In error to the circuit court of the United States for the southern district of New York.

Sol. Gen. Chapman, for plaintiff in error. Edward Hartley and Walter H. Coleman, for defendant in error.

FIELD, J. In 1880 and 1881, the plaintiff below, Charles L. Tiffany, imported from France and England various bronze statues and statuettes, which he claimed a right to enter as statuary, on paying a duty of 10 per cent. ad valorem, but on which the collector charged a duty of 45 per cent., as non-enumerated manufactures of copper. He was accordingly compelled, in order to obtain his goods, to pay $420.25 in excess of the 10 per cent., which payment he made under protest, and appealed to the secretary of the treasury, who affirmed the decision of the collector. He then brought this action in the supreme court of New

clusion decided in either of the English|ues, except two, were made by manufacturers or cases relied on by the learned counsel for mechanics, by means of artists' models from which the plaintiff. Each of those cases turned any number could be cast. Expert witnesses tesupon the validity and effect of a by-law that it was necessary to use the model of a sculptified that the process was purely mechanical, but made by the railway company, not of a tor. There was testimony that two of the statues contract signed by the plaintiff, and other-were modeled by an artist, and manufactured unwise essentially differed from the case at bar. der his personal supervision. Held, that it was In Jennings v. Railway Co., L. R. 1 Q. B. 7, error to refuse to instruct in behalf of defendant the by-law required every passenger to ob- that if the imported articles were made, not by protain a ticket before entering the train, and fessional sculptors or statuaries, or by their assistto show and deliver up his ticket whenever or mechanics in the employ of the manufacturer, ants, under their direction, but by skilled workmen demanded. The plaintiff took a ticket for the verdict should be for defendant. himself, as well as tickets for three horses and three boys attending them, by a particular train, which was afterwards divided into two, in the first of which the plaintiff traveled, taking all the tickets with him; and when the second train was about to start the boys were asked to produce their tickets, and, being unable to do so, were prevented by the company's servants from proceeding with the horses. An action by the plaintiff against the company for not carrying his servants was sustained, because the company contracted with him only, and delivered all the tickets to him; and Lord Chief Justice *COCKBURN, with whom the other judges concurred, said: "It is unnecessary to determine whether, if the company had given the tickets to the boys, and the boys had not produced their tickets, it would have been competent for the company to have turned them out of the carriage." In Butler v. Railway Co., L. R. 21 Q. B. Div. 207, the ticket referred to conditions published by the company, contain-York, from which it was removed on certiing a similar by-law, which further provided that any passenger traveling without a ticket, or not showing or delivering it up when requested, should pay the fare from the station whence the train originally started. The plaintiff, having lost his tick-on Imports." That paragraph reads as et, was unable to produce it when demand- follows: "Paintings and statuary, not ed, and, refusing to pay such fare, was for- otherwise provided for, ten per centum ad cibly removed from the train by the defend- valorem. But the term 'statuary,' as used ant's servants. The court of appeal, re- in the laws now in force imposing duties on versing a judgment of the queen's bench di- foreign importations, shall be understood vision, held the company liable, because the to include professional productions of a plaintiff was lawfully on the train under a statuary or of a sculptor only." Rev. St. contract of the company to carry him, and (2d Ed.) 478, 479. The collector claimed no right to expel him forcibly could be in- that the goods were subject to the duty ferred from the provisions of the by-law in charged under the paragraph in "Schedule question, requiring him to show his ticket E-Metals," contained in the same title of or pay the fare; and each of the judges cau- the Revised Statutes. That paragraph tiously abstained from expressing a decid-reads as follows: "Copper in rolled plates, ed opinion upon the question whether a by-called 'braziers' copper,' sheets, rods, pipes, law could have been so framed as to justify and copper bottoms, and all manufactures the course taken by the company. Judg- of copper, or of which copper shall be a ment affirmed.

(132 U. S. 167)

MERRITT, Collector, v. TIFFANY.

(November 18, 1889.)

CUSTOMS DUTIES-CLASSIFICATION-BRONZE

*

* *

UES.

orari to the circuit court of the United States for the southern district of New York. The plaintiff relied for recovery on the paragraph in "Schedule M-Sundries," contained in title 33, Rev. St., "Duties up

component of chief value, not otherwise provided for, forty-five per centum ad valorem." Id. 467.

The articles imported were all made of copper, and fell under the general designaSTAT-"manufactures of which copper is a comtion of "manufactures of copper," or of Rev. St. U. S. tit. 33, Schedule E, requires 45 per cent. ad valorem, as charged by the ponent of chief value," subject to a duty of a duty of 45 per cent. for "copper in rolled plates, and all manufactures of cop-collector, unless provision for a different per, or of which copper shall be a component of duty on articles of that character is made chief value, not otherwise provided for." Sched- in some other clause of the statute. There ale M requires 10 per cent. for "paintings and is no other clause applicable to them, unstatuary not otherwise provided for, less they come under the head of "statubut the term 'statuary' shall be understood to include professional productions of a ary," as defined by congress. That definistatuary or of a sculptor only." Plaintiff import- tion, as seen above, includes the "profesed bronze statues and statuettes, and, being com- sional productions of a statuary or of a pelled to pay 45 per cent., sued to recover back all sculptor only." What productions are to but 10 per cent. It was shown that all of the stat- be deemed professional productions of a

*

170

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Barbe

a

In all cases of editing it is absolutely necessary for the editor to have and use the model of a sculptor." Upon cross-examination this witness gave further evidence tending to show that, with the exception of Guillemin, referred to, the only other sculptor is Basset. All the others are editors. The witness states: "I know Basset to be a sculptor; I have seen his models. He did not make the models for the Love and Flora. Any number of reproductions in bronze can be made from the artist's model, without any further work of the sculptor." The evidence thus given by different witnesses was sufficient to justify the defendant in asking the court to instruct the jury that "if they find from the evidence that the imported articles were made, not by professional sculptors or statuaries, or by their assistants, under their direction, but were made by skilled workmen or mechanics in the employ of the manufacturer, then their verdict should be for the defendant." This instruction the court refused, to which refusal counsel excepted. In its ruling in this respect, we think, the court erred. Under the instruction, the jury might possibly have found that some of the articles, like the Roman gladiators, were the productions of a statuary or a sculptor, within the meaning of the statute, white excluding others. The judgment must therefore be reversed, and the cause remanded for a new trial; and it is so ordered.

statuary or a sculptor it is difficult to state | original artist is unknown to me. in general terms, so as to embrace every ar-dienne is a maker of statues. When ticle of the kind. It is sufficiently accurate, sculptor has produced his clay model, un-, however, for this case, to say that the defi- less he is himself an editor, he expends not nition embraces such works of art as are the further work on the subject; but all subresult of the artist's own creation, or are sequent processes of founding, chasing, and copies of them, made under his direction finishing are done by the editor. This is and supervision, or copies of works of artistic work. There is another way of other artists, made under the like direc- making bronze statuary but the statues tion and supervision, as distinguished from in this suit were made as I have stated. the productions of the manufacturer or mechanic. The definition does not limit the professional productions to those of the sculptor's creation. As said in Tutton v. Viti, 108 U. S. 312, 313, 2 Sup. Ct. Rep. 688: "An artist's copies of antique masterpieces are works of art of as high a grade as those executed by the same hand from original models of modern sculptors." The articles in question in this present case were reproductions of noted figures, and with the exception of the two Roman gladiators by Guillemin, were all made by manufacturers or mechanics. A model of a figure being prepared, any number of copies can be cast from it, without any aid of the sculptor. One of the witnesses in the case testified that he had been employed in New York city for 11 years in the manufacture of bronze statuettes, and that the company with which he was connected manufactured about 40.000 figures a year, varying in size from 10 inches to 36 and 39 inches, some similar to, and some larger than, the sample produced. Another witness, who stated that he had been familiar with the process of manufacturing statues for 20 years, testified that the men who do the work of casting are skilled mechanics; that a model of a figure can be made so as to produce any number of copies; and that the process is purely mechanical. The testimony of Leon Barré, who purchased the articles for the plaintiff, is instructive. He had been salesman and buyer for him for 16 years, and had purchased in Europe bronze statues for him since 1880. He thus testified: "The method of production of bronze statuary abroad is as follows: The artist or statuary first conceives a design. He puts it on paper. He studies his subject historically, and then makes a clay model. From that clay model he makes a plaster one, which he either sells to a founder or reproducer, who is technically called an 'editor,' or else he edits it himself. The editor must, for the purpose of reproduction, either use the clay or plaster model of the statuary. That was so here. I find next two Roman gladiators on this invoice. The original model of that was made by Guillemin, and edited by him, and manufactured under his immediate personal supervision. He is a well-known sculptor and statuary, and these are his professional productions. I find next the statues of Penelope, Madeline, and the Retour des Champs, and busts of Delilah and Shakspeare. The busts are cast by Barbedienne. He is the most noted founder of bronze statuary. The others are cast by David, who is also a superior founder. I don't know what artist made the original clay model in these cases. I find also on the invoice a Venus de Milo, and Mercury, and David before the Combat, and a Bernard Pallissy, all cast by Barbedienne. The

(132 U. S. 172)

ANTHONY V. LOUISVILLE & N. R. Co.1

(November 18, 1889.)

BILL OF EXCEPTIONS-REVIEW.

1. Under rule 4 of the supreme court, as well to the whole charge of the court below will not as under numerous decisions, a general exception avail for review unless the whole charge is substantially wrong.

2. A refusal to give instructions which are afterwards in substance embodied in the general charge is not reversible error.

States for the eastern district of Missouri.
In error to the circuit court of the United
D. P. Dyer, for plaintiff in error. Henry
W. Bond, for defendant in error.

FIELD, J. This was an action by the plaintiff to recover damages from the Louisville & Nashville Railroad Company for injuries suffered by him by reason of the derailment of a car attached to a train belonging to that company, in which he was being carried as a passenger on its line from Louisville, Ky. to St. Louis, Mo. The answer of the defendant set up that the accident was caused by reason of a latent or hidden defect or flaw in the body of a steel rail laid on the track of the road, a defect which no out'Affirming 27 Fed. Rep. 724.

*173

Calderon Carlisle and Sidney V. Smith, for

ward inspection could detect. Issue being | Joined, the case was brought to trial, and plaintiff in error. J.J. Scrivner, for defendcertain instructions to the jury were re-ant in error. quested by the plaintiff, which set forth, with substantial accuracy, the liability of BLATCHFORD, J. This is an action at railroad companies for having defective law, brought by the Excelsior Coal Comparoads, by which accidents are caused to ny, a corporation, against the Oregon Impassengers traveling in their cars. These provement Company, another corporation, instructions were refused, and to the refusal in the circuit court of the United States for exceptions were taken. These exceptions, the northern district of California, for the however, cannot avail the plaintiff in error infringement of a reissued patent. The because the substance of the instructions complaint avers that on the surrender of refused was contained in the charge subse- the original patent a new patent was isquently given by the court. The object of sued to the patentee "for the same inventhe instructions was to impart such infor- tion, for the residue of the term then unexmation as would govern the jury in their pired for which the said original letters patdeliberations, and guide to a right conclu-ent were granted." The answer of the desion in their verdict. Such information can fendant denies "each and every, all and singenerally be most advantageously given gular, the allegations" contained in the after the conclusion of the testimony and complaint. The case was tried before a the argument of counsel; and it is not ma-jury, and resulted in a verdict of $7,000 for terial whether it be then given immediately the plaintiff, for which, with costs, judgin response to the request of counsel, or be ment was entered. To review this judgcontained in the formal charge of the court. ment the defendant has brought a writ of The charge itself, though embodying the error. There is a bill of exceptions, which substance of the instructions asked, also re- states that the plaintiff read in evidence, ferred to other matters presenting distinct without objection, the reissued patent, a propositions of law; but to none of them copy of the specification of which with the was any exception taken pointing out spe- drawings is set forth, and put in other evicifically the matter objected to. Only a dence tending to show its right to recover general exception to the whole charge was damages; that the defendant, "to sustain made; and a general exception of that kind the issues on its part," offered in evidence will not avail a plaintiff in error, where the a duly-certified copy of the original patent, charge contains distinct propositions, and a copy of which, with the drawings, is set any one of them is free from objection. The forth; that the plaintiff objected to the inwhole charge must be substantially wrong troduction of the original patent, on the before such a general exception will avail for ground that the same was immaterial and any purpose. This is the settled law, estab- irrelevant to any defense raised by the anlished by numerous decisions of this court. swer; that the court sustained the objecLincoln v. Claflin, 7 Wall. 132, 139; Cooper tion; and that the defendant excepted to v. Schlesinger, 111 U. S. 148, 151, 4 Sup. Ct. such ruling. Rep. 360; Railway Co. v. Jurey, 111 U. S. We are of opinion that the circuit court 584, 596. 4 Sup. Ct. Rep. 566; Burton v. Fer-committed an error in excluding the origry Co., 114 U. S. 474, 476, 5 Sup. Ct. Rep. 960. inal patent. It was relevant evidence upon It is also required by the fourth rule of this the question whether the reissue was "for court, which provides as follows: "The the same invention" as the original, and judges of the circuit and district courts the issue on that subject was sufficiently shall not allow any bill of exceptions which raised by the averment of the complaint shall contain the charge of the court at and the denial in the answer. The defendlarge to the jury in trials at common law, ant was entitled to try that question in a upon any general exception to the whole of formal manner, and it could not do so unsuch charge. But the party excepting shall less the original patent was introduced in be required to state distinctly the several evidence. The judgment is reversed, and the matters of law in such charge to which he case is remanded to the circuit court, with excepts; and those matters of law, and a direction to award a new trial. those only, shall be inserted in the bill of exceptions, and allowed by the court." Whatever, therefore, may be the actual merits of the plaintiff's claim to damages, nothing is presented to us by the record which we can examine. Judgment affirmed.

(132 U. S. 215)

OREGON IMP. Co. v. EXCELSIOR COAL CO.

(November 25, 1889.)

ACTION FOR INFRINGEMENT OF PATENT EVIDENCE. Where, in an action for the infringement of a reissued patent, the complaint alleges that upon surrender of the original patent a new one was issued for the same invention, and the answer denies "each and every, all and singular, " the allegations of the complaint, an issue is raised upon the question whether the reissue was for the same invention, and the original patent is admissible in evidence.

In error to the circuit court of the United States for the northern district of California.

(132 U. S. 216) BROWN et al. v. RANK.1

(November 25, 1889.)

EQUITABLE ACTION.

Plaintiffs brought a possessory action in the nature of ejectment, and defendant pleaded the general issue, and set up four affirmative defenses, to which plaintiffs demurred, but which were sustained. The fourth defense was addressed to the judge of the district court. Code Wash. T. § 76, subd. 4, provides that "when the relief sought is of an equitable nature the complaint shall be addressed to the judge of the district in which the action is brought." Section 83, subd. 3, provides that "defendant may set forth, by answer, as many defenses and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both." Held, that the final judgment dismissing the action at law was not an exercise of chancery jurisdiction, with.

'Affirming 8 Pac. Rep. 494.

•218

•217

Appeal from the supreme court of the territory of Washington.

Leander Holmes, for appellants. W. W. Upton and A. H. Garland, for appellee.

in the meaning of Code Wash. T. § 445, which pro- | versal or modification, and, "in case of a vides that every final judgment, where chancery writ of error, a particular description of jurisdiction has been exercised, shall be reviewed the errors assigned." These requisitions in the supreme court by appeal. were omitted in the act of 1883, but at its July term of that year the supreme court adopted a rule, which required, in all law causes brought up under that act, an assignment of errors to be made in writing, filed and served, substantially as provided for FULLER, C. J. Appellants commenced a in section 458 of the Code. No assignment possessory action, in the nature of eject- having been made, the appeal was dismissed ment, against appellee, in the district court for non-compliance with the rule in that of the second judicial district of Washing-particular, (Brown v. Hazard, 2 Wash. T. ton Territory, by complaint in the ordinary 464,8 Pac. Rep. 494,) and the case comes beform. To this the defendant filed an an- fore us on appeal from the judgment of disswer, denying title in plaintiffs, and other-missal.

wise equivalent to the plea of not guilty; As the rule did not require such assignand in addition pleaded affirmatively four ment in an equity cause, the question defenses, setting up, among other things, passed upon was whether this cause should the 10-years statute of limitations upon be held as one in equity or at law, and the actions for the recovery of real property. court decided that it was the latter. The Sections 25, 26, Code Wash. T. 1881, p. 39. act of congress of April 7, 1874, (18 St. 27,) The fourth affirmative defense was ad-"concerning the practice in territorial dressed to the judge of the district court, courts and appeals therefrom," provided and alleged a variety of facts, constituting, that it should not be necessary "in any of appellants contended, an equitable defense, the courts of the several territories of the if any at all, which they denied. The plain- United States to exercise separately the tiffs filed a demurrer in these words: "And common law and chancery jurisdictions now come the plaintiffs, and demur to the vested in said courts; and that the several second, third, and fourth separate answers Codes and rules of practice adopted in said and defenses of defendant herein, for the rea- territories, respectively, in so far as they son that they do not state facts sufficient authorize a mingling of said jurisdictions to constitute a defense to this action." This or a uniform course of proceeding in all demurrer was disposed of, and judgment cases, whether legal or equitable, be conrendered as follows: "This case coming on firmed: provided, that no party for hearing upon demurrer to the answer, has been or shall be deprived of the right of and having been submitted to the court on trial by jury in cases cognizable at common briefs of counsel of plaintiffs and defend- law." By subdivision 4 of section 76 of the ant, and the court, having fully considered Code of the territory it was provided that, the questions presented by the pleadings on "when the relief sought is of an equitable file in this case, overrules the demurrer to nature, the complaint shall be addressed to the answer; to which ruling or decision the the judge of the district in which the action counsel for plaintiffs then excepted, and is brought;" by subdivision 3 of section 83, gave notice of his intention to appeal; and that "the defendant may set forth by anthe counsel for plaintiffs having elected to swer as many defenses and counter-claims stand upon the ruling of the court upon as he may have, whether they be such as said demurrer, and not to reply or further have been heretofore denominated 'legal' plead to the answer, the case is now here or 'equitable' or both;" and by section 445, dismissed, with costs against the plaintiffs that "every final judgment, order, or deto be taxed, and that execution issue there- cision of a district court, or judge thereof, for. Whereupon counsel for plaintiffs ex- in actions of an equitable nature, where cepted, and gave notice of appeal to the su- equitable relief is sought, or where chancery preme court." Appeal was accordingly jurisdiction has been exercised, shall be reprosecuted to the territorial supreme court, viewed in the supreme court by appeal." under the act of the territory "in relation Referring to these provisions, appellants' to the removal of causes to the supreme counsel contends that, the fourth affirmacourt," approved November 23, 1883, (Laws tive defense (and he insists the first should Wash. T. 1883, p. 59.) It was held in Breem- be taken with it) being an equitable defense, er v. Burgess, 2 Wash. T. 290, 5 Pac. Rep. the cause, by the action taken thereon, be733, 840, that this act was cumulative and came "transformed into a cause in chancomplete within itself, and did not repeal cery." But the demurrer was to the secsections 458-460, Code 1881, relating to ond, third, and fourth affirmative defenses, appeals and writs of error, (Code Wash. and the defendant had also pleaded the T. 1881, p. 114;) and that cases might be general issue. The judgment upon demurbrought up to the supreme court of the ter- rer held the three affirmative defenses good. ritory, either by the procedure prescribed The final judgment was one dismissing the in the Code or that in the statute of 1883. action at law, and, upon the pleadings as The Code provided for service of a notice they stood, was not a judgment in the of appeal or writ of error, which should exercise of chancery jurisdiction. The sucontain, among other things, in case of ap- preme court correctly held that the cause peal, a particular description of every de- was at law, and not in equity, and, this cision, ruling, order, or decree," by which being so, it is not denied that the dismissal appellant claimed to have been aggrieved, for non-compliance with the rule necessarily and which he relied upon as ground for re- followed. The judgment is affirmed.

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