sales of any large amount. In this case, in view of the fact that the principal part of plaintiffs' faucets are sold by Mr. Adee, of New York, this class of expenses upon sales of about $8,800 would add such a trifling amount to the existing expenses of conducting the plaintiffs' lmsiness, that it is not desirable to subject the defendants to the expense of sending· the case back to the master for a reaccounting. The amount, if any, which wonld be deducted from the $1,615.14 would be very small. The defendants' exceptions are overruled. The motion by the plaintiffs"lor treble damages is denied.
(On'cuit Court, N.D. New York. July 29, 1882.)
POR INVENTIONS-SUIT AGAINST INDIVIDUAL DEFENDARTS.
The bill in this case was filed against defendlJ,!lts individually, alleging that they were members of a copartnership in which the extent of the interest of each memher was measured by the number of shares he held in the copartner. ship as a joint-stock association. Held, that the unauthorized use of a patent by the agents of such association, in its business, for the benefit of its stockholders, must be considered as'a use by each of them, from which each of them might be enjoined in a suit' of this form, notwithstanding the fact that under theJaws of New York, there.being more than seven shareholders, the 88'100iation could have been sued as a whole by suing the president, without making all the shareholders parties, and that a decree for injunction and accounting, with costs, should be passed.
PRACTICE-COSTS OF DISMISSAL.
As the evidence does not show that K. was a shareholder, although secretary, of the association, the bill must be dismissed as to him; but, as he answered · jointly with D., without costs.
U. BAME-AlIENDMENT AS TO PARTms.
Plaintiff cannot amend his bill by alleging that defendants were severally president, secretary, and directors of the association, as this is unnecessary in a suit against them individually, and would be improper if intended to make the suit one against the association as a whole.
George W. Hey, for plaintiff. Henry R. Durfee, for defendants. BLATCHFORD, Justice. This suit is bronght on reissued letters patent No. 8,839, granted to the plaintiff August 5, 1879, for an "improvement in cheese hoops," the original patent having been granted to William Steinberg, March 21, 1871. By agreement of parties the
ease has been heard and a decision tendered (12 FlllD. RlllP. 567,) upon all questions in the suit, except that now presented for consideration. The question reserved was "the queE!tionof the liability of the defendants in this action under its present title and form, Or any other question touching their liability 80S individuals or.members of the Macedon Cheese Association, or the liability of the Cheese Association as a company." The bill is filed against four persons-Galloway,· Durfee, Kent, and Billings-individually, as defenda.ntlil.. It alleges that the defend3nts "at Macedon Cheese Factory," in.t\le county of Wayne, New York, _ have "unlawfully and wrongfully made, or caused to be made, sold, or caused to be sold, used, or caused to be used," cheese hoops con· taining the patented inventions. It appears that the defendants Galloway, Durfee, and Billings were members of a copartnership called the Macedon Cheese Assocition, with other persons; that the extent of the interest of the members in the copartnership was measured by the number of shares of .stock held by each in the copartnership as a joint stock association; and that the. number of holders of shares was greater than seven so that the association could be sued asa whole, under the laws of New York, by suing its president as such without all the shareholders parties. The plaintiff did not attempt to sue the association as a whole. n is shown that the infringing cheese hoop was owned by the association, and was used by its agents in making cheese in its business at its works for the benefit of its stockholders. Galloway, Durfee, and Billings were shareholders. The use aforesaid was a use by each of them, quite as much as if there had been a copartnership without shares of stock, or one with shares belonging to less than seven shareholders in number. The use by each was a tort, and each is liable to be enjoined. What the extent of the liability of each for profits and damages is, will be a question to be determined hereafter after a hearing on the report of a master on a reference for that purpose. Kent is shown to have been secretary of the association but it does not appear on the present evidence that he was a shareholder. As the case stands the bill must be dismissed as to him, but without costs, as he answered jointly with Durfee. The motion of the plaintiff to amend his bill by alleging that the defendants were severally president, secretary, and directors of the association is denied. If intended to aid the suit as one against the defendants individually, it is unnecessary. If intended to make
GOTTlI'RIBD V. ORESCENT BRBWING
the suit one against the association as a whole, the plaintiff cannot now be allowed to put this suit into that shape. The usual decree' for an injunction and an accounting against all the defendants but Kent, with costs, must be entered.
See S. 0.12 FED. REP. li67.
D.lnditma. September 21, 1882..
A device consisting of old elements combined, and practically I1lP8TSedl.Dg all oUler known means of pitching kegs and other IlIIl&1l is noli a mere mecbimicaJ equivalent of any other device.
BanningetBanning, for complainants. PQII'kinaon et PQ,rkin8on, for defendants. GBEsJUJI, D. J. I have considered the proofs and arguments on the motion for a rehearing, and am convinced that in holding the complainants' patent invalid undue importance was attached to the German publications, the Cochrane and Slate patent, and the Siebel device as anticipating defenses. See 9 FED. RBP.762. The German publioations are vague and unoertain, and describe no maohine capable of practical and successful use by brewers for pitching casks and kegs. It is sufficient to say of the Cochrane and Slate device, without again stopping to describe it, that, without material ohanges in its construction or arrangement, it cannot be made to produce the same useful results as are produced by the complainants' device. I am still of opinion, however, that the complainants' patent cannot be sustained on the theory that they were the first to use a hot blast, from which the oxygen had been removed, in heating the interior of casks for the purpose of pitching them. Siebel, we have already seen, heated the cask with his machine for the same purpose by the application of a hot blast, which he deprived of its combustible properties by forcing it through and in actual contaot with the fire in the furnace. This furnace he inserted into the cask through the man-hole, and there operated it. Of course, this machine could not be used in pitch- . ing kegs or other small receptacles into which it could not be inserted. In this and other respects the device was crude and imperfeot,