ish persons for keeping gambling-houses and gaming is included in the power to suppress the same, it must clearly from the language of the grant, read by the light of .the circumstances of the case, that such was the intention of the legislature. If there is a reasonable .doubt about the implication of the power, it must be resolved against its exercise. The only case directly in point, that has been cited, is Oity of Mount Pleasantv. Breeze, 1.l Iowa, 399, in which it was held that a general grant of power to the city council "to suppress gambling," did not authorize it to pass an ordinance providing for the punishment of 80 person for keeping a "gambling device." Say the court: "The city council cannot punish that which they are only authorized to suppress under the general power." , My conclusion is that the council has no power ,to punish persons for gaming, and therefore the ordinance No. 8,91l,and the proceedings under it for the arrest of the petitioner, are void. This being so he is restrained of his liberty without due process of law, in violation of the constitution of the Uuited States, and is therefore entitled to the writ of habeas C01pUS for his deliverance. Upon the delivery of this opinion the writ was issued, and the petitioner brought into court by the having him in custody, when it was agreed that the case should be formally submitted to the court upon the facts ,stated in the petition and stipulatiOn aforesaid, without further argument; and thereupon it appearing that the prisoner is unlawfully 'restrained of his liberty, it was ordered that he be discharged therefrom, and go hence without day.
See In re B"osnahan, ante, 63, and note, 68.
McMILLIN and others
ST. LOUIS & MISS. VALLEY TRANSP. Co. 1
October 31, 1883.)
(Oircuit Oourt, E. D. Missouri.
Wherever, during the life of a patent, damages and an injunction are prayed for, in a suit against an infringer, equity has jurisdiction.
In a suit for an infringement, it is unneccessary, where prnfert of the patent ,is made, to set it out or any part thereof except the title in the bill. Averments in general terms as to invention are sufficient.
A statement "that the defendant is now constructing, using, and selling steam-power capstans, for vessels, in some parts thereof substantially the same in construction and operation as in the said letters patent mentioned," is a sufficient allegation of an infringement.
Reported by Benj. F. Rex, Esq., of the St. Louis bar.
M'MILLIN V.ST. LOUIS & MISS. VALLEY TRANSP.
In Equity. Demurrer to the bill. The bill prays for damages and an injunction. The .life of the patent sued on has not expired. The remaining facts sufficiemly appear from the opinion. Paul Bakewell, for complainants. Given Campbell and Parkinson fi Parkinson, for defendant. TREAT, J. There is a demurrer in this and several other CBses, all pertaining to the same question. The contention as to the first point is that the decision of the United States supreme court (Root v. Ry. Co. 105 U. S. 180) establishes the doctrine that where a patentee seeks for the use of his patent merely a stipulated royalty or license, he cannot proceed in equity for an infringement. Thatoase was where damages were sought to be recovered for an infringement made against an expired patent before the expiration thereof. It does not, nor does any other case known to the court, oust equity of juris" diction against an infringer where injunotion is sought pending the life of the patent. Hence, the demurrer as to that point is not well taken. The second point is as to the insufficiency of the bill for defective description of this patent and the alleged infringement. The only description in the bill is that Mr. McMillin "was the true, original, and first inventor of a certain new and useful improved application of steampower to the capstan of vessels, not known 01' used before." The bill further states "that a description or specification of the aforesaid improvement was given in his schedule to the aforesaid letters patent annexed, accompanied by certain drawings referred to in said lastmentioned schedule, and forming parts of said letters patent. The said letters patent, and the said specification thereto annexed, (whioh, or an exemplified copy of which, your orators will produce, as your honors may direot,) were duly recorded in the patent office." fhe allegations as to infringement are: "That the defendant is now constructing, using, and selling steam-power capstans for vessels in some parts thereof substantially the same in construction and operation as in the said letters patent mentioned." References have been made io a large number of decided cases wberein it has been beld unnecessary to set out in the bill tbe specifications, etc., of the patent of whicb profert has been made, the title baving been distinctly stated. No well-considered case, however, goes to the length of declaring that there should not be brought into the bill, in some clear and distinct manner, a description, at least in general terms, of the nature and extent of the invention. The patent might have been for a mecbanical device, a combination of devices. a product, a process, etc. How, then, is the court to determine, under an allegation, as in thii;l case, that defendant has used, etc., "some parts" of plaintiff's patent, wbat the case is? If the patent relied on il'\ a combination patent, and the patent is referred to in general terms. is it sufficiently
deilc:ribed 'by reference to the patent? To such rulings assent must he given byforce of authority. A.djudged cases and text-books permit the averments of the bill to be in general terms as to the invention, reciting the title of the patent merely, and making profert of the letters patent. This court yields to the weight of authority and estabalthough it might rule otherwise were the queslished tion presented de novo. A defendant in equity ought to be informed fully and clearly as to what is the plaintiff's demand, without being compelled to look at the profert and constrne conjecturally the letters, so as to give the plaintiff some supposed right which the plaintiff does not specifically aver. How it arises that such departures from rules of pleading were passed into settled formulas it is useless to discuss; for it must suffice that the plaintiff has pursued established rules, to which this court defers. The demurrer will be overruled, and the defendant ordered to answer to nex.t ruleday, with leave to plaintiffs to file replication forthwith.
LEACH V. CHANDLER
(Circuit Oourt, D. Indiana.
PATENT LAW-PRAOTIOE-MISJOINDER OF CAUSES OF AO'I'ION.
In Equity. Mr. Leach, for plaintiff. West et Bond and Stanton et Scott, for defendant. WOODS, J. A. bill which, under section 4918 of the Revised Statutes, upon proper averm.ent, prays an adjudication concerning con· flicting patents, and also alleges an infringement of the plaintiff's patent by the defendant by reason of the manufacture and sale by the latter of articles constructed under his lettel's, and prays an accounting and damages, is not demurrable for misjoinder of causes of action.
and others v.
(Circuit Oourt, D. Rhode Island.
October 4, 1883.)
PATENTS FOR INVENTIONS-SIGNIFICATION OF 'rHE ,VORD "JEWELRY "-INFRINGE. MENT.
Letters .patent No. 10.239, dated November 14, 1882, for an improvement in ornamentmg bracelets and other articles of.imMlry, extended so as to cover but. tons ornamented by the patented process of the plaintiffs.