drawback, there shall be levied, collected and paid a duty equal to the tax imposed by the internal revenue laws upon such articles." The provision for withdrawing distilled spirits from warehouse is section 3330 of the Revised Statutes, and reads as follows: "Distilled spirits may be withdrawn from distillery bonded warehouses, at the instance of the owner of the spirits, for exportation in the original casks, in quantities of not less than one thousand gallons, without the payment of tax under such regulations, and after making such entries and executing and filing with the collector of the district from which the removal is to be made such bonds and bills of lading, and giving such other additional security as may be prescribed by the commissioner of internal revenue, with the approval of the secretary of the treasury; provided, that bonds given under this section shall be canceled under such regulations as the secretary of the treasury shall prescribe; and provided further, that the bonds required to be given for the exportation of distilled spirits shall be canceled upon the presentation of satisfactory proof and certificates that said distilled spirits have been landed at the port of destination named in the bill of lading, or upon satisfactory proof that after shipment the same were lost at sea without fault or neglect of the owner or shipper thereof. Every person who intentionally relands within the jurisdiction of the United States any distilled spirits which have been shipped for exportation under the provisions of this act shall be fined and imprisoned *; and all distilled spirits so relanded to the United States." * * * * * * shall be forfeited The question in the case is whether these spirits were withdrawn for exportation within the meaning of section 3330. If they were not, it is immaterial that they may have been reimported. It is quite inadmissible to construe section 2500 as authorizing the reimportation of spirits or any other articles upon which an internal revenue has not been paid by reason of a fraudulent or illegal evasion. It cannot be construed as intended to facilitate a fraud upon the revenue, which the act of which it is a part was enacted to protect. If the spirits were not withdrawn for exportation, they were lawfully seized by the defendant, because they were forfeited to the United States. The statutes of congress, in force in 1884, are carefully devised to prevent the evasion of the taxes upon distilled spirits. The manufacture is at all times subject to the inspection of the officers of internal revenue. The spirits must be drawn off into receiving cisterns at stated intervals, and on the third day after be drawn into casks and removed directly to a bonded warehouse in charge of a government storekeeper. There they are to be stored until withdrawn. The tax must be paid within three years after the date of entry if they are not withdrawn, and, if they are withdrawn, must be paid before their removal. Their removal from the warehouse otherwise than in compliance with law is made a criminal offense, and forfeits them to the United States. They can only be withdrawn without payment of tax when withdrawn for exportation pursuant to the terms of section 3330. The findings of fact do not disclose whether or not the plaintiffs intended to unload the spirits at Windsor, and leave it wholly to inference whether they were unladen and stored there voluntarily, or because of the interposition of the Canadian customs officials. But as the findings state that the plaintiffs intended to remove them to New York, and pay the tax there, and as the only tax they could pay there was the duty which could be levied by the collector of that port under section 2500, it may be fairly inferred that the plaintiffs intended to have them unladen at Windsor, and consigned thence to the collector. In the view which we have reached, however, the fact is not material. Ordinarily, goods are exported when they are carried out of the country for the purpose of being transferred to a foreign situs. Goods en route from one place to another in the United States are not exported merely because, while in transit, in cars or vessels, they may be temporarily outside the boundaries, or within the boundaries of a foreign country. Conversely, goods are imported when they are brought within the country with intent to land them here. The intent characterizes the act, and determines its legal complexion. U. S. v. Vowell, 5 Cranch, 368; The Mary, 1 Gall. 206, Fed. Cas. No. 9,183; The Boston, 1 Gall. 239, Fed. Cas. No. 1,670. In the absence of language in the statute indicating a contrary intention, it would be assumed that in section 3330 congress used the term "exportation" in the sense thus attributed to it, and consequently it might well be urged that the section should be interpreted as authorizing a withdrawal of spirits without payment of tax when it was the purpose of the owner to transfer them to a foreign country, and give them a temporary situs there, notwithstanding he may all the time have intended to subsequently remove them back again to this country, and reimport them upon the payment of a duty equal to the original revenue tax. But the statute itself denounces such an interpretation by making it criminal to "intentionally reland" within the jurisdiction of the United States distilled spirits which have been shipped for exportation, and declaring them forfeited to the United States. Articles can be relanded without having been exported, but they cannot be reimported without being relanded; and the term includes both the cases. The language, in effect, forbids the reimportation of spirits upon which the tax has not been paid when they have been withdrawn from warehouse, and does not rationally permit a less comprehensive import to be given to it. If the spirits have been shipped for exportation, it matters not whether they have been actually exported or not. If they are intentionally relanded, the penalty is incurred. Unless this language is ignored, the statute cannot mean to permit the withdrawal of spirits for an exportation which is to be followed by a reimportation. The provision may be designed to reach a case where spirits might be warehoused, and before the expiration of the three years from entry within which the tax must be paid be withdrawn for exportation, and then reimported, thus obtaining an indefinite extension of the time of paying the tax. This part of the section is one of the stringent provisions calculated to enforce a strict compliance with all the requirements of the law taxing distilled spirits. We are unable to doubt that the spirits in controversy were properly seized by the defendant, and that the court below should have ordered judgment for the defendant. The judg ment is reversed, with costs. (78 Fed. 345.) UNITED STATES v. MATHEWS et al. (Circuit Court of Appeals, Second Circuit. February 1, 1897.) CUSTOMS DUTIES-CLASSIFICATION-NEEDLE CASES. Coverings or cases made of silk, leather, or paper, and containing needles, such cases being ornamental articles, arranged as permanent receptacles for the needles, are dutiable under the tariff act of 1890, according to their component material of chief value, as manufactures of silk, leather, or paper, and are not entitled to free entry, as usual coverings of the needles, under section 19 of the act of June 10, 1890. Appeal from the Circuit Court of the United States for the Southern District of New York. Henry C. Platt, Asst. U. S. Dist. Atty. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. SHIPMAN, Circuit Judge. In the year 1891, the firm of Mathews, Blum & Vaughan imported into the port of New York sundry invoices of articles which they styled coverings or cases containing needles. These cases were made either of silk or of leather or of paper, but were not like the well-known folded paper covers in which needles are wrapped. The collector assessed the cases as entire articles, according to their component material of chief value, either as manufactures of paper, under paragraph 425, or manufactures of leather, under paragraph 461, or manufactures of silk, under paragraph 414, of the act of October 1, 1890. The importers protested against this assessment, upon the ground that needles are free under paragraph 656 of the tariff act of 1890, and that the cases were usual coverings of the needles, and therefore, under section 19 of the act of June 10, 1890, were also free of duty. The action of the collector was affirmed by the board of general appraisers, who found that needle cases of this general character are specific articles of merchandise, and, although they are used for holding needles imported in them, they are not usual coverings, but are articles designed for use otherwise than in the bona fide transportation of needles in the United States. The board also found, upon a similar protest, which, in their opinion, related to the same substantial facts as those in this appeal, that the cases "are arranged as permanent, convenient, and ornamental receptacles for the needles which they contain, and that they are, with their contents, invoiced and imported as an entirety, and designed to be sold as 'furnished needle cases.'" In the present case the books were not invoiced as entireties. The circuit court reversed the decision of the board of general appraisers, upon the ground that the cases were usual and ordinary coverings. We concur in the finding of facts of the board, and think that while the cases cover needles, and while the articles are extensively imported, the books are more than coverings, and are not designed to be used in the ordinary transportation of needles. They are orna mental articles, designed to be sold and used as such, and are properly described as furnished needle cases. A description of them as coverings for needles conveys an inadequate idea of the merchandise. The facts in the case are substantially different from those in Magone v. Rosenstein, 142 U. S. 604, 12 Sup. Ct. 391, or in U. S. v. Leggett, 26 U. S. App. 531, 13 C. C. A. 448, and 66 Fed. 300. The decision of the circuit court is reversed. (78 Fed. 346.) CARTER MACH. CO. v. HANES et al. (Circuit Court of Appeals, Fourth Circuit. February 2, 1897.) No. 175. 1. PATENTS-COMBINATION CLAIMS-SEPARATE ELEMENTS. When a patent is for a combination only, none of the separate elements of which it is composed are included within the monopoly. 2. SAME-INFRINGEMENT. There is no infringement of a patent which claims mechanical powers in combination, unless all the parts have been substantially used. 3. SAME-TOBACCO FLAVORING MACHINE. The King patent, No. 494,960, for a tobacco flavoring machine, consisting of the combination of a rotary flaring drum, a feed hopper emptying into the smaller end of the drum, and a spraying device located within the drum, construed, and held not infringed. Appeal from the Circuit Court of the United States for the Western District of North Carolina. This was a suit in equity by the Carter Machine Company against Pleasant H. Hanes and John W. Hanes, trading under the firm name and style of P. H. Hanes & Co., for alleged infringement of a patent for a tobacco flavoring machine. The circuit court dismissed the bill, and the complainant has appealed. W. D. Baldwin, for appellant. W. W. Fuller and Clement Manly (Watson & Burton, on the brief), for appellees. Before GOFF and SIMONTON, Circuit Judges, and MORRIS, District Judge. SIMONTON, Circuit Judge. This case comes up by appeal from a decree of the circuit court of the United States for the Western district of North Carolina. The complainant below filed a bill in equity against the defendant, alleging an infringement of its patent. The circuit court dismissed the bill, and the complainant appealed to this court. The appellant holds, by assignment, patent No. 494,960, granted to James M. King, April 4, 1893, and assigned to the appellant April 10, 1893. The patent is for a tobacco flavoring machine. The first claim, and the only one in suit, is "the combination, in a tobacco flavoring machine, of a rotary flaring drum, provided with driving mechanism, a feed hopper emptying into the smaller end of the drum, and a spraying device located within the drum, whereby the tobacco is sprayed and leaves separated, as they pass through the drum, substantially as described." Mechanical devices for applying a flavoring liquid to tobacco were well known before the date of this patent. The patent of Smith & Messenger (No. 172,666, January 25, 1876) shows a flavoring machine, consisting of an inclined cylindrical rotating drum, through which tobacco passes, and in its passage is sprayed by a spraying device located outside of the drum. at its lower end. Smith & Messenger improved on this by patent No. 187,187. These have expired. C. F. Bjick also had a patent (No. 195,578, October 9, 1877) for spraying tobacco leaves. His device has an inclined cylindrical drum, through which the leaves of tobacco pass, and in their passage are sprayed from a spraying nozzle at the upper end of the drum. So King was not a pioneer in seeking and obtaining this result by means of a revolving cylinder and a spraying device. His claim is for the combination in a tobacco flavoring machine of three parts, a hopper, a flaring drum, and a spraying device within the drum. His claim, then, is for an entirety. He cannot abandon a part, and claim the rest. He must stand by his claim as he has made it. If more or less than the whole of his ingredients are used by another, such party is not an infringer, because he has not used the invention or discovery patented. Shumacher v. Cornell, 96 U. S. 549. When a patent is for a combination only, none of the separate elements of which the combination is composed are included in the monopoly. Rowell v. Lindsay, 113 U. S. 101, 5 Sup. Ct. 507. Or, as expressed by Mr. Justice Bradley in The CornPlanter Patent (Brown v. Guild), 23 Wall. 181: "When a patentee, after describing a machine, claims as his invention a certain combination of elements, or a certain device or part of the machine, this is an implied declaration, as conclusive, so far as that patent is concerned, as if it were expressed, that the specific combination or thing claimed is the only part which the patentee regards as new." See, also, Voss v. Fisher, 113 U. S. 213, 5 Sup. Ct. 511. The parts of the combination claimed by the patentee are not new. The hopper has long been well known, and numerous patents are cited in the answer, showing its frequent use before the date of this patent. Indeed, the concise and clear definition given of this term by the expert of the appellant to the court below establishes this. "A hopper is a mechanical device which, in the progress of the arts, was resorted to to take the place of the hands for the purpose of feeding or conducting a substance from one position to another." So, also, the flaring drum was not unknown to the art before the date of this patent, and it is frequently spoken of as the equivalent of an inclined cylinder. In the patent of Justus (No. 317,461, May 5, 1885) is shown a conical drum, and in his specification he says: "The conduit, B, instead of being made flaring or conical, may be in the form of a true cylinder." So Coker's patent (No. 249,009, November 1, 1881) shows a conical drum, and the patentee says, in his application: "The drying cylinders are arranged in an inclined position, so that the grain will gradually work its way from the upper to the 24 C.C.A.-9 |