Specification 9. This specification has already been can· sidered. Specification 10. Alleging that the assent of Williams, one was of no avail, as he was of the creditors of the at the time non compos mentis, was withdrawn. The bankrupt cannot receive his discharge now. The application will, therefore, be indefinitely continued, to allow him to obtain the requisite number in amount and value of his creditors, and to conform to the order of the court now made that he shall amend his schedules, referring to his ownership and possession of property, as above indicated, and in order that he may claim the exemption allowed him under the state and United States laws. The court considers him entitled to a discharge on his compliallce with the matters of form made necessary by the acts of congress, and shall so order when they are comnlied with.
ONDERDONK .,. FANNING.
(Circuit Oourt, E. D. New York.
EQUITY-PRACTlCE--MoTION TO ATTACH FOR
May 17, 1880.)
A patent for a lemon-squeezing machine was soil! to O. by b'., the inventor, who thereafter still made and sold machines a little different. A suit for infringement being brought, and a temporary injunction granted against F., he devised an improvement on O. 's machine, and obtained a patent for it. A motion to attach F. for contempt of the injunction being made, held, that the question between two patents, raised by this second invention, could not be brought up by this motion, although the device was made after the injunction was issued, and the issuing a patent for it forbids the calling it a mere colorable device to avoid the patent of 0., without a hearing had and decision made upon that question.
Foster, Wentworth ct Foster, for plaintiff. E. H. Brown, for defendant. BENEDICT, D. J. This is a motion for an attachmem against the defendant to punish an alleged contempt in making and selling a certain form of lemon-squeezers, the making
ONDERDONK l7. FANNING.
or selling of which was forbidden by a temporary injunction of this court. The injunction referred to described with particuhLrity and detail the machine to which it was intended to apply. It is not pretended that the defendant has, since the issue of the injunction, made or sold any machine precisely similar to the machine described in the injunction. On the contrary, it is conceded that the machine complained of differs from the machine described in the injunction in this, that the movable bed upon which the lemon rests while being is not perforated, and its surface is formed into grooves, 80 arranged, in connection with what' is termed a. concentrator, as to permit the juice of the lemon to pass to and around the edge of the bed, instead of through the perforations in the bed. But it is contended that this alteration is merely a colorable device intended to evade the injunction. The plaintiff's patent is for a combination of old elements, one of which is a. perforated bed. The machine complained of contains no perforated bed. The present motion cannot, therefore, be decided in favor of the plaintiff without determining the question whether the non-perforated, corrugated bed in the machine complained of performs the same function as the non· corrugated, perforated bed in the plaintiff's combination. The moving papers show this question to be presented by the motion, and it is one not passed on when the temporary injunction was granted. Furthermore, it is made to by the defendant that a patent has been issued to him for the machine now complained of. Under such circumstances the defendant must be upheld in his contention that the question raised by the new machine cannot be presented by a motion for an attachment for contempt. It is true, that at the time of doing the act complained of the defendant had not obtained his patent, but the subsequent action of the patent office in granting the new patent affords ground for the uefendllnt to insist that the alteration made in the bed was not so plainly colorable as to entitle the plaintiff to an attach. ment against him for contempt. . The motion is, accordingly, denied.
FEDERAL REPORTER. OLENDORF and another
(Oircuit Oourt, N. D. NetIJ York. .May 24, 1880.)
II. Striyes, for plaintiffs. L. I. Burnett, for defendant. BLATCHFORD, C. J. The testimony satisfactorily establishes that the invention claimed in the plaintiffs' patent was known to and used by Lewis Perkins before it was made by the plaintiffs. The bill must, therefore, be dismissed, with costs.
DAY v. COMBINATION RUBBER Co. and another.
\Uircuit Oourt, S. D. :New York.
of.-Judgments and decrees are conclusive evidence of facts only as between parties and privies.
PATENT--IMPROVEMENT IN SKIRT
There being no evidence in this case impeaching the primajacie effect of the patent involved, being one for improvement in skirt protectors, it is construed with reference to prior existing devices to ascertain its scope.
In Equity. Miles B. Andrus and Edward N. Dickerson, for complainant. M. P. Stafford, for defendants. WHEELER, D. J. This bill is brought for relief against an alleged infringement of letters patent No. 61,172, dated January 15, 1867, to Thomas B. De Forest, for an improvement in binding for skirts, and now owned by plaintiff. The defences set up in the answer are that the defendant, the rubber company, is operating under a patent, No. 155,184, dated September 20, 1874, to Helen Marie MacDonald, for an improvement in dress protectors, and that they do not infringe the plaintiff's patent. While the application of MacDonald was pending an inter· ference was declared between her and one Chase, in th6