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,
compared with the complainants' machine, which was located and receptacle to be heated and. pitched, and which operated outside was adapted to pitching barrels and small kegs as well as casks. The complainants' device was the first, and the proof shows that it is to-day the only, means by which brewers are enabled to pitch barrels and kegs without removing the heads. This device also forces into the receptacle to be heated a much hotter blast than Siebel can apply with his machine, and with it brewers are enabled to do their pitching more expeditiously and economically. The method or means which the complainants employed in forcing into the cask a hot blast, consisting of the same elements as the Siebel blast, produced, if not a new result, certainly a much better one than could be produced by any other method or means then known to persons in the business of brewing. Compared with other means for heating the interior of casks and receptacles, the complainants produced a new mechanism or thing which enabled them to pitch casks and kegs more rapidly and economically, than they had ever been pitched before. I think the complainants were entitled to a patent, not for· the improved or better result or effect, but for the mechaniszr or means by which the result was accomplished. It is the policy of the law to encourage useful improvements, and I am unwilling to hold that the complainants' device, consisting of old elements, combined and operated as stated in the specification, practically superseding, as it does,· all other known means of pitching kegs and other small receptacles,. and greatly superior, as it confessedly is, to Siebel's machine for pitching large casks, is the mere mechanical equivalent oUhe latter, or of any other device. These are briefly my reasons for withdrawing my former ruling, and for now entering a decree in favor of the complainants, with an order for an account of profits.
DEFORD V. ldEHAFFY.
CO. tJ. MEHAFFY
(Circuit Oourt, W. D.
September 9, 1882.)
HmrovAL OF CAU8Ee-Tnm FOR FILING PETITION-PRO CoNFESSO.
According to the Tennessee chancery practice a cause is not for trial until a pro confe8so has been taken against a party not appearing, and a petition removal is in time if filed before this has been done. 2.
SAME-SEVERAL ·DEFENDANTS-CAUSE, WHEN TRIABLE-REMOVAL, WHEN BARRED.
If there be several defendants, and 8S to one there is an issue by answer, but as to others no issue by answer or pro confe8BO, the oause is removable until and during the term at which the pro confe88o is entered. It must be at issue and triable as to all the parties to bar the right of removal as to any of them by the lapse of a trial term; and this, whether the parties as to whom there is no issue be necessary or only proper parties.
SAME-PRO CONFE8S0 ON FINAL DECREE.
And the foregoing rule is not affected by the fact that the pro confe8so may, under the practice, be entered in the final decree itself. Nothing but an actual trial commenced will bar the right of removal at the trial term when the case is in that condition.
If the removal bond be defective, and omit the condition for the payment of costs required by the act of congress, the omission is not fatal to the jurisdiction of the federal court. The defect may be cured by amendment, either in the state or federal court, or by the substitution of a new bond, coptaining the proper conditions, filed nunc pro tunc. iI. SAME-ACT MARCH 3,1875, CONSTRUED. (1) The only essential facts are the existence of a controversy between citizens of dIfferent states, or arising under the constitution and laws of the UnitedStates. of the character and amount described in the statute. (2) 'rhe right of removal may be barred by the lapse of time, on failure tJ commence the proceeding within the time prescribed by the statute, as in other cases of limitation of that nature. (3) But a perfect petition and a perfoot bond for removal, or a strict compliance with the practice r.egulations of the statnte, are not absolutely essential as jurisdictional requirements, but only directory and not imperative methods of procedure; regulations that should be carefully followed and reasonably enforced by the courts; but, after all, regula: tions that are protected by the acts of conp'ress authorizing amendments to cure defects and omissions in legal proceediligs, (4) These amendments may be made in either th(J state or federal courts, according to their practice, respectively.
In Equity. Motion to remand. This is an attachment and injunction bill filed in the chancery court of Hardin county by citizens of Tennessee against So citizen of Louisiana, and certain citizens of Tennessee. It seeks an account of transactions between the plaintiffs and the leading defendant of v.13,no.l0-31