ROSENFELD'll. UNITED STATES.

303

that congress intended a reconstruction of the tariff system in regard to usual coverings of goods subject to specific duty. The decision of the circuit court is affirmed.

ROSENFELD v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit.
No. 92.

CUSTOMS DUTIES POSSESSION.

March 5, 1895.)

PROFESSIONAL INSTRUMENTS OR TOOLS OF TRADE-ACTUAL .

Articles that do not arrive in the United States at the same time or in the same vessel with the importer are not in his "actual possession," within the meaning of Act Oct. 1, 1890, par. 686, placing upon the free list "professional books, implements, instruments and tools of trade, occupation or employment, in the actual possession at the time of persons arriving in the United States."

Appeal from the Circuit Court of the United! States for the Southern District of New York. This was an application by Carl J. Rosenfeld, the importer of .certain theatrical costumes and scenery, for a review of the decision of the board of general appraisers at New York as to the rate of duty on such importations. 'l'he circuit court affirmed the decision ()f the board of general appraisers. The importer appealed. Hess,· Townsend & McClelland, for appellant. Wallace Macfarlane, U. S. Atty., and Henry C. Platt, Asst. U. S. Atty. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. PER CURIAM. By paragraph 686 of the tariff act of October 1, 1890, the following articles were placed upon the free list:
"Professional books, implements, instruments and tools of trade, occupation employment, in the actual poSseSSiOIl at the time of persons arriving in the United States; but this exemption shall not be construed to include mao -chinery or other articles imported for use in any manufacturing establishment, or for any other person or persons, or for sale."

The question before us is whether the articles imported by the .appellant were entitled to free entry Iby the terms of this provision, the claim that they were entitled to free entry under paragraph 752 ()f that act having been abandoned. It appears by the record that in July, 1891, the appellant caused to be shipped at Berlin, where he then was, for Bremen, with instructions to a broker at Bremen to forward them to this country by the first freight steamer, certain costumes, properties, and scenery belonging to the appellant and his brother, for'use by them in theatrical representations to be given in this country. The articles arrived at the port of New York and were entered for duty about the middle of October, 1891. The appellant had meantime taken passage by a steamer which arrived at the port of New York about the middle of July, 1891. We do not .(loubt that the importations were professional instruments or tools

304

FEDERAL REPORTER,

vol. 66.

of trade, and, as such, would have been within the liberal meaning given to those terms in construing statutory exemptions, and entitled to free entry, if they had been in the actual possession of the importer at the time of his arrival in the United States. As we have lately had occasion to adjudge, in Henderson v. U. S., 66 Fed. 53, the limitation by which the exemption is not to include articles imported "for any other person or persons" is intended to exclude such articles as are brought by the one arriving with them, not for himself, but for some other person, and the fact that they are not to be used by him exclusively is not material. The exact inquiry is whether articles which do not arrive in the United States at the same time or in the same vessel with the person importing them are to be deemed in his "actual possession at the time of his arriving," within the meaning of the statute. The previous statutes placing professional implements and instruments of trade upon the free list do not throw any light upon the inquiry, because until the statute in question the only limitation was that the articles should "belong" to persons arriving in the United States, and should not be imported for sale or for use in any manufacturing establishment. The words "in the actual possession at the time of his constitute a new and further limitation. Pursuant to this language, it is not enough that the articles should belong to the person arriving, or be in his possession constructively, but they must be in his actual possession at the time. "'Actual possession,' as a legal phrase, is put in opposition to the other phrase, 'possession in law,' or 'constructive possession.''' Churchill v. Onderdonk, 59 N. Y. 134, 136. "Actual possessiou exists where the thing is in the immediate occupancy of the party; constructive is that which exists in contemplation of law, without actual personal occupation." Brown v. Volkening, 64 N. Y. 76, SO. Literally, and giving the words their ordinary meaning, the "actual possession" of the statute is an open, visible, present occupancy and possession of the articles imported. In order to leave no doubt that this is the meaning, the actual possession and the arrival of the owner must be coincident. We suppose that articles which are brought with the owner, in the same vessel, are to be deemed in his actual possession at the time of arriving, although they are in the immediate custody of the car· rier. The carrier is his custodian, and the goods, under such circumstances, would be in the actual possession of the owner, equally as if they were in the custody of his personal servant. If, however, the articles arrive in a different vessel and at a different time from the owner, it would seem plain that they are within the excepted category. These conclusions lead to an affirmance of the judgment.

CA.VERLY II. DEERB.

305'

CAVERLY v. DEERE et aLl

(Circuit Court of Appeals, Seventh Circuit. No. 112.

February 23, 189lS.J

L

PATENTS-ANTICIPATION-MAcHINE FOR ROUNDING BENT HANDLEIl.

The Caverly patent, No. 303,116, for a machine for roullding bent handles by means of a cutter head consisting of a cylinder with a groove in the center of its periphery, and recesses from either side, terminating in narrow openings on such groove. for the adjustment of the cutter knives, is Yoid because of anticipation. 52 Fed. 758, affirmed. The fact that the drawings of a patent show the knives of a cutter head set at a certain angle wllI not enable the patentee to rest his invention on that particular degree of angularity, when tber'l is nothing in the specifications to show that he Intended to limit the pitch of the knives to that an.gle. 52 Fed. 758, affirmed.

I.

SAHE-IN1:ERPRETATION OF SPECIFICATIONS AND DRAWINGS.

&.

SAME-INVENTION-CUTTER HEADS.

There is no invention in setting the knives of a cutter head at the precise angle of 45°. 52 Fed. 758, affirmed.

Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. This was a suit in equity by Herschel Caverly, administrator of Sarah Caverly, deceased, agai.nst Deere & Co. for infringement of .. patent. The circuit court entered a decree dismissing the bill. 52 Fed. 758. Complainant appeals.
Suit for damages, and to enjoin infringement of letters patent No. 303,116, issued August 5. 1884. to Sarah Caverly. assignee of Amos K. Caverly. for a machine for rounding bent handles, of which the four claims are as follows: "(1) A cutter head consisting of a cylinder with a groove in the center of its periphery, and recesses from either side, terminating in narrow openings on such groove, for the adjustment of the cutter knives. "(2) A cutter head constructed of two cylindrical disks. each with such a concave on its Inner tace, extending from beyond the diameter to the periph· ery, that when secured with their curved faces together the concaves form a groove on the periphery of the head corresponding to the shape and size of the dressed work. with one or more recesses extending from the outer face of each disk, diminishing in width as they progress, and terminating In a narrow opening In the curve, forming beds for the cutters and spouts for the discharge of chips, with knives secured in the openings. "(3) A cutter head constructed of two cylindrical disks, each with such a concave on Its inner face, extending from beyond the diameter to the periphery, that when secured with their curved faces together the concaves form a groove on the periphery of the head corresponding to the shape and size of the dressed work, with one or more recesses extending from the outer face of each disk. diminishing in width as they progress, terminating in a narrow opening in the curve, forming beds for the cutters and spouts for the discharge of chips, with slotted knives secured in the openings, and adjustable longitudinally therein by set screws. "(4) The combination of the frame, the cutter head with groove In Its periph· ery, and one or more openings from each side, terminating in a narrow slit on the groove, one or more knives so curved that the bevel on their ('utting ends presents a fiat surface, and gearing by which the head Is actuated." The following extracts from the brief will lllustrate the argument of connsel for the appellant: "With respect to the general features of rotary planing devices for rounding bent handles: (1) The corpus of such a device. as to form, Is cylindrical, and having Its exterual sides of the form of a plane circular disk, and bounded by the peripheral circle. (2) Such plane circular disk, when geometrically deI Rehearing pending.

v.66,F.no.3-20