912
FEDERAL REPORTER,
vol. 38.
We are entitled to take their intent as expressed by the plain language they have used. It is very true that the use of the word "ex, pressly" may make this paragraph difficult of application in very many 'cases; iI} fact' in all cases,so the collector is concerned; but it gives us no trouble in this particular ,action, because there is abundant evidence here to warrant the holding that these particular importations were expressly used for manure. They have been traced from their importers into the hands of individuals whose sole business is the preparation of" fertilizers," which word is a mere synonym for manure; and, should the jury draw from the testimony any other inference than that the articles were expressly used for manure, I should be inclined to set aside the verdict. ThereforeI think it is unnecessary to send the to them. The defendaht refers to the well-settled rule of interp,retationthat a specific designation will over a general one, but the claul;le which he contends to be a general' one (section 505, 8upra) is hi, :reality mOre specific than the paragraph which he insists these -Imports should be' classed (paragraph 70, "sulphate of potash,") because from the class ofarticles properly classified as SUlphate of potash itdifferentiates that smaller portion which are" expressly used for ma'in1re." I lYill therefore 'direot a'verdict for the plaintiffs in the sum of
·. $2}225.84. ' .
'et. al.
MAGONE,
Collector.
(Circuit Oourt, S. lJ.·Ne'IJJ York.
May 9, 1889.)
CusToMs
'The term "liquors, "in the proviso of the tariff act of March 8, 1888, contl'ined in S,chedule H, (T. I. 808/,) providing "that there shall be no allowance 'for break!loge, leakage, or damage on wines, liquors, cordials. or distilled spirits, "includes fermented as well as distilled liquors, and covers lager-beet.
DUTIES-CONSTRUCTION OF ACT-LIQUORS-BEER.
At Law. 'Motion 1dr direction ofa verdict. The plaintiffs, the firm of Hollender & Co., ofthe city of New York, imported by the steamer Gellert, and entered into the port of New York, in September, 1886, 226 casks of lager-beer from Munich, Bavaria, via Hamburg, lipon which they claimed a damage allowance to the amount of the entire value, setting forth in their protest that such beer was damr aged by during the voyage of importation, so as to be totally unfit for useasa'beverage, and having no commercial value whatever ,fur any purpose in its damaged condition. The defendant, collector of the port oENew ¥ork,refused to make any allowance for damage, under -Schedule H, (T.. L 308,) which decision of 'the 'collector wlls,on appeal . dUly taken, 'affirmed by the secretary of the treasury, (Syn.Treas. Dec. this suit was brought to recover the amount of suchdamlige, said importatioo having been pllid iniull hy the plaintiffsupoli':tlle· entry thereof. The. evidence showed the merchandise to
HOLLENDER'll. MAGONE.
913
be lager-beer()f ordinary strength, containing about four per' cent. of alcohol, and upon its delivery at this port it was sour and unfit for use; and that the term "liquors," as ordinarily used in trade and commerce, did not include lager-beer, but was generally applied to distilled alcoholic beverages. At the close of plaintiffs' evidence, Asst. U. S. Atty. Platt moved for a direction of a verdict for the defEndant on the following grounds: The question at issue in this case is whether the term "liquors," used' in Schedule H. (T. 1. 308!,) is broad enough to cover the merchandise in suit. The treasury department, in its letter of October 12, 1886, to the collector of customs at New York, (Synopsis 7808,) held as follows: "It appears that the damage sustained by the beer in question consists in the deterioration of its quality by souring, and not in the actual loss of any ,of the contents of the packages originally shipped. As any allowance for damage of the first description on wines, liquors, cordials, or difltilled spirits is held in Decision 6116, to be prohibited by the tariff act, (T. I., New, 308,) and as beer is covered by the term 'liquors,' (Synopsis, 2308,) the application is necessarily denied." ,
SynopSis Decision 2308, in 'considering the construction of the term "liquors,:' and"whether this section should apply to malt liquors in bottles, says: "The departJl)ent has arrived at the conclusion, after receiving reports from the ,collector and appraiser of the ports of New York, Philadelphia, Boston, and from the appraiser at Baltimore, that congress, by inserting the "Word 'liquors' in addition to the words' distilled spirits' in such provillo, intended to include malt liquors. which comprise ale, beer, and porter. This result was evident from preVious legislation, (see Schedule D of the Revised 8tatutes,) ale, beer, and porter beingclassilled under the general provision for liquors."
It is quite evident, for the reasons stated by the secretary of the treas-'ury, referring to the language of paragraph 308 of Schedule H, that congress intended the term "liquors" therein used to cover all kinds of liquors, and did not intend to restrict the same to cover distilled liquors only, because, after having used the term" liquors, wines, and cordials,'" it adds the words "or distilled spirits," thereby showing such intention from the very language of the clause. If congress had intended to have excluded allowance for breakage, leakage. or damage simply to the liquors known as "distilled spirits" or "distilled liquors," it would not have used both of those terms in the same schedule, same paragraph, and sarneclause of the paragraph. . Under the act of February 8, 1875, § 2, an allowance of 5 pE!r cent. was allowed in lieu of breakage, etc., on wines, liquors, etc., but it was restricted to 5 per cent. When the present law (tariff act of March 3, 1883) was under consideration in the senate of the United States, (see volume 14, Congressional Record, p. 2700,) Senator Beck, of Kentocky,called attention to the proposed change in the law prohibiting any allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits, and Senator Morrill said: "It was not proposed to:change the duties on liqu9rs or wines; but there is a provision v.38F.no.11-58
here thatifoes changethem,by providing that no allowance for age, which: has hitherto been {) percent., shall be granted." So that the a.ttention of ,congress was clllled to the fact that this denial of all allowance. for breakage, leakage, or damage on wines, .liquors, cordials, or distilled spirits was in effectr!lising the duty thereon. Nevertheless, congress, passed this proviso. evidently intending that wines, liquors, cordials, or.distilled spirits of any kind or character within the liquor schedule of the ,act of 1883, (which is Schedule H,) should take their chances of arrival in this oOlilntry in a sound oondition. When liquors of any kind, distilled or malt" left the shores of Europe, they themselves. In the report of the tariff commission which was appointed under the act of congress approved May 15, 1882, (vol. 1, p. 24,)reporting upon Schedule H, "Liquors," the commission,say: "InclUding dliltilled wines and malt liquors, the total value of the product of the of this cJasswasJn1880 nearly one hundred and fortyfive milJionsof ·The subjoined exhibits show the growth of the dis. tilled and m:alt lilluor industry dui'h'1g the last four decades. ,j TheIl fpllo,wsa. ta\>l!lshQwingtJ;1esame in detail, liInder the head of "liquor distilled" and "liquor xpwl,i'and the commission proceeds t\l;rther to say: '" '.' ",' L.,' ,""
, I ,
"The commillsion has ,items ,vl,ced
be abolishep. ,Theschequle has to the liquqr . ,. , '
excepting that ,, takel1fr()ID. . .
Allkinde 'of1 liquors are included'iriSchedule H,'Whether'distilled '()l · seems to by gress In that scbedule as to the use oitha term "lIquors." Partlcular dlltieE\ provided for difl:erentkinds o( liquors by name, whether .distilled (e:rmented.Thetaot that a putupOt1 ale, bEle'r does not of take theni' 011 th;e general, cafe.gory .. Paragraph 311 o.f Schedule,H uses the terms" brandy 'and other kind;" and says 'that the standard that which is defined in the relating to internal · reven,ue. Ill! 125 of tpe 'Laws of 1879, bEl1I?:g an act to amend ·the laws 'to: Internal reven,ne, section 21 reads, as follows: ' ·gallon,'wherever used in the internal revenue lawrelat. ipg to beer, ale, porter, other similar, fermented liquors,shall be held and takE!n to mean a wine gallon, the liquid measure containing 231 cubic inches." 20 U. S. St. at Large, 351." ' .. I
',' So that relation to ofgaug.. Jng ,made, by congress between beer, lager-beer, ale, )porter, Il,nd other simila,r liqQors and distilled liqu<?l'$; anl;l it ,will' be noticed ,that here ,denominated lager-beer among ·in the language .used in the above section. ' Section!4 of the (2.0 ,U. S·. St. Large, 333); reads as follows: But no special tax: shall' be held to acorue on a sale of distilled spirits, wines, liqqOfS. .. by a. who is notp,ther",ise a 4el11er in
HOLLENDER .,. MAGONB.
915
liquors, where such spirits, wines, or liquors have been received ... "... ... as security for or in payment of a debt," etc.
Evidently in this section would be included under the term "malt liquors," which is only a subdivision of the general term "liquors." Again, in the game section, (same page,) this language is used: " "Every person who sells or offers for sale foreign or domestic distilled spirits, wines, or malt liquors otherwise than as hereinafter provided, in less quantities than tlve wine gallons at the same time, shall be regarded as a retall dealer in liquors. Wholesale liquol-dealers shall each pay $100. ,Every 'person who sells or offers for sale foreign or domestio distilled spirits, wines, Or malt liquors, otherwise than as hereinafter provided, in quantities of not less than five wine gallons at the same time, shall be regarded as a wholesale tiquor dealer."
In Webster's Dictionary the term "liquor" is defined to mean "especiallyalcoholic or spirituousfluid,J:lither distilled or fermented." In the same dictionary the word "malt" is defined as follows: "Barley or other grain steeped in water till it geJ;minates, and then dried in a kiln; thus evolvingthesaocharine principle. , It is used in brewing. ;Malt drink, or malt liquQr, a liquor prepared for drink by an infusion of malt, as beer,llle,porter," etc. ln, the same dictionary the word "beer" is de:fined as "& fermented liquor made from any malted grain, with hops and "other bitter flavoring matters." Other dictionary definitions are as follows:' Imperial Dictionary: "Liquor: An alcoholic or spirituous fluid, either '4istiUed or fernieJ,lted.,j '''Beer: An alcoholic liquor.". Stormouth's Dictionary: "'Liquor: An intoxicating fluid." "Beer: An intoxicating liquor made from barley; a liquor made by fermentation." New English Dictionary: '" Beer' is an alcoholic liquor, and is a term to fermented liquorsofvarious kinds." Worcester's Dictionary: "Beer: .A fermented liquor made ;from rhalt or hops." McCulloch's Commercial Dictionary: "Ale or beer well known and extensively ',\18ed fermented liquors." American Cyclopredia: "Beer: A fermented from malted grain." Encyclopreuia Britannica: "Beer: A 'm'alt liquor.;' Encyclopredia Dictionary: '" Beer' is a term now applied to aU ,malt liquors prepared by the process of brewing." De Colange, J:)ictiohary of ·Commerce & Manufactures: "Beer is a fermented liquor made frorn malted grain." In the excise laws of the state of New York beer has been construed by the courts to be a liquor. In the case of Board/,etc:, v.Taylor, 173, it was held beer is within the meaning Of the tertU "strong and spirituous liquors," used in the statute to suppress intemperance. The head-note says: . "It seems that any liquor iB within the statute. whether fermented or dis-
y.
tilled, of which the human stomach can contain enougb to produce intoxi-
cation. "
The language in the statute referred to in that case is as follows: "Whoever shall Bell any strong or spirituous liquors or wines, in quantities less tbanflve gallons at a time. without having a license tllerefor, granted as herein provided, shall fOJ'feit $50 for each offense."
916
voL 38.
J.. As this case turns upon the. the Jerm in the proviso of Schedule H, (paragraph 308,) I shaIldirect a. verdict for the defendant. VerdIct accordingly. LACOMBE',
YALE
&
TOWNE ¥ANUI!"G
CO. V.
CONSOLIDATED TIME-LOCK CO.
917
YALE & TOWNE MANUF'G Co. et al. v. CoNSOLIDATED TIME-LoCK Co (Circuit Oourt, 8. D. Ohio. W; D. 'May 16,1889.]
1.
PATENTS FOR lNVENTIONS-VALIDITy-TIME-LoCKS.
The first and seventh claims of reissued letters patent No. 8,550. granted Jan uary 1. 1879. to the Yale Lock Man ufactllring Company. as assignee of Samuel Little. for an improvement in time-locks held valid; and the seventh claim held not an expansion of the original patent, on the authority of Lock 00, v. Bm'kshi'l'e Nat. Bank, 17 Fed. Rep. 53l, and Yale Lock Oo.v. New Ha'IJenBa'IJ. Bank, 32 Fed. Rep. 167. . Defendant's lock was substantially identical the lock of the, defendant iii Yale Lock 00. v. Berkshire Nat. Bank, except that in the latter there was an additional dog, controlled by the time mechanism, which dog added noth· ing to the efficiency or value of the lock. The defense of tbat c:ase sumed by a lock company. or its president, who afterwards became president of defendant, and all the questions presented here were presented in that case. On the authority of that case, held, that defendant's lock was an infringement.
2.
SAME-INFRINGEMENT·
In Equity\ '. . .', , ' ,' . ,,' " ' Suit by the Yale & Towne Manufacturing Company and others against the Consolidated Time-Lock Company,for the infringement of a patent. Wetmore &. Jenner, for complainants. . W. a.' CXJchra/n and Parkinson kParkingon, for defendant· . SAGE, J. This suit is for the infringement of the first and seventh claims of reissued letters patent No. 8,550, granted January 1879, to the Yale Lock Manufacturing Company, as assignee of Samuel Little, for an improvement in time-locks. This patent has been repeatedly sustained by the courts. The first 'and seventh claims were held valid by Judge SHIPMAN in Yale Lock'Manufg 00. v. Norwich Nat. Bank, and Bame v. Nw Haven Sav. Banle, 6 Fed. Rep. 377; by Judge LOWE'LL, in Yale Lock Co. v. Berkshire Nat. Bank, 17 Fed. Rep. 531, and again by Judge SHIPMAN in Yale Lock Co. v. Nw Haven Sav. Bank, 32 Fed. Rep. 167, decided September 10, 1887, upon petition for rehearing. In this case claims 1 and 7 were considered in the light of Miller v. Brus8CXJ., 104 U. S. 350, and of subsequent cases; and Judge SHIPMAN, concurring with Judge LOWELl" in Yale Lock Co. v. Berkshire Nat. Bank, cited above, that both claims were valid, and particularly that the s,eventh claim of the reissued patent was not an undme expansion of the original patent. Upon the question of infringement there is no maferial difference petween the lock manufactured by the defendant in' this 'case and that used by the defendant in the case -of Yale Lock 00. v. Berkshire Nat ...Bank. The time mechanism il'l sanle in both locks. In the Berkshire lock hcontrols' two'dogs, ill the defendant's one; but theextrli dog in lock adds nothing to its efficiency or value:, ticulars the two locks are substantially idtJilticaL ,. Itw.as 'true :in:the Berkshire lock, 8S it is ill the deferidant's'iock, that afferthe lever"has moved into !the position the dog .is stilUield in the Jocking