CONSOLIDATED AMADOR MINE) ETC.
rington book to any particular form of binding, and the defendant cannot escape the charge of infringement by holding together the record-leaves and blanks checks by other well-known means. A decree must be entered for the complainant.
JfAY and others v. ALLEN.
(Circuit Court, N. D. New York.
PATENTS FOR INVENTIONB-INFRINGEMEN'J'-DoANE AND BUGBEE PATENT.
On rehearing, former opinion, 24 Fed. Hep. 804, adhered to.
In Equity. Parkinson tt Parkinson, for plaintiff. Duell d: Hey, for defendant. . BLATCHIWRD, Justice. I have considered the argument made in support of the petition for a rehearing in this case in respect to the Doane and Bugbee patent, (24 Fed. Rep. 804,) and the result is that I am confirmed in the conclusions at which I arrived; and a decree will be entel.ed in conformity with those conclusions.
FISHER and others v. CONSOLIDATED AMADOR MINE, ETC.
(Oircuit Court, D. Oalifornia.
September 7, 1885.)
.PATENTS FOR INVENTION-ACTION AT LAW FOR INFlUNGEMENT-PRIOR SUIT IN EQUITY.
An answer in an action at law by a patentee to recover damages for the use of a patented article that sets up that the article used was purchased by the defendant from a manufacturer, against whom pLlintiff had obtained a decree in equity for an accounting, does not state a unless it also avers that the accounting included the article in question, and that the decree has been satistied by payment or otherwise.
Demurrer to Special Answer. Langhorne tt Miller anl,i W. H. H. Hart, for plaintiff. J. A. McKenna, for defendant. SAWYER, J. This is a demurrer to a special answer. The action is brought to recover damages for the unlawful use of certain hydraulic machines, which are alleged to infringe upon reissued letters patent No. 8,876, owned by plaintiffs. The answer sets up that the same plaintiffs had previously brought suit in equity against one Hoskins, to recover the profits resulting from an infringement of the patent by Hoskins in manufacturing and selling machines constructed
according to the specifications of the patent; that a decree had been rendered in that case in favor of plaintiffs, and against Hoskins, and, upon an accounting had, the sum of $16,465.33 had been awarded to plaintiffs as the profits realized by Hoskins from manufacturing and selling said machines. Jfhe answer further alleges that the particular machines used by the defendant, and for the use of which the present action is brought, were purchased by defendant from Hoskins, and that the profits of their manufacture and sale bad been included in the decree against Hoskins, and that, therefore, the plaintiffs had received satisfaction for the said machines, and defendant was not liable to plaintiffs for using the same. But the answer nowhere alleges that the Hoskins decree has ever been satisfied by payment or otherwise. In order to be a defense it must allege that said decree has been paid, or otherwise satisfied, as well as that the accounting against Hoskins included the machines in question. In the absence of such allegation the answer does not state a defense. Gilbert 11 B. Manuf'g Co. v. BU8sing, 1 Ban. & A. 621; Birdsell v. Shilliol, 112 U. S.485j S. C.5 Sup. Ct. Rep. 244j Steam Stone-cutte'F Co. v. Sheldons, 21 Fed. Rep. 875; Walk. Pt1t. § 814:. It follows, therefore, that the demurrer must be sustained; and it is so ordered. If the defendant desires, it can have time to amend, though I cannot see that it can properly amend unless it can truthfully state that the decree has been satisfied, and 1 have good reason to know that it has not been satisfied.
CITY OF ST.LoUIS
THE MAGGIE P.l
(Circuit Court, E. D. Missouri.
MUNICIPAL CORPORA'fIONS-DUTY AS TO WRECKS IN HARDOR.
It is not a part of the public nuty of a city to pnmp out and raise boats which sink at its levee, even where its charter gives it control of its levee and harbor, and makes it its duty to keep its wharf lind the rivtlr along the shore free from wrecks and other improper obstacles.
SAME-CON'TRACTS TO PffillFORM PRIVATE SERVrcE.
Where public duty not int.erfere with private service, a city mllY make a valid contract to use its instNmentaliHes and employ its employes in the latter; Bnd in (,'&se of a breach by it of such a contract it becomes liable like Ii private contractor. . WI:1ere a city has been in the habit of making contracts for the use of certain of its instrumedtalities, and the tlmployment of the employes conot'cted therewith, through officers in charg:e thereof, and of receiving for the performance of such contracts, it will be etitopped, in case of a breach by it of by Benj. F. Rex, Esq., of the St. Louis bar.
. 1 Reported