sists in the abuse of the mail, The corpus deLicti was the mailing of the letter in e:X;.eclltion o! scheme." One who advertises for agents to sell goods and distrib\lte circn1ars, with no inten1;ion'to employ such agents, but intending to incite persons to send him money for agents" outfits, without intending any equivalent for the same, and to carry out this device takes a letter and packet from the post-office, and deposits a packet in the post-office, is guilty of the offense described in the statute; though it li'lso appears that defendant haS' filled all orders made upon him for goods sold. U. S. v. Stickle, 15 Fed. Rep. 798. The court say in tbis case that "the offense described in the, statute is a miSdemeanor,,sim,p1 ,' and not, a crime of ,a high grade 0,1' a Y felonious character." An, attempt to defraud a creditor by inclosing with a letter to him worthless slips of'paper, in plage of money which the letter states is inclosed thereWith, and Sending," 6UC/l, let,tel' and slips to the creditor through the mail, is not such an offense as,ilicreated by the statute. 'U. S. v. Owens, 17 Fed. Rep. 72. The elements'of the offense created by the statute are (1) the devising, or intending to devise, a scheme or artifice to defraud; (2) the opening, or intending to open, correliPondence or cOIllmunication with some other person, or inciting such person to open correspondence bl means of the post-office department, with the one devising the soheme; and. (8) In pursuance of the scheme, putting a letter or packet in the mail, or taking one OUt. There must be'a precedent fraudulent intent, and it is not fraudulent, in itself, within the meaning of the statute, for an insolvent to order goods without the present means of paying for them; neither does it faU within the statute for one to order, and,.afterwards purpose of escaping payment. U. S. v. Wootten, 29 Fed. 7U',.\.' ' , In U. S. v. 18 Fed. !tep. 907, which was 'an indictment under the aforesaid BLODGE'!:T, J" ill charging the jury, said: "It is not necessary, in order to make out a case under the law, that the defendant shall be the inventoI' or originator of the lSeheme or artiflce!to defmud. *, ** But if a person uses or attempts to use an old sCheme or device for purposes of fraud, by means of the mails, he is as clearly within tbescope of this law as ,if he was the first to have conceived or thought of such scheme. " '1 As to the ,form and sufficiency of an 'indictment under the section, see U. S. v.Martin, 28 Fed. Rep. 812; In re Haynes, 30 Fed. Rep. 757 j U. S. v. Hoeflinger, 33 Fed. Rep. 469; Ex parte Henry, 8 Ct, Rep. 142; U. S, v. Hess, 8 Sup. Ct. Hep. 571.
MCCARTHY 'V. CLARK.
w: D. l'enn8ylvania.
PATENTS FOR INvENTIONS-PATENTABILITy-ApPARATUS FOR CLEANING CESSPOOLS. "',
Clailll.s 1, 4. and 10 of ,letters patent No. 138,034, issued to William C. McCarthy, Apri122; 1873. for an improvement for apparatus for. cleaning cesspools,'held; in 'view of the state of the art at the date of their issuance, not to describe a 'patentable invention
, In Equity. Bill to restrain infringement of patent. 'rhe patent referred to in the opinion is No. 138,034, issued to Will. iam C. McCarthy, April 22, 1873. Wm. L. Pierce, for complainant. T. H.' DaT>UJj for defendant. PER CURIAM. The patent upon which this suit is founded, is for an improvement for apparatus for cleaning cess-pools, etc., and contains 10 claims, the first,fourth, and tenth of which are involved in this controversy. These three claims, taken together, comprehend the same me· chanical elements, and are divided into three only nominally separate combhiations: 'All these elements are old. Not one,of them isnewj and in view of the state of the art at the date of the patent, which is April
22, 1873, it is difficult to perceive any patentable merit in them. In the machines then in use for similar purposes are to be found like mechanical appliallces, somewhat different in rorm, but adapted to perform exactly the same functions. Under these circumstances, the inventive thoughtfulness of the patentee ought to be manifest; and, certainly, his conception ought not to be within the scope of mere mechanical suggestiveness or skill. Upon the ground alone that the claims referred to do not de::icribe a: patentable iqvention, irrespective of the othedeatures of the machine described in the patent, this suit cannot be sustained, and it is therefore unnecessary to consider the question of infringement. The bill is dismissed, with costs.
Low lit al· .". FELS. 1
(Cireuit Court, E. D. PennlJ1flvania. Apri120. 1888.)
One who in good faith uses a label in ignorance of the fact that is another's trade-mark will be restrained by injunction from further using the same; but if the <'wner of the trade·markhas'liad knowledge of such use of it, 'and through indifference or ne:gligence bas taken no steps· to protect . his rights, he is not entitled toan account of sales or damages. ,
In ,Equity. Bill for infringement of On bill, answer, and proofs. " ,. Alfred Low,and Robert Haydon, of London, England, trading as :aw, Son & Haydon, filed a bill against Joseph Fels, trading as Fels &'00., averring that they and their predecessors were, and had been for a time, manufacturers of soaps and perfumery,especially of a certain soap known as" Brown Windsor Soap," distinguished and recognized by certain well-known marks. stamps, and labels, the property of compHlinants; that Said soap had attained ll great reputation by reason, of its ,superipr and was e.xtensively purchased and uscd by thereby yielding large profits to complainants; that the said mlt1ks, stampS'. and labels, having been employed for a long time past, hadbecomeestablished in the public mind asjndicating that the goods bearing tbem the respondent had been for som'e were the product of time past engaged in manufactUring and venMng a· cOU1pound to. resemble the said "Brown Wind&or, Soap," being colored, marked. stamped, and labeled in imitation of complainants' goods; that such manufacture had been beguil by respondent long after complainants' soap had acquired its, great reputation ; that by reason of the imitation aforesaid, respondent had deceived and enabled others to deceiye the community, thus selling large quantities of his own products, and inflicting a corresponding injury upon the complainants. The biHthen demanded answers' to certain interrogatories embodying the facts.
Reported by C. Berkeley Taylor, Esq;; of the Philadelphia bar.