This is an action brought by Walton Ferguson in the supreme court of the state of New York, and removed into the circuit court of the United States for the Southern district of New York, against the collector of the port of New York, to recover moneys paid under protest, in January, 1876, as duties on an importation of 'Henry's Calcined Magnesia,' made by said Ferguson, doing business as J. & S. Ferguson. The collector exacted on the merchandise a duty of 50 per cent. ad ralorem, under the following provision of the Revised Statutes, (section 2504, Schedule M, p. 480, 2d Ed.:) 'Proprietary medicines. Pills, powders, tinctures, troches or lozenges, sirups, cordials, bitters, anodynes, tonics, plasters, liniments, salves, ointments, pastes, drops, waters, essences, spirits, oils, or other medicinal preparations or compositions, recommended to the public as proprietary medicines, or prepared according to some private formula or secret art as remedies or specifics for any disease or diseases or affections whatever affecting the human or animal body, fifty per centum ad valorem.'
The plaintiff contended that the article was dutiable at 12 cents per pound, under this provision of the same section and schedule, (page 477:) 'Magnesia, carbonate, six cents per pound; calcined, twelve cents per pound.' At the trial there was a verdict for the defendant, and he had judgment, and the plaintiff has brought a writ of error.
The bill of exceptions contains the following statements:
'The merchandise in question was Henry's Calcined Magnesia, prepared by Thomas and William Henry, manufacturing chemists, of Manchester, England, and put up in ounce bottles. In the glass of each bottle was blown the words 'Henry's Calcined Magnesia, Manchester;' and over one end of each bottle was pasted a stamp, of which the following is a copy:
'It also appeared in evidence that, accompanying each bottle thereof, was a wrapper; that upon said wrapper was a circular; that of the said labels the following are copies: "Henry's calcined magnesia.
"Price 2s. 9d., stamp included.
"CAUTION.
"The purchasers of this article are requested to observe that the words 'Thos. and William Henry, Manchester,' are engraved on the government stamp pasted over the cork of each bottle. This is the only effectual security against the counterfeited imitations which are sold in bottles similarly moulded, under their names. Trade-mark, 'Henry's Calcined Magnesia.'
"CAUTION.
"Messrs. Thos. & Wm. Henry, of Manchester, have received frequent complaints that their calcined magnesia is counterfeited in the United States, and having been furnished with specimens of spurious and very inferior imitations there vended, in bottles similarly moulded, and with forged stamps and bills of direction, beg leave to caution the consumers of their magnesia in America to purchase it only of persons whose character is such as to preclude their selling a spurious article knowing it to be such. Druggists and storekeepers are informed that Messrs. J. and S. Ferguson, (late Ogden, Ferguson & Co.,) merchants, of New York, are the sole wholesale agents, authorized by Messrs. Henry in the United States, and that the article may be constantly had of them genuine, and on the best terms. Trade-mark, Henry's Calcined Magnesia.'
'That upon the first of the aforesaid labels was pasted a stamp; that the following is a copy thereof: 'That the following is a copy of the aforesaid circular:
"Trade-mark:
"Henry's Calcined Magnesia.
"Genuine Calcined Magnesia.
"Prepared by
"Thomas and William Henry,
"Manufacturing
"Chemists,
"East St. and St. Peters, Manchester,
-"And sold wholesale by them, and in London by Bayley & Company, Cockspur St.; Barclay & Sons, Farmington St.; Butler & Crispe, 4 Cheapside; Edwards, 157 Queen Victoria street; F. Newberry & Sons, 37 Newgate street; J. Sanger & Sons, 150 & 252 Oxford street; Sutton, (late Diccy & Co.,) 10 Bow Church Yard; and Savory & Moore, 143 New Bond street,-in bottles at 2s. 9d., or with ground stoppers at 4s. 6d., stamps included, (the names of the preparers being engraved upon each government stamp, pasted over the cork or stopper of each bottle, which in British dominions, where the forgery of the stamp is highly penal, is the best security against counterfeits,) and retail by at least one agent in every country town."