of wooden piping; that said defendants accepted the same, and manufactured said piping at their factory under said patents, and in conformity with the description, and covered by the claim, of said Wyckoff patent, and sold and delivered the same to the said Hartford Company on board the cars at Bay City, Mich., addressed to them, and that they had nothing to do with said piping after the delivery of the same on the cars at Bay City; that said Hartford Company paid the freight thereon from Bay City to Hartford, and sent drafts for the payment of said piping to defendants at Bay City; that none of the wooden pipes used in the laying of said steamsupply apparatus at Hartford were sold to said Harvey & Son, but were all sold to said Hartford Steam Company; and that any orders made by Harvey & Son were made merely as the agents of the Hartford Steam Company.

"(7) That said piping so purchased was laid down in Hartford during the term of said patent, and that, during the negotiations connected with the sales and shipment of said pipe or casing, defendant's firm knew that it was for use in the construction of steamheating works in the city of Hartford, state of Connecticut, and that said Harvey & Son were to lay said pipe in Hartford.

"(8) That the accounts for said sales to said Hartford Company were kept on the books of said Ayrault, Jennison & Co. in the name of the Hartford Steam Company, and that a statement of the entire account from their books of said sales were sent to them at the close of the year.

"(9) That said pipe or casing was laid down as a part of said works during the life of said patent, in the summer and fall of 1880, under said Harvey's directions, in the streets of Hartford.

"(10) That by the acts and doings of defendant's firm in the premises, as above stated, the plaintiffs sustained damage, and, if any recovery were permissible under the rules of law, they would be entitled to an inquiry to ascertain the amount of such damage, based on the testimony introduced by said plaintiffs."

As a conclusion of law from the foregoing facts, the court found that the plaintiffs were not entitled to recover in the action. The plaintiffs excepted to the conclusion of law, and to the judgment, and have brought a writ of error.

As a result of the findings of fact the circuit court held that the sale and delivery of the pipe by the defendant were made at Bay City, Mich., but that in view of the decision of this court in Adams v. Burke, 17 Wall. 453, the defendant could not be held as an infringer by reason of his knowledge that the pipe was to be used in a territory of which the plaintiffs held the monopoly. The circuit court said that in the case of Adams V. Burke an undertaker had purchased patented coffin lids from certain manufacturers, who

held the right from the patentee to manufacture and sell within a circle whose radius was 10 miles, having the city of Boston as a center; that the undertaker lived outside of that circle, and within a territory owned by the plaintiff under the patent, and he made use of the coffin lids in his business; that the owner of the territory in which the undertaker carried on his business brought suit against him as an infringer, and it was held by this court that, the sale having been made by a person who had full right to make, sell, and use the invention within his own territory, such sale carried with it the title to the use of the machine without, as well as within, such territory; that the action in that case was brought against the user, but this court announced a principle of law which was equally applicable to the seller; that, if the user of the article was not liable to the patentee, it was because he purchased it of a person who had the legal right to sell it; that, if it was legal for him to buy, it was equally legal for the other party to sell; and that in the opinion of this court, in the case as well as in the dissenting opinion, it was stated, in substance, that the question raised was whether an assignment of a patented invention for a limited district conferred upon the assignee the right to sell such patented article to be used outside of such limited district. The circuit court further said that there was no evidence in Adams v. Burke that the sale was made under the belief on the part of the seller that the article was to be used within his territory, and that the case was authority for the broad proposition that the sale of a patented article by an assignee within his territory carries the right to use it everywhere, notwithstanding the knowledge of both parties that a use outside of the territory is intended.

*

We understand that to be the true interpretation of the decision in Adams v. Burke. It is said in the opinion in that case that when the patentee, or the person having his rights, sells a machine or instrument whose' sole value is in its use, he receives the consideration for its use, and parts with the right to restrict that use; that the patentee, or his assignee, having in the act of sale received all the royalty or consideration which he claims for the use of his invention in that particular machine or instrument, it is open to the use of the purchaser, without further restriction on account of the monopoly of the patentee; that although the right of the assignees of the coffin-lid patent to manufacture, to sell, and to use the coffin lids was limited to the circle of 10 miles around Boston, a purchaser from them of a single coffin acquired the right to use that coffin for the purpose for which all coffins are used; that so far as the use of it was concerned the patentee had received his consideration, and it was no longer within the monopoly of the patent; that it would be to ingraft a limitation upon the

right of use, not contemplated by the statute, nor within the reason of the contract, to say that it could only be used within the 10-mile circle; and that whatever might be the rule, when patentees subdivided territorially their patents, as to the exclusive right to make or to sell within a limited territory, this court held that in the class of machines or implements it bad described, when they were once lawfully made and sold, there was no restriction on their use to he implied, for the benefit of the patentee or his assignees or licensees.

The plaintiffs in error contend that the decision in Adams v. Burke is not applicable to the present case; that in Adams V. Burke it was assumed that the patented coffin lids were first lawfully sold to the purchaser, without condition or restriction, by assignees of the patent for the territory of Boston and vicinity; that then the question was presented whether, as an incident of such a lawful sale, the buyer could use outside of the limits of the territory of the assignees the article so lawfully purchased; that it was not shown in that case that the sellers sold the patented coffin lids for use in other territory, or knew of, or had any interest in, such use; that in the case now before us the lawfulness, as against the plaintiffs, of the alleged sale of the patented pipe by the defendant, in the actual circumstances of such sale, was contested, the claim of the plaintiffs being that such sale, and the shipment thereunder, expressly for use within the territory of the plaintiffs, constituted an invasion of their rights, and were unlawful, as against the plaintiffs; and that actual sale, delivery, and acceptance of the pipe at Bay City, for actual use, would be one thing, but a form of delivery at Bay City, with an acceptance at Hartford, and knowledge and intention on the part of the defendant that the sole use would be at Hartford, and shipments on that basis and understanding, would not constitute a lawful sale of the pipe at Bay City, as against the plaintiffs.

But we are of opinion that the case of Adams v. Burke cannot be so limited; that the sale was a complete one at Bay City; and that neither the actual use of the pipes in Connecticut, nor a knowledge on the part of the defendant that they were intended to be used there, can make him liable. Adams v. Burke, in the particular in question, is cited with approval by this court in Birdsell v. Shaliol, 112 U. S. 485, 487, 5 Sup. Ct. Rep. 244; Wade v. Metcalf, 129 U. S. 202, 205, 9 Sup. Ct. Rep. 271; and Boesch v. Graff, 133 U. S. 697, 703, 10 Sup. Ct. Rep. 378.

The authorities which are cited on the part of the plaintiffs, holding that where a person makes one element of a patented combination, with the intent that other persons shall supply the other elements, and thus complete the combination, he is guilty of infringement, because he contributes to it,

v.13s.c.-56

establish a doctrine applicable to the case of a naked infringer. But in the present case the defendant was not such an infringer, because he had a right, under the patent, to make, use, and vend the patented article in the state of Michigan, and the article was lawfully made and sold there. The pipes in question were not sold by the Hartford Steam Company in Connecticut, but were merely used there, and necessarily perished in the using.

It is easy for a patentee to protect himself and his assignees when he conveys exclusive rights under the patent for particular territory. He can take care to bind every licensee or assignee, if he gives him the right to sell articles made under the patent, by imposing conditions which will prevent any other licensee or assignee from being interfered with. There is no condition or restriction in the present case in the title of the defendant. He was the assignee and owner of the patent for the state of Michigan. Judgment affirmed.

(149 U. S. 304)

NIX et al. v. HEDDEN, Collector.
(May 10, 1893.)
No. 137.

CUSTOMS DUTIES-CLASSIFICATION-TOMATOES. Tomatoes are "vegetables," rather than "fruits," in the common and popular acceptation of such words, and were not free of duty under the provision of the free list for "fruits, green, ripe, or dried," but were dutiable at 10 per cent. ad valorem, under the provision in Schedule G of the tariff act of March 3, 1883, for "vegetables in their natural state." 39 Fed. Rep. 109, affirmed.

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

At law. Action by John Nix, John W. Nix, George W. Nix, and Frank W. Nix against Edward L. Hedden, collector of the port of New York, to recover back duties paid under protest. Judgment on verdict directed for defendant. 39 Fed. Rep. 109. Plaintiffs bring error. Affirmed.

Statement by Mr. Justice GRAY:

⚫305

This was an action brought February 4,* 1887, against the collector of the port of New York to recover back duties paid under protest on tomatoes imported by the plaintiff from the West Indies in the spring of 1886, which the collector assessed under "Schedule G.-Provisions," of the tariff act of March 3, 1883, (chapter 121,) imposing a duty on "vegetables in their natural state, or in salt or brine, not specially enumerated or provided for in this act, ten per centum ad valorem;" and which the plaintiffs contended came within the clause in the free list of the same act, "Fruits, green, ripe, or dried, not specially enumerated or provided for in this act." 22 Stat. 504, 519.

At the trial the plaintiff's counsel, after

898.

reading in evidence definitions of the words "fruit" and "vegetables" from Webster's Dictionary, Worcester's Dictionary, and the Imperial Dictionary, called two witnesses, who had been for 30 years in the business of selling fruit and vegetables, and asked them, after hearing these definitions, to say whether these words had "any special meaning in trade or commerce, different from those read."

One of the witnesses answered as follows: "Well, it does not classify all things there, but they are correct as far as they go. It does not take all kinds of fruit or vegetables; it takes a portion of them. I think the words fruit' and 'vegetable' have the same meaning in trade to-day that they had on March 1, 1883. I understand that the term 'fruit' is applied in trade only to such plants or parts of plants as contain the seeds. There are more vegetables than those in the enumeration given in Webster's Dictionary under the term 'vegetable,' as 'cabbage, cauliflower, turnips, potatoes, peas, beans, and the like,' probably covered by the words 'and the like."

The other witness testified: "I don't think the term 'fruit' or the term 'vegetables' had, in March, 1883, and prior thereto, any special meaning in trade and commerce in this country different from that which I have read here from the dictionaries."

The plaintiff's counsel then read in evidence from the same dictionaries the definitions of the word "tomato."

* The defendant's counsel then read in evidence from Webster's Dictionary the definitions of the words "pea," "egg plant," "cucumber," "squash," and "pepper."

The plaintiff then read in evidence from Webster's and Worcester's dictionaries the definitions of "potato," "turnip," "parsnip," "cauliflower," "cabbage," "carrot," and "bean."

No other evidence was offered by either party. The court, upon the defendant's motion, directed a verdict for him, which was returned, and judgment rendered thereon. 39 Fed. Rep. 109. The plaintiffs duly excepted to the instruction, and sued out this writ of error.

Edwin B. Smith, for plaintiffs in error. Asst. Atty. Gen. Maury, for defendant in

error.

Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.

The single question in this case is whether tomatoes, considered as provisions, are to be classed as "vegetables" or as "fruit," within the meaning of the tariff act of 1883. The only witnesses called at the trial testifiled that neither "vegetables" nor "fruit”

had any special meaning in trade or commerce different from that given in the dictionaries, and that they had the same meaning in trade to-day that they had in March, 1883.

The passages cited from the dictionaries define the word "fruit" as the seed of plants, or that part of plants which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed. These definitions have no tendency to show that tomatoes are "fruit," as distinguished from "vegetables," in common speech, or within the meaning of the tariff act.

There being no evidence that the words "fruit" and "vegetables" have acquired any special meaning in trade or commerce, they, must receive their ordinary meaning. Of that meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court. Brown v. Piper, 91 U. S. 37, 42; Jones v. U. S., 137 U. S. 202, 216, 11 Sup. Ct. Rep. 80; Nelson v. Cushing, 2 Cush. 519, 532, 533; Page v. Fawcet, 1 Leon. 242; Tayl. Ev. (8th Ed.) §§ 16, 21.

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

The attempt to class tomatoes as fruit is not unlike a recent attempt to class beans as seeds, of which Mr. Justice Bradley, speaking for this court, said: "We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds, in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand in speaking generally of provisions, beans may well be included under the term 'vegetables.' As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary, or can be produced." Robertson v. Salomon, 130 U. S. 412, 414, 9 Sup. Ct. Rep. 559.

Judgment affirmed.

(149 U. S. 451)

CATES et al. v. ALLEN et al.'

(May 10, 1893.)

No. 153.

FEDERAL COURTS-EQUITY JURISDICTION-VACATING FRAUDULENT ASSIGNMENT-JURY TRIALREMANDING CAUSE TO STATE COURT-COSTS.

1. Simple contract creditors, who have not reduced their claims to judgment, have no standing in the United States circuit court, sitting as a court of equity, on a bill to vacate a fraudulent assignment for the benefit of creditors, though by Code Miss. 1880, §§ 1843, 1845, the state courts of chancery are given jurisdiction of bills of creditors, who have not obtained judgments at law, to vacate such assignments, and subject the property to their demands.

2. The fact that section 1845 aims to create a lien by the filing of the bill does not affect the question, for, in order to invoke equity interposition in the federal courts, the lien must exist at the time the bill is filed, and form its basis; and to allow a lien resulting from the issue of process to constitute such ground would be to permit state legislation to withdraw all actions of law from the one court to the other, and to unite legal and equitable claims in the same action, which cannot be allowed in the practice of the federal courts, where the distinction between law and equity is a matter of substance, and not merely of form and procedure.

3. Where the ascertainment of complainant's demand is properly by action at law, the fact that the chancery court has the power to summon a jury on occasion cannot be regarded as the equivalent of the right of trial by jury secured by the seventh amendment.

4. Where the adverse citizenship of the parties and the amount involved entitle a cause to be removed from a state to a United States circuit court, but the subject-matter of the controversy is not properly cognizable by the circuit court, and jurisdiction of the cause is assumed by such court, the supreme court, on appeal, will remand the cause to the circuit court, with directions to remand it to the state court.

5. Where a cause is so remanded by the supreme court, the costs are cast on the party applying for the removal of the cause to the circuit court.

Mr. Justice Brown and Mr. Justice Jackson, dissenting.

Appeal from the district court of the United States for the northern district of Mississippi. Reversed.

Statement by Mr. Chief Justice FULLER: *R. C. Cates, D. Andrews, and L. L. Cates, as individuals and as composing the firms of Luke Cates & Co. and Andrews, Cates & Co., made their deed of assignment for the benefit of creditors December 7, 1886, whereby they conveyed their property to assignees therein mentioned, to be converted into money, and applied to the payment of their debts, certain creditors being preferred. J. H. Allen, T. W. West, and J. C. Bush, citizens, respectively, of Louisiana, Missouri, and Alabama, and doing business in New Orleans as general commission merchauts and cotton factors, under the name of Allen, West & Bush, filed their bill of complaint, December 8, 1886, in the chancery court of Lee county, Miss., against R. C. Cates, L. L. Cates, D. Andrews, and the assiguces mentioned in the assignment, alleging an in'For dissenting opinion, see 13 Sup. Ct. Rep. 977.

debtedness to the complainants of more than $16,000 on open account, and charging that the assignment above mentioned was fraudulent in law and in fact, made without any valuable consideration, and with the fraudu lent intent to hinder, delay, and defraud the complainants and other creditors; and that the same ought to be set aside, and the property assigned subjected to the payment of complainants' demand. The bill also charged that one of the assignees, who at the time of the filing of the bill was in possession of a large part of the assigned property, was insolvent, and that it would be dangerous to allow him to remain in the possession and control thereof; that he was in possession of the books of account and choses. in action of the assignors, and was proceeding to collect the same; that there was danger that they would be lost to complainants and the other creditors; and that irreparable injury might thereby result. The bill prayed for answers under oath, and that on final hearing the assignment might be decreed to be void and set aside; that all the property *covered by the assignment might be subjected to the payment of complainants' debts, and then to the payment of such other demands as might be brought before the court; for an injunction; for a writ of sequestration; for a receiver; that the filing of the bill be held to give complainants the first lien on the effects of the said debtors in the hands of the assignees, or either of the parties, or any other person; and for general relief. A writ of sequestration was issued, and the sheriff took possession of the property, and a number of other creditors were subsequently admitted as co-complainants.

On December 15, 1886, Allen, West & Bush and their co-complainants filed their petition to remove the cause into the United States district court for the northern district of Mississippi, exercising the jurisdiction of a circuit court of the United States, and bond was given, and the cause removed accordingly. Receivers were thereafter appointed, and on April 15, 1887, the Tishomingo Savings Institution, a preferred creditor, was made a defendant. A demurrer was filed, alleging as grounds that there was no equity on the face of the bill; that the claims of complainants had not been reduced to judgment; that they had no lien, and were not entitled to file a bill under the law; and for want of proper parties. This demurrer was overruled, and defendants answered. Evidence was taken and hearing had, and on October 28, 1887, the court adjudged the assigument to be fraudulent and void, and set the same aside; found the sum of $17,732.71 to be due Allen, West & Bush; decreed that indebtedness to be a first lien and charge on the assets of Andrews, Cates & Co.; and ordered the receiver to pay said sum out of the proceeds of the sales and collections of and from the assets of that firm. Various