ment by the master. There was no application for its modification, as in Thomas v. Railway Co., heretofore cited. If I treat the present proceeding as an application for its modification, it comes too late, for the decree has been fully executed. If the clerk conceives his legal commission affected by an inadvertent order, he should at the time raise the question by an application for a modification. He cannot stand by and let the decree be executed, and then ask commissions upon the theory that the decree which kept him from receiving, keeping, and paying out the fund was void, or that it constructively placed the fund in his hands. The application must be disallowed. WANAMAKER et al. v. COOPER, Collector. (Circuit Court, E. D. Pennsylvania. No. 24. June 25, 1895.) 1. CUSTOMS DUTIES-CLASSIFICATION-MEN'S LEATHER GLOVES. "Men's leather gloves, prick-seam and embroidered," were dutiable, under the act of October 1, 1890, at $1 per dozen and 50 per cent. ad valorem, not at $1.50 and $2 and 50 per cent. ad valorem. 2. SAME-TOYS-TINSEL THREAD FOR CHRISTMAS TREES. Metal thread, known as "tinsel," "tinsel thread," "lametta," etc., but never as a "toy," was not dutiable as such, under the act of October 1, 1890. merely because it is used almost exclusively for decorating Christmas trees. 3. SAME-WOOL KNIT HATS. "Wool knit hats," invoiced as "red fez caps," held dutiable as wearing apparel (affirming the decision of the board of general appraisers, in the absence of evidence by appellant). 4. SAME. The fact that a "toy," broadly defined, is an article mainly intended for the amusement of children, does not warrant the conclusion that anything chiefly used to decorate an object designed to amuse children is to be classified as a "toy." 5. SAME-FURNISHED NEEDLE CASES. An article which is invoiced and intended to be sold as a single thing is not resolvable into its constituents for purposes of ascertaining duty. Held, therefore, that cases containing needles, imported as an entirety, and designed to be sold as "furnished needle cases," must be classified as integral articles according to their components or chief value. 6. SAME-PAPIER MACHE. Merchandise invoiced and known (and in this instance sold) as papier mache is dutiable as such, though every constituent of papier mache may not be present in the composition of which it is made. This was an application by John Wanamaker and others, importers of certain merchandise, for a review of the decision of the board of general appraisers affirming the decision of the collector of the port of Philadelphia as to the rate of duty upon the said merchandise. Among the imports in question were certain "men's leather gloves, prick-seam and embroidered." These were assessed by the appraiser at a cumulative duty of $1.50 and $2 per dozen and 50 per cent. ad valorem, under the tariff act of October 1, 1890. The importer claimed by his protest that they were dutiable only at $1 per dozen and 50 per cent. ad valorem. The appraiser's decision was affirmed v.69F.no. 6-30 by the collector and the board of United States general appraisers. Part of the merchandise consisted of "wool knit hats," which were invoiced as "red fez caps." These were appraised as wearing apparel by the appraiser, and his decision was affirmed by the collector and the board of general appraisers. Frank P. Prichard, for plaintiffs. Ellery P. Ingham, U. S. Atty., for the Government. DALLAS, Circuit Judge. This is an appeal from a decision of the board of general appraisers by which questions are presented as to the rates of duty applicable to five articles. 1. Their decision as to "men's leather gloves, prick-seam and embroidered," conflicts with judicial authority, and therefore cannot be sustained. 2. As to the wool knit hats, the appellants offered no evidence, and the decision as to these articles will stand. 3. As to the use and trade-name of the article described in the opinion of the board of appraisers as "metal ornament for Christmas trees," there is, under the evidence, no room for doubt. Its principal and almost exclusive use is for the decoration of Christmas trees, and it is known in the trade as "tinsel," "tinsel thread,” “lametta,” etc., but never as a "toy." In fact, it is a metal thread, though, in the condition in which it was imported in this instance, it is not fit to be employed as a metal thread, for embroidering or other manufacturing purposes. I do not understand that the board of apprais ers found these facts to be otherwise than I have stated them. If they had done so, I would, of course, have regarded their finding with much respect. There is, however, no conflict of evidence, and the only question is as to the correctness of the conclusion which they deduced from the clearly-established facts. Their decision was wholly founded upon the assumption that because a toy, broadly defined, is an article mainly intended for the amusement of children, therefore anything which is chiefly used to decorate an object designed to amuse children should itself be taken to be a toy. I think this reasoning is unsound. In common speech the word "toy" certainly has no such comprehensive significance, and the evidence shows that, in the trade, the material in question is not known or designated as a toy. When placed upon Christmas trees, it does, no doubt, contribute to the amusement of children, but so do many things which could not with any aptitude be classified as toys. A toy is a thing to amuse children, but it does not follow that everything which amuses them, or which enters into a device for their amusement, is in itself a toy. I am constrained to overrule the decision of the board of general appraisers as to this merchandise. 4. Protest 8704b related to an importation of needle cases furnished with needles. If separately considered, as the appellants contend they should be, these cases would be dutiable, and the needles would be free. The board of appraisers found, however, that the cases, with their contents, were invoiced and imported as an entirety, and designed to be sold as "furnished needle cases"; and they there fore held that they should be classified as integral articles according to their components of chief value. I am of opinion that this view of the matter is correct; that an article which is invoiced and intended to be sold as a single thing is not resolvable into its constituents for the purpose of ascertaining its liability to duty. The decision as to these articles will stand. 5. The board of appraisers found that certain imported merchandise consisted of "articles known as papier mache," and therefore held that it was dutiable as papier mache. This finding of fact is unquestionably correct, and the conclusion stated was also right. Articles invoiced, known, and (in this instance) sold as papier mache, cannot be relieved from payment of duty as such, upon the ground, here set up, that every constituent of true papier mache was not present in the composition of which they were made. The decision as to these articles will stand. Let judgment be entered in accordance with this opinion. ZIMMERN et al. v. UNITED STATES. (Circuit Court, S. D. New York. May 9, 1895.) CUSTOMS DUTIES-CLASSIFICATION-SILK VEST CHAINS. Silk vest chains, in which silk is the component of chief value, were dutiable at 50 per cent. ad valorem, under paragraph 383 of the act of March 3, 1883, and not at 25 per cent., as "jewelry," under Tariff Ind. 459. This was an application by Henry Zimmern & Co. for a review of the decision of the board of United States general appraisers affirming the decision of the collector for the port of New York in respect to the classification for duty of certain merchandise imported by them. The merchandise in question consisted of vest chains, which are silk guards or chains used for watches and eyeglasses. Silk is the component of chief value, and the collector imposed a duty of 50 per cent. ad valorem, under paragraph 383 of the act of March 3, 1883. The importers protested on the ground that the goods. were dutiable at 25 per cent., as "jewelry," under Tariff Ind. 459. The board of appraisers affirmed the collector's decision, saying that the goods were not commercially or popularly known as "jewelry." Albert Comstock (of Comstock & Brown), for importers. TOWNSEND, District Judge (orally). It does not appear that there is any commercial designation for jewelry which includes these silk vest chains. The article is not jewelry in the ordinary sense of the word, nor is it considered jewelry by the trade. The decision of the board of general appraisers is affirmed. DAVOCK v. CHICAGO & N. W. R. CO. (Circuit Court, N. D. Illinois, N. D. July 27, 1895.) PATENTS FOR INVENTIONS-NOVELTY-ANGLE SPLICE FOR RAILWAY JOINT. Letters patent No. 228,347, issued June 1, 1880, to James Hawks, for "angle splice for railway joint," consisting of "a splice made angular in cross section, and having its base flange constructed with a bend whereby the base flange of the splice is adapted to fit upon the bases of two abutting rails of unequal height," are not void on their face, for want of patentable invention and novelty, although they inferentially admit that angle splices are not new for that purpose, and only claim them when bent as described, and although they state that "these joints have usually been formed by fish plates, the ends of which were arranged at different heights, corresponding with the position of the rails." In Equity. On demurrer to bill. Suit by Harlow P. Davock against the Chicago & Northwestern Railroad Company to restrain the infringement of a patent. Charles Loughridge, for plaintiff. SEAMAN, District Judge. The defendant demurs to a bill of complaint alleging infringement of letters patent No. 228,347, issued to James Hawks, June 1, 1880, for "angle splice for railway joint," and assigned to the complainant. The first claim of the patent is this: "A splice made angular in cross section, and having its base flange, i, constructed with a bend, k, whereby the base flange of the splice is adapted to fit upon the bases of two abutting rails of unequal height, and having its vertical web, L, fitted under the heads of the abutting rails, substantially as set forth.". And the second claim is for a combination, with rails of unequal height, of two of the angle splices of the first claim, bolted to the rails. The sole ground asserted for the demurrer is that the patent "is wholly invalid on its face, for want of patentable novelty and invention." It is unquestionable that this objection may be taken by demurrer, and it is equally clear that the demurrer should be overruled, and the complainant put to answer, if the question of invention or novelty is fairly open to doubt. Oftentimes a showing of the prior state of the art will demonstrate that to be true invention which does not seem to possess this merit on first impres sion, and when read in the simple terms of the patent, and all light in that direction is shut out if the demurrer is sustained. The argument that the court can take judicial notice of certain facts which are of common understanding does not apply, as it would require, for the purposes of this case, an assumption of knowledge, not only of the methods which had been employed for joining the rails, but of the practical difficulties, under various conditions, which were met, and the measure in which the means theretofore employed had failed, and the alleged invention had succeeded, in overcoming them. It would be an innovation for the court, upon this issue, at least, to thus bring to bear any information it might possess or obtain aliunde the patent. But it is further urged: This patent states that the invention is "new and useful improvements in angle splices for railway joints," and therefore admits that angle splices are not new for the purpose; that it states, of the prior art, that "these joints have usually been formed by fish plates, the ends of which were arranged at different heights, corresponding with the position of the rails"; and, finally, that it does not claim the angle splice "by itself, broadly, but only when bent in the particular way described." There is great force in these objections, and they certainly raise serious doubt of patentable novelty in the device. Nevertheless, they do not, in my opinion, so far overcome the presumptions in favor of the patent that the complainant should be foreclosed from the showing (which, it was asserted in the argument on his behalf, could be made) of the long-felt want in railroad construction, especially with the adoption of heavier rails for increasing traffic and speed; of attempts and failures to find a remedy, and the extent to which it was supplied by the alleged invention, and of the extensive use which followed, all being circumstances entitled to consideration in case of doubt, and upon which the doubt may be resolved in favor of the patentee. Topliff v. Topliff, 145 U. S. 156, 164, 12 Sup. Ct. 825. In view of the definition of patentability by the supreme court in respect of inventions of great simplicity,-Loom Co. v. Higgins, 105 U. S. 580; Consolidated Safety-Valve Co. v. Crosby Steam Gauge & Valve Co., 113 U. S. 157, 5 Sup. Ct. 513; Magowan v. Packing Co., 141 U. S. 332, 12 Sup. Ct. 71; Barbed-Wire Patent, 143 U. S. 275, 12 Sup. Ct. 443, 450; Gandy v. Belting Co., 143 U. S. 587, 12 Sup. Ct. 598; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825; Krementz V. S. Cottle Co., 148 U. S. 556, 13 Sup. Ct. 719; and National CashRegister Co. v. Boston Cash-Indicator & Recorder Co., 156 U. S. 502, 15 Sup. Ct. 434, 1041,-it is my opinion that determination of the validity of this patent should be left to final hearing upon proofs, and that the demurrer should be overruled. ordered. It is so MCBRIER et al. v. A CARGO OF HARD COAL. (District Court, D. Minnesota, Fifth Division. September 3, 1895.) WAIVER OF MARITIME LIENS EFFECT OF DISCHARGE OF CARGO PLEADING. ADMIRALTY An allegation that, before discharge of cargo, libelants notified the consignee that they would look to the cargo for freight and demurrage, is sufficient to show that their lien therefor was not waived by such discharge. This was a libel by James McBrier, John Thompson, and E. D. Carter, owners of the steamboat Nyanza, to enforce an alleged lien for freight and demurrage. The Pioneer Fuel Company, consignee of the cargo, has interposed certain exceptions to the libel. H. R. Spencer, for libelants. E. S. McMillan, for claimant. |