394
FEl)ERAL REPORTER,
vol. 57.
defective. Authorities on this point might .be vouched in profusion, but the principle is so plain that I do not think it necesSflJ'Yto. cite them. All these indictments must be dismissed.
MAGONE, Collector, v. AMERICAN TRADING CO. (Oircuit Oourt of Appeals, Second Circuit. OUSTOMS· DUTtES-TARIFF ACT OF MARCH CATtoN
December 6, 1892.) CLASSIFI-
S,
1883-PAPER SCREENS -
SCreens imported during the year 1888, which were composed of paper, as their COmponent material of chief value, and of wood and metal, which were'used on the floors of dwelling houses, or other places, to intercept hent, light, or moving air, or to conceal portions of rooms or objects, and which were then known in trade and commerce of this country as "paper screens," were not dutiable at the rate of 40 per cent. ad valorem, as screens, under the provision for "all other mats not exclusively of vegetable material, screens, hassocks, and rugs," contained in (paragraph 378, Tariff Ind., New) Schedule K (entitled "Wools and Woolens") of the tariff act Of March 3, 1883, (22 Stat. 510,) but were dutiable at the rate of 15 per cent. ad valorem, under the provision for "Pa;manUfactures of, or of which paper is a component material, not specially enumerated or provided tor in this act," contained in (paragraph 388, Tariff New) Schedule 10£ (entitled "Books, Papers; etc.,") of the same tarltl act, (22 Stat. 510.)
Error to the Circuit Court of the United States for the Southern District of New York. At Law. Action by the .American Trading Company against Daniel Magone, collector of the port of New York, to recover duties paid under protest. There were verdict and judgment for plaintiff, and defendant brings error. Affirmed. During the year 1888 the American Trailing Company, the defendant in error, made thJ!ee importations of screens fl,'om Japan into the United States, at the port of New York. These screens were classified for duty as "screens," under the provi9l.0n for "screens" contained in Schedule K of the tariff act of March (22 Stat. 510; Tariff Ind., New, par. 378,) and duty was exacted thereon, of the defendant in error, at the rate of 40 per cent. ad valorem, by Daniel Magone, the plaintiff in error, as collector of customs at that POl't. Schedule K, entitled "Wools and Woolens," after providing for wools and hairs, and manufactures of wools, worsteds, and hairs, including various kinds of carpets or carpetings, and all druggets and bockings, provides (Tariff Ind., New, par. 378) that "carpets and carpetings of wool, fiax, or cotton, or parts Of either or other material, not otl;1erwise herein specified, forty per centum ad valorem; and mats, rugs, screens, covers, haSSQcks, bedsides, and other portions of carpets or carpetings, shall be BUbjected to the rate of duty herein imposed on carpets or carpeting of like character or description; and the dqty on all other mats, not exclusively of vegetable material, screens, hassocks,and. rugs, shall be forty per centum. ad villorem." The defendant in error duly protested against this classification and tws. exaction, clillmlng in its protestS that these screens were dutiable at the rate of 15 per cent. ad villorem, as, "manufacturee ot paper, or of· which paper is component material, not sp;eelally enumerated or provided fefr," under the provision for such manufactures. contained in Sclw.dule M (entitled "Books, Paper, etc.") of the aforesaid. tarltlact, (22 Stat. 510; Tariff Ind., New, par: 388.) The defendant in error made due appeals, as prescribed by law, and, within 90 days atter adverse decision'thereon by the secretary of the treasury, brought this suit
MAGONE ".AMERICAN TRADING CO.
395
at law In the clreu1t court of the United States for the southern district of New York to recover all duty exacted on these screens in excess of duty at the rate of 15 per cent. ad valorem. These screens were the ordinary movable soreens, such as are used on the floors of dwelling hOU!iles or other places to intercept heat, light, or moving air, 'and protect therefrom persons sitting behind them, or portions of rooms, or any other thing that it Is desired to keep from sight. They were composed of paper, wood, and metal, were aoom 41k feet high, and consisted, some of three, and some of four, folds. The value of the metal in these screens was from 15 to 16 per cent. of the whole value thereof; the value of the wood, from 20 to 22 per cent.; and the value of the paper, from 65 to 62 per cent. At and prior to March 3, 1883, screens like these screens were known in trade and commerce of this country as "paper screens." Both sides having rested, counsel for the plaintiff in error moved the circuit court to direct the jury to find a verdict for the plaintiff in error as to these screens, on the ground that they were provided for, eo nomine, in Schedule K of the aforesaid ta.riff act of March 3, 1883, (Tarift Ind., New, par. 378,) and were therefore promptly subjected by the plaintitr In error, as said collector, to dUty at the rate of 40 per cent. ad valorem. The circuit court refused to direct the jury to find for the plaintiff in error, but, on the contrary, directed a verdict 1.01." the defendant in error. There was a verdict and jUdgment accordingly, and the plamtiff In error sued out this writ of error.
Edward Mitcheii, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., for plaintiff in error. Curie, Smith & Mackie, (W. Wickham Smith, of counsel,) tor defendant in error. Before WALLACE and SHIPMAN, Circuit Judges. PER The plaintiff in error was defendant in the court below. The suit was brought to recover duties alleged to have been illegally exacted by the defendant, as collector of the port of :New York, upon certain importations made by the plaintiff in October and December, 1883. The importations were the ordinary movable screens, such as are used on the floors of dwelling houses or other places to intercept heat, light, or currents of air, or to conceal objects or portions of the room. They were composed of paper, wood, and metal. They were about 4! feet high. Some had three and some four folds. The value of the metal in the screens was from 15 to 16 per cent. of the whole value thereof; the value of the wood, from 20 to 22 per cent.; and the value of the paper, from 62 to 65 per cent.; and at and prior to March 3, 1883, such screens were known in trade and commerce in this country as "paper screens." The collector classified. this merchandise for duty under that part of Schedule K (''Wools and Woolens") of the tariff act of 1883 which reads as follows: "Carpets and carpeting of wool, flax, or cotton, or portions of either or other material, not otherwise herein specified, 40 per centum ad valorem; and mats, rugs, screens, covers, hassocks, bedsides and other portions of carpets or carpeting shall be subjected to the rate of duty herein Imposed on carpets or carpetings of like character OT description, and the duty on all other mats not exclusively of vegetable material, screens, hassocks and rugs shall be 40 per centum ad vaIQrem." .
The plaintiff duly protested against this classification, claiming in its protest that the screens were dutiable under that part of
:Fli/DBRAL R:ElPORTER,
Schedule M of· the same act at the rate of 15 per centum ad valorem, as of paper,or of which paper is a component mateii'tf.l, "not! enumerated or provided for." We conclude that referred to in the paragraph of the wool section, as well,those "not exclusively of vegetable material," as all others, are articles ejusdem generis with the other articles named in the group. Consequently, we are of the opinion that the importations in. question should have been classified as manufactures of paper, and that the ruling of the circuit court, directing a verdict for the plaintiff upon that ground, was right. The jUdgment is affirmed. BONNELL et al. v. STOLL et aL (Clrcult Court, D. New Jersey. July 8, 1893.) PATENTBI'{)R SPRINGS.
Claim 2 of letters patent No. 405,821, issued June 25, 1889, to Bonnell covers "a spring bed bottom formed and having the '1X>pwhfiols of sprln.!;s at the adjacent ends(}f the sections UIlJited by a. spiral wire wound loosely around them, so as to allow the sections to 'folq, apd· yet a1ford a yielding HeM that the claim was anticipated by the prior constructions known as "Lace-Web Spring" and the "Maier Bed." &
In Equity. Suit by Elliot M. Bonnell and John S. Lambing against :R9bert P. Stoll and others for infringement of a patent. Bill diSJil11ssed. James A.. Whitney, for complainants. F. C. Lowthrop, for defendantlif. !A.CHE'SON, Circuit Judge. The plaintiffs sue for the infringement of letters patent No. 405,821, for improvements in bed springs, granted them on June 25, 1889. The patent shows a bed bottom composed of spiral or helical springs arranged in parallel rows, and connected by spiral wires running lengthwise of the bed bottom; which is formed by two sections, so as to fold the one upon the other. There are two claims, bUt, upon the argument, infringement of the second claim, omy, was insisted on. That claim is as follows: ' "(2) A spring bed bottom formed in sections, and having the top whirls of springs 'at the adjacent ends of the sections united by a spiral wire wound loosely around them, so as to allow the sections to fold,' and yet afford a yielding coIlu,eption, SUbstantially as specified."
The fu#Cti9ns of this connecting spiral wire, as declared by the spec'mcatioQ, are threefold, namely, "loosely and yieldingly connecting the springs," furnishing "a spiral filling for the interspaces" between' the four adjacent springs, and' "serving as a hinge" for folding the sections. The specification states, and the prior pat· ents show" that it was not new to connect the tops and bottoms. of spiral wires, and that springs had been furnished bed
