The subdivision and packing of articles of commerce into small parcels for convenience of handling and retail sale, and the packing of these small parcels into boxes or sacks, or tying them together in bundles for convenience of storage and transportation, is as common and well known as any fact connected with trade. This well-known practice is applied, for instance, to fine-cut chewing and fine-cut smoking tobacco, to ground coffee and spices, oatmeal, starch, farina, desiccated vegetables, and a great number of other articles. This practice having been common and long known, it follows that there is nothing left for the patent of complainant to cover but the compression of the bale formed of several smaller parcels. Can this be dignified by the name of invention? When the contents of the smaller parcels are such as to admit of compression into a smaller compass, the idea of compressing the bale of the smaller parcels for transportation and storage would occur to any mind. There is as little invention in compressing a bale of several parcels of hair tied up together, as in compressing one large parcel of the same commodity. But it is perfectly well known that the compression of several packages of the same thing into larger packages or bundles is not new, and. that it has long been commonly practiced. Packages of wool, feathers, and plug tobacco have been so treated. The case of plug tobacco is a familiar instance. The plugs are formed so as to retain their identity and shape, the outer leaves of the plug forming at the same time a part of the plug as well as its covering. The plugs, after being so put up as to preserve their identity under pressure, are, as is well known, placed in a frame and subjected to pressure, and reduced to a smaller and compact mass, which is then boxed up and is ready for market. This is done in part for convenience in handling, transportation, and storage. When the box is opened by the retail dealer, the plugs can be taken out separately and sold. This method of treating plug tobacco would suggest to every one the compression into a bale of distinct packages of plasterers' hair, and leaves no field for invention in respect to the matter to which the patent of complainant relates.

In view of the facts to which we have referred, which are of common observation and knowledge, we are of opinion that the article of manufacture described in the specification and claim of the complainant's patent does not embody invention, and that the patent is for that reason void.

In support and illustration of our views, we refer to the following cases decided by this court: Hotchkiss v. Greenwood, 11 How. 248; Phillips v. Page, 24 How. 167; Brown v. Piper, 91 U. S. 37; Terhune v. Phillips, 99 U. S. 592; Atlantic Works v. Brady, 107 U. S.-; [S. C. 2 SUP. CT. REP. 225;] Slawson v. Grand Street, etc., R. Co. 107 U. S.; [S. C. 2 SUP. CT. REP. 663.]

The patent of complainant cannot be sustained by the authority of the case of Smith v. Goodyear Dental Vulcanite Co. 93 U. S. 486, where

the court said: "The invention is a product or manufacture made in a defined manner. It is not a product alone, separate from the process by which it is created." In that case the invention was the product of a new process applied to old materials. In this case it is the product of an old process applied to old materials. Judgment affirmed.

(109 U. S. 182)

NEWMAN v. ARTHUR, Collector, etc.

(November 5, 1883.)

DUTIES ON IMPORTS-COTTON GOODS-CLASSIFICATION OF.

The plaintiff contended that the goods imported by him were not embraced in the provisions of the statute (section 2504, Rev. St., sched. A) applicable to "manufactures of cotton," described and classed by the number of threads to the square inch, because that description had reference only to goods so described and classed by mercantile usage in dealings between buyers and sellers, where the threads could be counted by the aid of a glass, whereas the goods in question were of such a fabric that the threads could not be counted except by unraveling the cloth, and consequently it was not dealt in by merchants according to any such usage, and that, therefore, the fabric in question being of new manufacture and unknown at the date of the passage of the act, was not covered by the specific enumeration of the statute, and the appropriate duty must be determined by the final clause of the statute, embracing "all other manufactures of cotton not otherwise provided for." Held, that the construction of the statute, as given in Arthur v. Morrison, 96 U. S. 108, could not be applied to the case at bar. There is no reference in the statute, either expressly or by implication, to any commercial usage, and there is no language in it which requires for its interpretation the aid of any extrinsic circumstances. The law fixes the rate of duty by a classification based on the num ber of the threads in a square inch, without reference to the mode in which the count is to be made. The fact that at the date of the passage of the act goods of the kind in question had not been manufactured, cannot withdraw them from the class to which they belong, as described in the statute, where, as in the present case, the language fairly and clearly includes them.

In Error to the Circuit Court of the United States for the Southern District of New York.

Edwin B. Smith, for plaintiff in error.

Sol. Gen. Phillips, for defendant in error.

MATTHEWS, J. This action was brought to recover money alleged to have been illegally exacted by the collector of customs at the port of New York, and paid under protest. There was a verdict and judgment in favor of the defendant below, to reverse which this writ of error is prosecuted. The importations were made in 1875 and consisted of cotton goods, upon which the collector assessed a duty of 5 cents a square yard, and 20 per centum ad valorem. The plaintiff at the time of the liquidation claimed that the goods were liable to a duty of only 35 per cent. ad valorem as manufactures of cotton not otherwise provided for. It was proven on the trial that goods like

those in question were first manufactured in Manchester, England, in 1868 or 1869, they being then a new article of manufacture, and were first introduced into this country in 1869 or 1870. They have been known since their first introduction into this country in trade. and commerce by the name of cotton Italians, and used exclusively for coat linings. The importations in question were wholly of cotton, and dyed black in the piece, after being woven, and were made in imitation of a well-known article called Italian cloth, made of wool, and used for lining woolen coats. The surface of the cotton Italians was by some process of weaving and calendering made smooth and glossy like that of the real Italians. Plain woolen goods are those in which the warp and woof threads cross each other at right angles.

Cotton Italians are not plain woven, but are twilled goods, and had upon them figures of different designs made in weaving. The cotton Italians in question had more than 100 threads, and less than 200 threads, to the square inch, counting the warp and filling, and were less in weight than five ounces to the square yard, and did not exceed in value 25 cents to a square yard. Plaintiff's counsel gave evidence tending to show that the number of threads to the square inch in plaintiff's importations could not be counted without unraveling the goods.

The plaintiff's counsel asked the plaintiff, who was duly, sworn as a witness in the cause, the following question: "Are the goods bought and sold by the count of the number of threads?" The defendant's counsel objected to the question as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. The plaintiff's counsel then offered to prove by the witness that goods like those in question were never known in trade and commerce in this country as countable goods, or so bought and sold. The defendant's counsel objected to the evidence as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. Plaintiff's counsel then offered to show that prior to 1861, and ever since, there have been in trade and commerce in this country a great variety of cotton cloths known as countable goods, and which were bought and sold by the number of threads in the warp and filling, which number of threads were ascertainable by a glass and without taking the fabric. to pieces. The defendant's counsel objected to the question as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted. The plaintiff's counsel then asked the witness the following question: "Was the value of cotton Italians partially or wholly determined, between the manufacturer and the purchaser, according to the number of threads to the square inch ?" To this question defendant's counsel objected as immaterial. The court sustained the objection, and plaintiff's counsel duly excepted.

It was conceded that plaintiff's goods were neither cotton jeans, denims, drillings, bed-tickings, ginghams, plaids, cottonades, nor pantaloon stuff, nor goods of like description to them or either of them, nor for similar use.

Among others, not necessary here to refer to, the following instructions were requested by the counsel for the plaintiff in error, which the court refused to give, and to which exception was duly taken, viz.:

(3) That if the number of threads to the square inch in plaintiff's goods, counting the warp and filling, cannot be counted without taking the goods to pieces, then the plaintiff is entitled to recover."

"(5) That cotton Italians, being a new manufacture, and unknown here and abroad when the act of 1864 was passed, they were not specifically enumerated, and the presumption, until rebutted, is that they come under the general provision of manufactures not otherwise provided for."

The provisions of the law which govern the case are contained in section 2504, Rev. St., being Schedule A, cotton and cotton goods, and are as follows:

"(1) Sec. 2504. On all manufactures of cotton, (except jeans, denims, drillings, bed-tickings, ginghams, plaids, cottonades, pantaloon stuff, and goods of like description,) not bleached, colored, stained, painted, or printed, and not exceeding one hundred threads to the square inch, counting the warp and filling, and exceeding in weight five ounces per square yard, five cents per square yard; if bleached, five cents and a half per square yard; if colored, stained, painted, or printed, five cents and a half per square yard, and, in addition thereto, 10 per centum ad valorem.

"(2) On finer and lighter goods of like description, not exceeding two hundred threads to the square inch, counting the warp and filling, unbleached, five cents per square yard; if bleached, five and a half cents per square yard; if colored, stained, painted, or printed, five and a half cents per square yard, and, in addition thereto, twenty per centum ad valorem.

"(3) On goods of like description, exceeding two hundred threads to the square inch, counting the warp and filling, unbleached, five cents per square yard; if bleached, five and a half cents per square yard; if colored, stained, painted, or printed, five and a half cents per square yard, and, in addition thereto, twenty per centum ad valorem.

"(4) On cotton jeans, denims, drillings, bed-tickings, ginghams, plaids, cottonades, pantaloon stuffs, and goods of like description, or for similar use, if unbleached, and not exceeding one hundred threads to the square inch, counting the warp and filling, and exceeding five ounces to the square yard, six cents per square yard; if bleached, six cents and a half per square yard; if colored, stained, painted, or printed, six cents and a half per square yard, and, in addition thereto, ten per centum ad valorem.

"(5) On finer or lighter goods of like description, not exceeding two hundred threads to the square inch, counting the warp and filling, if unbleached, six cents per square yard; if bleached, six and a half cents per square yard; if colored, stained, painted, or printed, six and a half cents per square yard, and, in addition thereto, fifteen per centum ad valorem.

"(6) On goods of lighter description, exceeding two hundred threads to the square inch, counting the warp and filling, if unbleached, seven cents per square yard; if bleached, seven and a half cents per square yard; if colored, stained, painted, or printed, seven and a half cents per square yard, and, in addition thereto, fifteen per centum ad valorem: provided, that upon all plain woven cotton goods, not included in the foregoing schedule, unbleached, valued at over sixteen cents per square yard; bleached, valued at over twenty cents per square yard; colored, valued at over twenty-five cents per square yard; and cotton jeans, denims, and drillings, unbleached, valued at over twenty cents per square yard; and all other cotton goods of every description, the value of which shall exceed twenty-five cents per square yard, there shall be levied,

collected, and paid a duty of thirty-five per centum ad belorem: and provided, further, that no cotton goods having more than two hundred threads to the square inch, counting the warp and filling, shall be admitted to a less rate of duty than is provided for goods which are of that number of threads."

*

"(12) * * and all other manufactures of cotton, not otherwise provided for, thirty-five per centum ad valorem."

The contention of the plaintiff in error now relied on is, in substance, that the goods in question are not embraced in the provisions of the statute, applicable to "manufactures of cotton," described and classed by the number of threads to the square inch, because that description had reference only to goods so described and classed by mercantile usage in dealings between buyers and sellers, where the threads could be counted by the aid of a glass, whereas, the goods in question, as it must be assumed from the offers of proof which were rejected, were not dealt in by manufacturers and merchants according to any such usage, and could not be, because the threads in a square inch could not be counted, except by unraveling the fabric for that purpose; and it is therefore argued that, as the goods in question were of a new manufacture, not known at the date of the passage of the act, they cannot be considered as within the specified enumer ation of the statute, and the appropriate duty must be determined by the final clause, embracing "all other manufactures of cotton not otherwise provided for." The claim is, in the language of counsel making it, that "congress did not mean to subject to this countable clause every article of cotton manufacture of which, by cutting out a square inch, the number of threads constituting the warp and woof of that area could be counted, but only those articles in which the threads. were counted in ordinary mercantile transactions therein, and which could be counted by methods practiced by the trade."

It is sought to support this argument by invoking the rule of construing the statute applied in Arthur v. Morrison, 96 U. S. 108, and the numerous cases there cited, that where words are used in an act imposing duties upon imports which have acquired, by commercial use, a meaning different from their ordinary meaning, the latter may be controlled by the former if such be the apparent intent of the statute; but the application fails in the present instance because the language used is unequivocal. There is no reference in the statute, either expressly or by implication, to any commercial usage, and there is no language in it which requires for its interpretation the aid of any extrinsic circumstances. The rejected proof of the custom of merchants to rate certain descriptions of goods, as to values, by the number of threads to the square inch, as ascertained by inspection by means of a glass, throws no light whatever on the meaning of the law, because the law fixes the rate of duty by a classification based on the number of the threads in a square inch, without reference to the mode in which the count is to be made. It might be quite convenient for dealers not to count the threads, except when they