COI/flict with the constitution and laws of the state or of the United States;" and section 530, authorizing the common council to define nuisances. Laws 1883, pp. 211-214. But if the views presented are correct, this ordinance is not a "regulation," but a "destruction," of a lawful business, at the location selected for carrying it on, and does not fall within the police power of the state, and is "in conflict with general ", and the supreme "law" of the land,-the national constitution,-and is not within any lawful power so conferred by either the state constitution, or statutes of the state. In pursuance of the views expressed, the petitioner must be discharged; and it is so ordered.
WARNER and another, impleaded, etc.
(OiJrcuit Oourt, S. D. New York.
NATIONAL BANKS-INDICTMENT-AmING AND ABETTING DIREOTOR IN MISAPPLYING FUNDS OF BANK.
An indictment seeking to charge defendants with aiding and abetting a director of a national bank in misapplying the funds of the bank. must state facts showing a misapplication of money of the bank committed by the director.
SAME-MISAPPLICATION OF FuNDS-OVERDRAFT BY DIREOTOR.
A director of a national bank, who, knowing that he has no money to his credit in the bank, and no right to draw money therefrom, obtains money from the bank to which he has no right, by means of an overdraft, made with intent to defraud, and converts the same to his own use, in fraud of the bank, is guilty of a misapplication of the funds of the bank.
BENEDICT, J. The brief in behalf of the government, submitted yesterday, fails to point out any way of escape from the difficulty in the indictment, in its present form, which was apparent at the time of the oral argument. That difficulty is that the indictment contains no averment of a conversion by Ward of the money of the association which the indictment states was paid by the association to Warner. The indictment seeks to charge the defendants, Warner and Work, as aiders and abettors of Ferdinand Ward in a willful misapplication by Wat'd of the money of the Marine Bank, of which association Ward was at the time a director. An indictment of this character, as all concede, to be good against the defendants, Warner and Work, must state facts showing a misapplication of the money of the association committed by Ward. The supreme court of the United States, in U. S. v. Britton, 107 U. S. 666, S. C. 2 Sup. Ct. Rep. 512, has expressly declared a conversion of the funds of the association by the party charged to be a necessary ingredient of the offense of misapplying the funds by an officer of the association. According to this decision, an essential fact to be averred and proved in this case is the conversion by Ward
UNITED STATES V. WARNER·.
of the moneys in question. This essential fact the indictment omits to state. There is a statement that Ward intended that he and Warner and Work should convert to their own use the money in question, but there is no statement that such a conversion by Ward was thereafter effected. This omission, under the decision referred to, must be held fatal; and for this reason, therefore, there must be judgment for the defendants, Warner and Work, upon the demurrer. The argument made at the. hearing upon the demurrer was not confined to matters of form, and omissions capable of correction, but assumed a wider scope, anti renders it proper for me, at this time, to say for the information of counsel, that I do not assent to the proposition that no offense against the laws of the United States is committed by a director of a national bank who, knowing that he has no money to his credit in the bank, and no right to draw money therefrom, obtains money from the bank to which he has no right, by means of his overdraft, made with intent to defraud, and converts the same to his own use in fraud of the bank. In my opinion, the sta,t,ute is not confined to acts done by an officer of the bank in the exercise of power acquired by means of his office. Its intention was to punish certain acts, which it describes, when such acts are dOne by one holding the relation to the bank of president, director, cashier, teller, clerk, or agent. Among the acts enumerated is the act of misapplying money of the association, and, as I conceive, a conversion, by a director, of money of the bank of which he has acquired the possession or control by means of his overdraft, drawn without right and with intent to defraud, would constitute a misapplication of money of the association, within the meaning of the statute. Such act would, moreover, involve a violation of duty on the part of the director. · The present indictment, as already pointed out, does not state such a case, and for the reasons given cannot be upheld. What has been said applies as well to the counts for abstraction, as to the counts for misapplication. I see nothing in the point made that. each count in the indictment is really two counts. Let there be judgment for the defendants upon the demurrer.
and others v. T. O.
RICHARDS HARDWARE CO.l
(Oitrcuit Oourt, D. Oonnecticut. February 11, 1886.)
PATENTS FOR INVENTIONS-DESIGN PATENTS.
A claim for "a new and original design for a curtain and loop, consisting of an ornamental metallic chain, in connection with a curtain adapted to be gathered to the side of the window and be held by said chain, substantially as described, " construed to be, so far as the chain is concerned, for anyornamental metallic chain used to loop curtains.
If the substitution of any metallic loop for a silk or woolen loop for curtains is a "design, " within the meaning of the statute, <which point was raised but not decided,) it is clear that it is not a patentable design.
SAME-SUBSTITUTION OF MATERIAL.
The mere substitution of one material for another, in the construction of or for the purpose of an ornament, the ornament to be of any approved form, cannot properly be patentable. There is nothing which the law deems "new" in a mere change of that sort.
In Equity. Wm. Edgar Simonds, for plaintiffs. Frank L. l1nngerjord, for defendant. SUlPMAN, J. This is a bill in equity to restrain the infringement of design patent No. 11,947, issued to Edgar S. Gergason, August 17, 1880, for a curtain and loop. The complainant having made profert of the patent, the defendant has demurred upon the following grounds:
"(1) That it appears upon the face of the letters patent recited in the said complainant's bill of complaint that the commissioner of patents exceeded his jurisdiction in granting and issuing said letters patent. (2) Because it appears upon the face of the letters patent, recited in the said complainant's bill of complaint, that said invention or diecovery, if any such there be, is not a design within the meaning of-the act of congress in such case made and prOVided. and cannot be protected by letters patent therefor; that is to say, the alleged design is not a · new and useful design for a manufacture, bust, statue, alto-relievo. or bas-relief;' nor a · new and original design for the printing of woolen, silk, cotton, or other fabrics;' nor a · new and original impression. ornament. pa' ent. print, or picture, to be printed, painted, cast, or otherwh,e placed on or worked into any article of matlufacture;' nor a · new, ,useful. and original shape or configuration of any article of manufacture.' (3) Because the claim of said letters patent does not cover any patentable invention, but is for matters and things which do not involve patentable novelty, in view of the well-known prior act, of which the court will take judicial knowledge."
The specification describes the patented design as follows:
"Heretofore curtains have been looped back at the sides, by means of cords or braids, omamental or otherwise, which have been attached to the sides or casing of the window or door, and passed around tlle folds of the material. These loops have been made of silk or woolen, or of an inferior material covered with silk 01' woolen, and have been of a perishable nature, soon becom!ng frayed and moth-eaten. The feature of my design consists in looping back a curtain by means of an ornamental chain in the place of the
Reported by Charles C. Linthicum, Esq., of the Chicago bar.