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exacted on the invoice, and shipped quantity at its invoice value per pound as entered by the plaintiffs, instead of on the actual quantity landed at its invoice value per pound, as claimed by them after the government weigher had made his return. But it did not appear that the foreign market value of the Castile-soap when landed had been so enhanced that there had been no diminution of the total entered value of the invoice thereof in the principal markets of the country from which it was imported, notwithstanding its shrinkage in weight. The evidence of the plaintiffs' witnesses tended to show, as to the fish in suit, that they are called in Holland "anjovis," and in Germany "sardellen;" that they are caught only off the coast of Holland, while anchovies are caught off the coasts of Norway, France, Italy, and other places in the Mediterranean sea; that the fish in suit are a different species of fish from anchovies as well as from sardines; that the fish in suit are thick and round and white, except when they are old, and then they are of a rusty color, and are imported into this country with their heads off, put up in brine made of salt and water, in wooden packages in the shape of barrels, called ankers, half, quarter, eighth, and tenth ankers; that ankers are of about 80 pounds capacity, or less, while a barrel and a half barrel are of about 200 and 100 pounds capacity, respectively; that anchovies are a flat fish, and in that respect, like sardines, have black backs, are smaller, shorter, and less fat than the fish in suit, and are imported into this country with the heads on, and generally put up in spices and vinegar or hops; that the fish in suit are of much more value than anchovies; that the fish in suit are almost entirely sold to the German trade in this country, and at and prior to the passage of the act of March 3, 1883, were generally bought and sold in this country under the denomination of "sardelles." The evidence of the defendant's witnesses, on the other hand, tended to show that the fish in suit were then and there generally bought and sold under the denomination of "anchovies." Both sides having rested, the defendant's counsel moved the court to direct the jury to find for the defendant as to the soap; citing section 2900, Rev. St. U. S., and article 604 of treasury regulations issued July 1, 1884, and Kimball v. Collector, 10 Wall. 436. The plaintiffs' counsel, in opposition, cited section 2921, Rev. St. U. S; Marriott v. Brune, 9 How. 619; U. S. v. Southmayd, Id. 637; Lawrence v. Caswell, 13 How. 488; and Austin v. Peaslee, 10 Month. Law Rep. (N. S.) 443; Balfour v. Sullivan, 8 Sawy. 648, 17 Fed. Rep. 231; and Weaver v. Saltonstall, 38 Fed. Rep. 493. This motion the court denied, and the plaintiffs' counsel thereupon moved the court to direct the jury to find in favor of the plaintiffs as to the soap.

Albert Comstock and Everit Brown, for plaintiffs.

Stephen A. Walker, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for defendant.

LACOMBE, J., (orally.) The importer has to pay duty only upon what he imports. If his importation weighs 100 pounds when it leaves the other side, and 80 pounds only when it comes here, he pays on the 80

pounds which enters into the commerce of this country, and not upon the 100 pounds he bought on the other side. It may happen, however, that the shrinkage in weight has added a percentage of value, and that the 80 pounds which arrives is in its then condition worth more per pound in the markets of the country from which it came than the original 100 pounds was worth per pound. To illustrate, there may be a difference in the foreign market between 80 per cent. soap and 60 per cent. soap. If what reaches this country is in fact 80 per cent. soap, it should in fairness be appraised at its value as 80 per cent. soap in the foreign markets at the time of exportation, although the invoice may describe it as 60 per cent. soap at a lower value. But of course duty should be assessed only upon the amount actually imported. Such a method of appraisement seems to be in accordance with the provisions of the statute. In order, however, to warrant such an assessment of duty, the appraiser must first find that the 80 pounds imported was worth per pound such a sum as would warrant the particular amount of duty assessed. In this case there is no evidence that the appraiser has so found, and, on the contrary, the evidence is that the per pound value of the article imported was the same as that stated in the invoice, which would make the per pound value of the 80 pounds no greater than the per pound value of the 100 pounds. In view of the state

of the evidence, therefore, I shall, as to the soap, instruct the jury that their verdict must be for the plaintiffs.

The only question of fact for the jury, therefore, is whether the fish covered by the other entries are dutiable under the 280th or the 281st paragraph of the tariff act of 1883. These fish are caught in foreign waters. They are salted or pickled. They are imported here in ankers weighing about 80 pounds or less, and not in barrels, which weigh about 200 pounds, or in half barrels, which weigh 100 pounds. So far they are within the description of the 280th paragraph,-"foreign-caught fish, imported otherwise than in barrels or in half barrels, whether fresh, smoked, dried, salted, or pickled." That is where the plaintiffs claim that they should be classified, and they fall within that description, unless they are found specially enumerated or provided for elsewhere in the tariff act. The only other place where it is contended that they are specifically provided for is in the next paragraph, which lays a duty upon anchovies and sardines packed in oil or otherwise, and imported either in boxes or in any other form. The only question, then, for you to determine is whether or not these articles are anchovies or sardines. If you find them to be anchovies or sardines, your verdict must be for the defendant; otherwise your verdict must be for the plaintiffs. These tariff acts are intended, of course, for the community at large, and mainly for that part of the community which deal in the articles covered by the tariff acts. Therefore, in determining the meaning of the words used by congress, it is appropriate to go to the particular trade which handles the article and deals in it, and learn from those in that trade how the particular article is known in the trade and commerce of this country. For that reason witnesses in the trade have been called to the stand by the plaintiffs

and the defendant, and you have heard their evidence. Taking into consideration what they have told you with regard to the trade understanding touching these particular articles (Exhibit S-L) imported by the plaintiffs, it is for you to determine whether they are sardines or anchovies or not. If you find that they are sardines or anchovies, your verdict must be for the defendant; otherwise your verdict must be for the plaintiffs. Upon that question the burden of proof is upon the plaintiffs, for the case comes into court after a finding by the collector that they are sardines or anchovies, and that finding, which makes out a prima facie case, is to be overthrown by the plaintiffs by a fair preponderance of proof.

The jury rendered a verdict for the plaintiffs.

NIX et al. v. HEDDEN.

(Circuit Court, S. D. New York. May 14, 1889.)

1. CUSTOMS DUTIES-CONSTRUCTION OF STATUTES.

Where the words in a statute imposing duties on imported merchandise are not technical, their interpretation is a matter of law for the court. Following Marvel v. Merritt, 116 U. S. 11, 6 Sup. Ct. Rep. 207.

2. SAME.

The legislature must be presumed to have chosen language with regard to those for whom it is designed to constitute a rule of commerce, viz., the community at large. Following Arthur v. Morrison, 96 U. S. 108.

8. SAME-PRESUMPTIONS.

In the absence of proof that words have a different acceptation in other parts of the country from that which they have in the district where the court is sitting, it will be assumed that the use of the words is the same throughout the community at large.

4. SAME-CLASSIFICATION-TOMATOES.

In the common and popular acceptation of the words, the term "vegetables" includes "tomatoes," and the term "fruits" does not.

5. SAME.

Tomatoes imported from Bermuda are not free of duty by virtue of the provision in the free list for "fruits, green, ripe, or dried," but are dutiable at 10 per cent. under the provision in Schedule G of the tariff act of March 3, 1883, for "vegetables in their natural state.'

At Law.

This was an action against a former collector of the port of New York to recover duties alleged to have been improperly exacted. The plaintiffs in the spring of 1886 imported tomatoes from the island of Bermuda. The collector classified them as "vegetables in their natural state," and assessed them for duty at 10 per cent. under the provision therefor in Schedule G of the tariff act of March 3, 1883. The importer protested, and claimed that by virtue of the provision in the free-list of the same act for "fruits, green, ripe, or dried," they were exempt from duty. This suit was brought to recover the duties exacted. Upon the trial the

plaintiffs, having adduced the testimony of various importers and dealers to the effect that the words "fruits" and "vegetables" had no other or different meaning in trade and commerce from their ordinary and popular meaning, and having put in evidence the definition of the terms "fruit," "vegetables," and "tomatoes" from Webster's, Worcester's, and the Imperial Dictionaries, rested their case. The defendant put in evidence from Webster's Dictionary the definitions of the terms "beans," "peas," "cucumbers," "peppers, ," "egg-plant," and "squash," and then moved for the direction of a verdict in his favor on the ground that, according to the common and popular meanings of the terms "fruits" and "vegetables," tomatoes belonged to the latter, and not to the former, class.

Comstock & Brown and Stephen G. Clarke, for plaintiffs.

Stephen A. Walker, U. S. Atty., and W. Wickham Smith, Asst. U. S. Atty., for defendant.

LACOMBE, J., (orally.) In Marvel v. Merritt, 116 U. S. 11, 6 Sup. Ct. Rep. 207, the principle is laid down that where the words used in a tariff act are not technical, either as having a special sense by commercial usage, or as having a scientific meaning different from their common. meaning, they are the words of common speech, and as such their interpretation is within the judicial knowledge, and therefore matter of law. That case was one touching minerals, and the same rule must apply to vegetables. In Arthur v. Morrison, 96 U. S. 108, the proposition is laid down that when the legislature adopts such language to define and promulgate their action the just conclusion must be that they not only themselves comprehend the meaning of the language, but choose it with regard to those for whom it is designed to constitute a rule of commerce, namely, the community at large. The community at large, of course, are the people of the United States. In the absence, however, of any evidence tending to show a different acceptation of words elsewhere than what we find in the community residing in this particular district, or of any knowledge on the part of the court that there is such different acceptation, it will be assumed that the use of the words is the same throughout the community at large. With regard to this particular community, the word "vegetable," in its popular and received meaning, is used to cover a class of articles which includes tomatoes, and the word "fruit," irrespective of what the dictionaries may lay down as to its botanical or technical meaning, is not in common speech used to cover tomatoes. For these reasons I shall direct a verdict in favor of the defendant.

The jury found a verdict for the defendant as directed by the court.

ZINSSER et al. v. KREMER.

(Circuit Court, D. New Jersey. June, 1889.)

1. PATENTS-CARBONATING BEER-INVENTION.

Reissued letters patent No. 9,129, granted March 23, 1880, the claim of which was "the process of charging beer and other liquids of a similar nature with carbonic acid, by dropping into and through the liquid lumps of bicarbonate of soda, or of other alkali, thereby causing the acid discharged from the lumps to pass through the entire column of liquid," the process consisting of compressing lumps of bicarbonate of soda or other alkali so that they would drop to the bottom of the vessel containing the liquid, instead of being thrown on top of the liquid in powdered form, as theretofore, thus causing waste, are not void for want of invention.

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In a suit for infringement, where defendant's evidence of "prior use" is met by as much evidence to the contrary, and defendant's evidence shows that the prior use was strictly secret, the defense of "prior use" is not sustained.

8. SAME-INFRINGEMENT.

The use of artificially compressed lumps of bicarbonate of soda for the purpose mentioned in complainant's claim is an infringement of their patent though the lumps are not compressed with the aid of cement which is referred to in complainants' specifications as an available aid for that purpose, but which is not mentioned in the claim.

In Equity. On bill for infringement of patent.
Arthur v. Briesen, for complainants.

Joseph M. Deuel, for defendant.

BUTLER, J. This suit is for infringement of re-issued letters patent No. 9,129, granted to the plaintiffs March 23, 1880, " for a new and useful improvement in treating beer and other liquids." The claim is stated as follows:

"The process of charging beer and other liquids of a similar nature with carbonic acid, by dropping into and through the liquid lumps of bicarbonate of soda, or of other alkali, thereby causing the acid discharged from the lumps to pass through the entire column of liquid, substantially as specified." The specifications are as follows:

"This invention consists in treating beer and other liquids of a similar nature with lumps of bicarbonate of soda or other alkali, said lumps being compacted by means of a suitable cement, so that they are heavy enough to at once drop through the liquid to be treated, upon the bottom of the vessel containing the liquid. The carbonic acid evolved from said lumps is thus compelled to permeate the entire column of liquid above it, and at the same time to give up the requisite quantity of alkaline matter. Together with the lumps of bicarbonates of alkali may be used lumps of tartaric or other suitable acid, compacted in the same manner as the lumps of bicarbonate of alkali, as the amount of carbonic acid evolved from the latter can be easily controlled. It is a common practice with brewers and others to use bicarbonate of soda, either alone or together with tartaric acid, in the manufacture of beer, sparkling wines, and other effervescent liquids, for the purpose of increasing the life of such liquid. The mode of applying such article or articles-by brewers, for instance—is to apply about one ounce of the bicarbonate of soda to each quarter-barrel with a tablespoon, the bicarbonate being in the form of a

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