ing to the provisions of this law, there must he, not only the commission of the crime, but the person charged must he a fugitive from the state in which it was committed, befolElthe executive authority can be called into action. Jackson was not a fugitive. He had not, in all his life, been in Tennessee; had never fled from it; and his case did not fall within the positive terms of this law. The oath of the detective was false, and the governors of the two states imposed upon. The whole proceeding was a fraud upon the law. If this arrest and imprisonment are to be maintained, the opportunities for wrong and abuse of this law will be great and wide-spread. Commercial transactions are largely conducted by mail and by telegraph. If the seller at one end of the line, and the buyer at the other, with the aid of detectives, in cases of dispute and controversy between them are to be allowed, under such proceedings as these, to have the citizens of one state carried to another state for trial under the false allegation that the person charged has fled, instances of oppression may not be few. It seems to me that the general government cannot stand by and see its laws so trifled with and abused. It is well settled, as I understand it, that where treaties between this government and a foreign nation provide for the extradition Of persons charged with certain specific offenses, and where extradition has been obtained upon the ground that such an offense has been committed, the person whose custody and return has been so obtained, cannot, when brought in the jurisdiction of the court, be tried for a different offense, especially if it be not embraced in the terms oithe treaty. Such a case is not altogether analogous to the one in hand, but it tends to show the good faith required between nations. Certainly the same character of faith should obtain between the executive authorities of the different states of this nation, which ih many respects are foreign to each other. It seems to me that such authority should not be held to the seizure and removal of a citizen of its state when such seizure and removal were procured by fraud, falsehood) and imposition. It is ordered that the petitioner be discharged.
CAMPBEJ,L 11. MAYOR, ETC., OF NEW YORK.
(Oircuit Oourt, S. D. New York, September 21,1888.)
PATENTS FOR INVENTIONS-AcTIONS FOR lNFRINGEMENT-REHEARING-NEWLY· DISCOVERED EVIDENCE.
Act 1839, § 7, declares that no patent shall be invalid by reason of prior sale or use, except on proof that the sale or use had been for more than two years prior to the application. In a suit for the infringement of letters patent No. 42,920, dated May 24.1864, to James Knibbs, for an improvement in steam fire-engine pumps, on application filed May 13, 1864, plaintiff, instead of disproving prior sale and lise, directed 'his .efforts towards disproving consent and allowance to the same, on the supposition then generally shared by th6 bench and bar, and recognized in the answer, that consent and allowanc6 were necejlsary to defeat the patent, and the case was determined accordingly. A sale of an engine containing the invention, which was forwarded April 28,
CAMPBELL tI. MAYOR, ETC., OF NEW YORK.
1862, was found, and on rehearIng, after the decisions of Andrews v. HOfJe'Jj, 128.U. B. 267,124 U. B. 694,8 Sup. Ct. Rep. lot; 676, was held to invalidate the patent. On motion before final decree for leave to take proofs that the engine was built on an order, and was not accepted until after May 13, 1862, held that, as it is not settled that prior construction without sale will avoid the patent, and as the case had been made to turn on an issue to which plaintiff hall addressed no evidence, and as the decision of the motion was not reviewable, the evidence should be admitted.
In Equity. Motion forleave to take further proofs. in this case will be found in 9 Fed. Rep. 500j 33 Fed. Rep. 795j 35 Fed. Rep. 14; 504. . MarCU8 P. Norton, Horace G. Wood, and George Bliss, for plaintiff. Frederic H. Betts, for defendant.
WHEELER, J. The bill in this case sets up as valid letters patent No. 42,920, dated May 24, 1864, and granted to James Knibbs for an provement in steam fire-engine pumps. The answer, among other things, alleges that the patent was void, "because that the said alleged invention; with the knowledge, acquiescence, and consent of said inventor and patentees, had been in public use and on sale in this country for more than two years before the said alleged inventor's or patentee's application for their patent therefor." On traverse of the answer proofs were taken. The record shows clearly that the plaintiff's counsel understood that consent and allowance of the inventor to sale or use of the invention more than two years before the application for a patent were necessary to defeat it; and that: they accordingly directed their efforts to disproving consent and allowance to such sales and use as appeared. and not to meeting the evidence of sale and use otherwise. On final hearing sale and use were fouhd, but without consent and allowance. These Were held to be essentialandcontrolling. The other issues were found for fhe plaintiff, and the pateht was sustained. Campbell v. Mayor, etc., 20 Blatchf. 67,9 Fed. Rep. 500.. After the decisions in Andrews v. Hovey, 123 U. S. 267, 8 Sup. Ct. RepA01; 124 U. S. 694, 8 Sup. Ct. Rep. 676, settling that consent and allowance are immaterial, and that mere sale or use, not fraudulent or surreptitious, is ,sufficient, the defendant moved for leave to amend the answer, if necessary, to raise the question of sale and use alone, and for a rehearing. The amendment was held to be unnecessary to form an issue ltS to mere sale and use. A rehearing was had, and the case was re-examined. The application for the patent wa,s filed in the patentoffice May 13, 1864. A sale of a steam fire-engine containing this vention; called the "Governor Hill," by the Amoskeag Manufacturing Company, to the city of Concord, N. H., sent on the 28th day of April, 1862, was found; and this sale was held, in view of the decisions in Andrews v. Hot'ey, to be sufficient to defeat the patent. Campbell v. City of New York, 35 Fed. Rep. 504. The plaintiff now, before final decree signed(illoves for leave to take proofs to show that the Governor Hill waS built on an order from the city of Concord, and, although forwafd'ed before, was not accepted till after May 13, 186·2; that this engine did hot in fact contain this invention; ahd that putting the invention into any
by the Company, except into tire Jason·G.Osgood at the the inventor as an experiment, ' s'urreptitibtiS and reference to his right· to a patent. Thls.motion is resisted upon·the alleged grounds that the evidence is not or might have baendiscovered by due diligence; that it is cumulati've;'that it would iJ.6t in fact show anything fraudulent or surreptitious in the respect claimed; that it would not change the result as to into.tlle(fl-o}1'ernor Hill; that the effect of the sale upon the .patent would nctJ>e i and that the construction of the Governor Hill, which was unquestionably before May 13, 1862, would, without reference to the patent, if it contained the invention. All these grounds have been considered in connection with those urged in favor of the motion. These questions of law arise upon section 7 act of 1839, (5 St. 354.) That section provided that a constructor ()r purchaser ora newly-invented machine, manufacture, or composition o£.matter should have ,the right to use and vend for use the specific thing without liability, but said nothing further about the effect of the construction. It declared that no patent should be held invalid by reason sale, or use prior to the application for a pat't'nt except on proof of abandonment, or that the, purchase, sale, or prior use had been for more than two years prior to. the application. Here is no declarationat all agaInst the validity of the patent other than what is implied from the exception, and the construction of the patented article is left out of that. The latest reported sayinK of the supreme court upon the subject appearl'l to be that at the close of the opinion in Andrews v.Hovf'/Jj, 124 U. S. 719,8 Sup. Ct. Rep. 686, where Mr. JusticeBLATcHFORD said: "The second clause of the seventh section seems to us to clearly intend that, where the purChase, sale. or prior use referred to in it has been for more than two years prior to the application. the patent shall be held to be invalid, without regard to the consent or allowance of the inventor." Here is no reference to the construction, but only to purchase, sale, or usej and no reference to the first clause of the seventh section, which alone relates to the con!'ltruction. The statement by the same learned justice in the opinion in the same case in 123U. S. 274, 8 Sup. Ct. Rep. 105, that "the plain declaration of the second part of the section is that, where the purchase or cpnstruction of the machine or article took place mor,e two years prior to the application for the patent, or where the 1;1se,or sale by the person who so purchased or constructed the machine or article took place at a time more than two years prior to the application, the patent becomes invalid," has been observed. But when that the second clause does not include construction in its declaration; and that use by the constructor more than two years prior to the application ill referred to as one of the things that would defeat the patent, wp.ich woulck pe. defeated besides by the necessarily prior construction i(that would hive such effect, are' noticed, the intention to hold and declare that confitruction alone of the patented article, without sale or use two years prior to the application, would defeat the patent, does not
clearly appear. At most that intention does not so clearly appear as to make the exercise of discretion not understood to be reviewable, in a matter so important as that here involved is, to properly depend upon it. This ground does not,in view of the terms of the statute, and what has been decided upon them, seem to be sufficient to control the decision of this motion. The conclusion that the bill should be dismissed was reached because of the sale merely of the Governor Hill. The argument of the defendant in respect to this is that, if what took place was what the evidence sought to be introduced would tend to show, the patent would be none the less defeated by it. The statute uses the word "sale "simply, and refers to the sale'as a completed transaction, required to have been fully accomplished at least two years prior to the application, in order to defeat the patent. An order for the construction of the engine, accepted, would not make a sale of it. If the terms of the order were such that the construction, as it progressed, was for the city, and the maker merely furnishedthe labor, and materials which became the property of the city when used, the city itself would construct the en.. gine, and there would be no purchase of it by, or sale of it to, the city, and nothing, in the view now taken of the effect of construction, to affect the right of the inventor to a patent until there was use of the engine by the city. And if the terms were such that the engine remained all the while the property of the maker as it was being built, a passing of the title afterwards would be necessary to make a sale to the city. This would not be done by merely forwarding the engine. It would be the property of the maker when forwarded, and delivery to and acceptance by the city would be necessary to make it the property of the city. A refusal to accept it might make the city liable for damages, but that would not affect the right to the patent. The statute did not provide that it should. The evidence would tend to show that there was no sale completed oBhe Governor Hill prior to !l-fay13, 1862. The suggestion that the· evidence is cumulative doee not Seem to be well founded. There has been in reality no evidence on the part of the plaintiff tending to· prove the. facts noW to be established ; that it is either not newly-discovered, or was not so situated but that d.ue diligence would probably have discovered it, is clear. If the right to l1ave the case opened depended upon that, the propriety of a oJ the'lnotion would be plain. But theissue to which the evidence is material is, on the part of the plaintiff, newly-discovered. The decision in Ll1ldrews v. Hovey has discovered it to those who took the testimony in his beHalf, as well as to others. The law is not altered by that decision, .but is declared to be different from what it was understood to be by them.. The f(lrm oithe answer appears to aided that The.case has been made to turn upon an issue of fact,to which the plaintiff 'has addressed no evidence. As the case now stands,· the finding could not well be otherwise; but it is reached \fith a senseofinsecurity thatnlakes it quite unsatisfactory. The plaintiff and his counsel were in duty bound to. know the law, and /l.re to the conseql1ences of misunderstanding it, and arenotentitJed to relief from the consequences while the misun-
derstanding was due to their own fault. That it was shared by others, and by courts as well as by counsel, is shown fully by the briefs of coun· sel and opinion of the court in Andrew8 v. Hovey, 124 U. S. 694, 8 Sup. Ct. Rep., 676. That it was shared to some extent by the counsel for the defendant, is shown by the form of the answer; although the present 'Counsel for the defendant, at the first hearing in chief, strenuously con· tended that the law was as it was afterwards declared to be in that case. In view of all this, the rulesoLlaw do not seem to require that the. plaintiff shall be tied down to the consequences of the misunderstanding; and the prinoiples of justice would appear to be furthered by relieving him from them. As this is a matter of disoretion not reviewable,the exercise of it in a manner that will admit the evidence where due weight can be given to it, seems safer than the exclusion of the evidence from any ,consideration would be. The plaintiff has leave ,hereupon to take and file testimony as to the engine the Governor Hill, and as to fraudulent and surreptitious use of the invention by ,the Amoskeag Manufacturing Company, within 60 days. ,The defendant has leave to take and file testimony to meet this, and as to any use of the invention prior to May 13, 1862, by the Amoskeag Manufacturing Company, within 60 days after. And the plaintiff has further leave to take and file testimony in rebuttal within 40 after that.
F. & P. M. No.2.
CARTIER V., THE
F. & P. M. No.2.,
& P. M. R. Co., Claimant.)
(Circuit Court,E. D. Wi8consin.' October 1, 1888.)
tug, :having in tow a raft of logs about 600 feet long, and of sufficient width to fill the channel, arrived off the harbor at about 8:30 o'clock P. M. The night was dark and rainy. a slight sea was beginning to make, and the was running strong out of the harbor. The tug exhibited the regulation greeJ;l. and red lights, and two vertical white lights indicating a tow; the lights baingvisible only from right ahead to two points abaft the beam. There was no ligh't upon the raft, bnt there was a lantern in a yawl-boat at the real' of th>:lraft. A propeller, approaching the harbor from the same direction, saw the light at the stern of the raft, which appeared to be about a quarter ofa mile from the propeller. and to be that of a schooner at anchor. The tug served the lii\'hts of the propeller, and sounded a danger signal, which the propeller supposed to have proceeded from some vessel in the harbor. A second signal was sounded, whereupon the propeller, unable to see any lights except ·the light in the yawl·boat. checked its speed, and. on the sounding of a third signal, made a circle in the lake. and then entered the channel, where it collided with the raft. The mate.of the propeller saw no lights ahead.on entering. the channel, but heard the tug's exhaust, and knew therefrom that a tug with ato'W was somewhere in the channel. Held, that U. S. Nav. Rule No. 12, requiring rafts naVigating or moored in any bay, harbor. or river to carry one or more white placed in the manner prescri bed by the board of supervising iJ;lspe,ctors of steam-vessels, did not authorize the regulation made by the boal'(l. that rafts in tow should carry certain white lights, and that the .),. tug, did not violate statu,tory regulations in not liO lighting the raft,; "
CoLLISION'--"BETWEEN TUG AND S'l'EAMER-TuGs-LIGHTS.