IN BE H. B. CLAFLIN 00.
121
aession, with intent to sell or otherwise use the same, was a note issued hya regularly chartered state bank, but which at the time defendant is alleged to have had in his possession the note in question was utterly insolvent and its notes worthle88. The question presented to the court fGl its decision is, is the havinK in possession, without authority from the secretary of the treasury or other proper officer, with intent to sell or otherwise use, the notes of 'a broken bank, the said notes being worthless, but being engraved and printed after the similitude of a United Statell treasury or national bank note, a violation of the provision of the statute cited? The object of the provision of the statute under which this indictment is framed is manifestly to preserve the integrity of the national treasury and bank note currency, and to prevent the imposition on the public of worthless notes or obligations of any kind purporting to be the genuine obligations of the United States. It seems to the court that the fact that the note in question was originally issued by a duly-authorized bank, and that it was a legal note at the time of its issuance, does not, after it has become utterly worthless by the insolvency of the bank, exempt the holder of it from prosecution, if he has it in possession with intent to sell or otherwille use and pass it as a genuine note or obligation of the United States. The possession of such a note orobligation, with intent to sell or otherwise use it, falls within the mischief intended to be prevented by .the statute. "To constitute the offense,. it is not essential that the fraudulent note or obligation should on its face purport to be an obligation of the United States." U. S. v. Willia/TII8, 14 Fed. Rep. 551. The question as to the similitude of the note alleged to have been passed by the defendant to the treasury or national bank notes or other obligations of the United States is a question to be determined by the jury, as are also the facts as to whether the defendant had the note in question in his with intent to sell or otherwise use the same, and as to whether he knew at the time that said note was worthless. ' Verdict. "Not gUilty."
In re H. B.
CLAFLIN
00.
(Cf'l'cmt Cowrt oj Appeals, Second. Owcuit. October 4, 1.801.) Ov8TOMS DUTIES-CLASSIPIOATION-HEMSTITOHED HANDKEROHIkE's.
Hemstitched cotton handkerchiefs, known as such in trade and commerce at the time the tariff act of 1883 was passed, are not "hemmed handkerchiefs,» within Schedule I, par. 325, thereof, imposing- a duty of 40 per cent. ad valorem, but are dutiable at 85 per cent. ad vaZorem, under paragraph 824 of the same schedule, U "manufactures of cotton not specially enumerated." W ALLAOE, J., dissenting.' 47 Fed. Rep. 875, affirmed.
Appeal from the circuit court of the United States for the Southern District of New York. Application by H. B. Claflin Company for a review of a decision by the board of general appraif!ers, as to the classification of certain imported hemstitched cotton handkerchiefs. The collector had held that the goode were "hemmed handkerchiefs,", within the meaning of, the ,lWt of
10 3J'1r88&;:Schedule 325, andaccol'dinglyl1sS'essed :a,,,duty of 4{): The importersproteated, gO'G$ ,wijre ,dutiablea1,85: per cent. ,under pllragraph· 324 of. the. same
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webbing, cording. suspenders. cottqn not special1)"en:umerated 01' provided 0f:wbatever,Diaterial compOsed. 85 per centum ad, " ' " ,"
,
' " ' . '
. laCeS. embrbtderies,insertings, trimmings, lace curtains, cotton dlltri8ik,,' :hemmed handkerchiefs·. and cotton vel vet, 40 per centum ad "Qlciren&. "') :' :.
explicit' and uDcontl'adicted testimony,-the testimony the, commereial'designationsof cotton goods and prior totbe time of the passage of the tariff actin tbere Was a distinctnomenclatuTe in the trade for llemmEld handkerchiefS" and hemstioohed hiuidkerchiefs, under which articles Uke 'the , importations in-controversy were known to and bought and Bold in the trade exclusively as hemstitched handkerchiefs, while other articles, embracing a large variety, were known to and bought and sold in the trade exclusively as hemmed cotton handkerchiefs, the two classes being distinguished by the presence or absence of ornamentation at the E,dge of the hem·. .It was also proved that the trade name" hemmed handkerchiefs" excludea hemstitched handkerchiefs, although the latter were in that a hem,stitched handkerchief was not, in oommercial language and designation, a hemmed handkerchief. The .two, distinct, arld ,separate. No testimony was offered by the collectorcto vary or weaken the force of those facts, and it is to be sue,htestimony ,The contention for the appellant "fa that the handkerchiefs' in controversy, being hemmed as well as ornamented, are specially enumerated or provided for by para"hemined handkerchiefs',' is a descriptive term, meaning handkerchiefs, no,t in the piece, but hemmed. and wae Iildt used im,tDe,paragraph in question iii a technical or commercial sense. The.1endGb¢y' of the decisions of the supreme court has long been to that, when an article of commerce is designated in .. tariff; name; oJ: by general terms, the clearly estab-
.ti' 8E lished commercial meaning of such name or designation, at the time when the tariff act was passed, determines the construction' of theaet 'ft'ith respect to that article, (Arthur v. Marriscm., 96 U. S. 108;' Arthur v. lAhey, Id. 112; Worthingtcm. v. Abbott, 124 U. S. 484, 8 Sup. Ct. Rep. ';62,) until it was said by Mr. Justice BRADLEY in RobettBcm v. Salomon, 130 U. S. 412, 9 Sup. Ct. Rep. 559, that commercial designation "is the first and most important designation to be ascertained in settling the meaning and application of tariff laws." Very likely, advantage will be attempted to be taken of the breadth of this declaration to' endow mere subordinate fanciful commercial names with an undue importance, but such an attempt is not apparent in the present case. It must be evident that goods cannot be withdrawn from the operation of a general classification, according to material,by designating them by particular names, which merely indicate 8 subdivision of the general class named in the statute. This being the general rule for the construction of'terms or names in the tariff acts, if congress desires to classify articles by terms of general description, it can manifest such intent by the use of descriptive words which exclude any restricted meaning, and, if such language is not used, it is fair to presume that the intent of the legislature was in harmony with the rule of construction which the courts have declared, and which is: "Where general terms are used, the terms are to be taken in their ordinary and comprehensive meaning, unless it is shown that they have. in their com· mercialsense, acquired a special and restricted meaning." Arthur v. Mor· rison, BUpra. The sole question in this case is, were the words" hemmed .handker· chiefs" used. in their trade meaning, and are they denominative, or were they used in a more general sense, and are they descriptive? It is true that some of the terms used in paragraph 825 are apparently terms of general description, and have been held, in previous statutes, to be des· ignations of quality and material. Barber v. ScheU, 107 U. S. 617, 2 S.p. Ct. Rep. 301. It is therefore argued that the word "hemmed" is also to be considered descriptive, and not to be used in a commercial sense. Hemmed cotton handkerchiefs were not specifically named in the cotton schedule in the Revised Statutes, but it was thought best to specifically enumerate them in the act of 1883, and they were included 9Y name in the paragraph which had long been in existence in the same general form. The fact that the article was put into this paragraph does Rot seem controlling, but in view of the decisions which have been 4}l1oted, and of the manifest importance that the rule of construction of tariff acts shall be, so far as is practicable, uniform and not easily dig. turbed by exceptions, I think thll.t the term" hemmed handkerchiefs," which was introduced into the paragraph, should be construed in accordance with the principle which has been stated. It is argned that it is unreasonable to suppose that congress intended to .impose a higher duty upon cotton handkerchiefs having a plain, cheap hem than upon those which were prevented from raveling in a more or· narnental and expensive manner. It is true that the construction makes
PEDDAL'BEPORTEB.
voL 52.
..
symmetry in the rates of duty, but the court cannot into sywmetry the various provisions of a statute which must. include many details, by creating exceptions' to a well-settled, and, ontbe whole, satisfactory, rule of interpretation of the statute relating to. the revenue from imports. . In accordance with this rule, the term "hemmed handkerchief" is a commercial term, and does not mean a handkerchief whilili has been cut from the piece, and has been in fact hemmed, but it means the article commercially known as a '.'hemmed handkerchief," which definition excludes the hemstitched arti(}le. Indeed, if the distinctions made in common speech are lookei at. it is probable that the word "hemmed" would generally be regardes as indicating a different article from the one known as "hemstitched." The term appropriatelydl*lcribes a class of articles in which, by tlte coJDmercial nomenclature, hemstitched handkerchiefs are not included, and resort must therefore be bad to other statutory provisions to ascertain the proper duty upon the excluded articles. We agree with the opinion of the circuit court, that the importation in suit should have been classified under section, 824. The judgment is affirmed. WALLACE, Circuit Judge, (dissenting.) I cannot agree with my Brother SHll'M'AN in this case. I think that the handkerchiefs in controversy, being hemmed as well as ornamented, are "especially enumerated or provided 10r" by paragraph 325. It is unreasonable to suppose that congress intended to impose a higher dut.yupon cotton handkerchiefs having a plain, cheap hem than upon those having an ornamented and more expensive hem. I think that lhe term "hemmed handkerchiefs" is descriptive, rather than denominative. It means the same thing as though it read "hahdkerchiefs hemmed/'or "handkerchiefs having a hem." The case 18' soIilewhat analogous toBJinm v.La'wrtmce, 12 How. 9. The importatibns :arir none the less hemmed'bandkerchiefs because they are also oma" rlieriWd ones. ' '. INDURATED FIBRE INDUSTRIES No.
Co. et al.tI.
GRACE
et ale
(Oirc1.tdt Oourt, D. Massachusetts. July 28, 1892.) 2,982.
i.' PiTBNTB ,
Ina suit against two or. more perBon8 for infringing a patent, a general ave1'" JDellt bf infrillgement by deJ'endants is a sufll.cient uJlegation of common Infringement, Without in terms averring a joint infringement.
11'0. IrnNTIoNs...:.TOrN'rINPRINGEM1IlNT-PLllADmG.
S. SAllI-O-PROJ'BRTOJ' IDa bill for infringement, the proff'rt by oomplainants of, the letters patent does not make the recitals in the specifications as to the prior state of the art a part of the bill, in any technical or proper sense, 80 that the prior state of the art can" oonsidered on delllurrer· .. S.ui:E-DEMURR!llR-JUDIOIAL NOTICE
18,1883, to the Underground Electr!o Cable Company, for an insulating under-
On demurrer to a bill for infringement of letters patent No. 978,869, iSBued March
oP
PRIOR ART.
,.
ground cable OODductorhOODBisting of a tu be. of compressed paper, the court cannot take judicial notice of t e prior state of the art.
Charle6 S. Pinkham, and Eugene W. Godfrey I for infringement of let--
the 'Builders' Insulating TUbe Company against James J. Grace,
"In'Equity.
Bill by the Indurated Fibre Industries Company and