particularly in Massachusetts, the state from which Mr, Justice GRAY was appointed, who delivered the opinions of the supreme court in the Wilson and Mackin Cases. I do not agree with counsel, who resist the filing of this information, that the term"state--prison" was used by the supreme court in the general sense of any jail or lock-up of a county or city owned by the state. Such a construction would lead us to the abo surd conclusion that the supreme court meant to hold that no offense involving confinement, however brief, in a state or a city jail or statiunhouse could be prosecuted by information. The supreme court's citation of the act of congress relating to the police court of the District of Columbia negatives such a supposition; that act expressly permitting summary prosecutions for misdemeanors "not punishable by imprisonment in the penitentiary." So far as the infamy of a punishment results from imprisonment, the decisions of the supreme court settle that imprisomnent in a general state--prison or penitentiary inflicts infamy, and that no offense involving such imprisonment can be· prosecuted by information. They further decide that if the statute which prescribes the punishment of an offense allows a imprisonment long enough to authorize the convict to be taken too. penitentiary there cannot be a prosecution by information, however short a term of imprisonment may actually be inflicted by the court. I think these rulings settle the case at ba.r. The statute (section 5506) authorizes an imprisonment for 12 months. Convicts of this .district are sent to penitentiaries outside of Virginia, under the authority of section 5546 of the Revised Statutes, which does not, like section 5541, limit the class of persons sent,to those who are sentenced for "longer than one year." The practice of the court when sentencing for as long a term as one year is to order the confine-ment to be in a penitentiary. Section 5506 and this practice of the court clearly bring the case at bar within the purview of the Cases of WitBOn. Mackin, and De Walt. It is incum bent upon me, therefore, to deny the motion of the district attorney for leave to file the information under consideration.
EDEN PARK INCLINEDRy.
(Ofn'cutt Oourt, S. D. OMo, W. D. December 24, 1889.)
PATENTS FOR INVENTJONS-INFRINGEMENT-PRELIIIONARY INltrnOTION.
In a suit for Infringement of patent for an "improvement in clamping apparatus for connecting street-cars. " etc., "with endless traveling devices," it appl'ared that, neither the complainant nor the defendant was engalfed in'the manufacture or sale of gripping devIces; that defendant's) Ulle of his deVIce bad been continued a.bout four years without notice or intimation :from complainant that he claimed for the patent in suit sny construction that would interfere with defendant's use; that no Irreparable injury would be sut!eredby complainant if a preliminary injunction were refused, but that the operation of such order might be disastrous to the defendant, and might increase the risk of travel in forcing defendant to do away with. some of bill appliances upon hia cable road. lle14, that a preliminary injunotion would be denied.
ROOT ". MT. ADAMS &: EDEN PARK INCLINED RY. CO.
In Equity. On motion for temporary injunction. George Harding and Wood &- Boyd, for complainant. Parkinson &- Parkinson and Ramsey, Maxwell &- Ramsey, for defendant.
SAGE, J; The complainant's suit is upon a patent granted to Wil· liam Eppelsheimer, March 16, 1875, for an "improvement in clamping apparatus for connecting street-cars," etc., "with endless traveling devices." The defendant's device was patented to Henry M. Lane, October 18, 1887, and is for "grip mechanism for cable railways." The complainant moves for a temporary injunction. The complainant's pat-, ent was sustained in the case of Root v. Railroad Co., 37 Fed. Rep. 673, in the southern district of New York. The defendant's device in that caSe was not identical with that used by the defendant in this case, but it is claimed that the decision is broad enough to include it. Before considering that question, however, it will be proper to state certain other propositions which ought to be taken into account in disposing of the complainant's motion. First. Neither the complainant nor the deflmdant is engaged in the manufacture or sale of gripping devices. Second. If the defendant be an infringer, his infringement is not wanton. He has used devic.es patented since the date of the complainant's patent, and his use has been with the consent of the patentee. It was stated in the course of the argument upon the motion, that the defendant was the proprietor of the patent, and there is therefore every indication that the defendant has been acting in good faith, and without any intent to infringe upon the rights of the complainant. This use by the defendant has been continued now about four years, without notice or intimation from the complainant that he claimed for the patent in suit any construction which would interfere with defendant's use of the gripping device employed upon his road. Third. The continuation, during this litigation, of the use by the defendant cannot possibly interfere with the grant of other rights by the complainant. The complainant's invention being suitable for use upon cable railways only, its use upon one line cannot have any bearing upon its use on other lines, unless it should operate as a recommendation for such use. Therefore it cannot be said that any irreparable injury will be suffered by the complainant if a preliminary injunction be refused. On the other hand, while the granting . of the preliminary injunction would not add to sales or other disposition of his rights by complainant, it would, in fact, reduce complainant's recovery, in the event of a decree in his favor, by exactly the value of that use during the pendency of the restraining order. Fourth. The operation of a temporary restraining order might be disastrous to the defendant. It was urged by counsel for the complainant, upon the presentation of the motion, that the defendant could very easily remove from its gripping apparatus the rollers or idler pulleys, and thereby avoid infringement, and that the only detriment to the defendant would be the greater friction and wear of its cable. This is not, however, clear to the court. Without these pulleys there may be danger, in operating the device, of so engaging or entangling the strands of the cable with the
: FEDERAt REPORTER,· vol.· 40.
wooden clamps of grip that thebrakeinan could not release tbe cable cars. If my recollection is not altogether at fault, such an or accident occurred on a cable line in this city within the last year, and was near resulting seriously, if not fatally. Now, the defendant is a common loarrier of passengers. A considerable portion of its'track, between Walnut Hills and tbeheart. of the city; is upon a heavy grade, and tbe .court is not disposed, if it can avoid it"to make an order that may increase the risk of travel. Without entering upon the question whether the defendant infringes, which will be reserved, for the final helLring, it is sufficient to say that there is fair ground for contest between the parties to this litigation. the onlya.dvantage to the complainant that the court can see would result from granting the preliminary, restraining order wonld be, possibly, to force the defendant to a settlement, but that surely would be no ground for a preliminary injunction. The defendant is solvent,· and abnndantly able to pay. any damages that may be decreed against it. The court, therefore, 'taking into account the special circumstances of the parties and of the case, and leaving the questions to be litigated between parties for consideration hereafter, will make an order that the defendant,'wiihih 80 days, execute a bond in the sum of $20,000, to pay to the60fuplainant such sum Ramay upon the final hearing be decreed itl his' favor, and in default thereof that a preliminary injunction ,issue. . ..
(C4IrcuAt Oou'l't,D. Irtaiam,a. December 24, 1889.)
L i'ATlIlNTll .. .. . . , Letters pateJlt No. 168.202, gral)ted.to:E. S. Heatp, SeptelDber 28, 1875, for im· provements'in wash-boards, eonsistingof a grooved flexibliltrame, two corrugated zinc plates, two cross,bars.at the upper end of the plates, a screw-rod extend, ing aeross tj:le frame attohe lower end of the plates, and conneoted therewith by a lap-joint,' is not infri:i:\ged by a wasn-b6ard haVing two straight legs, not flexible, and a straigllt Qap seoured ,1:.0 the legs by tenon and mortiae joints, with a single cross-bar at the upper en4, Mld withQut a Bo.rew-roeL .. '" ,'. , Letters patent No. 187,842; issued t() David t. George, Fe1?1'Uary 27, 1887, for provementsin wash-boards,lleing for substantially the same invention as that de. scrilled in said Heath patent. is 'voidf6r want of patentable invention. Following Pfanschmidt Tf. Mercantile Co"82 Fed;' ReP; 667. ' · , 8. SAlIlE-CoJ:iBTRUC:J,'ION, 011' ,CLADt.. ,,'," ' '.' . . ' Wb,ere a patentee amends his, application ,so as to exclude an improvement described in'a' rejected application citeuby thepatenb-oflice, and obtains a patent on such amended application" enjoin, as an infringement, the use of the deyice chlscribed.. in. the, rejected application, even though thl;) same was improperlycltelli' . '." ,
In Equity. Bill by the Lapham Dodge Company against Henry Sevetin, Frederick· Ostermyer j 'aud'Berg· Applegate·.