publication proposed to be deposited ,in the post office for transmission? If the matter offered for mailing is in itself obscene, lewd, or lascivious, then the postal authorities are forbidden to receive it. It is nonmallable, and its ,'character in this respect cannot be changed by placing it in a cover, wrapper, or envelope, or by sealing it as 1lrst-class matter. I am aware that there is not unanimity in the rulings upon this question. In U. S. v. Wilson, 58 Fed. 768, Judge Morrow held that the amendment of September 26, 1888, did not, in this respect make any change in the statute as it was when it was construed by the supreme court in U. S. v. Chase, 135 U. S. 255, 10 Sup. Ct; 756, wherein it was held that a sealed and addressed letter is not. a "writing," within the meaning of the act of July 12, 1876. In U. S. v. Andrews, 58 Fed. 861, Judge Ross takes the contrary view, and, in my opinion, clearly shows that the amendment of September 26, 1888, was intended to place obscene, lewd, or lascivious, letters among the class of nonmailable matter,Mt by reason of what might be upon the envelope or wrapper thereof, but by reason of the character of the letter itself. This being. tJie proper construction of the second section of the act of 1888, it. follows that the indictment charges an offense against the defendant, in that it charges him with knowingly depositing in the named post office an obscene, letter, for the purpose of having the same, transported and delivered tb.:ough the mail to the person to whom the letter is addressed. It iafurther urged in support of the demurrer that the indictment is faulty in that it is not averred that the defendant had knowledge of the contents of the letter or envelope by him placed in the post oftlce. The indictment follows the language of the statute, and charges the defendant, did knowingly deposit in the named post office an obscene letter, and the poitlt made is that it is not averred that defendant knew the character ofthe letter, the same being contained in an envelope. In U. S. v. Clark, 37 Fed. 106, the same upon by Mr. Justice Brewer, then circuit judge question for this ((ircuit, it being therein held that an indictment charging the defendant, with knowingly depositing in the post office, for mailing and delivery, a certain lewd and obscene picture, was sufficient, as it would be held that the word ''knowingly'' qualifies the full act eha,rged to be done, and is not limited to the mere act of depositing in the post office. Following this ruling, it must be held that the in.diettnent in the present case is sufficient in this particular, and the demll.rrer is therefore overruled.
ZIMMERMAN v. UNITED STATES.
(Circuit Court, S. D. New York. Aprl118, J894.)
CUSTom DUTIJl:8-(Jr,ASSTFICATlON-COTTON BRAIDS.
Braids composed of 95 per cent. of cotton and 5 per cent. ot other materials,. commercially known as belonging to the class of "cotton braids." tbojIgb bought and sold under the specific names of "cotton hat
ZIMMERMAN 11. UNITED STATES.
braids," "cotton fancy braids," "cotton straw braids," etc., and us.ed in the manufacture of hats, held to be dutiable at 35 cents per pound, under paragraph 354 of the tarltf aet of October 1, 1890, and not at 20 per cent. ad valOl'em, under section 4 of said act, as a nonenumerated manufactured article, nor at 40 per cent. ad valorem, under paragraph 355, as a manufacture of cotton not specially provided for, nor at 40 per cent. ad valorem, under paragraph 354, as "cotton g!mps, galloons, webbing, goring, suspenders and braces," nor free of duty, under paragraph G18 of the free list of sald act, as claimed by the importer. (Syllabus by the Court.) .
Application by John Zimmerman, importer, for a review of a decision of United States general appraisers concerning certain importations of braids made by him in 1890 and 1891, affirming the decision of the collector at the port of New York. The importations were classified for duty by the collector under the provisions for "cotton cords, braids, boot, shoe, and corset lacings," contained in paragraph 354, schedule I, Act 1890 (26 Strut. 593). The importer protested, as stl;lted in the syllabus. Hess, Townsend & McClelland, for importer. Henry C. Platt, U. S. Atty. TOWNSEND, District Judge (orally). It appears that, while the braids are exclusively used for making hats, yet they are cotton braids in fact, and are generally and known as "cotton braids," although they are also known as "cotton hat braids," and a certain pattern is known as the "Belgrade pattern." It seems to me that the construction contended for by the importer would nullify the operation of the statute (paragraph 518), by admitting braids suitable for making hats, irrespective of their composition,-whether of wire, paper, leather, or whalebone, for example,-and that therefore, this construction could not have been. intended by congress; and a further suggestion in support of this view seems to be afforded by the limiting clause (in paragraph 518), in which all "similar manufactures" are limited as to the material of which they are composed. I can see no reason why, if the limitation is applied to the general term "similar manufactures," it should not also be applied to the braid, especially in view of the fact already suggested,-that the other view admits of other materials, such as have been mentioned. The construction contended for by the government seems to be further in harmony with the intention of congress as manifested by other acts, and in accordance whh the construction applied by the courts in similar cases. I therefore think that the decision of the board of general appraisers should be affirmed. Decision affirmed.
UNION iMVITot! & SIGNAL CO. v. JOHNSON RAILROAD SIGNAL CO.
1 : ... ,',
(QircUtt'Court of Appeals, Third Circuit.
:.. AUTHclRITY 011' AGENT TO SELL PATENT-INTERPRETATION OF POWER OF ATTORNEY.
A power of attorney which, In consideration of a prescribed royalty, appoints the donee sole agent In the United States the purpose of working and developing the business of said patents," with power to "negotiate the S8leot the said patents upon terms to be agreed upon;' does not give the agent, PQWeJr to grant an exclusive llcense, which WOUld. transfer subinterestJn the patent; but it does authorize him to grant nonexclUSIve licenses to manufacture and Iilell. A contt8.ct which purports to convey, for a prescribed royalty, the sole an:(l e:X.1Clusive right and license to mltke, use, and sell In the United States the Improvements covered by a patent JrOf the full term thereof, is in substance a if not an. l1£t1,tal sale. 59 Fed. 20, a1Il.rmed. .
8. UNAUTHORIZED SALE BY AGENT-RATIFICATION.
The sale, by an agent who had .authority to grant nonexclusive licenses oniy, of an exclusive license transferring in substance the entire patent, may be held good as a nonexclusive llcense, when the licensees have been misled b;V the ambiguous language used by the principal in On ;the ,agent. and especially when the principal has long recognized i them as in so doing, he was unaware that their license he. e4clusive.
POWER OFAT'fORNEY-CONTj;\ACT IN ATTORNEY'S NA1tlE-VALIDITY.
It seems that when a contract which may be made, by parol is put in writing, merely for convenience and certainty of proof, as in the case of a nonexclusive.'li(!ense,to make and sell under a patent, the fact that the ,writing purports to be made under a power of attorney, but is executed by the attorney in his own name, will not render the contract void.
Appeal from t;he Circuit Court of the United States for the Western District of Pennsylvania. This was a billby the ,Johnson Railroad Signal Company against the Union Switch & Signal Company, for 'infringement of letters patent No. 241,246, issued to Frederick Cheeswright, for "improvements in railroad signal apparatus." Cheeswright, by a pOwer or attorney, which is set out in the opinion, constituted one Yeomans his attorney in fact in the matter of the patent, and deferidant claims under a conveyance by· Yeomans, dated March 21, 1882. Plahitiff claims title to the same patent under a power of attorneyfromCheeswright to Henry Bezer, dated October 31, 1889, and an assignment of the patent ,from the latter. The case was' heard ill the circuit court on a motion for leave to file a cross bill;aIid!fdr:an order for substituted service (43 J)'ed. 331). Afterwards, a motion by the cross complaiJiant for an order for an injunction was denied (51 Fed. 85). A decree was finally rendered for complainant (59 Fed. 20). Defendant appealed. George H. Christy and So Schoyer, Jr., for appellants. George W. Miller and Wm. R. Blair, for appellees. Before DALLAS, Circuit Judge, and BUTLER and GREEN, District Judges.