stove grate, so constructed and arranged relatively to the fire chamber or fuel receptacle as to .1eave·between the two and. around the edge of the grate a. free, open-space end, to permit of the remova.l of clinkers and other refuse through such space by use of the ordinary poker or slicer, aubstantially as described." An anti-clinker opening between a dished grate and a fire pot existed before, and also a flat grate. All that the patentee did was to substitute a flat grate for a dished grate in the arrangement. The relation between the grate and the bottom of the fire pot, so as to leave the sp.ace between the two and the space around the edge of the grate, is the same in the two arrangements. The only difference is one of degree as to the quantity of refuse which the rotation of the grate or the or one of convenience as to the char. use of the poker will acter of the poker which will be used, and does not involve inven. tion. The bill is dismissed, with costs.
CAMPBELL V. WARD.
(Ozrcuit Oourt, D. New Jersey.
May 26, 1882.)
PATENTS FOR INVENTIONS-INVOKING EQUlTABLE RELIEF.
Where the bill upon its face shows that the patents alleged to have been infringed had expired when suit was commenced, and it is in the usual form, and simply prays for an injunction, and for an account for profits and damages, md there is no allegation of special grounds for equitable relief, it will be dismissed. R()()t v. L. 8. II M. 8. By. (fo. 21 O. G. 1112; S. C. 11 FED. REp. 349, note.
On Demurrer to Bill, etc.
Marcus P. Norton, for complainant. A. Q. Keasbey, U. S. Atty., for defendant.
NIXON, D. J. This is a suit in equity, brought by the eomplaina.nt Q.gainst William Ward, postmaster of the city of Newark, for the alleged infringement of certain reissues of two letters numbered 38,175 and dated April 14, 1863, and the other numbel'ed 37,175 and dated December 16,1862, and severally issued to Marcus P. Norton, under whom the complainant holds by mesne assignments. T.he bill of complaint was filed on the first of November, 1880, sev.Al'al months after the two patents had expired on which the reissues were made. A demurrer was filed to the bill, and several grounds.
OAMPBELL tl. WARD.
for the demurrer assigned. The fourth reason was that at the time of filing of the bill of complaint both of the letters patent on which the suit was founded had expired, and that the court, sitting in equity, had no jurisdiction to maintain a suit for inf:nngement, the complainant having a complete and adequate remedy at law. :It has recently been held by the supreme court, in the case of Root Y. L. S. et M. S. Ry. Co. 21 O. G. 1112, "that a bill in equity for a naked account of profits and damages against an infringer of, apateht cannot be sustained; that such relief, ordinarily, is incidental to some other equity, the right to enforce which secures to the patentee his 'Standing in court; that the most general ground for equitable' interposition is to insure to the patentee the enjoyment of his specific right by ipjunction against the continuance of the infringement; but that grounds ofequitable relief may arise other than by way of injunotion, as where the title of the complainant is equitable merely. or equitable interposition is necessary on account of the which pre· vent a resort to remedies purely legal; and such an equity may arise out of, and inhere in, the nature of the account itself, springing from special and peculiar circumstances, which disable the patentee from a recovery at law altogether, or render his remedy in a legal tribunal difficult, inadequate, and incomplete; aud as such cases cannot be defined more exactly, each must rest upon its own peculiar circumstances, as furnishing a clear and-satisfactory ground of exception from the general rule." I have looked through the bill in vain to find any allegations of special grounds for equitable relief. It is in the usual form, andsllnply prays for an injunction, and for an account for profits and damages. The prayer for an injunction is nugatory, as the bill shows upon its face that the patents which are alleged to have bee'n infringed had expired when the suit was commenced. The case falls within the principle announced in Root v. By. 00. supra. The demurrer must be sustained and the bill dismissed, with costs.
(Di8tt:ict Court, 8. D. New York.
April -i, 1882.)
26. A "claimant" in the admiralty practice, under rule 26, is a person who assumes the position of a defendant and demands the redelivery to himself of the vessel arrested. An" intervenor," under rule 34, is one who, without demanding the redelivery of the vessel, seeks only the protection of his interest in ber, or the payment of his claim in the ultimate disposition of the case. A shipwright in possession under a common-law lien, from whom the vessel is taken upon arrest by the marshal, has an election to appear as a technical " claimant" for the redelivery of the vessel, or as an " intervenor" only for the recognition and payment of his claim; but, having appeared as "claimant" and given a bond for the libellant's demand, he has,not a right, as a malten o.f course, afterwards to change his position to that of. an intervenor merely .
2. SHIPWRlGHT-COmwN-LAw LIEN.
SAME-APPEARANOE AS CLAIMANT.
Where, however, d-q.ring the pendency ot proceedings upon exceptions to the shipwright's right to appear as " claimant," the master, being part owner, also appeared as an adverse" claimant" for the possession of the vessel, and, oli application to the court, had received possession upon executing a bond for her value, conditioned for her return to the shipwright or for the payment of his claim, and the determination of the amount due to him, became therefore, involved in the action, held that, on the shipwright's application, his right to appear as "claimant" having been determined in his favor, he should be allowed to file his petition setting forth the amount and grounds of his claim, and that the libellant, the adverse claimant, or other part owners. should make answer thereto as advised.
Motion for leave to file petition to intervene. and for answers thereto. Scudder If Carter and Geo. A. Black, for motion. ,H. B.Kinghorn and R. D. Benedict, opposed. BROWN, D. J. The libellant, on January 25, 1879,. filed a libel for supplies furnished to the Two Marys during the year 1878. Process was served upon the schooner while she was in the ship-yard of Hawkins undergoing enlargement and repairs, but she was not then taken into the custody of the marshal. On the sixteenth of September following, while still in possession of Hawkins, as he claimed, she was seized by the marshal upon the waters adjacent to his yard and removed to this city. On September 22d Hawkins filed his claim as' a lienor in possession, claiming to be restored to possession, and on the same day gave a bond under the act of 1847 for the libellant's claim, but did not obtain the possession of the vessel thereby, as Crowley, the captain and owner of one-sixteenth, also claimed to