BURGESS V. WINSTON.
For these reasons it must be beld that the instructions to the jury on the question of damages were erroneous, and prejudicial to the defendant. A new trial is granted.
NOTE. See W. U. Tel. Co. v. Burlington & S. W. Ry. Co., 11 Fed. Rep. 1, and note. 10-14, and Sharp v. Whiteside, 19 Fed. Rep. 156, and note, 164-173, for an exhaustive discnssion of the validity of contracts billdmK parties not to do business in particular districts, or to sell to or labor for certain parties only. See, also, McCaul! v. Braham, 16 Fed. Rep. 37, and note, 42-49, as to the development of the modern doctrine in regard to the enforcement of' contract8 of the latter class by injunction. In Bickford v. Davis, 11 Fed. Rep. 549, speCIfic performance of a contract to make peg-wood for plaintiff exclusi vely, was denied on the ground that it was a proper caso for damages at law, and because of' other circumstances that rendered specific performance inequitable. In Iowa contracts have been upheld" not to practice law" in a certain city, Smalley v. Greene, 3 N. W. Rep. 78 i "not to practice medicine" in a certain place, Haldeman v. Simonton, 7 N. W. Rep. 493; .. not to do blacksmithing" in a certain localitr. Stafford v. Shortreed, 17 N. W. Rep. 756; and" not to sell to anyone but plaintiff, withm two miles, for a period oftive years," Arnold v. Kreutzer, 25 N. W. RE>p.139. In Michigan the court enforced bv injunction a contract never to engage in a. specified line of business at Bay City, nor to use nor permit the use of the name" Little Jake," under which the business was established. Grow v. Seligman, 11 N. W. Rep. 404. A contract giving one party the exclusive sale in a certain place of all brick manufactured by another during the season of 1883 was construed in Norris v. Clarke, (Minn.) 24 N. W. Rep. 128.
(Oircuit (Jourt,E. D. Virginia. July, 1886.)
TAXES-COJ,LECTORS-AcCOUNTING TO STATE-VIRGINIA COUPONS-SURETffiS.
Neither a tax collector, nor the surety on his official bond. can discharge his debt to the state, for money received by him for taxes, with the state's'taxreceivable coupons. Laws Va. December 24,1872. '
Upon Petition for Mandamus. The opinion states the case. Wm. L. Royall and D. H. Chamberlain, f<:lr petitioner. Rufus S. Ayers, for respondent. BOND, J. It appears from the facts in this case that E. R. Burgess was the collector of taxes and treasurer of Northumberland county, in Virginia, and as such collected and received the taxes due the state to the amount of $3,222.98, which, with interest, amounted, at the time of this suit, to $3,794.73, for which he has not accounted. G. T. Burgess is the surety on his bond for the faithful performance of his official duties. The state of Virginia, by its proper omeers, brought suit and recovered a judgment for the Bum above stated"and Winston, the sheriff, was directed to enforce the same by an· tlxeCU, tion issued on the judgment. The petitioners tendered coupons for the amount due, which the sheriff refused to in payment. The defendants filed their petition for a mandamus in a state court, to compel the sheriff to receive the coupons in satisfae-
tion of the state's claim, and then removed the cause, by proper process, to this court. The refusal of the tender by the sheriff was based upon the act of Virginia approved December 24, 1872, by which it was declared that it should not be lawful for any collector of taxes to convert any moneys received by him into coupons, but that such collector should account to the treasury in money for all revenue received by him in money. The act likewise forbade him to convert any money received by him into coupons, directly or indirectly. This was the law of Virginia relating to the office of county treasurer at the time of his appointment to and acceptance of the office. It i::l his contract with the state, and G. T. Burgess was surety that he would faithfully perform it. Having embezzled the sum of $3,222.98 of the state's money, he comes into this court, as a debtor of the state, to take advantage of the right of tax-receivable coupon holders to pay their debts to the state in coupons. But the collector never was a "debtor" to the state, in the usual meaning of that term; he was a mere bailee. The money he collected was always the state's, and never his; and his contract with the state was to pay the money he received for taxes in money, and his petition here is that he may pay it in coupons, in violation of his contract. It is not in the power of a bailee to change his relation to the bailor by his own will into that of a debtor, and, though the state has recovered a judgment against him, it has not altered his relation to it, nor subverted the contract he had with it as treasurer. This court has frequently held that tax-receivable coupons must be received for all public dues. It is the established law now, but it has never held that a person cannot make a contract with another that he will not pay in coupons, but will pay in money. He can waive his right to pay in coupons, if he so choose, and that is what petitioner did. He likewise agreed, by taking his office, that he would not convert any money received by him as treasurer into coupons; and now he asks, having in his possession nearly $4,000 of the state's money, to be allowed to convert that amount into tax-receivable coupons, and tender them to the state in lieu of that much of the state's funds which he contracted to pay in money. G. T. Burgess, the surety, is in no better position than the treasurer, except that he has not taken any of the state's funds fraudulently. He is surety that the treasurer would faithfully perform his duty as such officer. This the treasurer has utterly failed to do. By his bonds, as surety, Burgess agreed that the treasurer would pay all moneys received by him in money in like funds. This he has fail.ed to do, and the surety cannot be allowed, by granting this petition for mandamus, to pay in coupons for him. The petition for mandamul is refused, WIth costs.
V. STEW ART.
STEWART and others.
w: n. Pennsylvania.
PATENTS FOR INVENTIONS-INFRINGEMENT.
The first claim of letters patent to Cleon Tondeur, No. 258,156, dated May 16, 1882, for improvements III glass-annealing furnaces, is for "the combination of the bars, d, d', arranged side by side, and alternately between each other, the set, d, supporting the sheets of glass while the bars, d', are pushed towards the leer or flattening wheel, a, and the set, d', supporting the sheets of glass, and moving them onward and through the tunnel, substantially as set forth;" and the distinguishing feature of the invention is that the sheets of glass travel through the annealing tunnel, elevated above the floor, away from the disturbing conditions there existing, so as to be subjected on both sides to heated currents of air, whereby they are uniformly annealed. Held, that it is immaterial whether the vertical movement in shifting the glass from the one set of bars to the other is divided between the two sets according to the description in the specification, or is executed by the transmitting bars alone, the other set being immovable, as is the case in the furnace of the defendants, who are infringers notwithstanding this change in arrangement. The only previously known rests for sheets of glass during their transmission through the annealing tunnel being floor-rests, a disclaimer of "flxed temporary rests" held to mean floor-rests. That the patent may be sustained, the court should adopt the construction claimed by the patentee himself, if consistent with the language he has em· ployed. A construction which would make two distinct claims of a patent cover, not different things, but one and the same thing, is to be avoided, if possible.
SAME-CONSTRUCTION OF CLAIM.
Bakewell <t Kerr, for complainant. John H. Roney, for respondents.
AOHESON, J. This suit is upon letters patent No. 258,156, dated May 16, 1882, granted to the plaintiff for improvements in glassannealing furnaces. The patent, which relates especially to the annealing of window-glass, shows a flattening furnace, having four flattening stones mounted on a circular revolving table or wheel, and a continuous and straight annealing chamber, tunnel, or leer, running directly from the flattening furnace; the heated air from the flattening oven passing, by a clear draught, into and through the leer, and finally escaping at its outer end. Extending longitudinally through the leer, and elevated above the bottom thereof, are two sets of iron bars designated d and d', arranged side by side and placed alternately, one set reciprocating between the other, whereby the sheets of glass are srpported in and carried through the leer. The bars described in the specification are supported by transverse shafts, two sets of arms being attached to each shaft,-one set of arms with hinged joints for the bars, d, and one set of arms with rollers or v. 28F. no.1 0-36