COXE, J. There is nothing in these causes which distit1gUishesthem irom Kittlev. De Graaj, 30 Fed.: Rep. 689. It is thought that the lan.guage there quoted from Clark v.Wooster, 119 U. S. 322, 7 Sup. Ct. Rep. 217, is sufficiently comprehensive to include a case where the objection disputing the jurisdiction of the. court is taken at the .earliest possible moment. Although the pointwlts in that case first, presented upon appeal, the decision is clearly to the.effect that the trial cpurt may retain jurisdiotion, if, at the time the bill is filed, the complainant may obtain the equitable relief prayed for'. The demurrers overruled. The defendants may answer within 20 -days.
KORN v. WntBUSOH and others.
(Oircuit Oourt, $.
York, December 19,1881.)
PATENTS FOB INVENTIONS-INFRINGEMENT-PLEADING.
In an action for the infringement of a patent, the question of infringement cannot be determined upon a It is not the province of a plea to interpose defenses which go to the merits, and relate in nowise to matters in abatement or in bar. Such defenses must be raised by answer.
Plea inEquity. . This is an action for the infringement of letters patent No. 247;766, granted to the complainant October 4, 1881, for an improvement in button-hole <llltters. ' -The object of theinventorwas'tooonstruct a pair of button-hole scissors, with the screw-shaft and nut, which fix the definiteplay of the arms of the scissors; locate'd between the- arms. 011e end pf the screw-shaft finnlYf\tta«hed to one arm ofthe scissors; the -other end: fits into a funnel-shaped hole in the arooQpposite, which gives 'R support to that end of the shaft. ," '.The claim is as follows: "As an article of martufacture,a outt6n-hole cutter, hliv'ing the D, securely fastened to one arm of the cutter at one end, and the other end resting in a conical recess in the other arm of the cutter,:the nut, C,working c<>ntpe 811&ft,.P'.. between the tWQ arms, all. constructed and lU"ranged substantially as purpose " The application as ·firstfiled :wa.s rejected upon reference !totwo prior patents, the examiner holding that the change was· a:'fmere work-shop ,expediellt" .noti11volving invention. Thecomplainantthen changed the claim to its present form, and forwarded.'the amendment to the commissioner, with a letter in whicn.he thus distinguishes his invention from the examiner's references:· "The construction in applicant's: case is different. One end of the screwshaft is securely fastened totha inside of one arm, llond ,tpe other end rests in a,c<!llicalrecess in the other arm, forms a support for; this end, and, the nlit works an this sc;rewshaft, alld the seat fixing the of ,the: c¥t ·of the cutter; and the entire lengtn of the screw-shaft is ,sides of the arms of the cutter, thus making the cutter more compact and less -cumbersome." , ". :
KORN V.' WIEBUSCH.
The bill is in the usual form. The defendants have filed a plea, alleging the above faets, and insisting that they do not infringe the patent, for the reason that the only adjustable button-hole scissors made, used, or sold by them do not contain the "conical recess in the other arm of the cutter," or any equivalent therefor. A pair of the defendants' scissors is annexed to and made a part of the plea. They show a screwshaft attached to one of the arms, but neither the screw-shaft, nor the nut which works upon it, enters a hole in the opposite arm, for the reason that there is no hole there of any kind. It is argued for the defendants that the only construction which can be given the patent excludes their device, ahd that the complainant iB concluded from urging any broader' ordifl'erent construction, by reason of the proceedings in' the patent,.office, and the language employed by him in the description and claim. The complainant set the plea down for argument. Paul H. Bate, for complainant. Arthur 'V. Briesen, for defendants. .. .
COXE,J. By setting the plea down for argument the complainant tests its sufficiency, and, in effe\}t, demurs .to it. Myers v. DmT, 13 Blatchf. 22; Cottle v. Krernentz, 25 Fed. Rep. 494; Newton v. Thayer, 17 Pick. 129; Walk. Pat. § 590; Daniell, Oh. (5th Ed.) 692; Story, Eq. Pl. (9th Ed.) § 697; Mitf. & T. Eq. PI. 389. The issue tendered by the plea is whether or: not the defendants infringe the claim'of the patent construedin.. cQnuootion with tb,e.specification, the file wrapper, and contents, and in theJight of the prior art. This is the controversy which usually arises When the defendant denies that he makes, uses, or vends the patented device. In o.ther words, the defendants seek to try the question of infringement u pan a plea. It is clear that there is no authority for sucp practice. If the question were now considered by the court, and decided against the defendants, they could allege the same defense in their answer and try the entire issue again. It is not the province of a plea to interpose defenses.which go to the merits and relate in nowise to matters in abatement or in bar.. Such defenses should properly be raised hyanswer.. Sharp v. Re:isrmer,9 Fed. Rep. 445; Rhode Island v. Massachusett8, 14 Pet. 210. The defendants cite in support of their plea, Hubbell v. De Land, 14 Fed. Rep..4U; but in that case. the court, at page 474, says: "Argnment can hardly be needed to show that the question oithe infringement ora patent-is'uot the proper su bject of a special plea." In the case at bar, where the device is a one, and the issues are sharply defined and f\asily :nndexstood, it is possible that the question of infringement might be satisfactorily determined· in this manner with a saving of expense to all concerned. But a decision once made to this effect will be "recorded for a precedent," which may be invoked in every action of infringement, and thus tend to unsettle and confuse what is now plain and simple. The plea is. overruled,thedefendants to answer in 20
FEDERAL REPORTER. THE OTTAWA. DUNHAM TOWING & WRECKING CO.
(Distrtct Court, N. D. RZtnoia. December 5, 1887.)
SHIPPING-CHARTER-PARTy-LAY DAYS-STRESS OF WEATHER.
The respondent had chartered a tug' of libelant agreeing to pay $125 per day forit while wind-bound. The tug was discharged at Grand Haven. From tbat day, December 7th, she remained in Grand Haven until December 10th; the captain being informed a storm was coming by the signal-service officer. Other steamers ran in and out of Grand Haven until the 11th, and the storm did until the 8th, and there was ample time for the tug to have reo turne<i to Ohicago before it. Held, that as there was no storm prevailing on the 7tn., and no indications of an immediate storm, respondent was not liable for the lay-days.
In Admiralty. . Libel by the Dunham Towing & Wrecking Company against tb schooner Ottawa, respondent, for the services of a tug while detained in port. by stress of weather. .'Jchuyler Kremer, for libelant. Geo. A.- Farr, for respondent. BLODGETT, J. This is a libel for the services of the Morford, at the rate of $125 per day, during the time she was, as alleged by libelant, detained in the port of Grand Haven by stress of weather. The case made by the pleadings and proof is substantially this: On: the first of December, 1885, Buswell & Co., residents of Grand Haven, made a contract of charter with the Dunham Towing & Wrecking Company for the services of the tug Morford to tow the schooner Ottawa from the port of Chicago to Grand Haven,and from there to Cheboygan, Michigan, at the price of $200 a day while engaged in towing. and $125 a day while wind-bound in port, the employment to date from 6 o'clock in the evening of the first day of December. There was some delay in getting out of the port, so they did 110t leave the port of Chicago until some time in the evening of the second of December, the day after the contract commenced. On leaving the harbor they laid their course for Grand Haven; but, as the captain of the tug testifies, after being out two or three hours, they encountered a heavy sea from -the northward, when they drew in towards the west shore of the lake, and kept near the shore until they reached Milwaukee, about 2 o'clock in the afternoon of the 3d, where they laid until about 4 o'clock in the morning, when, the sea running down, they left Milwaukee and ran across to Grand Haven, reaching there on the afternoon of the 4th. They lay in Grand Haven until Monday morn.. ing, the 7th, when for reasons which are not disclosed by the testimony, and not necessary to consider, Buswell & Co. notified the tug that they had no further use for her, having abandoned the idea of getting the· Ot... tawa to Cheboygan, and that the tug could return to Chicago. The tug did not return to Chicago until the ensuing Friday, having left on