or whether the specific name and place of an address should be set forth. It is sufficient to decide that an allegation that the newspapers were addressed, or that direction was given for mailing or delivery, is requisite, not as a matter of description or identification of the unmailable article, but as an averment of an essential ingredient in the offense, and that the ingredient is not supplied by the general averment that the newspapers were deposited "for mailing and delivery."

The other objections to the sufficiency of the indictment seem insufficient grounds for granting this motion to quash; but, as the first point urged in support of the motion is decisive, it seems unnecessary to assign reasons for the opinion as to the remaining points. Whatever a man's intent may be, he is not indictable unless there is some adaptation, real or apparent, in the thing done to accomplish the thing intended. As the mere depositing in the post office of an obscene writing, without direction for mailing or delivery, is incapable of effecting the evil against which the statute is provided, and as this indictment, departing from well-established precedents, charges nothing more, the motion to quash is granted.

DEAN LINSEED OIL CO. v. UNITED STATES.

(Circuit Court, E. D. New York. February 16, 1897.)

1. CUSTOMS DUTIES-DRAWBACK-LINSEED OIL CAKE.

Oil cake, made from linseed by the separation thereof into linseed oil and oil cake, is an article of manufacture, and, when made in the United States from imported linseed, is entitled, upon exportation, to the drawback provided by section 22 of the tariff act of 1894 (28 Stat. 551).

The amount of drawback payable on the exportation of oil cake made from imported linseed is to be calculated in proportion to the amount of linseed entering into such oil cake, by weight, and not in proportion to the respective values of the oil and oil cake made from the linseed.

3. SAME.

It seems that when, by the treatment of an imported article, a valuable thing is produced, leaving a refuse of no value, no drawback would be allowable, under section 22 of the tariff act of 1894 (28 Stat. 551), upon exportation of such refuse.

Samuel B. Clarke, for plaintiff.

Robert H. Roy, Asst. U. S. Atty., and James Byrne, for the United States.

WHEELER, District Judge. This suit is brought upon section 3 of the act of 1887 (24 Stat. 505). Pursuant to that statute (section 7), the court finds that on December 3, 1894, the plaintiff imported 11,944 bushels of linseed, and between December 13, 1894, and January 12, 1895, 23,704 bushels of linseed, of 56 pounds each; that this was separated into linseed oil, of which each bushel made 19.91 pounds, and oil cake, of which each bushel made 35.87 pounds; that 448,153 pounds of this oil cake was exported to England by the ship Manitoba, January 4, 1895, and 850,262 pounds by the

Berlin, January 29, 1895; that the plaintiff complied with all the requirements of the law and the treasury regulations to become entitled to the drawback on these exportations, which were computed by the customs officials by the proportion in value of the oil to the oil cake on the exportation by the Manitoba at $508.55, and on the Berlin at $989.91; that these drawbacks, computed upon the proportion of weight instead of value, would be on the exportation by the Manitoba $1,514.81, and on the Berlin $3,006.29.

By the tariff act of 1894, under which these importations and exportations were made (paragraph 29) the duty on linseed oil is 20 cents per gallon of 7 pounds weight. By paragraph 206, the duty on linseed is 20 cents per bushel of 56 pounds; and by paragraph 567, oil cake is free (28 Stat. 509). And the same act provides:

"Sec. 22. That where imported materials, on which duties have been paid, are used in the manufacture of articles, manufactured or produced in the United States, there shall be allowed on the exportation of such articles a drawback equal in amount to the duties paid on the materials used, less one per centum of such duties." 28 Stat. 551.

A question is made in behalf of the United States whether this oil cake is a manufacture of an article, within the meaning of this statute. As to this, however, the linseed was not oil cake, and did not contain oil cake, as such. The linseed had to be treated, and from this treatment the linseed oil was produced as one thing, and this oil cake as another thing. The oil cake was made from the linseed, and was a new article of manufacture, and so it appears to come directly within the provisions of this statute. As the duty upon the linseed was 20 cents per bushel of 56 pounds weight, the duty paid was exactly five-fourteenths of a cent per pound of the importation. The statute provides for a drawback equal in amount to the duties paid, which must mean those actually paid on the materials used, less 1 per centum of such duties. The material that went into the oil cake was 35.87 pounds to each bushel, and the duty paid on that material is readily computed by applying so much of the 20 cents per bushel of 56 pounds as belongs to this 35.87 pounds. The duty on the 19.91 pounds of oil to each bushel of 56 pounds could also be readily computed, if important, and would be but a fraction of that on the oil, if it had been manufactured in the foreign country, and imported separately. The law seems clearly to ignore values in cases of specific duty, as it provides that the drawback shall be equal in amount to the duties paid on the materials used, and does not provide for any apportionment upon the value; and, to comply with the law, plainly nothing would need to be done but to ascertain the amount of duty actually paid upon the materials used, as has been readily done in this case. The treasury regulations, as applied to this case, make an ad valorem drawback upon a specific duty, instead of a specific drawback upon a specific duty, as the law requires. Of course, if by the treatment of an imported article a valuable thing is produced which leaves a refuse of no value, so that this only valuable product was the sole object of the importation, then nothing could be allowed by drawback for duty on the refuse; but

here the article imported contains two valuable things, each of which has long been recognized in the tariff law as a proper subject of duty on importation, and of drawback on exportation; and the duty paid on the one of low value is as much a duty as that paid on the one of high value is. So, upon these several provisions of this tariff act of 1894, it seems clear that the calculation of the drawback upon the proportion of weight is the one which the importer and exporter are entitled to; and that the one on proportion of values is not legally applicable.

It is said, on behalf of the government, that such drawbacks have been provided for ever since 1860, and that the treasury department has, by regulations when those were authorized, and without them when they were not, always computed these drawbacks in proportion to values; and that the passing of new tariff acts providing such drawbacks, when such action of the treasury department was going on, was an implied approval of that method, and a warrant for the present regulations under which these drawbacks have been computed. It also appears that from 1870 to 1894 no drawback on oil cake was allowed. In all that time no treasury regulation would be applicable to this particular subject, and dur ing all that time this article was a subject of a particular law, excluding it from drawback. The plaintiff's claims are founded, not on the regulations of the treasury department at all, but on the law which gives the right; and that the customs officers refused to follow the law and followed the regulations does not defeat the right which the law gives. Campbell v. U. S., 107 U. S. 407, 2 Sup. Ct. 759. Under these circumstances the practice of the customs and treasury departments would not seem to be material. U. S. v. Graham, 110 U. S. 219, 3 Sup. Ct. 582; U. S. v. Alger, 152 U. S. 384, 14 Sup. Ct. 635. Upon this view of the case, the plaintiff seems to be entitled to a judgment for the amount of these two sums, which is $4,521.10. Judgment for plaintiff for $4,521.10.

CITY OF CARLSBAD et al. v. SCHULTZ.

(Circuit Court, S. D. New York. February 1, 1897.) -TRADE-MARKS-INFRINGEMENT-“CARLSBAD" MINERAL WATER.

From the discovery of the Carlsbad spring, in 1370, to 1845, none of its waters were exported from the city, the policy of the city being to attract invalids to that place. For 24 years before the first exportation, artificial Carlsbad, made after the anaylsis of the genuine, was sold at many places in Europe, and became very popular. After exportation of the genuine water was begun, the sale of the artificial was continued in Europe, and has continued to the present day, without deception or confusion. Twelve years before the real Carlsbad was first imported to this country, defendant began to make and sell his artificial Carlsbad, built up a large business therein, and continued the same without protest for 34 years. His labels and bottles are radically different from those of complainants, in which the real Carlsbad is now sold here. Held, that defendant had a right to continue the sale of his product, but should be enjoined from using "Carlsbad" unless accompanied by some word (as "Artificial") plainly indicating that the water is not the natural spring water.

This is an action to restrain the defendant from using the name "Carlsbad" to designate artificial mineral water manufactured and sold by him, and for profits and damages. The suit was commenced on or about July 20, 1888.

Charles G. Coe, for complainants.

Arthur v. Briesen, for defendant.

COXE, District Judge. This controversy is sui generis. It must be determined upon its own facts. Nothing exactly like it can be found in the law. The record established, indisputably, the following main propositions:

First. From the discovery of the Carlsbad spring, about 1370, until 1845, the waters were not exported. For five centuries the policy of the city was to keep the springs as a close local monopoly for the purpose of attracting invalids. The waters are not used as a beverage. They are medicinal in character and are principally used for bathing and drinking upon the advice of a physician. During the continuance of this unenlightened policy no one in Europe could receive the benefits of these healing waters without a journey to Carlsbad. Not a drop was to be obtained elsewhere.

Second. To relieve this want and supply this demand artificial mineral water was made after the Carlsbad analysis and sold, under that name, for 24 years prior to the first exportation by the city of Carlsbad. This business was carried on in many of the principal cities of Europe upon a large scale. Pump rooms, drinking pavilions and gardens were opened where the artificial waters could be used amid environments similar to those at the natural springs. The business thus inaugurated in 1820 by Dr. Struve has been continued to the present day without molestation by the city of Carlsbad. Indeed, it is not too much to say that it was the success which attended the artificial waters which induced the complainants to begin exporting the natural waters. The enterprise, ability and capital of Struve and his successors made Carlsbad water popular in places where it was never known before. After this market was established by over 20 years of successful use the complainants took advantage of it by sending out the natural waters. There was no fraud or deception on either side. The sale of the natural and artificial water went on, and is still going on, without difficulty or confusion; some preferring the former, others the latter. No one mistook the one for the other. Each has its legitimate place in trade.

Third. The defendant, who is nearly 70 years of age, with the record of a long and honorable business career behind him, commenced manufacturing and selling Carlsbad water in New York in the year 1862. This was 5 years before a single bottle of natural Carlsbad water was seen in this country, 12 years before it was imported here for sale, except in small quantities, and 25 years before the present lessees obtained control of the sale of Carlsbad waters for the United States. In short, the defendant has been engaged in the business for 34 years without protest of any kind until the commencement of this suit. The water is manufactured by him in the most

careful and scientific manner; it is free from the bacteria found in the imported water and is by many preferred to the latter. It is also more expensive. The defendant's bottles and labels are radically dif ferent from those of the complainants and there is no evidence that any one was ever cajoled into taking the Schultz water when he wanted the imported water. The label used by the defendant until after this suit was commenced simply contained the word "Carlsbad" with the word "Sprudel" in smaller type, and in parentheses, at the right. The name of the defendant in letters equally prominent with the name Carlsbad also appeared. The label was substantially like the copy represented below, with the word "artificial" omitted. In short, the defendant was the first to occupy this ground. He was the first to make a market for Carlsbad water in the United States. For years he has been engaged in building up a perfectly honest and legitimate business which was paying him a handsome profit when the complainants entered the field.

These being the salient facts, can there be a doubt that the defendant has vested rights which a court of equity is bound to protect? Would it not be inexcusable injustice not only to destroy the defendant's business but compel him to pay over the profits thereof to the complainants? The case is devoid of any element of actual fraud. The defendant has acted in good faith throughout. Starting with the perfectly plain proposition that he had a right to sell artificial Carlsbad water in 1862, it is pertinent to inquire when he lost that right. He was not interfering with the business of the complainants then-they had no business in this country. Schultz's Carlsbad was being sold in New York precisely as Struve's Carlsbad was being sold in many of the cities of Europe. That the defendant may make and sell the water in question is hardly disputed, but it is said that he must not use the name Carlsbad in any form. This is but another way of saying that his business must cease. By what other name could the water possibly be described? How could a customer make his wants known except by using the name Carlsbad? To inform the owner of a California vineyard that he is at liberty to make Champagne and Burgundy wine but must sell it under the name of "grape juice" would not be conferring upon him a highly valuable franchise. If the business be honest those engaged in it have a right to describe the product so that the public will know what it is. What the defendant makes is artificial Carlsbad. This is what a part of the public wants, and there is no reason why they should not have it. Another part prefers the natural Carlsbad. Both parties are engaged in legitimate business. So long as neither interferes with the lawful occupation of the other neither has a right to complain. There is room enough for both.

There can be no pretense that when the defendant used the name Carlsbad alone to designate his water he intended to deceive for the reason, as before stated, that there was no other Carlsbad water in the market at that time. The subsequent introduction of the natural product of the Carlsbad springs into the same market may possibly produce confusion and induce the ignorant and unwary to purchase the defendant's water thinking that it is the imported water. At the