& Co. v. McALPIN and others.
(Circuit Oourt, S. D. New York. February 28.1882.)
PATENTS FOR INVENTIONS-REISSUE.
A claim in a reissue cannot be extended so as to embrace an invention not specified in the original.
x Gijford, for plaintiffs..
v. Campbell, 8 Morr. Trans. 439, there is so much doubt as to the validity of the reissue ["Improvement in Plug Tobacco," granted to Charles Siedler, October 24, 1876,] in this case, if construed, in regard to claims 1, ,8,and4, as covering labels not pu't under wrappers, that those claims must ·beconstrued, for the purposes of this motion, as not extending to labels not under wrappers. .That being so, the defendants do not infringe. The motion is denied.
. B. F. Thurston and S. A. Duncan, for defendants. BLATCHFORD, C. J. In view of the decision in James
(Circuit Oourt, E. D. Pennsylvania. October 27,1882.)
ADMIRALTy-OPINION OF DISTRICT COURT-3 FED.
Appeal from a decree of the district court in a ease fully reported in 3 FED. REP. 45. McKENNAN, C. J. At the argument of this appeal I entertained some doubt as to the libelant's right to recover. Subsequent reflection has removed that doubt, and it is, therefore, now adjudged and decreed that the libelant recover from the respondent and his stipulator $910.50, with interest from August 31, 1877, and costs, except the costs of depositions taken by libelant since the appeal.
See Kenah v. The Tug John Markee, Jr., 3 FED. REP. 45.
"Reported by Frank P. Prichard, Esq., of the Philadelphia bar.
EALL V. BBOOXS.
(Oi'l'cuit Oourt, E. D. NetO Yf»'k.
REMOVAL OF CAUSE-FAILURE TO FILE RECORD-ExCUllE.
Where, on a motion to remand a cause to the state court for failure to file the record in the circuit. court before the first day of the nel:t term, the, defendant appeared and offered to file the record, and gave as excuse for not having done so that the information obtained at the clerk's office was understood to mean that the next term would be in De<lemher, when it actually began November 1st, held, that the excuse was sufficient, and the defendant must be allowed to file the record.
SAME-MOTIVE FOR REMOVAI, IMMATERIAL.
The failure to file the record having caused no delay of the trial, and in nowise prejudicing the plaintiff, the fact that the motive for removing the cause was to delay the trial is immaterial, and it is the duty of the circuit court to to the motive which impelled the removal. retain the cause, without
Hathaway Montgomery, for plain,tiff. Clark Brooks, for defend!1nt.
BENEDIOT, D. J. This is a motion to remand the cause to the state court because of a failure to file the record in this court on the first day of the next term, which was November lat. It is admitted that the record has not been filed. The clefendant offers now to file it, and his excuse for the failure sooner to file it is that his attorney made inquiry at the clerk's office as to the time of holding the next term of the court, and understood the information there giTen'him to import that the next term of the court would be in December, and therefore supposed that he had until December to file the record. According to the law as settled by the supreme court of the United States, (Baltimore It O. R. R. v. Koontz, 13 Reporter, 228,) failure to file the record on the first day of the next term does not deprive the circuit court of jurisdiction over the cause, and when a sufficient cause for the failure so to. file the record is shown, it is the duty of the circuit court to permit the record to be filed, and allow the cause to proceed in the circuit court. The excuse here made for the failure to file the record at the November term is sufficient, and the defendant must therefore be 0.1. lowed to file the record at this time. The fact, if it be a fact, that the motive for removing the cause to this court wa,s to delay the trial, is immaterial. The failure to file the record on the first day of the
-Reported by R. D. & WJ'llys Benedict.