The first method is a single process; the second, a double process. If produced under the first method, it might be fairly classed with the round reeds, as being an unmanufactured article; if by the second process, it should more properly be classed with the flat and oval reeds, as being the product of a double process, and therefore a "reed, manufactured." There is no testimony showing how these particular imported reeds were manufactured; but all presumptions are in favor of the correctness of the collector's action; and the burden of satisfying the court and jury as to how they are produced undoubtedly rested upon the plaintiffs. In the absence of any affirmative evidence, therefore, I feel constrained to hold that they are produced in the way in which it must be assumed the collector held they were, to-wit, by a double process. Verdict directed in favor of the plaintiffs for the round reeds only.

BLYDENBURGH v. MAGONE, Collector.

(Circuit Court, S. D. New York. December 5, 1889.)

CUSTOMS DUTIES-CLASSIFICATION-CHINESE RUSH.

Unmanufactured rush, imported from China, cured, but not split or dyed, held to be "straw," within the common acceptation and definition of that word as used in this country, and therefore free of duty, under the tariff act of March 3, 1883, as "straw unmanufactured. "

At Law. Action to recover back customs duties. On motion for direction of verdict.

This was an action to recover moneys exacted as duties upon certain unmanufactured rush imported by the plaintiff, Jesse L. Blydenburgh, from China, in the year 1887. The merchandise in suit consisted of small rushes cut from a tall grass or plant which grows in the neighborhood of Canton, on marshy soil along the river. There is a regular delta there, and all through that region there are miles of territory where this grass grows wild. It is cut by the natives. In its original state it is a three-cornered grass. The sample of the merchandise in suit representing the importation showed that it had been cut and cured, but not split or dyed. When cured, split, and dyed, it is used in China for the manufacture of matting, but it is not so used without being cured and split. It does not bear any grain. It is not edible. The defendant, collector of the port of New York, exacted a duty of 10 per cent. on the entry of this merchandise under section 2513, Rev. St. U. S., as a "raw or unmanufactured article not therein enumerated or provided for." The plaintiff duly protested and appealed against said exaction of duty. thereon, claiming the merchandise to be free of duty, under section 2503, Id., (act of March 3, 1883,) under paragraph 796, (Tariff Index, new,) as "straw unmanufactured," or, under the same section, par. 636,

as "dried fibers," "stems," or "weeds" in a "crude state, and not advanced in value or condition by refining or grinding, or by other process of manufacture." It was conceded on the trial that the article was not the straw of commerce in this country; that it was a new article of importation since the passage of the tariff act of March 3, 1883. Straw mattings, however, had been imported prior to the tariff act of 1883. Defendant's counsel read in evidence the following definitions in Webster's dictionary: "Straw. The stalk or stem of certain species of grain, pulse, etc., chiefly of wheat, rye, oats, barley; more rarely, of buckwheat and peas." "Pulse. Leguminous plants, or their seeds; as, beans, peas, etc." "Weed. Underbrush; low shrubs; any plant that is useless or troublesome." "Rush. A plant of the genus juncus, of many species, growing in wet ground. Some species are used in bottoming chairs and plaiting mats, and the pith is used in some places for wicks to lamps and rush-lights. The term 'rush' is, however, often loosely applied to various plants having a similar appearance." "Fiber. One of the delicate, thread-like, or string-like portions of which the tissues of plants and animals are in part constituted; as, the fiber of flax or of muscle. Any fine, slender thread, or thread-like substance."

At the close of the evidence defendant's counsel moved for a direction of a verdict for the defendant, on the ground that the plaintiff had not proven facts sufficient to entitle him to recover; that the merchandise in suit was concededly not the straw of commerce, as known in this country at the time of the passage of the tariff act of March 3, 1883; that it was not "straw," within the dictionary definition; that the word "straw" only applied to the stalk of such plants as bore grain or seeds used for food; that there was no evidence that this rush bore any grain or seed fit for use for any purpose whatever; that the tariff act must be construed in relation to the appellations which the articles of importation had in trade and commerce at the time of its enactment, (Rheimer v. Maxwell, 3 Blatchf. 124;) that the fact that what is known as "straw matting" was made from this article after being cured, split, and dyed did not bring it within the free-list as "straw unmanufactured," (U. S. v. Goodwin, 4 Mason, 128;) that under the tariff act of March 3, 1883, "grass" was not free of duty, unless used or adapted for the manufacture of paper, (Tariff Index, 691;) that articles composed of grass or straw are dutiable under the said tariff act, (Id. 395-400;) and that the article in suit was not a "weed," a "stem," or a "fiber," but was a nonenumerated unmanufactured article, properly dutiable at the rate of 10 per cent., as assessed by the defendant collector.

Comstock & Brown, for plaintiff.

Edward Mitchell, U. S. Atty., and Henry C. Platt, Asst. U. S. Atty., for defendant.

LACOMBE, J., (orally.) Not without some doubt I feel constrained, by the dictionary definitions of the words referred to, to hold that this is "straw," within the use of the word in the English language as there given, and therefore I shall direct a verdict in favor of the plaintiff.

In re PALLISER.

(Southern District, New York. December 12, 1889.)

HABEAS CORPUS-APPLICATION TO CIRCUIT JUDGE—Appeal.

The act of congress of March 3, 1885, c. 353, (23 St. 437,) gives an appeal to the United States supreme court in habeas corpus cases from the final decision of the circuit court only, and does not cover appeals where the writ is returnable before a circuit judge.

Application for Habeas Corpus to LACOMBE, Circuit Judge, by Charles Palliser, charged with an offense in the district of Connecticut.

Roger Foster, for petitioner.

Edward Mitchell, U. S. Dist. Atty., and Daniel O'Connell, Asst. U. S. Dist. Atty.

LACOMBE, J. The point raised here by the defendant is a sharp one. If this were a civil cause, where legislative intent would be largely determinative of doubtful phrases, it would probably be held that his objection is not well taken. Whether or not the same decision would be reached in a criminal case is another question, which, unless good grounds to the contrary are shown, should be determined in proceedings conducted according to the regular and orderly practice in federal courts, whereby there is, in the first instance, a decision upon the law by the district court, and, if desired, a review of such decision by the circuit court, which may, in a proper case, be constituted with two judges; and, if they dif fer in opinion, they may certify any question of difference to the supreme court. The petitioner's counsel asks to have the questions raised by him decided upon this application, for the reason that, as he insists, should the decision be adverse to him, he would be able to prosecute an appeal to the supreme court,—a tribunal which he assumes he can reach in no other way. He is in error as to the practice. The appeal, in habeas corpus cases, which, since the act of March 3, 1885, may be taken to the supreme court, covers appeals only from final decisions of such "circuit court." Wales v. Whitney, 114 U. S. 565, 5 Sup. Ct. Rep. 1050. It does not cover appeals in habeas corpus, where the writ is returnable before a circuit judge. Carper v. Fitzgerald, 121 U. S. 87, 7 Sup. Ct. Rep. 825. The present proceeding is before the circuit judge, not before the circuit court, which, in this district, has regularly assigned terms for the transaction of criminal business, and a judge specially designated to hold them. Let the writ be dismissed.

UNITED STATES v. DUBÉ.

(District Court, D. Connecticut. December 5, 1889.)

OLEOMARGARINE-RETAILING WITHOUT LICENSE.

A person having a license to carry on the business of a retail dealer in oleomargarine in the town of W., which does not specify the street or number at which the business is to be carried on, and who has paid the tax, and who peddles oleomargarine, at retail, from a wagon, through the streets, is not carrying on the business of a retail dealer, without having paid the special tax.

Indictment for Carrying on the Business of a Retail Dealer in Oleomargarine without a License.

Geo. G. Sill, U. S. Atty.

Webster & O'Neill, for defendant.

SHIPMAN, J. The accused is charged with carrying on the business of a retail dealer in oleomargarine, on July 18, 1888, without having paid the special tax therefor, as required by the statute. It appears from the pleadings and the admissions in the case that the defendant had a license to carry on the business of a retail dealer in oleomargarine in the town of Waterbury from May 1, 1888, to April 30, 1889, and paid the special tax of $48 on May 5, 1888; that said license did not specify the street or number where the business was to be carried on; and that the defendant peddled, from a wagon through the streets of Waterbury, oleomargarine at retail, under said license. These being the only facts in the case, it does not appear that the defendant is carrying on the business of a retail dealer without having paid the special tax. What the legal result would have been if he had registered with the collector the street and number in which he was to do business, or if the license had specified the particular place in Waterbury where he was to carry on his sales, it is not necessary to determine. The facts are insufficient to constitute the offense as charged.

MORGAN ENVELOPE Co. v. ALBANY PERFORATED WRAPPING PAPER Co. et al.

(Circuit Court, N. D. New York. December 10, 1889.)

1. PATENTS FOR INVENTIONS-TOILET-PAPER PACKAGES-NOVELTY.

Letters patent No. 325,410, granted to Oliver H. Hicks, September 1, 1885, for a "package of toilet-paper," the claim of which was for "a bundle of toilet-paper, consisting of one or more lengths of paper formed into a flexible continuous band, of oblong or oval shape, the short rounded ends of said bands serving as guides for determining the proper points at which the paper is to be separated, * and affording also the most advantageous surfaces upon which to tear the paper, " are invalid for want of novelty.

2. SAME-TOILET-PAPER FIXTURES-INFRINGEMENT.

*

*

Letters patent No. 325,174, granted to Oliver H. Hicks, August 25, 1885, for a fixture to be used with oval-shaped rolls of toilet-paper, claimed (3) "the combination, with an elongated or oval oscillating roll of toilet-paper, actuated in one direction by a pull upon its free end of a stop constituting a knife or cutter, co-operating with the roll to sever the unwound portion therefrom when the roll has reached the limit of its motion when so actuated." The fixture was durable, and designed to last for many years, while the paper might be used up in a short time. Held, that a sale of such rolls of paper manufactured by defendants, mounted on fixtures which have been previously made and sold by complainants with paper mounted thereon, was not an infringement.

3. SAME.

*

Letters patent No. 357,993, granted to Oliver H. Hicks, February 15, 1887, claimed "(1) the combination, with an oscillating roll of toilet-paper, actuated in one direction by a pull upon its free end of a stop for arresting the roll at the limit of its motion when so actuated, whereby, upon the arrest of the roll, a portion unwound from it may be removed; (2) the combination, with an oscillating roll of toilet-paper," etc., "of stops for arresting the roll at the limit of its motion when so actuated, and also for arresting the motion of said roll at the limit of the oscillation in the opposite direction; (3) the combination, with an oscillating roll of toilet-paper having its bearings out of line with its center of gravity, and actuated in one direction by a pull upon its free end of a stop for arresting the roll, * whereby, when the roll has been arrested, and the length of paper removed, the roll will automatically resume its normal position." The fixture consisted of a back plate, two rigid arms extending outwardly at right angles, a flat metal core plate, on which the roll of paper is mounted, pivoted at the outer ends of the arms, and heavier on one side of the pivot than on the other, and a blade, extending between the arms at their inner end, acting as a stop and a cutter. The fixture sold by defendants differed only in that its arms were hung loosely on the back plate by means of a hinged transverse bar, which acted as a stop when oval rolls, mounted on a sufficiently wide core plate, were used with it. This fixture was a duplicate of an old one in common use at the date of the patent, which used cylindrical rolls on wooden spreaders, except that it had sometimes the core plate of the patent and oval rolls when it did the same work. Held that, as the core plate was not an element of the above claims, if they were infringed by a sale of defendants' fixture with oval rolls of paper, they were invalid for want of novelty; and if the stop described were an essential element of them, they were not infringed.

4. SAME.

The fifth claim of No. 357,993 was for "the combination, with the supporting arms, of an oscillating core plate, weighted on one side of its pivots so as to cause the roll supported by it to automatically resume its normal position after being oscillated, and a stop for limiting the motion of said plate.' Held, that this claim was infringed by defendants' fixture whenever a core plate was used, weighted or hung so that its depending side, when rotated upwardly, would be arrested by the transverse bar if any paper were left on the roll, and would fall by its own gravity.

In Equity. On bill for infringement of patents by the Morgan Envelope Company against the Albany Perforated Wrapping Paper Company and others.

Church & Church and B. F. Thurston, for complainant.

A. J. Todd, for defendants.

v.40F.no.10-37