FEDERAL· REPORTER,

vol. 49.

.... Edward Mitchell, U. S. Atty.,ahd Henry for defendant. . ..
LA,CO,¥BE,

o. ,Pldtt, Asst.

U. S. Atty.,

Circuit Judge. I shf\ll grant the. D\o.tiQn of the defendant that the articles ,imported. meaning phrase,"hQuse furniture in the piece or rQugh."

UNITED STATES 'IJ. LoEB.

(OirocH' OOflrl, S.D. NeW York. February S8, 100s.)
IKTuNAL

Ji_J:w-TBADE-MA)1KB.· . ,' .. '. . Rev. St. U. S. I 3449, making It an offense to ship spirituous or fermented liquors or wines under any other brand or nama than that known to the trade alJ the kind or quality thereof, Is not within the prlnclple of the Trade-Mark Oase8, 100 U; S. 82. becaUse It acts In some cases as a protection to trade-marks.

Pethion for. a Writ of HabeaaOorpus to release. Morris der commitment for violating the internal revenue laws. A. J. Dittenhoejer, for petitioner. Ma:moell Evart8, for the United States.

held un-

I,..AOOMBE, Circuit Judge. Under the authority conferred by the.nrst elausa of se9tion 8 of article 1 of to-wit, to "levy lind and to" make all laws which shall be neceSSjl.ry and proper forcarry;inginto execution that power," congress has levied a tariff upon foreign goods, and also taxes certain domestic products, under a compreheQsi.ve "plan of interl1al revenue. The government of the United St!iteil QOllects duties upon spirituous and fermented liquors lind wines. brought· from, abroad, and lays taxes upon sucp. as manufactured here, and upon the business of manufacturing and dealing in them. It ha.selaboratedin great detail a system by which it practically takes control of. ll;lanufacture of alcoholic spirits for. the purpose of managing the collection ofthe revenue assessed therefrom, and exercjses a surveillance over their manufacture and sale. The constitutionality, generally, of such legislation is not assailed. Without details of this is apparent that it may be very desirable, perhaps necessary, to its success that all casks or packages containing distilled spirits shall be truthfully marked, such marking aftording to the officers of the governmen,ta convenient means both of checking the returns of the manufacturing dilltiller and preventing the smuggling of untaxed products into the general market of the country. In the last paragraph of section 29 of theaQt of congress approved July 13, 1866, and entitled "An act to reduce taxation a,nd to amend an act entitled' An act to provide internal revenue to support the government, to pay interest o'n the public debt, and for other purposes,' approved June. 30, 1864," (now section 3449, Rev. St. U. S. ,) it is provided as follows:

STARLING". WEIR PLOW CO.

637

"Whenever any person ships, transports; or rellloves any spirituous or fermented liquors or wines, under any other tban the proper name or brand known to the trade as designating the kind and quality of the contents olthe or packages containing the same, or causes such act to be done, he shall fijr/eit said liquors or wines, and casks or paokages, and,besubjeot to pay, a ane of five bundred dollars." That the relator did ship, transport, and remove a package of spirituous liquor, to-wit, gin, under a name or brand" other than the proper natlieol' brand known to the trade as designating the kind and quality of" ,the Contents of the package, is conceded. He insists that he should bediscliarged, because, as he contends, this provision of statute is an at;. tempt to legislate for the protection of trade-marks,and, as such, beyond 'the constitutional power of congress, citing 'the Trade-Mark Oases; lOOU.S. :82. I am unable to assent to this proposition. There is nothingii:i'the section which restricts its 'operation as counsel for the ra;. lator suggests, or indicates that it was passed for any putpose other than to provide facilities for the enforcement of the internal revenue laws. The 'trade may be able to recognize the kind and quality of spirituous liquors by some II proper name or brand," and that name or brand still be no 'Itrade-mark," in the sense in which the word was used in the statute which was criticised by the supreme court in the case cited. The sectiori seems to be well adapted to facilitate the administration of the internal revenue system. As a part of that system, it was within the power of congress to enact it,anll it should not be held unconstitutional because, in some cases, the "name or brand," which must be placed upon the cask orfpackage in orderto'truthfully describe the contents, happens tobeu/tl$de-J;na,rk, which might thus illcidentally be protected. State v. Bridge 00., 18 How. 421.

STARLING tI. WEIR

Co. et al. 1

(Oircuit Oourt, N. D. lZHnois, S. D. August 20, 1891.)

1.

PATENTS, FOB !NVENTIONS-PATENTAlULITy-NOVELTY-SULXY

PLows. The ftr8t Claim of letters patent No. 154,298, issued August 18, 1874, to WUliam Starling, for an improvement in sulky plows, consisting of the combination of a crank-bar with the plow-beain, lever. and axle, so that the horse!! are made to raise the plow out of the gro,und, is void for want of novelty.

S.

SAlIm-RES ADJUDIOATA.

A deci!!ion that a patent which has three claims covering ditrerent features of the device is not void for want of novelty does not render the que!!tion of noveltl. res adjuctWata, when a single one of the claims is attacked in a !!ub!!equent SUIt for want of novelty, and proof is introduced in such subsequent suit that was not otrered in the former suit.

In Equity.' Bill by William Starling against the Weir Plow Company and W:illiam Weir to restrain an alleged infringement of a patent.
1 Reported

lly Louis BoiBot, Jr., Esq., of the Chicago bar.