HOWARD V.' MAB'!';' 'BUFORD & BURWELL CO.
taking the case out oftha 9peration of the general provision in which stichexeeption is found, my opinion would be that the indictment should negative the exception. This would be in accord with the long-established rule in criminal pleading, that where the exception is stated in the enacting clause, it be necessary to negative it in order that the description of the crime may in all respects correspond with the statute. seq.; 1 Bish. Crim. Proc. § 636; U. S. v. 1 Chit. Crim. Law, 283b Britton,107 U. S. 655, 2 Sup. Ct. Rep. 512. But I do not think that, upon a right interpretation of the statute, the words in question constitute an exception. The offense intended to be defined, the other circumstances existing, is complete whether the letter contains anything of value or not. is indifferent. The words were added simply to prevent a construction so strict as to include only letters and packages containing articles of value. The nature of the offenses created by the two sections differs in essential particulars. Section 5469 is concerned more cially with' thefts and embezzlements from the mails for purposes of gain. Section 3892 deals with unauthorized meddling with the mails for the purpose of gratifying mere malice or a prying curiosity. The intent or purpose which constitutes the gist of the offense is one thing in one of the sections, and quite a different thing in the other. This objection cannot therefore be sustained. The' secontlground of objection is that the indictment does not set forth with sufficient certainty the post-office from which the letter was taken. But the indictment charges that, at Fife Lake, in Grand Traverse county; within this division of the district, the defendant took from the United States post-office a letter mailed at said post-office at Fife Lake, directed to a person named, at Kalamazoo, which is also within the district. I think that this charges with reasonable certainty, that the letter was taken from the United States post-office at Fife Lake. Giving, therefore, to the defendant the same position that he would have had on a motion to quash the indictment, I am slttisfied, upon full consideration, that the objections are not tenable, and the motion in arrest should be overruled.
t1. MAST, BUFORD
(Circuit Oourt. lJ. Minneaota.
PATENTS FOR Il'lVlllNTIONs....INFRmGEMENT-CONSENT DECREE-SCOPE 011'.
Upon defendants' failure to comply with a consent decree admitting the validity of letters patent No. 178,461, for the "Boss" harrow, and the infringement by defendants, perpetuating the injunction and tlxing the damages, an order to show cause for the alleged contempt was issued. Defendants at the hearing contended that the" Harris" harrow, which they were now making and vending; was no infringement. Held, that as the consent decree does not amount to a general decree in plaintiffs' favor, nor aid in construing their patent. 110 ILS, upon the evidence produced, to cover the Harris harrow, the applicat\Qn 10 declare defendants in contempt will be denied.
In Equity. On order to.show.cause for contempt. Suit by Harlan S. Howard and Ellen F. Perkinson, as administratrix of the estate of John E. Perkinson, deceased, against the Mast, Buford & Burwell Company. Prackelton & Oarein8, for complainants. W. D. Cornish and Samuel Magoffin for defendant. NELSON, J. A suit was commenced on February 18, 1886, against the defendant company charging an infringement of letters patent No. 178,461, dated June 6, 1876. A motion was made for a preliminary injunction, which was granted; and on the hearing of that motion the defendant filed an answer, which wal;! read as one of the affidavits in opposition to the application for the injunction. After the preliminary injunction issued, and before any proofs were taken, the parties enter into a stipulation whereby the defendant consented to the entry of a decree against it, admitting the validity of the patent, and the infringement as charged, and consenting that the preliminary injunction should be made permanent, and fixing the amount of damages at the sum of $500. The decree, ill accordance with the stipulation, was signed and filed October 2, 1886. On February 11, 1888, an order was entered that the said defendant and Julius H. Burwell, its officer and agent, show cause on February 14th then following why they sho\lld not be.adjudged in contempt for violation of thE: preliminary injunction, and of the final decree, and the writ of perpetual injunction granted October 2, 1886, and be punished accordingly, and why they should not pay damages to the petitioners, Howard and Perkinson. administratrix, etc., suffered by the violation of said decree and injunctions, together with costs and expenses of this motion, and for further relief,etc. The affidavits presented by the petitioners charge the defendant with making. vending, and using certain harrows alleged to be substantially the invention covered by the letters patent No. 178,461. The nam!') of the harrow.sold by the defendant is the "Harris Harrow". On ,the return of order to show cause, and at the hearing, the defendant adInitted the sale and use <;>f the "Harris Harrow," so called, but alleged that, recognizing the consent decree entered in 1886, they did not obtain the rif';ht to use and sell this harrow until experts had examined the same and pronounced it different in operation, and no infringement of the "Boss" harrow, No. 178,461; and, to sustain this allegation, ·affidavits are presented. Numerous counteraffidavits of experts are also introduced by the petitioners, and the contest is quite vigorous upon the question of the identity in principle and operation of the two harrows. While the stipulation by consent is a part of the record, and in force, full effect must be given to thE! admissions therein contained and embraced in the decree, which, on its face, pUl'Dorts to be a decree by conthem, cannot sent of the parties; Thl:' validity of the patent, as be again questioned, and the exclusive rights oUhe complainants to the invention, as therein conceded, must be maintained. Yet as the patent has never been discussed at a hearing utl0n testimony taken by the par·
UNITED STATES ELECTRIC L. CO. 'V. CONSOLIDATED ELECTRIC L.OO.
ties, and the preliminary injunction was only granted upon the bill of complaint and affidavits, the alleged infringement by the sale ofthe "Harl'ls" harrow depends upon a construction of the claim of the" Boss Harrow," so called, which has never been given by the court. The circumstances would not justify a construction of the patent under the decree entered by consent E'O as to include the "Harris Harrow," and charge the defendant as an infringer, and in contempt of the injunction granted October 2, 1886. As stated in Higby v. Rubber Co., 18 Fed. Rep. 60l. "The case upon the patent was closed months since, and * * * no regular issues are made up, * * * and no appeal can be taken from any order. Under the circumstances of the case, the plaintiff cannot justly assert that the consent of the defendants amounts to a general decree in his favor, or will aid me to construe the patent." If the complainant desires to enjoin the harrow now complained of he must do it by bill in the usual way. Application to declare defendants in contempt is denied. Ordered accordingly.
UNITED STATES EJ,ECTRIC LIGHTING Co. t1. CONSOJ,JDATED ELECTRIO LIGHT Co.
(Oircuit (Jourt, S. D. New York. February 9,1888.)
Plaintiff's assignor discovered a certain process in 1877. but did not apply for a patent until 1881. when an interference was declared with a patent issued III 1879, but on the hearing the rip;ht of plaintiff's assignor to a patent was declared to be prior. It appeared that the letters patent issued in 1879 had. been several times assigned. and finally assigned to defendant. Held, that the assignment of the letters patent was not a sale of the thing or process patented. within the meaning of Rev. St. U. S. § 4920, providing that when the thing patented had been in public use or on sale for two years before application for patent, an action for infringement would not lie.
FOR INVENTIONS-PuBLIC USE-ASSIGNMENT.
SAME-,AaANDONMENT-DELAY IN APPLICATION.
In an action for the infringement of a patent it appeared from the bill that the process was discovered in 1877. but no patent applied for until 1881. Held, that the mere delay to apply for a patent was not an abandonment of the invention.
In Equity. Bill for injunction. Samuel A. Duncan, for plaintiff. Broadnax &- Buel, for defendant. J. This bill is brought upon letters patent No. 306,980, October 21. 1884, and issued to the or.ator, as assignee of Edward Weston, for anirnprovement in the process of manufacturing carbon conductors for incandescent electric lamps. It alleges that Weston was the true, original, and first inventor of this process in the year 1877; that letters patent No. 211,262, dated January 7, 1879, were issued to