In re ORUIKSHANK. (Circult Court, S. D. New York. March 6, 1893.)
"Foregoing" in paragraph 560 refers, to all the articles therein enumerated.
,"Edible," as applied to spices,in paragraph 560, means spices which are eaten as a sauce or condiment and not as a food product capable ot sustaining life.
Appeal by the Importer from a Decision of the Board of United States General Appraisers affirming a decision of the collector of the port of New York. Affirmed. "Statement by COXE, District Judge:
two 8Jld One half cents per pound, under paragraph 326, Act October I, 1890. The appeUant claims inl'his protef!t that the merchandise is entitled to free entry as 'Spices not edible, in a crude state, and not advanced in condition by refining or grinding or any other process. Oayenne pepper is a preparation from the dried fruit of various species of capsicum. The bird pepper or chilies in question are a species tlf capsicum, and we find from the testimony of witnesses who appeared before us that it is of a kind largely used in the manufacture of Cayenne pepper. Without giving further consideration to what class ot,,merchandise cOllgress intended to cover by the term 'Cayenne pepper linground,' we' hold that the claim of the importer that the merchandise in question isa spice which is not edible is not well taken. The protest is accordingly overruled, and the action of the collector stands." Subsequently the board made a further return as follows: "First. They find that the merchandise subject of this proceeding is a spice, and that it is edible. Second. They find that the said merchandise is in a crude state, and not advanced in condition by refining or grindiIig or any other process." The provision of the new tariff act under which the importation was classified by the collector is subdivision b of paragraph It reads as follows: "Cayenne pepper, two and one half cents per pound, unground." Paragraph 560 of the free list under which the importer insists his merchandise sho1lld have been classified, so far as it is applicable to the present controversy, reads as follows: "Spices, vegetables, seeds aromatic, and seeds of morbid growth, weeds, and woods used expressly for dyeing; any of the foregoing, which are not edible and are in a crude state, and not advanced in value or condition, by relining or grinding, or by other process ot manufacture, and not specially provided tor in this act." The importer insists that the merchandise in question is a spice unground, not edible, and in a crude state. Atter the board made its last return, additional evidence was taken in this court. The' dectsion of the board is as followS: "The merchandise in question is invoiced as Sierra Leone bird pepper. The appraiser returned the same as Cayenne pepper unground, and the collector assessed duty upon it at
Albert Comstock, for importer. Thomas Greenwood, Asst. U. S. Atty., for collector.
IN RB CRUIKBHANlt.
COXE, District Judge, (after stating the facts as above.) I cannot think that the appellant is right in his contention that the limiting clause, "any of the foregoing which are not edible," has no application to spices. There is no reason for excepting spices which does not apply with almost equal force to each of the other enumerated articles. They are all "foregoing." The statute, therefore, so far as it relates to the present controversy, should read as follows:
"Spices, not edible and in a crude state, and not advanced in value or condition, by refining or grinding, or by other process of manufacture, and not specially provided for in this act"
A spice entitled to free entry under this pa.ragraph must, therefore, p09:3ess the following qualities: First, not edible; second, crude; third, not advanced in value or condition; fourth, not elsewhere provided for. The appraisers do not in terms decide whether the appellant's importation is, eo nomine, provided for under paragraph 326; but, in other respects, they find that it possesses all the requirements necessary to a position on the free list save one,-it is edible. An edible spice is not free. Congress has recognized the existence of an edible spice not only by providing for spices which are not edible, but by levying duties (paragraphs 713··720) upon certain spices which, clearly, must be considered as edible. The adjective "edible" found in this connection must be considered as a relative term qualified somewhat by the noun which follows it. As applied to spices it means a spice which is eaten as spices are eaten; namely, as a sauce, a condiment, a relish, not as a food product, capable of sustaining life. We speak of edible fruits and edible meats; we also speak of edible oils and edible salts; but no one supposes that the adjective is used in the same sense regarding all of these, or that when so used it is intended to convey the idea that the salt and oil are eaten in the same manner as the fruit and meat. It is fair to assume that this distinction was in the legislative mind when the tariff law was enacted. If the word has this significance in paragraph 560 the decision of the board should not be disturbed. The burden was. on the importer to establish the allegation of the protest that the bird pepper imported by him was not edible. The ap· praisers' decision, in substance, is that he failed to sustain this burden, not having satisfied them that his merchandise was not edible. The finding that the peppers in question are edible is not so clearly against the weight of evidence as to justify the court in setting the decision aside. Affirmed.
EDISONELECTRlO Llq.HT co. v.BEACON ,VAOUUM PUMP & ELEo. TRl,OAL CO. et al. (Oircult Court, D. Massachusetts. February 18, 1893.) No. 3,096.
PATENTS FOR rNVENTIONS"':"ANTICIPATION.,.....EvIDENCE-INCANDESCENT LAMPS.
An application for a preliminary injunction against the infringement of Edison's patent for an incandescent electric lamp, based on prior adjudications that this patent covered a broad and fundamental invention, was resisted on the ground of newly-discovered evidence of anticipation. This evidence consisted of !'leveral incandescent electric lamps rudely fashioned of glass, with carbon filaments and iron or copper leadingIn wires sealed by fusion of the glass, which the llccompanying affidavit of the maker, G., stated that he had made in the fifties, a vacuum in the lamps by the Torricellian metbod. He further stated that he had used them for the purpose of display and 01 adveI1Jising his business of clockmaker, and that tbey gave a steady and lasting light, in which he was corroborated byihe affidavits of numerous credible witnesses. A number of electrical experts testified, on the contrary, that the exhibits did not constitute practical lamps, inasmuch as the vaCUUm was originally of thll varying imperfect, and was subject to further impairment rates of expansion of glass and iron or copper. All these exhibits at the time of the trial lw..d been damaged so as to be useless as lamps. After the argument G.produced another lamp of far superior workmanship, having a V-shaped carboll burner and leading-in wires of platinum, which he stated was made prior to 1872. It appeared, however, that this ldmp bore internal evidence that it had not been exhausted by .the Torrlcellian method, as stated by G.; and that at various times before this tJ;1.al negotiations were had with G. by both the Edison Company and its rivals, wherein he was Dressed to produce a practical lamp made by him before the Edison patent issued, and when it would have been greatly to his advantage to do so; and yet at such times no such lamp was forthcoming. Furthermore, while he testified that In a period of some 20 or more years he had made over a hundred lamps, continually improving them in construction and workmanship, he was only able to produce three crude examples, made in the· fifties, and the one fair specimen mentioned. It was shown that he had ample opportunity to learn of the Edison patent. though he testified that he had no knowledge of it; and he never applied for a patent on his lamp, though during the period as to which he testified patents were issued to him for other articles. Held. that not only did this evidence lack that degree of probability which would warrant a refusal of the preliminary injunction, but, even if it were true, it would show only experiments made by G., and abandoned, Which did not amount to an anticipation of the Edison invention.
In Equity. Suit by the Edison Electric Light Company against the Beacon Vacuum Pump & Electrical Company and others for the infringement of a patent. On motion for preliminary injunction. Granted. Fish, Richardson & Storrow, C. A. Seward, and Richard N. Dyer, for complainant. Witter & Kenyon and Louis D. Brandeis, for defendants.
COI,T, Circuit Judge. In May, 1885, the plaintiff brought suit in the United States circuit court for the southern district of New York against the United States Electric Lighting Company for infringe-ment of the patent now in controversy, which was granted to Thomas A. Edison, January 27,1880, for an improvement in electrio