BAKER and others v. BURTON.
(Circuit Court, S. D. Georgia, W. D. 1887.)
SALE-VALIDITy-VIOLATlON OF INSPECTlON LAWS.
A sale and delivery by a manufacturer or merchant of commercial ferti· lizers in this state, without any compliance with the laws relative to the inspection and analysis of the same, is absolutely void.
A merchant in this state, who receives such fertilizers with the knowledge that they have not been analyzed and inspected as reqliired by law, and who sells the same to the farmers, is a participant in the wrong, and cannot reo cover, on a set-off, amounts paid to the manufacturer for such fertilizer. (Syllabu8 by the Court.)
Motion to Direct a Verdict HUl &- Harris, for plaintiff. E. G. Simmons, for defendant· ·' SPEER, J. This is an action on account, brought by the manufacturer pf a commercial fertilizer. The defendant, Burton, a dealer in fertilizers, , had purchased of the plaintiffs, the manufacturers, 40 tons of "Solid South" guano, and plaintiffs seek to recover the promised purchase money.. The evidence disclosed the fact that the guano was not tagged or branded, nor had it been inspected or analyzed, as required by law. It certainly could not have been contemplated by the legislature that the person who distributes fertilizers in Georgia without a compliance with the laws relating to the inspection, tagging, or branding ofthe same shoUld be punished, while the manufacturer who shipped his fertilizers into the state, in disregard of these same laws, should go unscathed, and be able to recover the amount claimed to be due for the sale of fertilizers, without reference to the statute preventing such recovery. The law was intended for all. It was intended for the man who sells, and also for the man who ships, no matter where he resides, as well as for the man who distributes. The entire transaction is illegal, and violates section 1575 of the Code. The meaning ofthat section is very clear. The manufacturer who makes the article in this state shall have it inspected at the mill or factory where it is made. Certainly there the obligation is on the manufacturer. If manufactured outside of the state, the statute declares it shall be at the place of delivery to the Georgia merchant who sells in large quantities. Can it be contended that the legislature would provide one rule for the manufacturer in this state, and another for the manufacturer out of the state, but who sells his product here? I think not. The manufacturer in this state must see to the inspection. and one who manufactures outside of the state must see before he sells it that it is inspected pro:vided by law. The mai:lUfacturer outside of the state is as much inhibited from selling it as the former, without inspection. Nor does section 1553 of the Code help the plaintiff in this case. v.31F.no.7-26
It is said, however, that this manufacturer does not live in the state, and therefore could not be guilty of a misdemeanor. The only thing that saves him is the fact that the courts of the state cannot reach him. This act is none the less illegal, and none the less vitiates the contract. It is true, however, in this case, that the defendant was as much a party to the violation of the law as the plaintiff, and neither of them has any standing in the court. He may not recover on his set-off for the amount he has already paid, nor can the plaintiff recover. The jury is directed to find for the defendant, without costs.
«(}irlYUit Court, E. D. Pennaylloania. June 28, 1887.)
1. Letters 1?atent 296,210 were granted to the complainant for an improvement' in circular knitting-machines." ,intended for the manufacture of "plush-back stockinet." The improvement consisted, primarily, in combin, ingwith the other parts of the ,machine a divided push-back and a "landing" wheel. and a "presser" wheel, situated where the push-back was intermitted or divided, which structure enabled him to elevate the "plush" thread by eleVating the fabric, the fabric being then pushed down again to enable the subsequent acts of the machine to be performed. The !lnprovement consisted in very slight changes in the old machine. The old machine had been found virtually unsuited to the use for which it was designed. ,The improved ma, , chine made plush-back stockinet IIUCC!lssfully. Held, that, as the cQmbinati\>n , Was novel, very useful, and productive of essentially a new result, it possessed patentable invention.
SAME-VALIDITy-EVIDENCE. PATENTS FOR INVENTIONS-COMBINATION OF OLD DEVICES-INVENTION.
The presilmption in favor of the validity of a patent,arising from the action of the patent authorities in granting it, can be only by reliable and certain proof. '
In Equity. Suit for infringement. Charles Howsen, for complainant. ,J08. O. Praley, for respondent.
BUTLER, J. , The suit is for infringement of several claims of patent No. 296,210, for an improvementin circular knitting-machines, intended for- the manufacture of" plush-back stockinet." The machine in use at the time was that patented by' Kent and Leason. ' The invention is stated to be an improvement upon the mechanism of this machine, and consists essentially of the means provided for raising' the plush" thread up andover the barbs of the needles, in the process of manufacture. In the ol'iginal machine this thread was raised by the instrumentality of what is called, in the Kent and Leason patent,s " blending" wheel, which is eo constructed as toperfotm the double office of closing the barbs and lifting the thread over them, the fabric being kept down by a
by C. Berkeley Taylor, Esq."of tM Philadelphia bar.:
403 bar, known'as the (Cpush-back," under which it passes. The machine, thus constructed, worked iniperfectly,-to such a degree, indeed, as to be of little value. The trouble arose from the construction ofthe "blending" wheel, and its combination with other parts of the machine. It was found that irregularities in the material and fabric, coming within reach of this wheel, were caught, and the needles Consequently bent and broken. As there are usually several sets of the wheels used upon one large needle head, the bendiugand breaking, and consequent embarrassment and loss, were very great. This serious defect of the Kent and Leason machine is proved by the witnesses on both sides. To avoid it, Osborne substituted for the "blending" wheel,two separate wheels, the one termed a cCblending" wheel, which is placed on the inside of the needles, and in operation raises the" plush" thread, and also the fabric; and the other a "presser" wheel, which (placed on the outside) closes the barbs of the needles; and added a second which operates to depress the 'fabric after the" landing" wheel has done its work. These two wheels are virtually formed out of the structure known as the " blending" wheel in the Kent and Leason machine. Mr. Brevoortdescribes the change and its effects as follows: "Osborne, instead of using a blending wheel, and attempting to elevate the I plush' thread by itself; divided his push-back so that the whole fabric could be forced up when it was desired to elevate the I plush' thread, and then, by the second half of the push-back, be depressed again, so that tpe main thread could be introduced." Where the,push-back was divided or intermitted, he introduced a "landing" wheel and "presser" wheel, in themselves well-known devices,but, so far as I know, never used for this purpose. The "landing" wheel is here used in connection with the "presser"wheel, elevating the fabric while the "presser" wheel closes the barbs oftheneedles where the push-back 1's divided, and thus, hy elevating the fabric with the needle barbs closed, also elevated the" plush" 'thread, and the ,fabric is then pushed down again by the second section ofthe push-back. The operation, when performed in this way, is done with certainty and precision, and there is no liability, as in the use of a "blending" wheel, of having the parts catch or break, or cut the work. "Osborne's invention, therefore,consisted primarily in combining with the other parts of the machine a divided push-back, and a 'landing' and a I presser' wheel, situated where the push-back was intermitted ordivided, which structure enabled him to elevate the (plush' thread byelevatingthe! fabric, the fabric being then pushed down again, to enable the subsequent acts of the machine to be performed." The very serious defects of the old machine, and the great value of the improvement, are admitted by the respondents. Osborne's claims are four in number, sfleeifying the improvement in combination with parts of the old machinery. A single claim, or at most two, would While,the application was not filed until October 1, 1888, itheinvention wl'lsmade and reduced to practice on the fourth of lune preceding. Although several defenses are stated in the vnswer,but two were seriously urged ou the hearing: (1) Lack of pat-
entable subject-matter; (2) prior invention. Therewas some criticism of the claims; but it is sufficient to say that the suggestion of ambiguity and deception is not sustained. The improvement consists in very slight changes in the old machine,-simple in their character, and containing nothing new, except the combination. As we have seen, the old "blending" wheel embraced the elements of the two new ones. Wheels similar to these had been long in use in the common knitting-machine. Nevertheless, the combination was novel, very useful, and productive, essentially, of a new result,-the successful manufacture of "plush-back stockinet." I do not think it can safely be asserted that no invention is involved in effecting this change. The Kent and Leason machine had been found virtually unsuited to the use for which it was designed, -its imperfections had been experienced by, and had perplexed, many persons skilled in this branch of manufacture; yet no one save Osborne had discovered the remedy, (unless, indeed, it be Mr. Adams, of whose claims we will speak further on.)' Like many of the most valuable discoveries and inventions made, this improvement seems very siinplewheh made,-the remedy for the aefect in the old machines quite obvious to ordinary observation, when pointed out. This case can be, and probably is, near the border line, but I cannot doubt that it is within the limits of invention. . The remaining defense-priority of invention-was principally relied upon ,On the argument. It is by no means free from difficulty I and was pressed by the respondent's counsel with great earnestness and ability. It is shown that the improvement was put on the respondent's machine in the summer of 1884,-first on a machino known as the "Scheppers." not copied, but The testimony tends to show that the improvement made in pursuance of a conception of Mr. Adams. Precisely when it was conceived, or what the'conception was prior to its embodiment, is not certain or important. It was not worked out or embodied until the attachment was made to the" Scheppers" machine. When was that? This is the material question. ,Considerable testimony has been produced by the respondent to prove that it was in the latter part of May, and consequently four or five days before the improvement averred by the patent, was made, and the complainant has called witnesses in answer. To make a written analysis of this testimony would involve more time than I can spare, and, when made, would be of no material value. I have read it, re-read' it, l1nd considered it with great care. While there is much tending to create serious doubt respecting tpe question involved, it does not seem to present such reliable and certain proof of anticipation as would justify the court in overturning the patent. The presump.J tion arising from the action of the patent authorities must stand until repelled and overborne by this character of proof. Tocreate doubt, however strong, is not· sufficient. The question is one of dates,-always difficult to a party having the burden of proof, in the absence of memoranda, or the existence of special circumstances w4icb Clan, be appealed to with certainty. Here the difficulty is greatly in(lreased by the fact that the dates involved are close togethlfr, separated by an interim
of but four or five days. The respondent has no written memoranda, and while his witnesses all testify in positive terms, and two of them at least refer to circumstances which are supposed to fix the date when the improvement was attached, it is evident they are liable to be mistaken. I do not, indeed, find anything very material to the question that can safely be relied upon, except in the testimony of McQuade and Wetherell; and the testimony of neither, nor of both together, is entirely convincing, even when considered alone. When considered in the light of surrounding circumstances, the uncertainty is increased. The delay in utilizing the improvement, so valuable and importanf as it was, for so considerablea time after its discovery, is not satisfactorily explained. The failure to apply for a patent is inconsistent with the discovery and use at the time referred to; and the reason assigned for the failure to apply is unsatisfactory; it would, indeed, have been a better reason for ur" gencyintheapplication. The testimony of Hibleston and Freeman,pro<luced by the complainant,tends to increase the uncertainty. To reach this conclusion, it is not necessary to ascribe perjury or dishonesty to any. of the witnesses.· . I see no occasion to distinguish the claims in considering the question of infringement. Under the circumstances, the result must be the same whether the respondent's liability is referred to all the claims, or confined to a smaller number. The entire improvement is infringed, and the claims embrace no more. A decree must be entered for the complainant.
THE GEORGEANNA. BERHAUS
and· others v.
(DiBt<rict Oourt, 8. D. New York. May 24, 1887.)
The marshal, in preserving property arrested under process, acts as bailee, and is responsible to all parties interested for its proper care. In th.e absence of any statute or rule of court, he is entitled to be paid his fees at the time he delivers up the property by the person entitled to receive it. o SAME-REV. ST. U. S. 857-STATE PRACTICE. The state practice, as respects fees of the sheriff upon arrest of a vessel or other property by attachment or replevin, requiring the payment of the sheriff's fees by the person receiving the property, is made applicable by section 857 of Rev. St. U. S. The English practice in admiralty is the same. 3. SAME-DISTRICT COURT· RULES 45 AND 65-CASE STATED-LACHES. The libelants sued as seamen, under rule.45, without giving security. The vessel was arrested. and 19 days afterwards was released on a deposit :by the claimant in the registry of the amount sued for, with interest, costs, and oill: cer's fees, under rule 65. The libel, on trial. was dismissed. Held, that the object of rule 65 was not to d.eprive the marshal of his securitY.f.or fees, but to confirm and regulate it; that he was entitled to be paid his fees out of the
t. ADMJRALTY-l'RACTICE-ARREST OF VESSEL-MARSHAL'S FEES.