallon, and duly brought suit to recover the excess of duties paid by him; th'at said · AUler Picon'. is prepared by Picon & Co., Rouen, France, and ommended by them to the public as a remedy orspecitic against malaria or feVer affecting the human'body: that it is pl'epated by them as manufacturing Chemists·.according to a p/.'ivate formula owned by them, and put up in glass bottles in which is blown the words' Arner Picon,' Phillipsville; that on eacb
FEDERAL REPORTER I
bottle Is a printed label; that said · Amer Picon' was advertised as a remedy against said disease.'! in the American Medical Association Annual and in the Medicalllecortl, which are medical pUblications. and also in the New York World, New' York Times. and New York Herald of September I, 1889; that plaintiff is the agent of said Picon .'Iii Co" and that said' Amer Picon' is sold hy the importer to druggists and apothecaries only; that the articles named in H, as above. are usually sold in bar-rooms; that definition given to these articles in the standard dictionaries may be taken as the true definition, and that, so far as known, · Arner Picon' is not sold in bar-rooms as a ueverage or otherwise, and that said · Amer Picon' contains between 30 and 40 percent. of alcohol; that a duty of three cents a bottle was exacted by defendant on the bottles containing said · Amer Picon' under said Schedule H, prOViding for a duty on bottles containing wines, brandy, and other spirituous liqnors." , The sections of the statute which are here under consideration will be found in 22 St. at Large, pp. 494, 505. J. H. Robinson, for plaintiff. The name "Amer Picon" literally signifies "Picon's BiLters;" Picon & Co, being the manufacturers. (1) Thearticle in question is a "proprietary preparation." within the meaning of the law, being prepared according to a private formula owned by the manufacturers. and being recom mended and used as a remedy against disease. Ferguson v. ArlhU1'. 117U. S. 482, 6 Sup, Ct. Hep. 861. (2) The article in question is not included under the words "similar spirituous beverages or bitters, containing spirits." It is not provided for by name under this paragraph, and the articles which are named are spirituous beverages only, and sold as such in bar-rooms, by liquor-dealers. for their intoxicant effects alone, and the composition of tllem is well known. The article here in question is therefore not "similar" to those which are in this paragraph specified by name. Greenleaf v. Goodl'ich, lOl U. S. 278; Schmieder v, Bal'ney, 113 U. S. 645, 5 Sup. Ct. Rep. 6 2 4 , . (3) The article in question is specifically enumerated and provided for in Schedule A as a "proprietary preparation," and is therefore within the exception in the paragraph of Schedule H. Hartranft v. Langfeld, 125 U. S. 128, 8 Sup. Ct. Hep. 7b2. (4) Since the article in questioll should be classified as a "proprietary preparation," it follows that the bottles are not dutiable under Schedule H. The protest is sufficient to support this action so far as it relates to the bottles, because it claims that the substance contained in the bottles is uutiahle only under Schedule A; and the collector WaS therefore well notified of the grounds of the claim that the inclosing bottles were not dutiable as containing wines, brand)', or other s[Jirituous liquors. Swanston v. Morton, 1 Cllrt. 294; Burgess v. Converse. 2 Curt. 216.18 How. 413; Stee.gman v. Maxwell, 3 Blatchf. 367; Arthw' v. Motgan, 112 U. S. 501, 5 Sup. Ct. Rep. 241.
tles is not sufficiellt to enable the plaintiff to recover in this action. The proshould set forth distinctly and specifically the grounds of the objection. Rev. St. § 2931. In this case the plaintiff has merely protested against the decision assessing duty at three cents a bottle. without stating any grounds of his objection. CUt'tis v. Fiedler, 2 Black, 461; Swanston v. Morton, 1 Curt. 294; 1'homson v. Maa-weU. 2 Blatchf. 385; Chung Yune v. Kelly, 14 Fed.
T. H. Talbot, Asst. Dist. Att.y .· for defendant. (I) The protest as to the assesslllent and payment of the duty on the bot-
(2) The article in question is properly dutiable as "bitters containing- spirits." The proper name of the preparation is, in English. "Picon Bitters." This brings it in terms within the provisions of Schedule H. (3) Assuming that the article in question is also included within the terms of the section relatillg to "pwprietal'Y preparations." it is still properlY dntiable under Schedule H, according to the provision that. "if two 01' more rates of duty should be applicable to any imported article. it shaH be classified for duty under the highest of such rates." 22 St. at Large. p. 491, § 2499.
CARPENTER, J. I think this case ought to be decided by reference to the composition and use of the liquid substance which is contained in these bottles. The plaintiff claims that l;uch substances as are included under the name "proprietary preparations" ha\'e use as medicines distinctively, and that such as are included under the paragraph beginning "cordials, liquors, arrack," etc., have use as intoxicating beverages. r think, however, that the last-named substances, ""hile used as intoxicating liquors, have also a use as tonics, not in the sense_in which that word is commonly used, but in the sense in which it is discriminatively used in describing the operations of various substances upon the functions of the human body. That tonic effect undoubtedly is an effect distinctly different, physiologically, from the intoxicating effect. It therefore follows that the fact that this substance is not used as an intoxicating heverlj,ge, which I infer from the fact that it isnot sold in bar-rooms, is _not conclusive upon the question whether it be or be not a tonic. But th6 composition of the substance, as well as the represl?ntations of the makers of the substance, seem to me to be conclusive upon that question. With great accuracy in their advertisements and on their labels, they describe the uses of this substance, and they describe it, in the first place, to be a preservative against fevers, and, in the second place, as having "tonic properties," and as being an "excellent restorative." Substances having such qualities do not come within the description of remedies for disease, and I therefore find this substance in question to be under the definition of that schedule of the act under which the collector has decided it t() be dutiable. Plaintiff's counsel contends with much acuteness that the clause relat,:., ing to proprietary preparations contains a specific enumeration as compared with the clause under which I find this substance to be dutiable. The words "generic" and "specific" are relative words. The llame which is said, by comparison with some other name, to be "specific," is so said because the definition given of the name alleged to be specific limits thj3 subject under consideration more or further than the definition which is assigned to that name which is called "generic." In this case I see nl} substantial difference in extent and bread th of specification between these two sections. The two names given are, in SUbstance, "proprietary remedies" on one hand, and "spirituous beverages" or "bitters" on the other, and they seem to me to he, for practical purposes, equally generaL On the question of the tax assessed upon the bottles, I am convinced by the argument of the learned counsel that the protest is sufficient t6 authorize a recovery if such an error had been made as he claims to ex-
The .substance, however, being .dutiable in manner as I have decided,it follows, I think, that the bottles are dutiable as containing "spirituous liquors," according to the provisions o( S9hedule H of the ta.riffact. 'JuqgIi!ent for the defendant.
CHASE ". WESTERN UNION TELEGltlPH
(Circuit Court, N. D. Georgta. D,ecember28,1890.)
\; l1'BLB&RAPBPo)fPANIES-DELA.1 IN DELIVERING :M:ESSAGE..,..D4lofAGJllS.
TbEi receiver of a teleirapbic message, tbe delivery of wliiOO bas been negligently 'delayed, cannot recover tor mental 8uf!ering alone, unaocompaniedwU,h other in
Spry. I ,
, A-tt,i:W.' .On
to declaration. &:. Garrett,', for plaintiff. for defenQant.
.... . .. . ... 1
avers that. by negligence the of a telegraphicmt'ssage ,tQhim, whereby he of a brother-in-law j and by rea89R9f iwhich he reached the. point where the rellttiou ,died several hours death; his sister. in the ;qIean time, being compelled to appeal to stnmgers for assistance, on account of which 4e was: caused serious inconvepience, and. Inental suffering. He claims punitive damages in the amount of $5.,000. To this declaration a ,general demurrer is filed. Can a recovery ,be had for mental suf· .fering. unmixed with other injury?is the question presented by this demurrer. The negligence of the defendant is sufficiently jRnd it seem$ tq be settled in contrary, however,tQ cases, that the receiver of a telegram may recover sustained by negligent delay.in deliyery. An exami;natiQn of the" :adjudged cases, however, shows that the great weight of authority is against ,recovery in a cas.e like this for m,ental suffering alone·.. , . . ' ," In tb,ecas.,of ReUe .v. Telegraph Co., 55 Tex. 308, it.was held that "a telegraphCOInpany is lillble for an injury to the feelings of a son by the ;willJul ne,glectto deliver to him a message announcing the death of his wpereby he was prevented from attending .her funeral." But in the case of Railway Co. v. Levy, Te,x,563,t\1is opinion was Clverruled;:anqthe court held as follows: "The plaintifl'l'med a telegraph for delay in delivering to him a. message ann01;mcing the death sOQ,111 wife and child"whereby he was prevented from attending thefuneraJ,., Held. that there! could, be no recovery for his mental suf-