importations by these vessels on the dates specified. The considerations which induced the decision in Pott v. Arthur are not found in this case. I t is further contended by. the plaintiff that the phrase at the bottom of the bill of particulars, "E. & O. E. Above intended to include all entries upon which duties and fees were paid by plaintiff to defendant between April 8, 1861, and September 8, 1864," is sufficient notice. Its sufficiency should properly be determined on the trial. If it is sufficient, this motion is unnecessary. The plaintiff further contends that his suit is covered by the act of February 18, 1867; that, therefore, the provisions of section 3012 do not apply;' and that no detailed bill need be served. This question is not before the court on the present motion. It will come up fordecision when plaintiff seeks to recover without having first served such detailed bill. If a bill in the form of the one last served by him is essential to his recovery, he cannot be allowed to amend·it in the particulars asked for after this lapse of time. Motion denied. ,
In re Extradition of HERRIS.
(Di8trict OOU?'t, .D. Minne8ota. November 16,1887.)
EXTRADITION-WARRANT-AGENT OF FOREIGN GOVERNMENT.
A complaint made before a United States commissioner, upon which a warrant issues for the arrest and extradition of a fugitive from justice. is fatally defective if it does notshow'on its face that the person making it was an l1gent or representative of the foreign government. . . ,
SAME-WARRANT-SANCTION OF EXECUTIVE.
Under the extradition treaty of 1842, between the United Statcsand 'Great Britain, the sanction of the executive department of state is necessary, as an initiative step, for the surrender of an alleged fugitive, in order to givetbe commissioner jurisdiction; and where no mandate hasissued showing a requisition dulX made upon the executive authority of this government, the extradition wIll not be granted. .' I:
On Habeas Ccrryus·. Ryan, Fauntleroy & Kerr, fot'Herris.
Dist. Atty. Baxter. contra.
NELSON, J. There are defects in the proceedings for extradition of John Karl Herris, an alleged fugitive from justice ofthe province of'Ontario, in the dominion of Canada, which entitle the prisoner to a discharge from arrest, for the reason that the commissioner had no jurisdiction to , act in the matter. 1. The complaint upon which the commissioner issued a warrant, nowhere on its face shows that the person who made it was an agent or representative of the foreign government. 2. No mandate issued, showing a requisition duly made upon the executive authority of this government, for the surrender.
I have had occasion often to express my views on the questions ullder <lonsideration;and, until a decision binding on this court is made adverse to my ruling in previous cases, I shall determine, as heretofore, that the sanction of the executive department, as an initiative step for the surrender of an alleged fugitive, is necessary to the jurisdiction of the commissioner. The opinion of the late Mr. Justice NELSON, of the United States supreme court, concurred in by the then Chief Justice TANEY and Mr. Justice DANIEL (see In re Kaine, 14 How. 129) commends itself to my judgment as a sound interpretation of the treaty of 1842, between the United States and Great Britain and the law of congress, and I have followed it. Again, the complaint is made,under oath to the commissioner, by James Wilson Murray, and is in the following words: "United' StateN of America, J)i8t1'ict of Minnesota-ss.: Before me, W. A. Spencer, a commissioner of thl> circuit court of the United States in and for said district, and dUJ,y authorized by said court to issue warrants for the arrest of fugitives from justice of foreign governments, personally came James Wilson Murray, who, being duly sworn, upon his oath says that one John Karl Herris did, on the thirteenth day of June, A. D. at the county of Waterloo, in the province of Ontario, in the dominion of Canada, within the jurisdiction and government of said dominion of Canada, and her Britannic Majesty, commit thecril;ne of forgery, that is to say: The said John Karl Herris did, at the time and place aforesaid, unlawfully, wrongfully, and feloniously forge a certain promissory note for eight hundred dollars, ($800,) dated June 13, A. D. 1887, and payable three months after the date thereof, and purporting to have been made by Peter L. Siteweller in of J. K. Herris and John'Herns, by writing and signing the name of said L. Siteweller to the' said promissory note, with intent to defraud. That the said JobnKarl Herris isa fugitive from the justice of the said dominion of Canada, and province of Ontario, and the said her Britannic Majesty, and did, on or about June.13, A. D. 1887, flee into the jurisdiction of the United States for the purpose of seeking an asylum, and that the crime with which the said John Karl Herris is charged is !;me embraced in the treaty of extradition between the United States andller Britannic Majesty, dated August9,A. D. 1842. . J W. MURRAY. "Subscribed and sworn to before me this twenty-ninth day of September, A. D. 1887. WM. A. SPENCER, United States Commissioner." It does not appear in this complaint that the deponent was an officer of, or a representative or agent of, the Canadian dominion; nor is there any recital in the warrant that it issued upon the complaint of the duly accredited agent of that government. The complaint at least should purport to be made by an officer or agent of the foreign Prisoner is discharged. .
HAMMERSCHLAG AMERICAN Box MACHINE CO.
DAY and others.
(Cz'rcuit Oourt, E. D. Penn8ylvania. May 18, 1887.)
PATENTS FOR INvENTIONS-LETTERS PATENT No. 298,879-NoVELTV-COMl3INA' TION OF OLD DEVICES. Letters patent No. 298,879 were granted to Gordon Monroe, Mat 20,1884, for "Box Covering and Trimming Machine." The claims in the patent were for a new and useful combination of old devices. Held, that the combination possessed patentable novelty, and the patent was valid. .
In Equity. . Redding, Wetmore & Jenner, for complainant. Moon & Bliss, for respondents. BUTLER, J. A very few words will express all we desire t() say in this case. The suit-as now pressed-is for infringement of claims 2 and 3 of letters patent No. 298;879, issued to Gordon Mohroe, May 20, 1884, for "Box Covering and Trimming Machine." These claims are for the machine itself, which consists of a combination of old devices. The defense is twofold ,-want of patentable novelty and non-infringement. 'l'he presumption in favor of patentable novelty-arising from the patentmust be allowed' to stand until overborne by countervailing proof, cel'tain and convincing. Such proof we do not find in the case. To diScuss and contrast the several exhibits relied upon by the defendants, and the conflicting testimony ofwitnesses, would serve no useful purpose. It is suf· ficient to say that the evidence does not show sucp a prior state of the a),'t as would justify a finding against the patent. The comLination seems to be new, highly usefUl, and, we think, shows invention. There can be little, if any, room to doubt that the defendants' machine is substantially like the plaintiff's. It embraces the same elements, (or their mechanical equivalents,) combined in the same manner, and operates in the same way. The circumstance that its pasting-cylinder may be an improvemtmt on the plaintiff's is unimportant. Notwithstanding the earnestness and ability with which the defense was presented, It careful examination of the case has led us to this conclusion . .A decree must be entered for the plaintiff as above indicated.
HAMMERSCHLAG MANUF'G Co. v. BANCROFT.
(Oitrcuit Court, N. D. Illinoi8. September 5, 1887.)