ri'DERAL REPoRtER ,vbl. 46.,'
deposition, dause,:ahdof all irregularities in the case prior to giving of the bail. U. S. v. Eldredge;CUtah,) 13 Pac. Rep. 677. See, also, City oJ JunctiOn City v. Keeffe, (Kan.) 19 Pac. Rep'. 735; Ard v. State, (Ind.) 16 N. E. Rep. 504; State v. Tennison, (Kan.) 18 Pac. Rep. 948. The next objection is t6 the scireJaciasj that notice of the rule to plead to the flmre Jacias had not beetlserved upon Jaudon after he appeared. Examining Jaudon's feturntothe sci1'e Jacias, it is something more thlio an appearance,..:...-it is an admission of responsibility, and an application to the grace 'of the court for time within which to surrender his absconding principal. He does, in this connection, ask for a continuance, and such continuance was granted on his motion; but this was not a continuance of the trial, but a continuance of the cause, so as to suspend the entry of confirmation of jUdgment. There is a.n error in the order upon the scire Jacias. It provides that judgment be entered. As we have seen, the recognizance itself is a judgment. The word should be confirmed. Let this be substituted. The motion is dismissed.
(Circuit Court, S. D. Ohio, W. D. June 22, 1891.)
PATENTS FOR INVE:'<"TIONS-PATENTABLE NOVELTy-PAPER FILES.
In letters patent No. 3S6,6i4, issued July 24, 1888, to Arthur J. Wells, claIm 1 is for '.'a paper file consisting of a base adapted to lie upon adesk or table, and formed with a series of perforations and adjustable partitions, provided with steps removably fitting into the perforatod base." Claim 2 is for "the combination of the base, A, and perforated plate, DJ secured to Its top, and the adjustable partitions, B, having the steps, a, c, adaptea to enter the perforations." HeLd, that the patent is invalid for want of novelty, In letters patent 386,675 isslled July 24,1888. to Arthur J. Wells, the claim is for "the combination' of the z oase/A, having rabbets, a, extending leng-thwise in the outflr edges thereof, rods, b, detachably secured to the base within the rabbets, and slides. C,having depending feet, C, and eyes, d, through which the rods pass. n Held, that this patent is likewise void for want of novelty. .
In Equity. Suit for of patents Nos. 386,674 and 386,675, for paper or bill file, issued July 24;!1888, to Arthur J'. Wells, and by him assigned to complainant August 10, 1888. The articlede:>crihed and 'claimed in 386,674 is a knock-down porta,. ble paper or, bill file, oia base having a metal plate on its upper l::lurlace,provided with perJorations, extending in series at intervals throughout its length, and partitions, preferably of wire, having steps or these perforations, whi¢h serve as seats or feet removably fitting sockets, and support the partitions in their operative position. · The construction specified permits the file to bet!jken apart and shipVed in a "knock-dowJ;l "condition, and then the parts may read-
ily put together again for use. 'i'he partitions may be arranged 011 tWe base at any required distance apart for producing any desired width of compartment between the partitions for use, and the insertion of the steps or feet of the partitions in the perforations firmly holds them in position. and prevents disarrangement of the compartments. Patent No. 386,675 differslrom No. 386,674 merely in features of construction. It comprises a base having longitudinal grooves or rabbets at its outer edges. Two rods of wire, one located in each rabbet, and detachably secured to the base within the rabbets, form a way upon which adjustable partitions, provided with depending feet, having eyes which are guided on the rods, may be placed as desired. Claims 1 and 2 of patent No. 386,674, which it is claimed are infringed, are as follows: "(1) The herein described paper file, consisting of a base adapted to lie upon a desk or table. and formed with a seriE's of perforations, and adjustable partitions. provided with steps removably fitting into the perforated base, substantially as and for the purpose set forth. "(2) The combination of the base, A, and perforated plate. D, secured to its top, and the adjustable partitions, B, haVing the steps, a, c, adapted to enter the perforations, .substantially as and for the purpose set forth." Patent No. 384,675 has but a single claim, which is as follows: "The combination of the base, A, having rabbets, a, extending lengthwise in the outer edges thereof, rods, b, detachably secured to the base within the rabbets and slides. C, having depending feet, c, and eyes. d, through which the rods, b, pass, substantially as and for the purpose set forth."
Hey & WilkinsO'I1, for complainant. Wood & Boyd, for respondent.
SAGE, J., (after stating the facts as above.) Under the defense that the patents are substantially anticipated, the defendant relies, as to patent No. 386,674, first, upon a patent granted in 1868 to Smith and Cheever (reissue No. 4,864, original No. 76,834) for improvement in paper files. The drawings show, and the specification describes, a paper file-holder, having a lever clamping device so constructed and combined with a base provided with a stationary upright that, by pressing upon the lower part of the device, files of papers can be securely clamped and automatically held, and, by pressing upon the upper part of the papers, can be readily unclamped. The upright is adjustable. The base is provided with grooves, to which the upright is attached by angular braces or plates. These braces are attached to the adjustable upright with their angular arms projecting towards the stationary upright, and their lugs arranged to work in the flanged grooves, so as to bind or catch upon the flanges of the grooves. and automatically hold the adjustable upright when it is pressed against the papers. In operation, the papers, being. placed in the holder against the stationary upright, are securely elamped by pressing forward upon the lower part of the adjustable upright or lever, and the holder is autorimtically locked by the lugs catching against the under part of the flanges, which is caused by the out-
papers, forcingl;>ackward the upper part .<;>f the ad,justabIll +he papers are readlIy unclamped by pressing forward upon the. part ,qf the ,upright, which releases the lugs, ,a.Ilows adjustable upright to be .l;>ackward. To say the least of this .it SO narrows range within which the complainJilopt could opllrateinconstructing hisdeyipeas to leave him little room }Qrinvention"a»dtQpreclude any claim that he was pioneer. Followingthe$mithand Cheever ,patf;)nt came Kuhnle's patent for 'lrpprovementin which shows a base,h,Ulodng in its sides Ion'gitudinally extendIng ,9ha,I),nels or ways, in w11i9h are fitted transversely projecting slides, tothelq'Yer ends of walls, betv"een wbjeb the):looks ,Th:is"also shows llliding partitions, not, however, constructed so as to be fixed in position when not in use. When books are closely between two walls or partitions, the pressureofthe out the tipperc;mds oftlle partitions, causes the uppel'and fa;ces of theslidesJo, bind ag:;tinst thewalls of the channels, and thus hold the partitions in their closed position , and tightly -<:antine the books. This: patent was grll,nted' AprH29; 1876. On the 4thofJ,anuary, 1887, patent No. 355,511 was granted to John Danner, upon' an application Bled In'ne 6, 1882, for a book support. To retain books vertically upon their edges on top of the upper shelf of a book support, or a similarly constructed shelf, the patentee provided metallic holders., with open designs, to render them lighter and more -easily manipulated by the person using them. These holders were provided with hooks to engage with theedge of the upper thickness of the shelf, which was composed of two layers of wood, glued or otherwise permanently secured together, the upper over the ends and sides of the lower. The holders were placed in position by sliding them forward from the end of the shelf towards its center, and against books placed thereon. Screw-buttons were inserted vertically in the ends of the shelf, that the holders could be placed as near the ends as possible without escaping. In this patent the edge of the base served as a way on which to move the partitions. The next patent is. No. 301,304, dated July 1, 1884, and issued to Willjam B. Berry for a paper and letter file. This shows brackets or frames made of spring wire, bent to form three sides of a quadrilateral figure, with rounded corners, and having their ends properly secured to a board, which is ornamented, and intended to be suspended from a nail or hook in a wall or other upright surJace. The brackets are inclined at .an acute angle with the board, so as to properly hold a paper or letter, and they are placed at about equal distances from each other, leaving space tor the insertion of papers or letters. The sides of the boards arc;J preferably made to taper towards the top. The length of the brackets gradually increases from that of the top one t9 thnt of the bottom one, whereby each succeeding bracket or frame, from the top down, projects a greater distance than its predecessor from the board, so as to furnish places for different sizes of letters, papers, cards, etc. The springy ()haracter of the brackets increases their capacity, and causes them to
WELLS V. TATU1>r.
bind on the papers inserted betw!Jen them. The mode of attaching the brackets to the hoard or frame is not stated, but the drawings clearly indicate that it was by inserting the ends in perforations, closely fitting them. The Smith and Cheever reissue, and the patents to Kuhnle and Danner, clearly embody the general principles contained in the complainant's patent, and the Berry patent leaves nothing for invention in the device patented tothe complainant by letters No. 386,674. There is nothing more in this patent than would result from laying the Berry block or base on a table or other horizontal surface, making it rectangular in shape, instead .of tapering, and changing the direction of the perforations, so as to cause the brackets or partitions to stand upright, instead of at an angle. The change involved nothing but skill, and not a very high order of that. It was purely mechanical, and there was no invention whatever in or about it. As for patent No. 386,675, it is entirely without merit, and should not have been granted. The claim is substantially limited to the base having rabbets and rods, the partitions having depending feet and eyes, and using the spiral form, so that the device must be dnplicated upon either side. This patent is also anticipated by the Smith and Cheever, the Kuhnle, and the Danner patents, respectively. It is true that in the Kuhnle the partitions apparently slide in grooves formed on the edge of the base, instead of on the rods; but the rib or upper edge only is of use, and, inasmuch as in the arts, grooves, and ribs, and rods have been for many years used for ways on which to move carriages or other articles to be adjusted, it is wholly immaterial which is used in this instance. In the Danner patent the edge of the base serves as a· way on which to move the partitions, and this is an equivalent of the rods. In the Smith and Cheever patent they made a rabbet for their ways on the upper side of the base for feet engaging with the grooves. Without entering upon consideration ofother detEH1ses, the decree will be that the· complainant's patent is invalid for the want of novelty, and. the bill will be dismissed, with costs.
THE PAPA. WILLIAMS
et al. v.
(Di.8trict Court, E. D. Pennsylvania, May 8, 1801.)
ADMIRALTY-SALE OF VESSEL-DISTRIBUTION OF PROCEEDS-DEBT NOT DUE.
Where a vessel has been attached and sold as perishable, and the resulting fund paid into court for distribution, a libel for a debt acknowledged to exist, the lien of which was discharged by the sale. will not be dismissed even if the debt was not due at the time of suit brought.
SAME-RIGHT TO COSTS.
will be given against a libelant who sues for a debt before it is due even account of the circumstances of the case, the libel is retained.
In Admiralty. Libel by Williams & Co. to recover the principal sum of £250 and interest, advanced on the credit of the vessel when the latter was at Montevideo, and agreed to be paid to said Williams & Co. 10 days after her return to Montevideo, or in event of the abandonment of the voyage back to Montevideo before the vessel left the United States. This suit was begun by attaching the veesel in Philadelphia on the allegation that the voyage back was abandoned. Subsequently under another attachment she was sold as perishable, and the proceeds paid into court for distribution. John Q. Lane, for claimants. Ourtis Tilton, for libelants.
BUTLER, J. The only question raised is: was the suit of Williams & Co. premature? The indebtedness and lien on the vessel are not open to controversy. The time appointed for payment is "ten days after the vessel's return to Montevideo;" or in case she should abandon her voyage back, then before leaving the United States. The libelants, Williams & Co., proceeded on the assumption that the voyage back was abandoned, and the money consequently due. Whether this assumption is sustained by the proofs (which is open to serious doubt) need not be decided at this time. The question involves nothing more than the costs of Williams & Co. 's suit. If the money was not due, Williams & Co. should pay them. We should not however, in view of the circumstanees about to be stated, turn the libelants out of court. The vessel was sold as perishable, while held under attachment of Wesenburg & Co., and the money is now in court to answer all just claims upon it. Williams & Co. 's lien is discharged, and they must be admitted to participate in the distribution. The case will therefore be sent to a commissioner to ascertain all necessary facts and report a distribution, as well as a proper disposition of costs, reJerred to, and to return all ad. ditional testimony that may be taken to the court. John A. Toomey r Esq., is appointed commissioner for the purposes stated.