opinion that the threads of the figures whlcn, like those of the Swiss mrislins,.were'woven upon the loom at the saine time with the fabric itself, were to be counted, and that the statute meant that the cloth to whicll it referred should be homogeneous, so that the number of threads per square inch should not differ in 'different parts of the fabric. The supreme court, in Hedden v.' Robertson, 151 U. S. 520, 14 Sup. Ot. 484, did'not concur in this view, but was of opinion that the provisions of the act of 1883 "fix the rate of duty by a classification based on the' number of threads in a square inch of cotton cloth, without reference to the mode by which the count shall be made, and without regard to the incidental ornamentation of the fabric," and further said:
"Wehave'DO':ailthorlty, where the duty Is thus specifically declared, to make an illtCeptlon, based upon something that might be added to the cloth in the W/tyofiftguresor placed lJpon the groundwork of the fabric. being cotton cloth, within the terms and provisions of the The statute, and the threads thereof being Countable, the goods were dutiable, by the express language of the statute, at ,the rate which was exacted by th. collectQrfrQUt the defendant In error."
The ,decision of the supreme cO'Q.rt that "the ornamentation placed upon the groundwork of the fabric does not change its character as'cotton cloth, subject to the countable clause of the statute," is controlling upon this appeal, and compels the conclusion that the merchanQ.ise in :this case should have been classified for duty, and the entries th,ereof should have been liquidated, under the provisions of paragl'a ph 346. ' The decision of the circuit court is reversed.
UNITED STATES v. ZENTGRAF.
(Otrcuit dourt of Appeals, Second Circuit.
April 19, 1894.)
CUSTOMS DUTIES-DUTIABLE WEIGHT-ULTRAMAnrNE BLUE.
Ultramarine blue In pilip, which consists of the ultramarine ground In water so as' to form a thick paste, is dutiable, under paragraph 55 of the act of October I, 1890, at 4* cents a pound on the tull weight of the paste, and not on the weight of the ilitramarine contained therein when dlY.
Appeal frol1lthe Decision of the Oircuit Oourt for the Southern District of New York sustaining the decision of the board of general appraisers, who reversed the decision of the collector upon the amount of:dti:tyto be imposed upon ultramarine blue in pulp. U. So Atty.,· and James T. Van Rensselaer, Asst. Henry O. U. So Atty.. '. Albert OODlstock, for appellee. Before WALLAOE and SHIPMAN, Oircuit Judges. SHIPMAN, Circuit Judge. The Dlerchandise in question was ultramarine blue in pulp, which was imported into the port of New
UNITED .STATES V. ZENTGRAF.
York on May 29,1891. A duty of 4i cents per pound was exacted by the collector upon the net weight of the imported article, under the provisions of paragraph 55 of the tariff act of October 1, 1890, which is as follows: "Ultramarine blue, four and one half cents per pound." The importer protested against the assessment of duty upon the whole weight, claiming that the assessment should be only upon the weight of the ultramarine blue contained in the pulp. Ultramarine blue is imported in the form of powder, of little lumps or drops, and in pulp. The pulp is a thick paste, which is made by grinding the ultramarine in water, and is used to produce a high gloss upon paper hangings. It is sold by the pound, but the price is reduced in accordance with the quantity of water contained in it. The board of general appraisers decided that the duty should be assessed only upon the actual quantity of ultramarine blue in the casks at q cents per pound, and their decision was sustained by the circuit judge "with extreme doubt." . If the foregoing statement contained aU the facts which are applicable to the case, the reason of the decision of the board of general appraisers would be very persuasive; but other provisions of the tariff act of October 1, 1890, in that portion of Schedule A which relates to colors, are important. Thus, paragraph 50 imposed upon "blues * * * dry or ground in or mixed with oil," a duty of six cents per pound, and "in pulp or mixed with water six cents per pound on the material contained therein when dry." Paragraph 53 contained the same provision, in the same language, in regard to chrome yellow, chrome green, and like chromium colors. Under paragraph 57, the duty of 12 cents per pound is imposed upon vermilion red, whether dry or ground in oil or water. It seems apparent that congress was aware of the differing methods in which colors were prepared for the market,-that they were either drYJ or mixed with oil, or mixed with water,-and, with respect to a portion of the blues and to the chromium colors, provided in terms that when they were mixed with water the specific duty per pound should be assessed only on the weight of the color actually contained therein. Congress knew of the distinction between material dry and ground in water, and discriminated between the two methods, when it chose to do so. It omitted any discrimination in regard to ultra· marine blue, and presumably for a satisfactory reason. The distinction which the legislature carefully made in paragraphs 50 and 53, and which was not made in paragraph 55, leads us to the conclusion that the distinction was intentionally omitted, and that the article known as "ultramarine blue" is dutiable at 41 cents per pound in whatever form it is commercially known and purchased. The decision of the circuit court is reversed.
MAYOR, ETC., OF CITY OF NEW YORK et al. v. AMERICAN CABLE RY. CO. (Circuit Oourt of Appeals, Second Circuit.
AsSIGNMENT OF PATENTS-PATEN1.'-OFFICE RECORDS.
AprIl 18, 1894.)
certified copies of the patent-office record of instruments purporting to be assignments are not prima facie proof of the execution or genuineness of the, Instruments. Dederick v. Agricultural Co., 26 Fed. 763, and National Folding Box & Paper Co. v. American Paper Pail & Box Co., 55 Fed. 488, disavproved.
Appeal.from the Oircuit Oourtof the United States for the Southern ·District of New York. This was a suit by the American Cable Railway Company against the mayor, aldermen, and commonalty of the city of New York, for 271,727; issued February 6, 1883, infringement of letters patent to Daniel J. Miller, for improvements in: the construction of cable railways. There was a decree for complainant in the court below (56 Fed. 149), and defendants appeal. Francis Forbes and William N. Dj'kman (on the brief), for appellants. Ohas. Howa,rd Williams, Daniel H. Driscoll, and Edward W. Oady (on the brief), for appellee.' Before WALLAOE, LAOOMBE, and SIDPMAN, Oircuit Judges. Oircuit Judge. The complainant's title to the letters patent in suit depends upon tbe authenticitj' of the mesne assignments under which it.claims. No evidence was introduced tending to prove the execution of the. assignments from the patentee to Horton, from Horton to the Cable R@.way OonstrUction Oompanj', and fr<;)m the Cable Railwaj' Oonstruction Oompanj' to the complainant, except dulj'-certified copies of the patent-office record of three instruments which purport to be such assignments. The objection that the instruments were not sufficientlj' proved was taken in due season, and was insisted upon at the hearing in the circuit court. We are of opinion that the objection was valid, and consequentlj' that the complainant was. not entitled to a decree. The assignment of a patent is not a public document, but is merely a private writing There is no statutory provision requiring it to be recorded in the patent office. Section 4898 of the Revised Statutes permits this to be done for the protection of the assignee against a subsequent bona fide purcb,aser or mortgagee.Tlte section does not make the recorded instrument evidence, does not require the as· signment to be executed in the presence of any public officer, or to be acknowledged or authenticated in any way before recording, and does not provide or contemplate that it shall remain subsequently in the custody of the office. It devolves upon the patent office merely the clerical duty of recording any instrument which purports to be the assignment of a patent. We are aware of no principII' which gives to such a record the effect of primary evidence, or of