CAMPBELL
1.&.11£8.
513
"While sitting as circuit judge his [the district judge's] authQrity was co-extensive with that of any other judge ting in the same court." Sawyer, J., 8 Sawy. 134, The circuit court is the circuit court, and no law requires that the record should show who holds it, and our records, for a great many years, did not show it. A writ issued by that court; is not issued by the district judge. Power is given by this same section 719 to the circuit judge to issue the writ, but it is much J;l1ore doubtful whether he can issue it as judge, aating at a distance from the clerk's office, when the circuit court is sitting, than it is whether the. circuit court held by the district judge can do so. Rule 55 gives the power to a judge only in vacation, and the power of the supreme court to limit and qualify the statute in that respect Ido not doubt. It, in fact, puts all the judges under similar restrictions to those which the statute imposes Oli the district judge. I have, therefore, no power to issue the writ here, and there is no necessity for my going to New Hampshire, The plaintiffs may apply to the circuit court, presently, to be held by Judge Clark, at Portsmouth, for the order to show cause. Petition denied.
CAMPBELL V.
J AM.IllS and others. --,1880.)
(Oireuit
8. D. Ne'IJI York.
L
POSn!ASTER-"OFFICEROll' THE REvENuE"-REV.
ST. § 989.-A postmaster is not an "officer of the revenue" within the meaning tlf section 989 of the Revised Statutes.
Motion to grant a Certificate under section 989 of the Revised Statutes. Stewart L. Woodford, District Attorney, and B. Clarke, Assistant Distric,t Attorney, for the motion. Marcus P. Norton, opposed. BLATCHFORD, C. J. This is a suit in equity for the infringement of a patent. A final decree has been entered in it v.S,no.9-33
514
REPORTER.
adjudging that the plaintiff recover from the defendant James, personally, a sum of money for such infringement, and awa.rding execution against him personallytherefor.- The infringement was committed by the use by the defendant James, in the post-office.at the city of New York, while he was postmaster there, and in the business of such post-office, of an apparatus for stamping letters with a postmark and cancelling postage-stamps, in infringement of said patent. On behalf of the defendant James a motion is now made to this court to grant a certificate under section 989 of the Revised Statutes of the United States. That section is as follows: "When a recovery is had ill· any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him, and by him paid into the treasury, in the performance of his official du·ty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the direction of the secretary of the treasury or other proper officer of the government, no execution shall issue against such 'collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the treasury." The first question which arises is whether the defendant J ames, as such postmaster, was such an officer of the revenue as is meant by the expression, "other officer of the revenue," in the The section is taken from section 12 of the act of March 3, 1863, (12 U. S. St. at Large, 741.) Such section 12 was in these words: "In all suits or proceedings against collectors or other officers of the revenue for any act done by them, or for the recovery of any money exacted by or paid to suoh officer and by him paid into the treasury of the United States, in the performance of his official duty, in which any district or other attorney shall be ordered to appear on behalf of such officer by the secretary or solicitor of the treasury or by any other proper officer of the government, such attorney shall be allowed such compensation for his services *See Oampbell v. Jamea, 1 FED. REI'. 338.
CAMPBELL V. JADS.
115
therein as shall be certified by the court in which such Emit or proceeding shall be had to be reasonable and'proper, and approved by the secretary of the treasury; and where a recovery shall be had in any such suit or proceedings, and the court shall certify that there was probable oause for the act done by the collector or other officer, or that he acted under the directions of the secretary of the treasury or other proper officer of the government, no executIon shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out of the proper appropriation from the treasury." So much of said section 12 as is not to be found in section 989 of the Revised Statutes is found in sections 827 and 834:. The above section 989 is found in title 13 of the Revised Statutes, entitled "The Judiciary," and in chapter 15 thereof, entitled "Procedure." It it! provided by section 5575 of the Revised Statutes that the 73 titles thereof embrace the statutes of the United States, general and permanent in their nature, in force on the first day of December, 1873, as revised and consolidated by commissioners appointed under the act of June 27, 1866, (14 U. S. St. at Large, 74.) Section 5600 of the Revised Statutes provides that "the arrangement and classification of the several sections of the Revision have been made for the purpose of a more convenient and orderly arrangement of the same, and therefore no inference or presumption of a legislative construction is to be drawn by reason of the title under which any particular section is placed." The act of March 3, 1863, is;entitled "An act to prevent and punish frauds upon the revenue, to provide for the more speedy and certain collection of olaims in favor of the United States, and for other purposes." In section 2 are found the words "frauds upon the revenue;" in sections 3,4 and 6 the words "any officer of the revenue;" in section 5 the words "the revenue laws;" in section 7 the words "any fraud on the revenue;" in section 11 the words "the revenue laws;" and in sections 12 and 13 the words "collectors or other officers of the revenue."
'It is clea.r inat the word ",ravetlUe," in all these forms of expression, pleans bnly the revenue froni customs. The act does not relate to revenue from any other source. So far as it relates to revenue from any source it relates only to revenue from customs. The words of the revenue," in tion 12, mean officers of the revenue from customs. The words "officers of the revenue" in seotion 989 of the Revised Statutes, which is a mere revision or reprint of section 12 of the act of 1863, can ha:ve no different meaning from what it would have had if. there had been no revision or reprint. Under said section 12 the words "other officers of the revenue" 'Would never have been construed to mean a postmaster. Therefore, they cannot be so construed in section 989 of the Revised Statutes. The revi$ion cannot change the meaning of the sarne words by displacing the enactment from the con:' nection in which congress originally placed it. This is the view held by, the post-office department itself; for, in the report of postmaster general to the president, of November 8, 1879, reference is made to this suit, and to the decision on it, by the interlocutory decree, adverse to the is no provision defendant James, and it is stated that of federal law to secure 'certificates of probable cause' to United States officials, other than treasury officials, in cases of adverse judgments for ,acts.-done in their official capacity." This is, unquestionably, a. correct view. For what acts done in their official capacity "treasury officials" may have certificates granted to them,: under the statute, and whether such acts can ever include :the'act of infringing a patent, are questions not involved in this case. The motion is denied, on the ground a.bove stated.
EiANJtER -v. BOSTWIOK. .:
.
BANKER
BOSTWICK
and another.
(Oircuit Court, 8. D. New York. June 14, 1880.) .
In Equity. Geo. Harding and John R. Bennett, for complainant: " Cau,sten Browne and Livingston Scott, for defendants. WHEELER, D. J. This suit is brought for relief against infringement of letters patent No. 43,371, dated June 28, 1864, issued to Banker & Carpenter, assignees of George W. Prince, for an improvement in the manufacture of tin cans, and now owned by the plaintiff. The defences relied upon are that this ment was known to and used by Edward Q. Covell, and was described and shown in letters patent No. 42,351, dated April 19, 1864, and issued to him for an improvement in the manufacture of tin cans' before the invention of Prince. The plaintiff insists that the invention and patent of Covell are for a different improvement from that of Prince ; and that, if . not, Prince invented it before Covell did. The has been heard upon these questions, on pleadings, proofs, and argument of counsel. To understand these patents it is necessary to examine the drawings in connection with and as a part of the specification, and to rely upon them alone, to some extent, to ascertJ,in the exact form and position of some of the parts. Hogg v. Emerson, 11 How. 587. The improvements relate to the joints of flat-sided cans. Covell's invention was of a joint made by having one edge of a plate for a side of a can tUl'lled inwardly, with reference to the can, with a bend at about a right angle, and then out· wardly with a circular bend, forming a shallow groove on the
