UNITED STATES V. CHASE.
begin to run as in other cases of breach of corporate trust. See Pierson v McCurdy. wpra. b. RlJ8ultant, Constructive, Implied TrustB. The statute of limitations will run in favor of the trustee of a resultant or cOllstructive trust from the time he disavows the obligations of the trust. German-American Seminary v. Kiefer, (l\1ich.) 4 N. W. Rep. 636; Otto v. Schlapkahl, (Iowa,) 10 N. W. Rep. 651; Strimpfler v. Roberts, 18 Pl'. St. 283; Gebhard v. Sattler, 40 Iowa, 152; Smith v. Davidson, 40 Mich. 632. Where a trust arises by implication out of the agreement of parties. and there is no conflict of claim, or adverse possession between the trustee and clJ8tui que trust, statutes of limitation do not apply. Taylor v. Holmes, 14 Fed. Rep. 498. 32. VERBAL CoNTRACT TO CONVEY. Where money has been paid on a verbal contract to convey land, the statute does not begin to run against an action to recover the same until the date of demand or refusal to convey. Tucker v. Grover, (Wis.) 19 N. W. Rep. 62; Clark v. Davidson, 53 Wis. 317; S. C.lO N. W. Rep. 384. See Thomas v. Sowards, 25 Wis. 631; N. W. U. P. Co. v. Shaw, 37 Wis. 655. 33. WRONGFUL ACT. Where a wrongful act has been committed, in the absence of fraud the statute begins to run as soon as the wrong is committed, although the plaintiff may be ignorant that a cause of action has accrued, Dee v. Hyland, (Utah,) 3 Pac. Rep. 388; Jordan v. Jordan, 4 Greeni. 175; Thomas v. White, 3 Lltt. 177; for the statute does not protect plaintiffs who are ignorant of the facts necessary to enable them to bring suits, unless that ignorance is occasioned by some improper conduct on the part of the defendant. Froley v. Jones. 52 Mo. 64; Wells v. Halpin, 59 Mo. 92. Failure to credit a payment on a. judgment is not a fraud, and the statute of limita.tions begins to run from the date of the payment. ShrevE'S v. Leonard, (Iowa,) 8 N. W. Rep. 749. See Gebhard v. Sattler, 40 Iowa, 153: Brown v. Brown, 44 Iowa, 349; PhOlnu Ins. Co. v. Daukwardt, 47 Iowa, 432; Higgins v. Mendenhall, 51 Iowa, 136.
UNITED STATES 'V. CHASE.
June 80, 1886.)
CRIMINAL LAW-INDICTMENT-MOTION IN ARREST OF JUDGMENT-SECTION
1025, REV. ST. Under section 1025. Rev. St., a technical defect in an indictment, not tending to the prejudice of the defendant, affords no ground for a motion in arrest of judgment after a plea of guilty.
POST-OFFICE-OBSOENE MATTER IN MAILS-TAKING FROM MAILS-DEPOSITING SAME. .
The clause in the act of congress of July 12, 1876. "for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of, the same," applies only to the offense of taking an obscene publica.tion from the mails, and not to that of depositing one in them.
Chas. Almy, Jr., Asst. U. S. Atty., f01' the United States.Warren O. Kyle, for defendant. Before GRAY and COLT, JJ.
GRAY, Justice. This is an indictment on the act of July 12,1876, c. 186, (19 St. 90.) 1'he first two objections taken to it are that the Jetter alleged to have been deposited in the mail is imperfectly described; and that the allegation that the defendant knowingly deposited an obscene, lewd, and lascivious letter is defective, because, construed by the technical rules of criminal pleading, the averment is only that the defendant knowingly deposited the letter, and not that he knew its character. The first objection is supported by the
decision in Com. v. Wright, 139 Mass. 382, S. C. 1 N. E. Rep. 411, and the seconll by the decision in Com. v. Boynton, 12 Cush. 499. But both these objections relate to defects or imperfections in matter of form only, not tending to the prejudice of the defendant, and therefore, under section 1025 of the Revised Statutes, affording no ground for a motion in arrest of judgment after a plea of guilty. The third ground of the motion in arrest of judgment cannot be maintained. The clause in the act of 1876, "for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of, the same," applies only to the offense of taking an obscene publication from the mails, and not to that of depositing one in them. This construction is sufficiently manifest on the face of this act, and is confirmed by comparison with section 3893 of the Revised Statutes, of which it is an amendment and enlargement. The fourth and fifth reasons assigned for the motion in arrest present a more difficult question, which is, in effect, whether the act of 1876, enumerating "every obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character," "and every letter upon the envelope of which, or postal card upon which, indecent, lewd, obscene, or lascivious ,delineations, epithets, terms, or language may be written or printed," includes an obscene letter inclosed in an envelope or wrapper hearing nothing but the name and address of the person to whom the letter is written. The decisions in other circuits are conflicting. U. S. v. Loftis, 8 Sawy. 194; S. C. 12 Fed. Rep. 671; U. B. v. Gaylord, 11 Biss. 438; S. C. 17 Fed. Rep. 438; U. S. v. Morris, 9 Sawy. 439; S. C. 18 Fed. Rep. 900; U. S. v. Comerford, 25 Fed. Rep. 902. We are divided in opinion upon this question, and therefore, according to the usage of this court, deliver no opinion upon it, but, at the reo quest of counsel for the United States, order it to be certified to the supreme court.
Co. and others.!
(Circuit Court, S. D. New York.
PATENTS FOR INVENTIONS-PATENTABILITy-INVENTlON.
To make a suspender end of flat cord, in substantially the same way that suspender ends of round cord had been made, and in substantially the same way in which flat button ends had been made, for the purpose of fastening or securing other articles of wearing apparel than trousers, is an exercise of the ordinary skill of the housewife or the seamstress. Letters patent No. 169,855, of November 9, 1875, to Abraham Shenfield, for an improvement in suspender button-straps, are void for want of patentable novelty.
2. SAME-SUSPENDER ENDS.
JEdited by Charles C. Linthicum, Esq .. of the Chicago bar.
SHENFIELD V. C\ASIIAWANNUCK MANUF'G
In Equity. E. N. Dickerson and E. N. Dickerson, Jr., for plaintiff. Edmund Wetmore and Wm. A. Jenner, for defendants.
SHIPMAN, J. This is a bill in eqnity to restrain the defendants from the infringement of letters patent No. 169,855, dated November 9, 1875, to the plaintiff-, for an improvement in snspender buttonstraps. The nature and extent of the alleged improvement upon the pre-existing cut art described by the patentee in his specification, as follows:
"Suspender ends have been made of leather. felt, jean. and similar material, with the button-hole cut in the same, and in most instances the materials have been pasted together, in addition to lines of stitching surrounding the button-hole. Suspender ends have also been made of a round cord. with the ends turned back and fastened to form loops; but this round cord is objectionable, as it does not lie flat against the person or beneath the buttons. I make use of a suspender end made of a double flattened cord or strip, bent around into a loop, and united together, leaving sl1ffieirnt of the loop open to form the button-hole. At the other end the slIspender end is united to a buckle or clasp hy a'loop, or folded pipce of leather. or other material, stitched to the suspender end. * * * The cord or strip of flat material is composed of silk, linen. cotton, worsted, or otller suitable Lhreads, or a mixture of two or more, Rnd the threads are woven, braided. knitted. crocheted. or otherwise laid up into the form of a complete flat cord or strip. and when the strip is folded to form the button-hole loop, the seam at;) may be made by sewing, knitting, crocheting. or otherwise; or the knitting or crocheting is commenced at the central line. 3, am] extended at both sides thereof, and around the bot· tom-hole, by the successi ve ranges of interlocked loops."
The claim is for "the suspender end, made of a flat cord or strip of fibrous material, bent into a loop, laid flat wise, united at the inner edges, 3, and connected to the attaching pieces, d, as set forth." It is stipulated by the respective counsel as follows:
"Complainant hereby admits that prior to the year 1870 there had frequently been publicly used. in the manufacture and wearing of cloaks and jackets, button-loops formed of flat braid, bent edgewise upon itself, and sewed together at the meeting edges, leaving an opening for the button-hole at the bend; that the ends of the braid in snch button-loops were permanentlyat. tached to a button, or like device', whieh was affixed to one side of the body ')f the garment; and that the button-loop held the garment together by being :mttoned onto a button. or like device, sewed to the other side of the garment; and that. when in use, the braid forming the hutt.on-loop rested under the button; and that such braids were made by machinery."
It thus appears that while suspender straps had been made of a. round cord, with the ends turned back and fastened to form loops, the patented improvement consists of a cord or strip of any fibrous material, which is made flat in any way, bent into a loop, and united at the inner edges, and connected in the ordinary way with the buckle by a folded piece of leather or other material; and it further appears that button loops, to fasten the two sides of a cloak or jacket together, had been made in the same way, except that one end was permanently attached to a button or like device.
Whether the suspender end is, as it is called by the defendant, a double use of a well-known cloak loop, or is, as it is said to be by the plaintiff, an improvement upon a suspender end made of round cord, it equally seems to me that the improvement is devoid of invention. Shelljield v. Schirmer, 21 Fed. Rep. 241. To make a suspender end , of flat cord in substantially the same way that suspender ends of round cord had been made, and in substantially the same way in which flat button ends had been made, for the purpose of fastening or securing other articles of wearing apparel than trousers, is an exercise of the ordinary skill of the housewife or the seamstress. The connection of the end to the attaching piece gives no patentable character to the loop. The attachment to the buckle is made in a customary, well-known way. As the improvement, by whomsoever made, was not "new," in a patentable seuse, it is unnecessary to examine the earnestly disputed question of priority of use. The bill is dismissed.
TROY LAUNDRY MAC:E[INERY Co. and others
«(}i;rcuit Court, No D. New York.
'V. BUNNELL. f ' I
PATENTS FOR INVENTIONS-INVENTION-ADAPTATION OF OLD DEVICES.
It may involve invention to make changes or modifications in parts which ,were substantially old, in order so to combine them as to effect their efficient co-operation.
2. SAME---:PATENT FOR IMPROVEMENTS MUST BE LIMITED TO SAME.
Where the invention consists in changes or modifications of old elements in order so to combine them as to effect their efficient co-operation, the claims of the patent must be carefully limited, either by express terms or by fair con· struction, to the precise improvements made.
It is not invention merely to bring old d!lvices into such juxtaposition as will allow each to work out Its own effect, without contributing any new function or mode of operation. 4. SAME-No. 258,334. MACHINERY FOR FOLDING AND CURLING COLLARS, VOID. Letters patent No. 258,334, of May 23, 1882, to Thomas S. Wyles, for rna· chinery for folding and curling collars, held void for want of patentable novelty, in view of patents No. 57,308 and No. 173.096, and the "Churchill Machines," which were in common use as early as 1870.
3. SAME-COMBINATION, WHEN NOT INVENTION.
In Equity. Wm. H. King, for complainant. Ward ([; Cameron, for defendant.
WALLACE, J. The complainants allege infringement of letters patent No. 258,334, granted to Thomas S. Wyles, May 23, for machinery for folding and curling collars. The defendant, besides
Edited by Charles C. Linthicum, Esq., of the Chicago bar.
TROY J,AUXDRY MACHINERY CO. V. BUNNELL.
denying infringement, relies upon the want of novelty in the patented invention. 'fhe object of the invention is to dispense with the hand labor of folding and curling linen or cotton collars· after they have been starched and partially folded, and to substitute mechanism by which starched and partially ironed collars, having the curved foldline moistened, can be accurately folded, curled, and dried progressively, from end to end. The machine described in the specification consists of a feeding guide, E, two rollers, Band C, and a curling guide, G. The feeding guide serves to introduce and direct a partially folded collar between the two rollers. The rollers are supported, rotated, and pressed together by any suitable meq,ns. The roller, B, is of much greater diameter than the roller, C. The collar feeding surface of the roller, B, is made elastic, a tight layer of felt covered with muslin being commonly used to give it this quality. The roller, C, is of metal, with a hard, smooth surface, and is adapted to be artificially heated. 'fhe curling guide is concavely curved, with its concaved surface in the form of a section of a hollow cone. In operation, the collar, partly folded, and having the curved fold-line moistened, is placed in the feeding guide, E, which is inclined to the plane of contact between the two rollers; is introduced by the feeding guide between the rollers; and by their action is pressed and dried, retaining a curved shape, until it issues from between them into the curling guide, G; and is directed in a spiral course, by the form of the curling guide, away from the point where it enters, from between the rollers, and discharged in a curved shape. The patentee refers in his description to two prior patented machines, as follows:
"United States patent No. 57,308 shows and describes a machine for moulding, turning, or flaring outward the fold portion of a folded paper coUar, by the combination and arrangement of a concave roller, a convex roller, a gUide to direct the folded collar between the rollers, and bend it towards the concave roller, and another guide to receive, bend, and direct the collar as it issues from between the rollers; but that patent does not show, describe, or mention any roller haVing an elastic, yielding, or cloth-covered surface, nor any means whatever for heating one of the rollers. Consequently that machine was not capable of folding, drying, and curling a pal'tly-folded starched and ironed collar, haVing a moistened fold-line; and that particular combination and anangement of the two guides of the concave and convex rollers would not produce the plain fold required in starched and ironed collars having curved. fold-lines. United States patent No. 173,096 shows and describes a plain clothed roller, combined with a plain hard roller of less diameter than the clothed roller, and means for supporting and rotating the rollers, pressing one against the other by a yielding force, and heating the hard roller, but without any folding and curling guides; 80 that that machine could not accurately fold and curl partly-folded, starched, and ironed collars, baving curved lines of fold."
The claims of the patent are as follows:
"(1) The combination with the rollers, B, C, of tlle folding guide, E, and the curling guide, G,· in the form of a section of the inner surface of a hal" low cone, and arranged in respect to said rollers and folding guide substan-