94 FEDERAL REPORTER.
Clause c of section 67 of the bankrupt act, so far as the same need becol1'Sidered on this hearing, is as follows:
"A lien. created by or obtained in or pursuant to any suit or proceeding at lllw or'in. equity, including an attachment upon mesne process or a judgment by confessfon,'whlch 'was begun against a person within four months before the filing of a: petition in bankruptcy by or against such person shall be dissolved by the adjUdication of such person to be a bankrupt if it appears that said lien was obtaineddand permitted while the defendant was insolvent and that its existence will work a preference."
The attachment having been levied within four months next preceding die adjudication i'nbankruptcy, the lien claimed by the creditoras haVing been thereby secured was dissolved, unless a proper construction of the clause of the bankruptcy law just quoted otherwise requires. As shown, it is admitted that the bankrupt was insolvent when the lien was obtained, and that its existence will work a preference; but it is contended on behalf of the creditor that the lien must not only have been' obtained, but that it must have been "permitted" by; ,the bankrupt, by some positive act. of consent or assistance in its 'procurement, in order to work that result. The court does not sounuerstand the law, but is of opinion that the word "permitmust be considered. ',as' synonymous with ted," in the, section "suffered." :a'he bankrupt the lien to; be obtained when, by not paying the debt, and otherwise, qe suffere(i or allowed or 'perwitted the grounds for the attachment to arise, and when he did not in good fa,ith prevent, or at least resist, the effort of the' creditor to obtain the Hen by means of the As His admitte(i that the bankrupt was insolvent at the time the lien' was obtained, and that the resuU of the existence of the lien would be a to Foerg, the views of the referee were correct, and, his ruling is ap' proved.
, (Ci).'QWti Court, of .A,.ppe.aIs, Second, Circuit. May" 25, 181)9.) ,. ;
,CarQo.q. sticks, 36 inches long, intended for ultimate uS,e ill light· " lng, reqUire to 'be cut' into suitable the. end.s of. which :m.ust or ground;' HMote 'tlie't can be so used, 'are dutiable under " paragraph 97 '6f the tarifl l 8JCt bf1897, ,as :articles or' wares COJ;llposed, wholly of :carbon; not. flpeciallyi Pj:,ovi(lildfor" and not under paragraph ,98, as car. ',i bons lighting, :'
,Appeal fr.0lll the Circulc Oourt df fheUnitedStates' for the Southlof' :ijewYol'k.! . ' ,',.' " , .' .. This 'clomeshereuptmappealfrom adecisjon of tile circuit court, ,Sou:thern, diStrict :l-Vew York, reversing' a 'decision of the 6oardof which reversed a,'Uecision of the colof York touching theassess:rnent of duty upon certainjlllported merchandise. The appear ,in the opinion.
UNITED S'l'ATES V. REISINGER.
D. Frank Lloyd, for the United States. W. Wickham Smith, for appellee. Before WALLACE, LACOMBE, and
PER CURIAM. This cause arises under the tarIff act of 1897. The relevant paragraphs are found in Schedule B, "Earths, Earthenware, and Glassware," and read as follows:
"(9"/') Articles and waJ:ell composed wholly or in chief value of earthy or mineraL substances or carbon, not specially provided for in this act, if not decorated in any manner; thirty-five per' centum ad valorem; if decorated, fortyfive per centum ad 'valorem. "(98) Gas retorts, three dollars each; lava tips for burners, ten cent,,' per gross and fifteen per centum ad valorem; carbons for electric lighting, ninety cents per hundred; filter tubes, forty-five per centum ad valorem; porous carbon pots for electric batteries without metallic connections, twenty per centum ad valorem." ,
It is by the collector that the articles are covered by paragr;aph 98, ascai:'bo 41 s, rods, or sticks for electric lighting. Inasmuch, as they were, 36 inches long, "which length," he asserts, "is equal'to three carbons of the extreme length for electric lighting," the collector assessed them atthe rate of $2.70 per 100 sticka. 'fhe board. of general appraisers held that they shollid be classified under The circuit ,court held that the collector's classification was correct, but that have assessed them at 90 cents per 100 only. 91 Fed. 638. No testiJ:lK)ny was taken in the ,circuit court. The findings of fact returned by the board of general appraisers are supported by the evidence before them, and read ,as' follows:
"(1) The goods consis,t of sticks or rods of carbon, imported in lengths, respectively, of 36 inches. "(2) The articles are not suitable or capable 'of be'ing used for electric lighting in the lengths and condition in which they are imported, but, in order to adapt them for such use, it is necessary to cut them up into shorter lengths, to point some of them, and smooth or grind the ends of others. "(3) PriOl' to .July 24, 1897 (the date of the present tariff act). carbons of these lengths were not imported into this country. They were then imported commonly in lengths varying from 4lh to 14 inches, and occasionally as long as 16, and perhaps 20, inches; the greater number being 12 inches long."
Accepting these findings as correct, we concur in the conclusion of the board that, although ultimately intended for electric lighting, the fact that it is necessary to bestow further labor on them, in order to fit them for such use, precludes their inclusion in paragraph 98. Inasmuch as they are not specifically provided for in paragraph 98, they come within the general phraseology of paragraph 97, being "articles or wares composed wholly" of Garbon." This paragraph, it should be noted, is changed from the similar one, in the act of 1894 (paragraph 86), which was recently considered by us in U. S. v. Reisinger (Dec. 7, 1898) 33 C. C. A. 395, 91 Fed. 112, by the insertion of the word "carbon." The decision of the circuit court is therefore reversed, and that of the board of general appraisers is affirmed. '
e4 FEDERAr,. REPORTER.
WELSBACH LIGHT CO. v. REX INCANDESCENT LIGHT CO. (pil'cult Court, S. D. New York. April 23, 1898.)
PATENTS-INCANDESCENT MANTLES FOR LIGHTS.
The Rawson. patent, No. 407,9(13, for improvements in incandescent mantles for gaslights, held valid, alld infringed, on motion for a preliminary injunction. ',
This was a suit in equity by theWelsbach Light Company against the Rex Incandescent Light Company for alleged infringement of a patent for incandescent mantles. The cause was heard on a motion for;preliminary injunction. , John R.. Bennett, for the motion. ,Louis Hicks, opposed.
LACOMBE, Circuit Judge. This is a suit to prevel1t infringement of 'the first claim of United States patent No. 401,963,. dated JUly 30, 1889, to Rawson and another, for production of incandescent mantles. This patent was before Judge and the claim sustained, in in this ,court of Saine'Oomplainant v. Sunlightlncandescent '00., 87 Fed. 221. . It was ib:eld that the invention covered by the patent was a most meritorious one; that the patentees may be regarded as pioneers; that the patent should not be narrowly interpreted, out should be so construed, as to cover a broad range of equivalents; and that it did cover mantles coated "by dipping or immersing them in a solution composed chiefly of collodion, with the addition of a small percentage of ellstor oiL" Under familiarpractice, that decision will be followed here unless some peculiar circumstancesareshlown. No patent, no prior publication, no authority not before Judge Townsend, is presented here. The proposition ad· vanced upon the argument. that no serious defense was made in the eafIiersuit finds no support in the record, in the briefs, or in the argument of counsel for the defendant in that case, a shorthand repj:)rt of which has been submitted/on this motion. Four affidavits (not properly verified for use in this ,action, but which may nevertheless be filed with the other papers) have been presented, asserting that affiants know of the use of the patented method prior to the patentee's application. Thi,s is what usually happens after a patent has been sustained at final hearing, and this court is slow to accept such ex parte statements as sufficient to do away with the presumption aris· blg from a decree at final hearing sustaining the patent. Infringem,ent is sufficiently Indeed, when the patentis broadly con· st111ed, as Judge Townsend held it should be, it is hardly disputed. Mption