272
FEDERAL REPORTER,
vol. 49.
SIMONTON, Distri9t Judge. Lewis Waller, styling himself postmaster at Greenwood, S. C., is attending this court as a witness for a defendant. This defendant, being unable to pay his witnesses, tained an order under section 878, Rev. St., and his'witnesses, among themWaller,were summoned, and will be paid by the United States. Waller, being about to discharged, claims the usual mileage and per diem of witnesses. Were he an officer of the United States, and summoned: ort behalf of the government, he would be entitled only" to his necessaryeXipenses, stated in items, and sworn to. in going, returning, and atRev. St. § 850.' The same rule would be observed tendance op the when an 'officer of the- United States is summoned, and attends as awij;;. ness'forth-e defendant,a:t,the expense of the UniteflStates. Section 878, Rev. the- conditions! under which the court may order witness$Sito be summoned, in 'behalf<jf, an impecunious deflmdant, goes on: ,'nn'su6h case, t4e co.sts incurred, by the prooess and fees ofthe wij;;. nesses' shall be paid in the same manner that similar costs and fees are paid in caSe of witnesses sllbpamaedin:behalf of the United States." If he wou'ld '.be paid siIIlilat :costs and fees as he woul'll' have secured had he been 8\1 bpcenaed in behalf of the' United States.' he would get only his I But this man calls himself deputy-postmaster.' No actual suoh,oiftce is for in the 8.cts of congress·. It appears that the p0stmaster'llt .Greenwood gets a fixed ',salary , out of which he pays such clerks as he may appoint. He need notappoint any. Under cumstances; ,Walleroannot 'be called 'iln officer of the United States. U. S. v.Mouat, 124 U.S. 303, 8 Sup. Ct. Rep. 505. Let him have the mileage and Pf1l" diem of a witness, under section 848, Rev. :St.
1"" foe ROESSLER "]nrtf W
&: HAssLAcium CHEMICAL Co. & Co., Limited.
(Oircuit Oourt, :$. D. New York. ,November 25, 189L) 1. CUSTOMS DUTIEB-CLASSIII'ICATION-PREPARATIONS 011' COAL-TAR.
Where the determining characteristic of a product is something which it has derived from coal-tar the same ill dutiable at 20 per cent. ad valorem as a "preparation of coaJ-tar," under the tarifl: act of March 8,1883, (Tarifl: Ind., New, par. 83,) instead of as a "chemical compound," under pllragraph 92, notwith!;ltanding that some of tlilf constituents 'of .'coaJ·tar have been eliminated and other materials added.
9.
SAME.
, , Under "naphthionate of soda" and toluidine base are dutiable as "prepantiol:!s of cOaJ·tar. " ,
Appeals froID Decision the Board of United States Reversed. The report of the district attorney to the secretary of the treasury in the Roessler Jei Hasskicher Chemical Oornpanrg case is as follows: .
of
IN BE ROESSLER & HASSLACHER CHEMICAL CO.
273
.. The proeeeding was an appeal by the Importers from a decision of the board of U. S. appraisers at tqis port, affirming thedecision of the collector upon the classifieation of merchandise imported into this district by said importers in the S. S. Nederland, August 25, 1890. was classified by the collector as · chemical salt,' and assess{l(1 for duty at the rate of 25 per cent. ad under the provisions of Tar!ff Ind. (New,) 92. of the act of March 3, 1883. Against this classification the importers protested, claiming that the merchandise was a ·preparation of dutiable only at 20 per cent. adoolor,em, under paragraph 83, 'fariff Ind. (New,) ,act of March 3, 1883. * * * It was proved by the importers that .the merchandise consisted of 'naphthionate of soda,' and that it was at present known, and was known in March, 1883, in the trade and commerce of this country, as a preparation of ooii.\..tar."The importers also called as a witness a chemist in the laboratory of the apprMsers' department in this city, and proved by his testimony that thfLproduotin question was,a combination of naphthionic acid acid was ,derived from naphthaline. which was a of ,coal.. derived per cent" lin!! the soda 'abont 13 per cent.; that it was 10 facta preparatIOn of coal-tar, ap· plicable to the commercial use of making so-called "coal-tln; colOrs;" but waS itself not a color or dye; that there was no one product that embraced and included all the substances found.in crude cQ.!lI-tar." The report of the district attorney to the secretary of the treasur)' in the Mathewri.,Ca8e is as follows: , ' ", ' , "',' "The proceeding was an appeal from the decision of the board of U. So appraisers for this port, the decision of the collector, of this pllrt ou tbe classification of certain merchandise 'entered at the port of New York by tbe above-named importers. per Bohemia, June 25, li90, ,,:bicb merchandise by the collector as a' chemical compound;" and duty IU. sessed thereon at the rateot 25 per cent. ad valorem, under Tariff Ind. (New.) 92, tariff of March 3, 1883. Against this classification the importers dul, claiming that the merchandise was a preparation of coal-tar, dutiable at 20 per cent. ad valorem, under Schedule A, tariff act of March S,1883, (Tadff Ind:" New, pal'. 83.) '" * '" No evidence waS' taken before the board of general appraiserS, and, after the proceedings w'eretransferred to the circuit court, the importers procured an order from the court for tbe taking of testimony herein before one of the U. S. general appraisers as an offieer of the court. On such reference the importers proved that the merchandise in questijJn was known as · toluidine base,' was a derivative of coaHar, and,was commercially known to the trade and commerce in this country in March, 1883; as a preparation of coal-tar. They also proved by the testimony of a cbemist'from the U. S. laboratoty in the appraisers' department in tbis city that the so-called · toluidine base' 'was made from to1uole, which exists in coal.tar, and is tint isolated by the process of distillation; that the to1uoleis transferred to, nitro-to1uole by tbe action of nitric acid ; tbat the nitro-tol uole, by treatment with caustic soda and zinc dust, becomes tranl;lformed to azo,-tol. uene, wbich body lJecomes converted into hydrazo-toluene, from which the base Is precipitated from the solution; that more than 80 per cent. of the toluidine base is derived from coal-tar. and that the commercial source of to]. uole, from wbich toluidine base is made, iscoal.tar; thattoluidine base w'asnot a color or dye; that there was no one product Uleluded all tbe substances found in crude cOal-tar."
Gnn8tocktfc Brmlm; for importers. Ed'lJJ(jf'd Mitchell, U. S. Atty.' V.49F.no.4-18
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'
, FEDERAL REPORTER,
, ,LACOMBE, Circuit ,Judge. The 'question liISto such a: compound as ;tl'iiiJ qe\ng ,iWproperly described Bs' 'a.' coal-tltr, because some is, by testImony, whIcn shows thll.t It,Om pItch, expressly, en,umerated as one of the coal-tar products, 'oiits. stituents 'have been eliminated. I do not think it was the intention of congreea,to,restrictthese paragmphs to products or prepamtions in which the entite'·constit.uents of' coal-tar, still remained, simply changed in some' ,wliy: .9r other' by , Not is it partil,lularly material that other substances have been tithe. determil}.ing'characteristic oftha ,proQ,uot or prElparation is, something which it has received from cool.tar" and: this the testimony shows. .For these reasons the decision appraisers is reversed., The articles should be classified 83,aspreparati6nl'of coal-tar, (not col?tsor dyes,)and .not "tntler broad desisnatiop, pi theot4er'paragrapb as "h·Oal'''ds" ,,' "., , c
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" ' /. 6n,thereare (loubts as. to \\>4e.tbertbere is aUlnftfil,gement. and a promp,to "1IB&1· earing is assurea, a prelimlnary'injunction will be denied.·' " "
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the, UllmIllolld . against the for infri'ngeinent of shoe buckle· ·klefl,f,4Jmwption for a ,preliwiolll"Y injunction. Inj,qnction refuliled. :GeorfJ8 W. Hey" for plaintiff. ' , . ' ,, ", for dllfondnnt. ,,}p,'Equity." i : Li.;\ .
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'fh,is9i11 In equity, the, al· paten,t.'No. 301,884, 4ated,July 15, 1884, E,J;mg and.JQ4lephO. HatllInopd, Jr." fqr, a shoe .clasp; The present hea:ring wlls.upona motion fora temporary injunction.,iTheJ clasp. :'plit?ntwas?escribed' andithe 'patent was construed'itl theOpInlOn'ofthls 'court In Buckle Co. V.' Hathaway, 48 Fed. Rep. $pp;a1)d in, a this court a motion for the 'same 4S·W,ed.Rep. Tpl3 buckleo! ,madeunCiler, .1ettersplltt,nt No. 418,\)24, dated January 7, 1890,UJ John Nase"and"consistsof.two plates., firmly, riveted together at tli<e fOMiVll.rdend, ntthe/:nthet end. l;'l:he',upper plateisbifurcated at its rear end, so as 'to farnfrearwardlyextelrding Rqns. "The tongue is provided with flattened, which. are the journaled in angular flanged bearings, formed b,y benging tbe leged,:i1M"rlj:tgement