ignored the schedule rate, although it tends to show that fact. Such a showing would amount to an abandonment, and leave the parties .as they stood before the combination was organized. The complainant not only broke its agreement, but it resorted to subterfuges to conceal sales which it made at market or other lower rates than schedule rates. This plainly indicated a purpose on the part 01 the complainant to take an unfair advantage of its associates in the combination, including the defendants. If the complainant expected to insist upon a specific enforcement of its agreement with the defendants, it should have steadily acted in good faith itself by observing the terms of the agreement; and this it should have done whether the defendants had violated their covenant or not. It follows that if the complainant is entitled to any relief against the defendants it is in a court of law, and the bill is therefore dismissed.
TUBULAR RIVET Co.
«(}ircuit Oourt, D. MQ,8sachuseti8. February 20, 1886.)
PATENTS FOR INvENTIONS-REISSUE.
The seventh claim of reissued letters patent No. 8,276, granted June 11, 1878, to Mellen Bray, for an improvement in rivet-setting machines, is broader than the original patent, and the reissue having been applied for over three years from the date of the original, such claim is void. The eighth claim of this reissue, for "The receiver, N, provided with the springs. r, and r ' , mounted upon the setting plunger, B, and adapted to operate substantially as described," is not infringed by a receiver consisting of a long lever, pivoted, at its rear end, to the supporting frame of the machine, and composed of two elastic strips of metal, flaring at their front ends to hold the rivet.
In Equity. Ohauncey Smith, for complainant. G. M. Plympton, for defendant.
COLT, J. This suit is brought for the infringement of reissued patent No. 8,276, granted to Mellen Bray, June 11,1878, for an improvement in rivet-setting machines. The original patent was granted April 6, 1875. The application for the reissue was made May 27. 1878,-more than three years after the issue of the original patent. The seventh and eighth claims of the reissue form the subject-matter of the present controversy. They are as follows:
"(7) In combination with a reciprocating plunger and a clinching anvil, a receiver prOVided with spring or yielding sides, and adapted to receive the rivet, and hold it in a perpendicular position between the plunger and anvil.
SReported by Charles C. Linthicum, Esq., of the Chicago bar.
TUBULAR RIVET CO. fl. COPELAND.
and to be moved vertically, or in line with the movement of the plunger, during the first part of the downward movement of said plunger, and guide the rivet to the work. and then remain in a state of rest till the plunger has completed its down ward motion, and forced the l'ivet from the receiver into the material, substantially as described. (8) The receiver, N, provided with the springs, T, and r, mounted upon the setting plunger, n, and adapted to operate substantially as described."
The seventh claim is not found in the original patent. The eighth claim of the reissue was the seventh claim of the original. In the original patent the receiver is subject to the limitation of being "mounted upon a movable setting plunger, and made to move at times with said setting plunger." In the reissue these words are omitted, and it is no longer necessary to mount the receiver upon the plunger, but to locate the receiver between the anvil and the movable setting plunger. In the original patent the receiver is attached to the plullger. In the reissue, by the seventh claim, it is only neces.sary to locate the receiver between the plunger and anvil. The claims of the reissue are clearly broader than the original, and therefore the seventh claim of the reissue, under the recent decisions of the supreme court, must be held to be void. Miller v. Brass Co., 104 U. S. 850; James v. Campbell, Id. 856: Mathews v. Machine Co., 105 U. S. 54; Bantzv. Frantz, Id. 160; Johnson v. Railroad Co., Id. 589 ; Gage v. Herring, 107 U. S. 640; S. C. 2 Sup. Ct. Rep. 819: Clem· . ents v. Odorless E. A. Co., 109 U. S. 641: S. C. 8 Sup. Ct. Rep. 525 j McMurray v. Mallory, 111 U. S. 97: S. C. 4 Sup. Ct. Rep. 875; Turner et Seymour ManuJ'g Co. v. Dover Stamping Co., 111 U. S. 819; S. C. 4 Sup. Ct. Rep. 401. The question remains whether the defendant infringes the eighth claim of the reissue, which is like the seventh claim of the original. We do not find the combination described in this claim, in defendant's machine. The receivers differ materially in construction. The defendant's receiver is not attached to the setting plunger. It does not consist of a tubular thimble fitted loosely to the plunger, and held in position by a pin set in the plunger, and projecting outward into a slot formed in the thimble. Nor has it the side springs described in the Bray patent. On the contrary, the defendant's receiver consists of a long lever, pivoted, at its rear end, to the supporting frame of the machine, and composed of two elastic strips of metal, flaring at their front ends to hold the rivet. It is thrown upwards by a spring fixed to the arm of the machine. We would not be warranted in putting such a broad construction on the eighth claim of the Bray reissue as to make it include the defendant's machine, when it differs so materially in construction. We therefore find no infringement of the Bray patent, and the bill must be dismissed. Bill dismissed.
(District Gourt, D. Oregon. March 5,1886.) 1.
JOINDER OIl' CAUSES OIl' ACTION IN REM AND PERSONAM.
The admiralty rules from 12 to 20, inclusive, relating to joinder of causes of action, do not apply to cases not therein enumerated; but the same, under rule 46, may be proceeded with, in this respect, in such manner as the court may deem expedient for the administration of justice.
SUIT ON A CHARTER-PARTY.
In a suit by a shipper for the non-performance of a contract of affreightment, the facts which establish the liability of the master also give the libelant a lien on the vessel for the amount of his claim, and therefore it is proper and expedient that the proceeding against the owner or the master and the vessel should be joined in one libel.
REPLEVIN IN ADMIRALTY.
When the possession of personal property has been changed by means involving the breach of a maritime contract concerning the same, or such possession is wrongfully withheld contrary thereto, the owner or other person· entitled, under the circumstances, to the possession thereof, may maintain a suit in admiralty to obtain the same.
DAMAGES-GENERAL AND SPECIAL.
Damages that are not the necessary result of the act complained of, and therefore not implied by law, are special, and the facts constituting them must be particularly stated in the libel.
Suit on Charter-party. O. E. S. Wood and John W. Whalley, for libelants. Thomas N. Strong, for master and claimants. . DEADY, J. This suit was brought by the libelants, Alexander Balfour, Stephen Williamson, Robert Balfour, Alexander Guthrie, and Robert B. Foreman, doing business in this port as Balfour, Guthrie & Co., on November 22, 1885, to recover the possession of 16,868 bags of wheat, weighing 985,484-2,240 gross tons; and $4,600 damages for the non-fulfillment of a contract of affreightment thereabout. On reading and filing the libel, an order was made thereon, allowing process to issue as prayed for therein, on which the vessel and wheat were subsequently arrested. On January 4th, the master, William D. Bogart, filed a claim of ownership for William W. Trombull. The case was argued and submitted on exceptions to the libel. From the latter it appears that on October 3, Ul85, William D. Bogart, master of the British bark Director, then lying at this port, made a charter-party with W. J. Burns, the local agent of the libelants, whereby he contracted to carryon said vessel, at 428. 6d. a ton, a cargo of wheat to a port in the United Kingdom; that between said date and October 8th said vessel was laden by the libelants with the wheat aforesaid, consigned to their own order, for which the master signed two bills of lading, one of which was delivered to the libelants, and on November 14th remailed by them to said agent for re-