5'7]5. the (lases at bar the ,releases were executed and"delivered. Theycarinot, now be. avoided simply because the; parties executing with the result. They persuaded them have been that the course they were pursuing secured them priority. They Nmlained of that opinion until the supreme court of South Carolina decided the. contrary. It has. been held that, a release bein,gonce regularly executed and delivered, it could never afterwards Qe avoided at law by the failure of one of the parties to perform an act, in consideration whereof the release was given. Fitzsimmons IV. Ogden, 7 Cranch, 2. A fortiori, the releases.in this case cannot be avoided at law. A verdict for defendants will be entered in each case. .
UNITED STATES v. CUTAJAR et al. (DIstrict Court, S. D. New York. January 4, 1894.)
CuSTOMS ,REVENUE-BOND FOR VERIFIED INVOICE-DAMAGES.
The defendant Cutajar Imported certain invoices of rice from Italy the month of November, 1891, and entered the m.erchandise on a proforma Invoice, executing at the same time, with the defendant Garidolli, 11 bond to the United States in the penal sum of $800, conditionedthat the obligors, etc., should, within six months from the date of the bond. produce to the collector of customs for the district of New York ;a. duly-authenticated invoice of the said goods, and pay to the collectortlle ,amount of duty appearing by !!uch invoice to be due over and above the amount of duties estimated on the appraisement of said goods; thedefeiJdants failed to' produce a duly-authenticated invoice within the time mentioned In the condition of the bond, although the collector of the port· QJ: Ne:w York received within such tilne the triplicate invoices required, ,1}y" section 2855 of the. United States Revised Statutes to be forwarded' from the United States consul, where such Invoices were verified in Itlily.. Held, that the United States, uponf,luch default by the defendants, were. not .entitled to recover the full amount named. as penalty In the bond, but only such sum as might be proved to be due the United States for duties upon the Importation in question.
Action bond executed by the defendants dB principal and surety to the UnLted States of America In the sum of $800, dated the 24th day ot November, 1891, reciting that the principal in the bond had applied to the collector of customs for the port of New York to make entry of certain goods, wares andmerahal1dise imported In the Fulda from Genoa, and· reciting fUrther it Is temporarily impracticable for the. said principal to produce a pl'?per invoice duly authenticated to law, by reason: whereofr and In of law, entry of the saidgoolls, wares, and merchandise,' is .allowed on affidavit and statement on the execution of this bond;" and 'setting forth the following condition:· , "Now, condition of this obligation is such thatJf the above bounden either of tl1.em, or either pf their heir!,!, or administrators and do within six months .from the produce to the collector of the customs for the district of New York 'a dilly authenticated Invoice· of the said goods, wares and merchandise, and shall pay to the said collector the amount of duty to which It shall appear by. such Invoice the said goods, wares or merchandise are subject,. over and above the aiDount of duties estimated on the appraisement of said goods, wares and merchandise, then the above obligation to be void; otherwise to remain in full force and virtue." There appeared upon, the bond ,as part thereof a memorandum showIng th,e importation to of lots of 100 and 50 bags of ricere-
UNITED STATES II. CUTAJAR.
spectively, weighIng, according to the pro forma invoice, 19,400 pounds dutiable at 2 cents per pound, maldng a total of $388 estimated duties. .ThIs bond was given under the provision of the act of June 10. 1890, (chapter 407, Laws 1890; 26 Stat. 131, § 4,) which provided: "And when entry of merchandise exceeding $100 In value is made by a statement in the form of an invoice, the collector shall require a bond for the production of a duly certified invoice;" and under article 326, of the United States treasury regulations of 1884, which provided for the form of a bond with sureties in double the amount of duty apparently due; also article 1056 of said treasury regulations. On the trial the United States attorney Proved the execution and delivery of the bond by the defendant eutajar as principal and the defendant Gandolfi as surety, and breach of the condition thereof. On cross examination of one of the plaintiffs' witnesses, the defendants offered in evidence, against the objection of the United States attorney. the triplicate Invoices of the merchandise taken from the files of the customhouse althe port of New York, and proved to have been received by the collector from the consul and filed November 24. 1891. which triplicate in· voices were duly verified before the United Statps consul at Genoa, Italy; one of which InvoIces called for 9,900 kilograms, equivalent to 21,829 pounds, of rIce, and the other 4,960 kilograms. equivalent to 10,913 pounds. of rice. The defendants' attor'leys, on cros>:-examiu:\tion of :111other of plaintiff>:' witnesses, produced from the flIes of the customhouse and offered In evidence the entry of the merchandise covered by the bond in suit. This paper was objected to by counsel for the government as Immaterial and irrelevant, the United States attorney contending that the full penalty of the bond was the measure of damages in the nature of a forfeiture, imposed by law upon the importer and recoverable by the government upon breach by the obligors of the condition of the bond; citing in support of thIs contention: Clark v. Barnard, .108 U. S. 436, 2 Sup. Ct. 878; U. S. v. Hatch, 1 Paine, .836, Fed. Cas. No. 15.325; U. S. v. Montell, Taney, 47. Fed. Cas. No. 15,798; Treasurer v. Patten, 1 Root, 260; U. S. v. Ping·ree. 1 Srr. 839, Fed. Cas. :"l"o. 16,050, reversed in circuit court 1 Spr. 342; Ives v. Bank, 12 How. 159; Farrar v. U. S., 5 Pet. 373; U. S. v. Mora, 97 U. 8. 413; U. S. v. Hodson, 10 Wall. 395; Republic of Mexico v. Ockershausw, i:7 Hun, 533; Willet v. Lassalle, 19 Abb. Pl'. 292; Hinds v. Doubleday, 21 Wend. 230; Harris v. Hardy, (ne exeat bond,) 3 IDll, 393. Also. as to the general power and authority or the secretary of the treasury, U. S. Rev. St. § 251. The defendants' counsel argued that the entry was admIssible to show th11t no final liquidation had been made. and no further duties were due the United State.s upon the same; and that consequently nothing was recoverable upon the bond as no actual damage to the government had accrued. After a recess of the court for the night, the following decision upon the question of law was renderEd by the court.
Edward Mitchell, U. S. Atty., and J. T. Van Rensselaer, Asst. U. S. Atty. Hess, Townsend & McClelland, (Charles A. Hess, of counsel,) for defendants. BROWN, District Judge. I have examined, as far as I was able since last evening, the cases cited to· me. I am satisfied that I cannot allow as damages any sum beyond the amonnt of duties and interest which the United States would lose by a failure to pp:l-duce the invoices, where, as in a case like this, the proofs leave no question of what that loss is. If there had never been any invoice, or if the means by which the assessment of duties could be fixed and made certain had never come to hand; then, perhaps, the full penalty should be· recovered, the damage could not be shown to be less·.
This ease 'is distingliishable from the considerably larg,e class of cases ,to Which the for the government has qirectedmy attention, and which he has so clearly presented; namely, those in which the amount named in the bond is treated as a liquidated sum to be paid in lieu of damages which are incapable of exact estimate. This case does not fall within that class. The context of the bond, the general purpose for which it was given, and the waytn which the amount of the bond in such cases is fixed, are such as,taken together require the amount named in the bond to be regarde'd as fixing, not an amount of liquidated damages, but only the extent of the importer's liability. In the ftrst place, the context shows the general purpose. It is a condition for the production of the invoice, and "for the payment of the a<iditional duties," which upon that invoice niay prove to be the proper amount of duties. That sufficiently defines the purpose of the bond"viz. to secure the full payment of the duties. In the next plade,ihe statute does not prescribe the amount of the bond. It leaves!t to be regulated by the secretary of the treasury. I think it ,is hardly consistent with the general purpose of such legislation,.or a proper construction of the law, to suppose that the secretary 'of the treasury was intended to fix, by a mere arbitrary regulatioIl, a 'positive penalty as liquidated damages which the citizen must pay because an authenticated invoice might not be produced within a specified time. In this case the bond itself compliance with the regulation. Its amount is not even ill is in excess of the regulation. The bond was made greater than "double Of,the duties" as estimated, upon the authority of the collector, as a mere matter of convenience in practice by the clerk who administered this business to take the nearest even hundred. It cannot be that the power to inflict a penalty as such, or to fix liquidated, damages in that manner, irrespective of what might be the 'Ioss, could be sustained. But it is reasonable and consistent. enough if the amount thus fixed for the bond is - regarded II1erely as a limit, and for the purpose only of securing to the government the payment of what shall eventually prove to be due to it. So it seems"to me, from the nature of the subject-matter, the context, and the object of the bond, as well as the unreasonableness of the contrary constru.ction as applied to a bond in which the amount is fixed in the way this amount is fixed, require me to treat this bond as admitting a recovery of no more than the damages sustained,since these damages are easily capable of exact determination. They amount, on the proofs in evidence, to the differelice between the first liquidation, and the amount of duties recoverable upon the authenticated invoice, or what, in this case, is equivalent to it, the triplicate invoice already in evidence; and accordingly· I·' so rule upon the questions presented. An exception having. been noted by the United States attorney, the defendants withdrew their offer of the entry, and thereafter the paper was offered and proved by the plaintiffs, together with the testimony of an expert from the customhouse showing that
ELECTRIC GASLIGHTING CO. V. FULLER.
according to the United States weigher's return attached to the entry and part thereof, the government would be entitled to a balance of unpaid duty on a final liquidation of the entry of $198.60. At the close of the testimony a motion was made by the United States attorney for a direction of a verdict in favor of the plaintUfs for the full amount of the penalty of the bond, viz. the sum of $800. The defendants moved for a dismissal of the complaint on the ground that no damage or loss to the United States had been proved under the bond; and that no additional duties could be recovered in this suit. Both motions were denied by the court; and a verdict was thereupon directed in favor of the plaintiffs for the sum of $198.60, and interest to the date of the trial. Verdict for plaintiffs accordingly.
ELECTRIC GASLIGHTING CO. et aI. v. FULLFJR et aL (Circuit Court of Appeals, First Circuit. January 9, 1894.) No.73.
A patent which is limited, both by its language and the prior art, to mere mechanical details, is not infringed by a device which, comparing mechanical details with mechanical details, shows a different result, and methods substantially unlike.
SA1'oIE-LnUTATION OF CI,AIM.
The Tirrell patent, No. 232,6G1, for an electric gaslighting apparatus, is restricted, in its first claim, to mere mechanical details. 55 Fed. 64, affirmed. Gordon v. Warder, 14 Sup. at. 32, 150 U. S. 47, and Knapp v. Morss, 14 Sup. Ct. 81, 150 U. S. 221, applied.
Appeal from the Circuit Court of the United States for the District of Massachusetts. In Equity. Bill by the Electric Gaslighting Company and Abraham L. Bogart against Charles E. Fuller and others, copartners as Fuller, Holtzer & Co., for infringement of certain patents for electric gaslighting apparatus. Bill dismissed. 55 Fed. 64. Complainants appeal. Affirmed. Edward P. Payson and Edwin H. Brown, for appellants. Frederick P. Fish and William K. Richardson, for appellees. Before COLT and PUTNAM, Circuit JUDGES, and NELSON, District Judge. PUTNAM, Circuit Judge. The bill covered a patent issued to Abraham L. Bogart, August 8, 1876, No. 180,832; but no issue seems to be taken upon this, and the bill should be dismissed, so far as that patent is concerned. The controversy relates wholly to the first claim of the patent issued to Jacob P. Tirrell, No. 232,661, September 28,1880, on an application filed January 8, 1877. The appellants maintain that, inasmuch as the court below ordered the bill dismissed because of a certain patent of Heyl and Deihl, there is no occasion here to discuss any other defense; but, even if that had been the substance of the decision of that court,