In're DIECKERHOFF et aL
(01rcnlt Court, S. D. New York. January 12, 1893.)
0178TOH8 DUTIEIl-CLASSIFICATIGN-"FEA'l'BER·BTJ'l·OHED BRAIDS."
So-called "feather-stitched .praids," 1)eing an article from one. quarter to one third of an inch in breadth, WOVen on a loom, and ornamented with certain patterns, "herriI).g bone" and others, are dutiable as cotton braids, under SCheflule I, par. 354, of the tart1'f act of October 1, 1890,. and not as cotton trimmings unde!.' Schedule ;r, par. 373, of said act, as claSsl1l.ed by the collector of customs of New York.
This was an appeal by the collector of customs at the port of New York for .. review of the decision of the board of United States general appraisers, reversing the decision of the said collector in the for duty ot certain merchandise imported in the early part of the year 1891, and which was classified for duty by the collector 11.8 "cotton trimmings," and duty thereon assessed at 60 per cent. ad valorem, under the provisions of paragraph 373 .of the tariJ! act of October 1, 1890, which contains an enumeration 'ot "trimmings .· · · composed of fiax, jute, cotton, or other vegetable fiber, or of which these substances, or either of them, or a mixture ·of any of them, is the component material of chief value, not· specially provided for in this act, Blxty per c(·ntum. ad va:lorem." The importers protested in the case of each of the entries, clalming that the merchandise was dutiable at only 35 cents per pound, as cotton braids, under Schedule I of said tariff act, (paragraph 354,) or, second, at only 40 per cent. ad valorem, as cotton galll.1Ous, under the same schedule and paragraph, which provision, so far as it is material, is as follows: "(354) Cotton cords, braids, boot, shoe, and corset lacings, thirty-five cents per pound." The importers abandoned their contention that the merchandise /Was gallocns, and stood upon their claim that it was braids; and, having appealed to the board of United States general appraisers, pursuant to the provisions, of the so-called "Administrative Act of June 10, 1890;" produced the testimony of a llumber of trade witnesses before sald board, from whose evidence it appeared that the merchandise was known in trade and commerce on and immediately prior to October 1, 1890, as "feather-stitched braids," and that the .articles were not known 'as "trimmings," or included within the line of .goods of that character. It also appeared that braids were .sometimes made on looms and sometimes on braiding. machines, but that by far the greater proportion was made on looms; and that, whether woven on looms or made on braiding machines, the'use was the same,-for covering and bindgoOds. that these braids were not used as trimming articles. The board (\f appraisers decided that the merchandise was cotton braids, tl;lat it was not commerciauy known as "trimmings," and sustained the protests of the importers. The collector thereupon by petition procured the return of the board of general appraisers to be tiled in the circult court pursuant to the provisions of the above-mentioned administrative act, and obtained from the court an order to take further testimony before one of the general appraisers as an officer of the court. ,A number of witnesses were produced before the referee on behalf of the collector and the government, from whose testimony it appeared that the articles in question in this sult were woven with a shuttle on a loom, and that·bralds were frequently manu· factured on braiding machines by an entirely different process from weaving. The witnesses for the government, with the exception of one manufacturer, were persons who bought the merchandise in question for the purpose ot using it in the manufacture of ladies' and children's underwear, in which it .was used, according to their testimony, to cover up and give a certain finish or ornament to seams in those garments; and that the articles were bought by them as "herring-bone," or "herring-bone trimming." There was some difference in the testimony of these witnesses as to whether these articles were applled to seams merely for the purpose of covering such seams or for giving to them an ornamental effect. This evidence was returned to the ciroult
court, and on the trla1 it was argued on behalf of the collector and the government that a commercial to govern the classification, must be widespread and general, lind that the testimony offered by the government before the In rthecircu1t court had Bhown that thel'ewlU1 no such general designation of theSe goods as "feather-stitched braids" as would take them out ofilie collectot'$)elasslfica1ton ,as "cotton trimmings;" but, that, even '-If, theY were In braids, there wits ,some testlmonyio show that they 'weretl'lmmlngs, and USed 1M such, QJ1d thB.t the desiinatltjn'''trlmmlngs,'' as used'in the tarl.ffact,was more speelftc thQJ1'''cotton bra1d8;" unless the'trade of "b.1.mminga" 'excluded the artiCles in suit. At 'the close of the argument the ctreuit court decided against the contentlonsof the government, and affi.rmed the decision of the boamof appraisers, del1verlng the following opinion.
Qude, SmitlJ. & Mack!e",(D. ¥a.ckie, of counse).,) for importers. Edward Mitchell, U. S. Atty." and J3JI1es T. Van Rensselaer, U. S. Atty., for collector and the UnitedState&
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District Ju,dge, (orally.) The question' iri this case was fairly stated by the'district attorney, to be whether or ;not. the importations are' or C'trimmings j" whether or not they were! commercially, kp()wnin this ,market as ''braids,'' at the time of the passage of t1te mriff, act of I do not understand that it ,coJltended on the part of the district attorney that upon the proof before the board of appraiseTS, alllistake was made'in the finding; that they were commercially known as If, however, it is so contended, it seems to me that the· contention. ,can have no foundation, for the reason that foUl' witnesses, concededly representative importers and large dealers in this city, so testified, and their testimony', was not contradicted. So the before this court is, wbether or not the additional evidence now presented is sufficient to warrant the court in overturning the finding 9f the board. I do not know that any rule of this court has been laid down applicable to such a situation, but it would seem to me that the finding of the board should stand, unless the' I appellant presents evidence before this court, of greater weight, or at least of equal value. I do not think that the appellant has done either; because it is practically conceded that the witnesses produced by him, assuming that their evidence is competent, were as representative men, under the well-known rule that requires such witnesses' to be importers or large dealers, as the four witnesses presented on the part of the importer. In other words, I think that if the evidence now before the court had all been presented to the board of appraisers, their finding would have ,been justifiable upon the facUl. The additional evidenee is nM sufficlent" therefore" to warrant the court in' overturning that finding. The decision ofthaboard of appraisers is aftlrmed.
.i'ELIX tl. LEDOS.
AMERICAN GAS CONTROLLER & FIXTURJD CO. v. GRE?,!,CO, (Circuit Court of Appeals, ,Third Circuit. 14, 1893.) Appeal from theCircult Court of the Untted States for the District of New Jersey. . ; In Equity. Bill by the agiWlst the American Gaa Controller & ]'ixtlll"e Company for infringement of letters patent No. 299,660, and of claims 1, 2, and 4 of No. 282,337, issued to Andrew B. Lipsey, respec· tively, June 3, 1884, and July 31, 1883, for improvements In gas lamps. The infringement alleged consist!'ld in the manufacture and sa.1e of the so-called "Arc Gas Lamp." A motion for a preliminary injunction having been hear4, the court made an order that defendant within 15 days ftle a bond in the clerk's office in the sum of $15,000, In default whereof a Injunction should l&!ue pursuant to the prayer of the bUL Defendant having failed to ftle the bond an injunction .was issued, and from thls interlocutory order defendant appeals. Appeal dismissed. The injunction was asked for on the following grounds: (1) Clear infringement; (2) undisturbed possession and acquiescence; (3) total irresponsibility of the defendants. The defenses were: (1) NoninfJ'ingementj (2) anticipation by certain patents to Westphal and others, all of which were subsequent to 1881; (3) anticipation by or instIfIicienc;v of invention in view of the patent to Siemens, No. 211,077, of May 3, 1881,based upon the prior French and German patents to Siemens. In order to avoid the effect of these alleged ll.nt;icipations, plaintiff offered· evidence to carry back the Lipsey invention to March, 1881, as adjudged by. the parent otlice In cel'taJ.n interference proceedings in the case of LLpsey v. Sanderson. John L. B. Roberts, tor appellant. John R. Bennett, for appellee. Before DALLAS, Circuit Judge, and WALES anel BUFFINGTON, Dlstrtct Judges. BUFFINGTON, District Judge. A caretul examInation satisfies this com1 that under all the facts before it there was no error in the court below awarding a prellmlnary injunction. As the case may hereafter CODle betore us on firutl hearing, we abstaJ.n from discussing it. The appeal is dismissed, at the cost of the appellant.
FELIX v. LEDOS et al. (Circuit Court, D. New Jersey. January 81, l893.)
1. PATENTS FOR INVENTIONS-INvENTION-COMBINATION-WATCH·CASE SPRINGs.
The first claim of letters patent No. 290,761, issued December 25, 1883, for an improvement in watch-case springs, consisting of the combination of a main sp¢lg piece and an auxiliary spring piece, whereby a slot is formed for the reception of the retainjng pin, which, withput adjustment, will always register with the hole in the watch case, are valid as producing a new and useful result.
lil. SAME-LnUTATION OF CLAIM-INFRINGEMENT. 'This claim is not limited to any particular means of connecting the auxiliary piece to the main spring, but covers any method of connecting the two so as to form the required slot, and, when this result is obta.lned, infringement is not avoided by varying the details of constnlction.
In Equity. 'Bill by Numa J. Felix against Eugene P. Ledos a.nd Robert L. Matches, trading under the firm name of E. P. Ledoe &:; 00., for infringement of a patent. Decree' for complainant.