Opinion of the Court.

kinds being frequently commercially called "seals," and being made to represent sealskin, and being used for the purposes for which sealskin was used. The component material of chief value in "velours" was cow and calf hair, and not cotton. The importers claimed that the goods were dutiable at 35 per cent ad valorem, under Schedule A of § 2504, as manufactures of cotton, while the collector exacted a duty of 50 cents per pound and 35 per cent ad valorem, on account of the similitude the goods bore to manufactures composed wholly or in part of the hair of the goat, without wool, under § 2499 and the provision of Schedule L of § 2504, in regard to manufactures composed wholly or in part of the hair of the goat and containing no wool. Inasmuch as the collector in that case imposed a duty of 50 cents per pound and 35 per cent ad valorem, the goods must have been valued at above 80 cents per pound, according to the terms of that clause of Schedule L. The court instructed the jury to find for the importers, and this court held that the instruction was erroneous. The view taken here was, that the goods were nonenumerated, but were substantially like a manufacture of goat's hair and cotton, which was enumerated in the clause quoted from Schedule L. One strong ground for the ruling made by this court is thus stated in its opinion, delivered by Chief Justice Waite. Speaking of the goods imported in that case, it said: "They are made of cotton and cow hair, and are evidently of equal quality with the manufactures of cotton and goat's hair, because, in this case, they are charged with a duty of fifty cents per pound, thus indicating a value of eighty cents a pound or over, which calls for the highest duty per pound put on the goat's hair goods."

In the present case, the samples of goat's hair goods introduced by the defendant as the standard of comparison, to make out the similitude spoken of in § 2499, were all of them mohair goods, two of which samples were worth over 80 cents a pound, and thus subject, under Schedule L, to the rate of duty imposed in the present case upon the goods of the plaintiffs; while it was proved that the plaintiffs' goods in twelve of the cases cost under 40 cents a pound, and in the remaining

VOL. CXXVII-24

Statement of the Case.

case cost over 40 and under 60 cents a pound. Thus, as a matter of law, in the present case, the plaintiffs' goods, of such inferior value and material, were compared with costly mohair goods, and the duty assessed on them was held to have been properly charged.

We are of opinion that the question of the similitude was one of fact, which should have been submitted to the jury, under proper instructions. As there was error in the particular mentioned, we do not deem it proper to consider any of the other questions raised and discussed by counsel.

The judgment is reversed, and the case is remanded to the Circuit Court with a direction to award a new trial.

HENDY v. GOLDEN STATE AND MINERS' IRON WORKS.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.

No. 278. Submitted May 3, 1888. - Decided May 14, 1888.

Claim 1 of letters patent No. 140,250 granted to James D. Cusenbary and James A. Mars, June 24, 1873, for an "improvement in ore-stamp feeders," namely, "The feeding cylinder I, mounted upon the movable timber H H, substantially as and for the purpose above described," is a claim only for making the timbers movable, by mounting them upon rollers, and does not involve a patentable invention.

The defence of non-patentability can be availed of without setting it up in

an answer.

There is no patentable combination, but merely an aggregation of the rollers and the feeding cylinder.

The specification requires the feeding cylinder to have chambers or depressions, and claim 1 does not cover a cylinder with a smooth surface not formed into chambers.

THIS was a suit in equity, brought by Joshua Hendy against the Golden State and Miners' Iron Works, a corporation, and six individual defendants, in the Circuit Court of the United States for the District of California, for the infringement of

Statement of the Case.

letters patent No. 140,250, granted June 24, 1873, to James D. Cusenbary and James A. Mars, for an "improvement in ore-stamp feeders." The specification, claims, and drawings of the patent were as follows:

"Our invention relates to improvements in that class of orefeeders for quartz mills in which a pawl and ratchet are employed to operate the feeder automatically by the drop of the stamp. Our improvements consist, first, in mounting a feedcylinder upon a movable frame or truck, so that it can be readily shifted from place to place when it is desired to repair the mill; and, lastly, of an improved arrangement for operating the pawl-rod by the drop of the stamp without the use of springs. In order to more fully illustrate and explain our invention, reference is had to the accompanying drawings, forming a part of this specification, in which Fig. 1 is a vertical section; Fig. 2 is a back view; Fig. 3 is a transverse section. A represents the frame of a stamp mill; B is the stamp; C is the stamp-stem, with its tappet D; F is the cam-shaft, and G the cam which lifts the stamp, all of which are arranged in the ordinary manner of constructing a stamp battery. H H are the foundation timbers upon which the feeding cylinder is mounted. These timbers are mounted upon rollers, so that the cylinder and frame can be moved about as desired. The cylinder I is made of cast metal, and has its outer surface formed into chambers or depressions, J J, which are separated from each other by longitudinal partitions, K. The cylinder and its carriage, when in working position, are placed below the hopper L, so that the ore from the hopper will fall into the chambers upon an inclined apron, M, which directs it beneath the stamp. This feeding cylinder, being made of cast metal, will not wear out like the endless belts heretofore used in this class of machines, and, as it turns upon journals, like any common roller or cylinder, it cannot become clogged, as the endless belt is liable to do. To one end of the cylinder or ratchet-wheel N is secured, and this ratchet-wheel is operated by, a pawl-bar, C, to revolve the cylinder. In order to operate the pawl-bar from the tappet, a horizontal shaft, p, has its opposite ends supported in boxes, which are secured to the

Statement of the Case.

sides of the upright timbers of the frame, so that the shaft will pass across directly in front of the tappet, transversely to the movement of the stamp-stem. A fixed arm, q, extends backwards from the shaft p, so that its extremity will ter- . minate below the tappet, in position to receive a blow from it when the stamp falls. Another fixed arm, r, extends forward from the shaft directly over the ratchet-wheel, and to the extremity of this arm the upper end of the pawl-bar, o, is attached by means of a trunnion block, t. This bar extends down to the middle of the periphery of the ratchet-wheel, and has one or more upward projecting teeth on its lower end, which serve to engage with the teeth of the ratchet when the pawl is lifted by the rock-shaft, and thus rotate the feeding cylinder. It will, therefore, be evident, that, at each drop of the stamp, the tappet will strike the arm q and carry it downward, thus giving the shaft p a rocking motion, the weight of the pawl and its arm r serving to rotate the shaft in an opposite direction, thus feeding the ore automatically when it is needed. When there is a sufficient quantity of ore beneath the stamp the drop will not be sufficient to operate the cylinder; but when the quantity of ore beneath the stamp is reduced the drop is greater, and consequently the tappet strikes the arm q and operates the cylinder.

"Having thus described our invention, what we claim and desire to secure by letters patent is —

"1. The feeding cylinder I, mounted upon the movable timbers HH, substantially as and for the purpose above described.

"2. The rock-shaft p, with its fixed arms q r, in combination with the pawl-bar o, ratchet-wheel N, and feeding cylinder I, when arranged to be operated by the tappet D, substantially as and for the purpose described."