when reoeived, and to give information to the court respecting the ap.plicants,! he may very properly prepare blank forms of application, indicating in a general way the information that such applications should contain. The whole charge is accordingly allowed. The is that items Nos. 2, 3, 7, 8, 10, 11, and 19 of Exhibit B, aggregating $239, are allowed, and jUdgment ordered for that amount. The 'other items of the exhibit,amounting to $503.30, are rejected as not being valid claims agaiust the United States.
EAMES et aI.
(OirC1lif,t OCYUirt, D.Oo"torado.:March 21, 1890.)
JUROR. Where the question on motion for new trial is whether a juror declared himself in favor of one of the parties before the trial, and there is evia,ence to show that he did. so, the affidavits of the other jurors Showing that he made similar declarations in the jury-room are admissible.
2. SAMB. Where, in a case based' oncon1licting and voluminous testimony, it appears that one of the jurors had prejudged the case, and concealed that fact ftom the defeated party, a new trial should be granted.
At Law. On motion for new trial. O.J.Hughes; for plaintiff. Willard Teller and Wolcott &Vdile, for defendants.
'HALLETT, J.The principal point in support oftbeinotion.for new trial is that one of the jurors had prejudged the base, andthe fact was concealed from plaintiff and his counsel, and was n?tascertained by themuutil after the verdict.Was, returned. Upon exaDJ.iHation on voir dire the juror stated that he. was no't acquainted with the premises in dispute; that he knew nothing ofthe 'controversy, and had formed no opinion concerning it; and that he was entirely impartial between the parof Jesse Sinclair, in which the .latter ties. Plaintiff files the depose&,that he met the jurdi: Atkinson at Aspen, in the months of August an,d.September, 1889, and ha:dseveral conversations 'With him conthese parties. He describes the conversacerning the litigation tiona in these words: "That alfiant in these collverslttIoIl5 a:rgued that the oreal:!owing and mined In the Bonny Bell claim had broken aver from the ridge above, and did not believe that it was a continuous vein or lode, within the meaI!ing of the law, but simply 8 · break over.' That ,the said Atkinson argued!with affiant tothe contl'arYI claiming that tbe BO!lny Bell had a vein with, an apex. and that t,he same. was contin uous, and o,wners of said Bonny Bell claim had a right to follow it. And the ssidA.tkinson also stated thstthe BonIlY Bell had won thefr'rst suit, would Win the second, and would win every time. That his remarks with regard to the'litigation was in fa VOl' of the Bonny Bell, and he expressed his belief in' the correctness of their position. "
HYMAN ". EAMES.
In an affidavit filed by Atkinson, he denies that he had any such can:' versations with Sinclair, and says that he is not acquainted with bim, and reaffirms his testimony given at the trial as to his impartiality. Upon this testimony alone, the deposition of Sinclair being contradicted by that of the juror, it would be difficult to say that the fact was established. But there is more in the record. The juror having stated that he was not acquainte.d with Sinclair, three witnesses testify that they saw him in conversation with Sinclair, and apparently in familiar inter.. course with him, at Aspen, on several occasions during the summer of 1889. One of these witnesses, George R. Ford, was certainly mistaken in the person of Sinclair, but there seems to be no reason for discrediting the others. So, also, the juror was not wholly ingenuous in histestimony as to his residence, occupations, and associations. He told the counsel that he lived in Denver; that he worked for the Colorado Fuel Company; that he had mined at Red Cliff and Ashcroft, and in 1885 on the Aspen View claim at Aspen. This was true, but it was not the whole truth. He had in fact been much in Aspen during three months of the year 1889; and in September of that year, about two months before the trial, he had worked 11 days in a mine atthat place. The questions propounded to him and to other jurors weteobviously intendec.Jto elicit the knowledge and information of the juror·concerning the mines of that locality, and in particular whether he had been subject to the local opinions and prejudices which prevail in a mining camp as to the me"its of mining controversiesol In answering that he lived in Denver, and was employed there, and that he had mined in other camps, but not at Aspen, since 1885, he conveyed the impression that he had no occupation at Aspen, and was not acquainted with affairs there in recent times. A candid desire to explain fully his attitude towards the parties. would have led to some account of his visits to that locality during the year preceding the trial, and what, if anything, he learned of this COIl:' troversy on such occasions. The most important testimony, however, is given in the affidavits of four jurors to the effect that during the progress oOhe trial, and in the jury-roOlu when the jury were in retirement, Atkinson declared that he had· been btl Aspen mountain, had seen the ground in controversy, and had talked with various parties, and was capable of judging of the mat,; ters in issue from his own personal knowledge and informatiorL other juror made a similar statement, and afterwards withdrew it, say.;. ing that he knew nothing of the matter. FivE' jurors testify that they heard no ·declarations of this kind, but it is hardly necessary to say that such negative testimony is not of much weight. Atkinson had little reason to discuss his knowledge of the facts with those who were uniting with him in advocating defendant's cause. Naturally, he would assert his superior opportunities for forming a correct judgment to those only who were opposed to him, and the affidavits referred to were made by such jurors. It is contended that the affidavits assail the verdict, and for that reason they cannot be considered, under the familiar rule that jurors shall
a juror, arid Jlppn tPllt. it #Jat of p.is. associatr.smay resul,t,pf tM9ar,es ,r4mpp.·Trials. is that the ofjur()rsmRy;bj:' on although in any.. may tend to :' can by any.. . after, is and it be n;lade during the progress of thEl proof of ,.>.But whe,llEldlS ,in this case" .tl,J.e qqeation is. whether $ ju,ror,p.revi,9us to, .the trial'iC9tqmi,tted,qimself to 'of th.e parties, and evidenCE! to showthll-the.so d,eclared the of his ass()GllaJ;es he quringthe trial, and in v8ty,persua,sive, and no sound, reason is perit.. fhe.swor.n statements offonr as to dec1aby Atkinson tQtheJ;I1 ,,,:ould seem to give the neceSSll.rypre,t.Qj the testirpony ,!->f, Sinclall', and to; the fact of prejqdge<l .the .. That this ,was ihis counsel fro1p. his OJ) .:t;aJ:?;:dire. f!.U;<l fiied afjid,avjts sayjng that they had no or hiR until.after the ,ov:er. The rule tQllrta.newtrial will.U;ot be granted, for such in case of .an qnju,stverdict. which ,is sajdto be quite gen.eral, U::rhornP. Trj,als,§)lQ,Hn requinng the cou,rt to decide whether Just, seelUs \() :leave the whole much at sea. the ought to btl a new trial, without regard to the of jurors; the real question wquld seem to 1:)e 'wbetheranYlverdict that by One whois.not competent to sit, is l':!-,v"unjt;lst. But if, as would appear to be reasonable, the meaning of the rule is that in a clear, case the verdict shall not be disturbed -[ors!lchcause, it may be:proper to remark that .this case .is D()t of that cbarAAter. " . ·The testip;.911Y at the, trial"was. so highly conflictin.g !lnd voluminous that it ,difficult for jprymen to give it proper Itttention, and the case, is the averagenlind some general no.tioos of W)ld fa,ir woul.d outweigh aU considerations pf law U,poq that a new trial may ground:of incompetency, authorities are DumerOUSt apdthose here to be fqlly in ,point. Vennum v. 659; &(jIJf v·. McP!ter8on, 64111.849; Pearr:y v. In.·. lPlnd. 59,,1.2N. ,E. Rep. allowed on costs of thl'lJsst trial; excepting the9Q!t;ts" mentioned· will abide the .f138»ltof: .the f""
V. JULIEN ELECTRIC
..4t 0,9 "
CO. d at.
(Circuit Court, S.D. N6'W York; March 18, 1890.)
PATENTS FOR INVENTIONS-IDENTITy-BECONDARY BATTERIES.
Letters patent No, 38'7,298 .andNo. 387,299, bot/l 2,1886, to Charles F. Brush, for improvements in secondary are for tile same invention, each consistmg of a plate or'support wibh amechanically applied coating, the only difference between the specifications being that in the one case the coating Is composed of "active lUaterial," and in the ,other of "absorotive substance, adapted' to be transformed into an active coating" upon immersion in the electrolyte. , A aeooridary battery, !'8 referred to in said patents, is a blittery which has no original power of developing a current ot electricity, and becomes active only when a current. elsewhere generated, is sent through Jt. Following muZator' Co. v. Julien Electric Co., 38 Fed. Rep. 121.
.. SAME· .
Bald, patents were not anticipated .lly, letters. patent .No. 58,668, issued April S, 1886, to George C. Percivalji for an improvement in secondary batteries formed by, electrodes consisting of CEl sIDled with coarse conducting powder, and divided by a poroUll partition. ' .
'rhe invention described in said Brush patent No. was not abandoned by . by the descriptions in letters patent Nos. and 261,005, which were issUed to Brush,.July 18, 1882, and August 1, it apPllarlng that t1:le application for tbe patent No. 387,298 was sworn to two days before the applications for said patents Nos. 261;512 and 261,995 were filed, and that' it was filed six days after it was
SAKE-CHANGE IN ApPLICATION. "
Said patent No. 337,298 is not invalidated by the fact that, after the original ap. plication was filed, the expression, "mechanically applied porous, granular, Ilpongy, or equivalent lead, " was phanged to "mechanically appliM, absorptive substanoe, " since such ohange of language did not ohange the invention. .
. " .
Baid 'patent is not unlaWfully expanded by the addition of the word "perfOrations" to .the dl1scription of the .plates, whiohwere originally des.cribed as ribbed 01' since the word "perforations', ". as so used, will be held to mea.n cavities in the plate, and not openings extending through it. "
infringed by a device consisting of metal support plate, with receptacles, and an exterior mechanically applied active material.
by cast, or 'porous coating of
'rhe tentll cill-im of said pat,ent No. 387,298, for "combining by means of pJ1lBsure an absorptive substance and suitable material to form a support therefor," in the process of making a secondary battery Rlate, and the claim of patent No.. 260,654, issued July 4, 1882, to lIaid Brush, for forlUing the plates Of. a secondary consisting in forming receptacles in its surface, then applying oxide of lead to the plate, and within such rece!'t.acles, and afte1'wards subjecting the oxide of lead to pressure," is not infringed by a q,evice in which the coat.ing is put on by the pressure of a trowel o):'spatula,without the use of hydraulic -or other similar pressure. SAXE. Clahtlsl to 6 of patent No. 266,090. issued. October 17, 1882., to said Brush, relatItlg to the,form of the plates for secondary batteries I\S having "ribs," are not ,infringed by a device consisting of plates perforated by uniform square holeS; since the walls between thelle holes; are not" ribs." . . ,
BA81:iin7 of said patent No. 266,090; which desoribes the plates as having "ce11s" or
SAME-NOVELTY. .' .., ; . '.',. "
oavities," and claim 14, which describes it lL&'having "slotsj'perforations,or open-' Ings;" ,are infringed by Claims,.9 and of said patent No. 286,090,.. which deS(ll'ibe' the material of .the' plates as cast lead, are void for want of patentable novelty. ..