(Circuit "Court, E. D. Virginia.
IN VIRGINIA COUPONS.
July 30, 1889.)
When a person, arrested under a capt'as pro fines in favor of the COlllmonwealth of Virginia for the satisfaction of certain fines and costs due the state, tenders the amount of the sam'e in genuine coupons cut from the state bonds, which by law are receivable for' all fines due the state, he is entitled to his discharge, and the acceptance (If tile coupons cannot be refused on the ground that the ,costs belong to .the officers, ,as ther,e is no indebtedness on the part 'of the prisoner to the officers individually for their work and labor. The costs are a part of the punishment, and the officers Chlilllthem not individually, but as officers ofthe state. Application for Habeas Corpus. A. B. Guigon, for petitioner. R. A, Ayers, Atty. Genl., for respondent.
BOND, J. The petition for this writ alleges that Marion Mitchell is illegally confined by the authorities of the state of Virginia, and in violation of the constitution ofihe United States forbidding a state to pass any law to impair the obligations of a contract. The petitioner shows that he was convicted of a misdemeai10r on the 18th of July, 1889, in the hustings court of the city of Manchester, and by that court was fined the sum of $50 and $19.20 costs, which he was adjudged to payor stand committed until the said fine and costs were paid. And that at a subin the same court he was fined $20 after conviction for a sequent similar offense, and $13.20 costs, which he was likewise adjudged to pay or stand committed until he'did so. The petition alleges that after his said conviction and the impositio11'bf the said fines and costs he tendered the amount of the same in genuine cOupons cut from the bonds of the state ofVirginia, which by law were made receivable for all debts, taxes, and' demands of the state of Virginia, but that the officers of the staterefusedto receive them in payment of the said fines and costs, and he was committed to jail, where he now illegally languishes. The return tp the writ, made by H. Fitzgerald, the sergeant.of the city of Manchester, shows that he holds the petitioner in custody by virtue of two writs of capias pro fines in favor of the, commonwealth of Virginia, which are in these words: "The Commo1111'<!alth of Vi1'glnia, to the Sergeant of the City of Manchester, Greetinp.. We command you that you do not omit for any liberty in your bailiwick. uut that you take Marion Mitchell, ifhe be found within the same, and him safely keep until he satisfy us fifty dollars, which we lately in our curporation or hustings court for the city of Mancheste1" recovered against the said Marion Mitchell for a fine assessed on him on conviction of a misdemeanor against our peace and dignity; also nineteen dollars and twenty cents which to us in the same court were adjudged for our costs in that behalf expended. whereof the said Marion Mitchell is con viet as appears to us of record, and have this writ, &c., in the usual form."
The other capias is a counterpart of the one recited, except that the amount of fine and costs is less. The return admits the tender of coupons for the fine and costs, and states that the sergeant was willing to receive them in payment of thennes imposed, but refused to receive them the costs, because such costs belonged, not to the state of Virginia, but to the officers of the or corporation court of Manchester. The question, then, is whether the coupons in question are receivable as well for the costs as the fines imposed by the hustings oourt. The court of appeals of Virginia .has. decided that. such coupons are receivable for all fines due the state, and Weare under no necessity to deternline whether or. not a fine imposed for a misdemeanor is a public due or demand. The capias which plain words that the costs were adjudged we have quoted sets out to "us," for "our" costs in that behalf expended. If any other body or person has recovered anything against the defendant, Mitchell, it does not appear by the capias. It shows that what he is held in custody for is the demand which the court has allowed the commonwealth to make for certain costs which the state has expended, in punishing him for his offense against its peace and dignity. The claim of the court's officers is not mentioned in the commitment. Now, how the state may remunerate her officers for their services to her in this behalf is nothing toihe purpose. When the party pays what is demanded of him, if he pay in coin, the state may allow its court officers to deduct the fees due them by statute, and pay the balance into the state treasury, or she may require the whole amount to be paid into the treasury at once, and' parcel out the statutory costs to her officers as she may by law provide. But in no sense can it be claimed that is any indebtedness on the part of Mitchell to these officers in their individual capacity for. their work and labor in his behalf expended. The costs are a part of his punishment for disobeying the laws of the state. They are imposed by statute, and the officers of the court claim them, not in their individual capacity or name, but in their capacity as officers of the state, and in her name, as the capias sets ant. If these costs be debts due the dfficers, personally, they could sue Mitchell, the petitioner, for them, each in his own name. But after recovery he could not be imprisoned for non-payment of the judgments, for the laws of Virginia forbid all imprisonment for debt; except under peculiar circumstances; and yet, here it is claimed he Can by virtue of this capias be arrested, a capias ad satiifaciendwn1 issue, and be imprisoned for a debt not due the state, but personally to its officers. In· my judgment the petitioner is entitled to his discharge, after surrendering to the sergeant the coupous heretofore tendered for his fines and costs.
(Circuit Court, N.D. New Y01·k.
PA\l'ENTS FOR INVENTIONS-PRIOR USE.
July 16, 1389.)
Letters patent No. 269,535,,granted to Walter S. Ovens. December 26,1882, for an improvement in cake·machines, claims as novel a machine with an intermittingly-moving endless apron ,for carrying the tray along as the cakes are deposited thereon, combined :with a vertically-movable dqugh-hox, and a pan-supporting table, and a material box and mechanism for moving one wards and away from the other, thus depositing the material in the pan. Defendant's machine had a stationary dough,box, with a vertically-moving apron, and it had been in: public use for more than two years before the Ovens patent was applied for Held, that a bill to restrain defendant's use of his machine as an infringement of the Ovens patent should be dismissed.
James A. Allen, for complainants. John J. Bonner, for defendant.
BLATCHFORD, Justice, This is a suit in equity brought by George B, '\Vebster, Horace J. Harvey, and Francis J. Henry against Jeanette Ovens for the infringement of letters patent No. 269,535, granted to Walter S. Ovens, December 26, 1882, for an "improvement in cake-machines." Only claims 1 and 4 of the patent (there being 5 claims) are alleged to have been infringed. In regard to the subject-matter of those claims the specification of the patent says: "Cakes such as my invention is adapted for making have heretofore been made by means of a canvas or rubber-cloth bag held and worked by the hands of the operator, the bag being provided with a slllaU opening at the bottom. Into this bag a sllfficient quantity of the soft cake material is placed, the opening at the boLtom being kept closed by the hand until it is required to drop some of the material to form a cake. when the hand is opened slightly, and the necessary quantity drops onto the tray; or, if it does not flow fast enough, a slight pressure from the hand forces it out. The bag is now quickl v moved up, and, if required, the opening in the bag is closed by the harr.;.), This operation drops and separates a sufficient quantity to form a cake, and is repeated until the tray is filled. The object of my invention is to produce a machine for makingsuGh cakes more rapidly, more uniformly, and more cheaply than can be made by hand; and it consists of a cake-machine provided with the usual endless' apron,and a suitable means for giving it an intermittent .rbovement, in combination with a vertically-reciprocating doughbox provided with the uSlHil follower and mechanism for forcing the dough or cake material through one or more openings in the bottom of the box. 'fhe object in making the dough-box movable vertically is that it may deposit a portion of the cake material npon the tray, from each opening, during its downward movement, and separate the same from the bottom at some point, during its upward movement, as will be Blore clearly hereinafter shown."
The specification also describes, and the drawings of the patent show, a modification wherein the endless apron moves vertically up and down to and from a stationary dough-box. Claims 1 and 4 are as follows: "(1) In a cake machine, an intermittingly-moving endless apron for carrying the tray along as the cakes are deposited thereon, in combination with J vertically-movable dough-box provided with a follower, L2, and a suitabl&