'rRA VERS V. PALMER.
TRAVERS V. PALMER.
(Oircuit Oourt, 8. D. New York.
April 3, 1885.)
PATENTS FOR INVENTIONB-HAMMOCKs-INFRI:KGEMENT.
I,etters patent No. 217,964, issued to James P. 'fravel's, .July 29,1879, for an improvement in hammocks, held not infringed by the hammock manufactured under patents issued to Isaac E. l'almer, in January and .b'ebruary, Itl83.
In Equity. Frost tX Coe, for complainant. Edwin H. Brown, for defeudant. COXE, J. This is an action to enjoin the alleged infringement of letters patent, No. 217,964:, issued to the complainant July 29, 1879, for an improvement in hammocks. In the specification attached to the patent the inventor declares that the object of his invention is to form a new and improved hammock which shall be stronger, neater, and better adapted for its purpose than the hammocks now in use. He says:
"My liammock A is made or woven into an elastic open-worked fabric of cotton or other fiber, and is made of any length and width. It may be made plain or in colors. At the ends of the hammock A are secured eyelet-rings a, of metal or other suitable material. Through these rings a the suspensory continuous cord C passes and forms a grommet, D, for the purpose of securing the cord C to the rings H, of metal or other proper material. II< II< * The hammock A is bound with any suitable material, thus giving said hammock a neat and tasteful appearance."
The claim is as follows:
.. The hammock herein described, consisting 01 the rectangular flexible openworked fabric A, having a continuous outer flexible binding, provided with strengthening end cords ]" and a series of eyelets, a, in its ends, continuous cord C D, and rings H, as and for the purpose set forth."
The claim covers the following elements:
First, the rectangular, flexible, open-workec fabric; seaond, the continuous flexible binding; third, the strengthening end cords; fourth, the eyelets; fifth, the continuous clew-line; si;vth, the sllspending rings.
The defense is non-infringement. An examination of the defendant's hammock, which is manufactured under patents issued to him in January and February, 1883, discloses the fact that he uses but two of these elements, viz., the material and the rings. He does not use the binding, the strengthening cords, the eyelets, or the continuous clew-line. It is contended, however, that for these, equivalents are :'l:dopted. That there is no outer flexible binding on defendant's hammock is conceded. But it is said that the selvage, formed by weaving the edges of the fabric closer than the general body, is an equivalent for the binding. This argument would be plausible were it not for the fact that the hammock offered in evidence, as made in accordance with the complainant's patent, also shows a selvage edge, not so wide, but similar in every other respect. There is, then, no substitute what-
ever for the binding, which, it is quite evident, is used for ornament only. The strengthening end cord, which, in the drawing, appears to . extend entirely around the sides and ends of the hammock-body, is not found in the defendant's hammock. 'rhe lines of double sewing can hardly be reglLrded as an equivalent, and especially so in view of the fact that the same sewing appears on the complainant's hammock. The cord is intended to add additional strength to the sewing. Although the defendant uses no eyelets, it may be doubtful whether his loops formed of many strings running out from the ends of the hammock-body are not fair equivalents. It is, however, unnecessary to decide this question. The defendant dpes not use the continuous COl'd extending back and forth from th£\ hammock-body to the ring. His cords are separate from and independent of each other. Of the six elements of the complainant's hammock the defendant uses but two, and possibly an equivalent for a third. As three of them are wholly absent from his hammock it must be held that there is no infringement. Williams v. Stolzenbach, 30 O. G. 891; S. C. 23 FED. REP. 39; Watermeter Co. v. Desper, 101 U. S. 332; Blake v. City and County of San Francisco, 5 Sup. Ct. Rep. 692; Voss v. Fisher, 5 Sup. Ct. Rep. 511; Rowell v. Lindsay, 5 Sup. Ct. Rep. 507; Prouty v. Ruggles, 16 Pet. 336; Gould v. Rees, 15 Wall. 187; Seymour v. Osborne, 11 Wall. 516, 555; Gill v. Wells, 22 Wall. 1, 14. The bill is dismissed.
WABASH, ST. L.
CENTRAL TRUST CO.
WABASH, ST. L. & PAC. By. CO. and others.
CENTRAL TRUST CO. OF (Two Cases.!)
CENTRAL TRUST CO. OF NEW YORK and another v. WABASH, ST. L. & PAC. Ry. CO. and others.!
(Oile/dt Oourt, E. D. Mi88ouri. March 20,1885.)
REMOVAL OF SUITS INVOLVING BOTH CONTIWVERSJES BETWEEN CITIZENS OF THE SAME STATE AND CONTROVERSIES BETWEEN CITIZENS OF Dn'F'ERENT STATES.
Where a suit instituted in a state court involves both a controversy between citizens of the same state and a distinct, independent, and separable between citizens of different states, either party to tlle latter controversy may remove the entire suit to this court.
CONSOLIDATION OF bUITS.
A mortgagor came into this court before default, alleged that it was going to default, and asked for and obtained the appointment of a receiver. The mort. gagee filed a cross-bill to foreclose the mortgage, and also tHed a bill in the state court to accomplish the same object. The complainant in the original bill, filed here,rcmoved the suit in the state court to this court, and moved to consolidate said suits. Motion sustained.
AT INSTANCE OF MOHTGAGOR-FORECLOSURE-JU-
Semble, this court has power to appoint a receiver, at the instadce of a mortgagor, wheredefalllt is about to take place, and, upon the mortgagees filing a cross-bill after default to foreclose, it has jurisdictioil to proceed to a decree of foreclosure.
Motion t6-Consolidate. For a history of the original and cross bill filed here, see 22 FED. REP. 272. The bill was filed in the state court, because of doubts as to the jurisdiction of this court in the suit before it. The suit in the state court was removed, and the motion to consolidate made by the Wabash, St. Louis & Pacific Railway Oompany. John F. Dillon, Henry T. Kent, Wager Swayne and Greene, Burnett tt Humphrey, for the Wabash, St. L. & Pac. By. 00. Phillips et Stewart, for the Oentral Trust 00. John I. Brown and 7'hos. J. Portis, for the St. Louis, I. M. & S. By. 00. BREWER, J., (orally.) In these cases, which were argued yesterday, and in which there is a motion made to consolidate, I think I can express my views better by commencing at the rear end of this litigation. The last suit was commenced by the filing of an original bill in the state court, in behalf of the Central Trust Oompany of New York, a bill of foreclosure, making the Wabash road, and the various mortgagees thereof, parties defendant That the state court had jurisdiction of that suit is to my mind indisputable, and that it was a case which was removable to this court is equally clear, although some of the parties defendant, one at least, is a citizen of the same
by Benj. F. Rex, Esq.. of the St. Louis bar.