which he decided, except that relating to Syz, Irminger & Co., and as to that the exception was not filed within two days after the filing of the referee's report. If any of the said amended exceptions to the refel'ee's report, other than that relating to Syz, Irminger & Co., are claimed to have been properly filed, aside from any authority therefor under said order of reference, it is plain that some of them relate to objections which,in order to be available, should have been taken before verdict, and therefore are improperly filed, because it is not shown that the objections and exceptions were taken before verdict, and that the rest of them could only be raised by an exception to the decision of the court, made February 11, 1861, and it does not appear that any such exception was ever taken, and it is too late llOW to take it. I am also of opinion that the stipulation entered into between the treasury department and the attorneys for the plaintiffs in August, 1874, applies to this case in its present status. No motion appears to be made in regard to the "exception to referee's decision."
RWHARDSON v. CROFT and another.
(C'i'i"lJ'Uit Court, 8. D. Ne'll) YQ1'k.
INJUNCTION-WHEN NOT DISSOLVED.
November 29, ISBUl
If, upon the state of facts appearing on a consideration of all the affidavits it is shown on a finalhearin!/; that the plaintiff's patent would not be defeated, the motion to amend the answer and to dissolve the injunction will be denied.
George Gifford, for complainant. George Bliss and A. Bell Maloomson, Jr., for BLATOHFORD, C. J. Waiving the question as to whether the defendants have shown the diligence which is required, it does not appear satisfactorily that the matters now sought to be set up are relevant or material. If the state of facts now appearing on a consideration of all the affidavits were shown on a final hearing, the plaintiff's patent would not be defeated. The Tyrrel device for reflecting figures attached to slides running in grooves in the table does not suggest or meet the plaintiff's invention. Mr. Boyd Elliot's affidavit leaves it not at all clear that the Castner mirrors were adjustably connected to each other, or that they were publicly used. There is nothing to show that the two book references have any relevancy. The motion to amend the answer and the motion to dissolve the injunction are denied.
December 27; 1880.
(Circuit Court, S. D. New York.
blJUNCTION-WHEN NOT DISSOLVED.
Where defendant is using the Infringing machine for purposes in respect to which the plaintiff has an exclusive right under his patent, an injunction will not be dissolved on motion founded on the non-joinder of a party.
J. B. Staples, for plaintiff. R. B. Dawson, for Mal(jlne. BLATCHFORD, C. J. I see no ground, on the merits of the case" for dissolving the injunction. It is not clear that on the terms of the . contract between Loft and, the plli.intiff the. suit is n9t. weU in the name of the plaintiff alone. But at all events, by the terms of that contract, the plain,tiff has a right to. qse Loft's J;laple, in. conjunction with his own, in bringing suits, and. it is not neoessary to obtain Loft's consent or signature for each suit. .The plaintiff mlty join Loft with himself as co-plaintiff, and may amend his bill to that effect. This had better be 'done, and an order to ;that entered. It sufficiently appe,ars that Malone is using the infriJ;l'ging machine for purposes in respect to which the, plaintiff has an exclusive Tight under the patent. ,The motion to dissolve the injunction is denied.
(District Court, 8. D. New York.
April 4, 1882)
A penalty is not to be imposed for acts not within the fair meaning and construction of the language of the penal statute as it stands; its scope is not to be enlarged by the addition of other words which would be essential in order to warrant the extended construction claimed for it. 2. SAME-PENALTY FOR PATENT MARKING-REv. ST. §4901. Subdivision 2 of section 4901 of the Revised Statutes, which imposesa penalty of $100 for affixing the. word "patent," etc., to any patented article, with intent to imitate or counterfeit the mark or device of "the patentee," 'means the mark or device of the patentee of the patented article on which the 'words are so stamped, The language and fair construction of this subdivision do not.inelude the case of a patented article stamped with the mark of a person who bas '