':the neighborhood: ;If answer directed to.the·· quality of tlie 'road petitioner'propoRes to build, rather tharl'the' purposes of petitioner's it would be llound; As it 'stands it is not a good answer,'atld'mustibe struck . The fourth answer is that it is not necessary for the petiti9ner to appropriate for use or occupy the lands and premises i'nsilid petition described, or any part thereof. An aver, ment of that kind cannot be made \vithout the facts showing that the necessity does exist. That also must go out. The fifth 'and last answer is subject of a demurrer. In that the defendant shows its incorporation, arid the service in which it is engaged, and alleges that these lands were purchased by it for its own use, and that they are necessary forthe purposes of its organization. It is alleged in the petition that the lands are not in use at all, Rnd in substance that they are private lands held by the Union Pacific Company for purposes other than the service in which it is' engaged. This answer, in myjudgment, meets those allegations. Whether there is any use now made of the lands, such , as claimed by the respondent, and denied by the petitioner, can only be .ascertained upon and itis only afterhearing the evidence ,#lat any decision of matters such as are presented in this answer can be reached. "It is impossible to determine the rights of the parties upon petition and upon the answer only. They are in issue by these charges and coun,ter-charges,ll.nd,we must wait for the evidence before determining the merits of the controversy.' The position of the petitioner that no such answer can be ma.de is subject to the same rule as the defense in respect to the use to be, made of the property. The argument of counsel that .because these things are by the statute not to be submitted to the jury, therefore they cannot be considered at all, is of no weight. Probably it is true that questions which are directed to a jury or to commissionersby the statute ,are to be considered by them, and by them only. It doesnotfol1ow fr()ol this that there may not be any other questions raised, or that there may not be any other methodE! of reaching a decision upon such questions than those that are mentioned in the statute. The demurrer to the fifth answer must be overruled, and the motion to strike out as to an the others allowed.
(Oirc;uit Court, E. D. Renn8ylvania. January 17, 1888.)
ttATENTS FOR INVENTIONS- ·ANTICIPATIOIl'..
Letters patent No. 18l\027. issued December D, Hl76, to Thomas Halton for improvemep,t i!l' Jac9uard looms, claim the construction of the griffs, Or those raIse tbe hooks, of such breadth that when the griffs are elevated the blade still rests below the top of the hooks out of operation, and when the griffs descend the danger of striking the heads of these idle hooks is avoided. OJ) evjdence of prior use at Paterson ap,d Brooklyn; of the Brit· ishpate!l.t issued March 14, 1870, to John Morris for an improvement by mak-
HALTON V. UHLINGER.
ing hooks so as to employ two for the center and border.re,llpectively. the cards; of the French patent issued October24,1834, to James Besl1et, the Jacquard lifting plate waueplaced 'by a'fixed' grate and movable 'frame so that the horizontal needle, when oppoliitea, full portion ofe<card, can withdraw the hook from the grate when the card-cyl,inder is nearest the side of the machine, instead of when it is furthest; and of the publication in 1878 of "Geschecte del' J_cquard Maschin," -the patent was held void for anticipation.
In Equity. This is a suit brought by Thomas Halton, complainant, againstWilliam P. Ublinger, respondent, for an alleged infringement of ,letters patent, No. 185,027, and dated December 5, 1876, granted to Thomas Halton, for improvement in Jacquard looms; the application for which letters patent was filed September 11, 1876. The invention is for a broad blade, or griff, which is not lifted above the top of the hook heads of the Jacquard machine. The griff is that portion of the Jacquard which elevates the hooks of the machine, the hooks in tum being operated upon by needles so as to be left in position or thrown out of position, to be elevated by tbe griffs. The patent claims the construction of the blade!! of the griffs of sqch breadth that when the griffs are elevated the blade still rests below the top of the hooks out of operation, anll when thegrifls descend the danger of striking the heads of these idle hooks i's, a.voided. The defeuses were prior use, prior patents, and pubwas supported by the testimony of witnesses who had operated, or seen operated, Jacquard looms, with improvements upon them similar to that described in complainant's patent, at Paterson, N. J., and Brooklyn, N. Y., at varying periods before theisslle of complainant's patent. The defense of" prior patents was supported by offering in evidence a copy of letters patent granted by the British patent office, to John Morris, of Belfast, Ireland, dated March 14, 1870, the specification and claim of which was as follows:
"I, John Morris, of Belfast, in the county of Antrim, IreJa.nd, do declare the nature the said in ventions for ·improvements in Jacquard apparatus.' to be as follows: My invention has reference to the hooks employed in .Jacquardapparatus. These hooks have hitherto been formed as seen at FiKute 1 oithe annexed draWIngs, and the heads, being single, hlj,ve not allowed of using two cylinders, one on each side of the machine, unless two sets of needles were put in where with my improved hooks I only one set. My invention consists in makir)g double-headed hooks sl1bstantiaUy of the form represented in figure 2, Whereby I can employ two cylinders,one to weave the center and one to weave the border, so that it is not necessary to change the cards, for the cylinders can be put in motion sooner than the cards can be changed."
Also a translation of FrenchpatElnt 3427 dated October 24, 1834, to James Besset, of Lyons, for a 100m for weaving, called by him a "fulling loom," described thereon as follows:
"It differs 6ssentiallyfrom ordinary machines called :'Jacquard machines,' in that, in the latter the lifting plate, or grate. is movable:, and actuates the cylinder which earries the cards. In my ulachine this grate is replaced by a fixed grate and a movable frame, so arranged that when the horizontal needle, top of the crochet-wire, which is auove the which serves to unhook
is opposite to a full orunpierced portion of a card ; it performs the said [withdrawing book from the grate] is nearesttbeeide of the machine, i,nstead of when it isflntbest therefrom." '1'0 sppport the defense oiprior publication, der Jacquard Maschin," 8< work printed in, 1873, was cited bytespondellt. Goo. B. Oarr, for complainant; Goorge J. Harding, and George Harding, for respondent.
BUTLER and McKENNAN, JJ., in an oral opinion, held complainant's pl1tennQ have been antici.pated, and dismissed his bill, with costs to respOiIdElnt.' .
at ".MILLER et at}
FOR lNFRINGEMENT7-tNJUNCTION-PRE,' ' .
(Oircuit Oourt, E. D. New York. March 6, 1888.'
1. PATENTS FOR VIOUS ADJUDICA'IIONS;
Where a patent, involving the sUbjection of steel to heat, had been before the ,courts, and had been sustained to ,the extent of coveririg such pro·, cess "whim the springs are kept'below red heat," held, III this suit, on appli: for preliminary injunction, that the patent would be presumed valid only to the extent expressly covered by the decisions referred to.
, ' '
As upon the preliminary affidavits it appeared that defendants, in the process used by them, heatp.d the springs above this limit. held, .that the appHcatiotifotpreUminaryiIijunction, should be denied" with leave, to renew should complainants be able to s1,lch further evidence of defendants' process of manufacture as to indicate that patent was infrin/;ted.
Duncan, Ourtia Page, .for complainants. Philip J. O'Reilly, for defe:ndapts. .
On application for preliminary injunction. .
LACOMBE,J. This is an application for a preliminary to restrain the defendants from making and selling spiral wire springs, which, il1tn.e process of manUfacture, are subjected to heat, after the wire torm,. with the effect of restoring to the wire the is wound into Jl. strength alld elasticity lost iuwinding,-and in any way practicing the invention described and claimed in letters patent No. 116,266, granted to Alanson Carey, on June 27, 1871 The claim of the paten,t is for "the method of temp.eringfur.niture or other coiled wire springs, described." The ,process set forth. in)he specification consists in the subjllcting of the springs to a degree .ofheat knownasf'spr-ing temper heat, which is about six hundred degrees,' more or least for about eight minutes. The patent has been: several timesoefore the courts, (Cary v.Wolf, 24 Fed. Rep, 139, 141; Cary
i lteported by Edward G. Benedict,
of the New Yor'k bar.