of probable cause; and, plaintiff having failed to introduce any evidence proving or tending to prove that said conviction was procured by fraud, false evidence, or any unfair means, that said conviction, under this state of facts, was, as a matter of law, probable cause; and to return a verdict for the defendants."

From a verdict for the defendant in accordance with this last instruction, plaintiff prosecutes this writ of error, assigning numerous grounds of error in relation to the improper admission of evidence and refusals of the court to charge the jury as requested, not necessary to recapitulate.

In this court the plaintiff makes a motion for the reversal of the judgment below, remanding the cause to the circuit court with instructions to remand it to the state court, because, he says:

1

This "This court has no jurisdiction to try this case, because the circuit court had acquired no jurisdiction of said cause, for the following reasons: cause was originally filed in the district court of Rusk county, Texas, in February or March of 1888, and defendants filed their answer on June 30, 1888, and that at the regular term in July, 1888, defendants suffered the case to be continued till the January term of 1889, at which term the plaintiff filed his amended petition; and again, defendants suffered the case to be continued to the July term of 1889 of said court, at which July term the defendants presented the application for removal to the circuit court for the eastern district of Texas, at Tyler, and at said July term of 1889 the order for removal was made; and, further, that under the law of Texas two regular terms of the district court are held in each year in Rusk county, to wit, on the first Mondays in January and July; that the record shows that the defendants failed to present their application for removal at the first term of the district court at Rusk county, to wit, the first Monday in January, 1888. at which term they were required to answer, and because of defendants' failure to present their application for removal at the proper time the jurisdiction of the district court of Rusk county became final and conclusive upon the circuit court, so far as the right of removal existed, if any such right existed in this case, and the circuit court could not acquire jurisdiction of this cause; wherefore," etc.

upon facts This ground for remanding the cause seems to be based which do not wholly appear of record; but, taking the facts as alleged in the motion to be true, we are of the opinion that the motion comes too late, irrespective of the question whether or not the removal from the state court, being before any trial of the case, and being on the ground of local prejudice, was in time. No such question was made in the circuit court. The matter of time in removal is not jurisdictional, and objection thereto can be waived, and is waived when not urged in time. This is settled by the supreme court of the United States in the case of Gerling v. Railroad Co. (decided Feb. 5, 1894; not yet officially reported) 14 Sup. Ct. 533.

From the view that we take of the case, it is unnecessary to consider the assignment of errors in detail, because, as the case was presented, no other judgment could have been properly rendered in the circuit court than the one actually rendered. The case does not appear to have been tried as one for damages for false imprisonment. The plaintiff made no request to the court to charge the jury upon the law with regard to false imprisonment, and one examining the record would conclude that the count for false imprisonment was practically abandoned. However that may be, the plaintiff, in his petition, shows that he was arrested under a warrant directed to

the sheriff of any county of the state, and issued by a judge having jurisdiction. The undisputed proof shows that the warrant for the arrest of the plaintiff was delivered by the judge issuing the same to Clinkscales, who was sheriff, and who executed the warrant. When the warrant was delivered to the sheriff of Smith county, he crossed the county line into Rusk county, and arrested the plaintiff, and brought him by way of Ft. Worth to Smith county, where he was subsequently indicted and held for trial. The only trespass, therefore, of which the plaintiff could in any view complain was the act of the sheriff in arresting him outside of his bailiwick, and in carrying the plaintiff to Ft. Worth. Carrying the plaintiff to Ft. Worth for the purpose of confronting him with Powers, then and there in the hospital, was in the interest of justice, and in the interest of the plaintiff himself, if he was innocent; for which it does not appear that the defendants can in any way be held responsible.

As to the second cause of action, the authorities are well settled that the question of probable cause in an action for malicious prosecution is one of law, to be determined by the court. Stewart v. Sonneborn, 98 U. S. 187, and cases there cited. The finding of an indictment by the grand jury, and the conviction by a petit jury on such indictment, although a new trial was thereafter granted, was prima facie evidence of the existence of probable cause, and, in the absence of countervailing evidence, warranted the court in giving the instruction to find for the defendants upon that ground. Cooley, Torts, 214; Whitney v. Peckham, 15 Mass. 243; Bacon v. Towne, 4 Cush. 217; Cloon v. Gerry, 13 Gray, 201; Hil. Torts, 457. The indictment by the grand jury and the conviction by the petit jury were admitted by the plaintiff; and while, in his petition, he charges that the same were procured by improper means, and upon false evidence, he offers not a particle of proof to show the same. The judgment of the circuit court is affirmed.

GOLDBERG et al. v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. April 19, 1894.)

CUSTOMS DUTIES-CLASSIFICATION-“JET TRIMMINGS. "

Hat trimmings and ornaments composed of black glass and wire, the glass being the component of chief value, and made in imitation of jet, are dutiable, under the act of October 1, 1890, at 60 per cent., as "manufactures of glass" (paragraph 108); and the fact that they are commercially known as "jet trimmings" and "jet goods" does not authorize their classification as "manufactures of jet" (paragraph 459). 56 Fed. 818, affirmed. Appeal by Goldberg & Co. from the decision of the circuit court for the southern district of New York, which affirmed the decision of the board of general appraisers as to the classification of sundry importations of hat trimmings and ornaments.

Edwin B. Smith, for appellants.

James T. Van Rensselaer, Asst. U. S. Dist. Atty.
Before WALLACE and SHIPMAN, Circuit Judges.

SHIPMAN, Circuit Judge. In the years 1891 and 1892 the appellants imported into the port of New York sundry invoices of articles styled "manufactures of jet," which were hat trimmings and ornaments composed of black glass and wire; the glass being the component material of chief value, and made in imitation of jet. Jet is a well-known article, and is defined to be "a variety of lignite, of a very compact texture, and velvet-black color, susceptible of a good polish, and often wrought into toys, buttons, mourning jewels, and the like." Webst. Dict. 1884. The most important jet veins are said, by the authorities upon the subject, to be near Whitby, in Yorkshire, England. The collector classified the merchandise as manufactures of glass, and dutiable at 60 per cent. ad valorem, under paragraph 108 of the tariff act of October 1, 1890. The part of the paragraph which is important in this case is as follows:

"All other manufactures of glass, or of which glass shall be the component material of chief value, not specially provided for in this act, sixty per centum, ad valorem."

The importers protested against this classification, upon the ground that the goods were dutiable under the provisions of paragraph 459 of the same act, which is as follows:

"Manufactures of alabaster, * jet, or of which these substances, or either of them, is the component material of chief value, not specially provided for in this act, twenty-five per centum ad valorem."

The question of fact in controversy before the board related to the commercial designation of the articles. The witnesses upon the opposite sides of this controversy, respectively, testified that they were commercially known as "jet goods, jet ornaments, and jet trimmings," or that they were known in trade as "imitation jet goods." The board, without considering the preponderance of evidence, found that "the merchandise is commercially known as 'jet and imitation jet articles,'” and further found that they were manufactures of glass, and were not manufactures of jet, and affirmed the action of the collector. The circuit court sustained the decision of the board. The appellants insist that the testimony clearly shows that the articles in question were universally known in trade and commerce at and prior to October 1, 1890, the date when the act imposing the duty was passed, as "jet goods," or "jet trimmings," and we are of opinion that they were thus generally so styled in the language of commerce. We are also of opinion, however, that this fact does not control the proper classification of these articles, in view of the other provisions respecting jet and its manufactures in the existing tariff act and its predecessors. Unmanufactured jet is upon the free list of the tariff act of October 1, 1890 (paragraph 620), and has been free of duty since the tariff act of July 14, 1870. The jet of the free list is obviously a real jet, and not the black glass from which the dress or hat trimmings in question are made. The existing act makes dutiable manufactures of jet, and in so doing has changed the phraseology of the pre-existing tariff act of March 3, 1883, which imposed a duty upon "jet, manufactures and imitations of." The same provision was contained in the Revised Stat

utes, and first appeared in the tariff act of July 30, 1846. Thus, in the act of October 1, 1890, the provision which had long previously existed in regard to manufactures of imitations of jet was dropped, and manufactures of jet were left specifically provided for. This history enforces the correctness of Judge Lacombe's conclusion in the circuit court that "the unmanufactured jet of paragraph 620 in the tariff act of 1890 is the material out of which the manufactures of jet provided for in paragraph 459 of the same act are made." Congress had known since 1846 that there were manufactures of imitations of jet, and had made them dutiable by name. In 1890 it omitted to specify this class of manufactures. It retained a duty upon manufactures of jet, and in so doing it used the word “jet" with the meaning that it had had in the tariff acts for a series of years. Inasmuch as unmanufactured jet and manufactures of that substance are specially provided for, it creates a severe strain upon the principle of commercial designation to infer that beads. and trimmings called "jet millinery," but made of glass, which is not commercially jet, should be classified as manufactures of jet. It is true that there was scattering testimony that the black glass, before it was manufactured into ornaments, was called "jet," but it was insufficient to establish such commercial name. As the con

clusion is succinctly stated in the appellee's brief, "If an article is a manufacture of glass, it cannot be changed into a manufacture of jet simply because the trade has come to call certain black glass trimmings and ornaments by the name of 'jet.'" The principle of commercial designation does not justify such a result. The decision of the circuit court is affirmed.

BRITTON et al. v. WHITE MANUF'G CO.

(Circuit Court, D. Connecticut. April 16, 1894.)

1. PATENTS-LIMITATION OF CLAIMS.

No. 709.

Statements of counsel to the patent office of mere reasons why it is desirable to have claims allowed in a particular form do not estop the patentee from claiming what is clearly granted by the patent.

2. SAME-DESIGNS-FORM OF CLAIMS.

In a patent for a design for coach lamps, consisting of a tulip conventionalized in form, it is proper to allow separate claims for the upper and lower parts, and a third claim for the entire design.

3. SAME-ANTICIPATION AND PRIOR ART-EVIDENCE-"PUBLICATIONS.

A drawing exhibited in a mere trade circular, unaccompanied by any evidence that it was ever actually published, or intended for general use, or accessible to the public, is not admissible as a printed publication for the purpose of showing anticipation. 4. SAME.

A pamphlet purporting to be a number of a coachmaker's magazine, printed for general circulation, bound up with other numbers for the same year, and containing references to advertisements, with terms therefor, is prima facie a publication, within the meaning of the patent law. 5. SAME-EXHIBIT OF DRAWINGS-ABSENCE OF DESCRIPTION.

Drawings exhibited for the purpose of showing anticipation of a design patent are not rendered irrelevant by the fact that they are unaccom

panied by a written description. This objection merely affects their weight as evidence, and not their admissibility.

6. SAME-INVENTION.

The fact that a coach lamp made to resemble a tulip, conventionalized in form, shows outlines resembling a calyx, while in nature the tulip has no calyx, is strong evidence of original combination or creative thought. 7. SAME

DESIGN PATENTS-INFRINGEMENT-EXPERT EVIDENCE.

Little weight should be attached to the evidence of experienced designers on the question of infringement, since they are liable to be biased by the trained observation of the specialist. But the court should endeavor to place itself in the position of the ordinary purchaser, giving such attention as he would usually give.

8. SAME-VALIDITY-INFRINGEMENT.

The Britton design patent, No. 20,670, for a carriage lamp in the form of a conventionalized tulip, held to show patentable novelty, and to have been infringed by defendants.

This was a suit by Channing M. Britton and others against the White Manufacturing Company to restrain infringement of a patent. Witter & Kenyon, for complainants.

F. W. Smith, Jr., for defendant.

TOWNSEND, District Judge. The bill in equity herein is brought for the infringement of design letters patent No. 20,670, granted April 14, 1891, to the complainants, for a design for a carriage lamp. The defenses are want of novelty, lack of patentable invention, and denial of infringement. The specification states that the invention relates to a design to be imparted to lamps, and consists of a novel shape and configuration. The complete lamp represents a tulip; the sides of the body part being so shaped as to represent the petals, the lower portion the calyx, and the downwardly extending portion the stem, of the flower. The cover of the lamp, by upwardly and outwardly extending projections, surmounted by a central spherical form, represents the pistil of the flower, or, taken alone, represents the tulip after its leaves have fallen; the projections resembling the calyx, and the spherical form the pistil. The claims of the patent are as follows:

(1) The design for lamps, consising of the body part, A, substantially as shown. (2) The design for lamps, consisting of the upper part or cover, D, substantially as shown. (3) The design for lamps, consisting of the body part, A, and the upper part or cover, D, substantially as shown.

Complainants' lamp fitly embodies the design of a tulip. It consists of two parts, which represent a graceful, harmonious whole. That it found great favor in the eyes of the public, and had a large sale, is abundantly proved. The question is, has it the degree of novelty required to protect a patent for a design?

The file wrapper shows that the patent office rejected four of the original five claims, on the ground that an inventor could only have a claim for a unitary design, and subordinate claims for segregable and distinctive features; and that counsel for complainants amended the claims, and requested their allowance in the present shape, on the ground that the public would be readily deceived, either by a design consisting of the exact cover and a body slightly resembling the body of the patented design, or by an exact copy of