SMITH 11. WALTON.
required to make. As well ,might he be decreed to satisfy the appellant's de· mand by money, as by the service sought to be enforced. Both belong to the lienholders, and neither canthus be diverted. The appelIant can, therefore, have no locus standi in a court of equity." It is clear that the view of the supreme court as just quoted must control the question presented by the intervention in this case. It is a peculiar condition of things, and unfortunate for the and a hardship on them, undoubtedly; but to require the receiver to transport its marble to Marietta would be equivalent to requiring the receiver to pay them in money the amount of the freight from Nelson to Marietta, and this the court certainly could not do, inasmuch as they have no lien. 'The petition of interveners sets forth the fact as above stated, and consequently the demurrer to the petition must be sustained,aDd it is so ordered.
SMITH 11. WALTON
(District Court, S. D. New York-June 20,
PATENT ON 'W90DlI:N
PENALTY. . :' ' 'ThepBtenteejlf;wooden dishes whicbmight have been marked "Paten1ied, n etc., as by section 4900J Rey. St., did not stamp the dishes, but only the crates , in which they were packea. Upon a suit for penalties under the secOnd paragraph , of seCtion :4001 against the defendant. for plllcing a similar stamp upon crates of similar dishes mlllle by the defendant without license, held, on demurrer 'to complaint, that sectionl! 4000 and 4901 must be construed together; that the stamping of artides capll-ble ilf stamping was necessary; and that the stamping of tl1e crates them was insufficient, and was not protected by sections 4900 and 4901; and: that a similar stamping of his own crates by the defendant did not render him liable to any penalty. ' . ,
ST. §§ 4000; 4901-IHlTA.TION-No
At Law. Action by Seth H. Smith against David S. Walton and George West to recover penalties for alleged violation of the patent laws. Heard,op,demurrer to the complaint. Demurrer sustained. Rush Taggart and Almon Hall, for plaintiff. P. Foster, for defendants.
The above action is brought under section
4901, of the United States Revised Statntes to recover $220,000 penal-
ties alleged to have been incurred by the defendants in marking upon and affixing to 2,200 crates of wooden dishes the word" Patented" and the words" Oval Wooden Dish" with intent to imitate and counterfeit the mark' and device of the plaintiff, who was the patentee of said dishes, without his consent, and without having, obtained any patent therefor·. The complaint consists of 2,200 counts, each of which, after the first, charges a similar offense in regard to "a certain other crate of wooden dishes," claiming a penalty of 8100 for each offense. The defendantshave demurred on t):leground that the complaint does not state facts sufficient to constitute a cause of action, and under this bead have v.51F.no.1-2
FEDERAL 'Rt:£iORTER,vbl. 51.
deD1ur. persons of the defendants. The matters specified under the latter head.l1ave, howeV,er, be,enp.Jrllyiously the ,court and need not be here.. , . . " .... . 'rhe avers, the obtninillg ofIetters:patent for an ..Qi.shes ()n March 13, 1883, upon the, invention of interests: under the of the. plainp,ff,ands!il1[lilrlll 'wesne a pf a part thexeoftQ the plaintiff himself, and the of dishes therellrider, and that sai.d dishes "upifi,>rili1y by and his ,a:lLthe · and are, \Yell ku,?,\Yn t() the as such." The complaInt (urther states that "ever since tna issue of said letters patent the said owners thereof have manufactured and sold said patented wooden dishes in largequantWeSj and have, pursuant to the requirements of section 4900 of the Revised Statntes of the United States, marked each oj the crates or packages containing said dishes, ; Patented March 13th, 1:-883,'" and that the "defendants with intent to imitate and counterleit the said mark and device of plaintiff and his said assigns, without having the 'license or consenfiOf the patentee of w,ooden dish, or of .. or legal representatives, and out having obtained any patelit thereforaIid ",,,holly without right,did fJlll.rk 'qp,qn and affix to'lictate of Wooden dishes,such as are described in and covered,by the plaintiff's letters patent, the word 'f'atented/ and affixed to the said crate·thewords :'Oval Wooden Disb 'contrary, to tbeprovisions of said section 4901.» . ";All the subsequent eou,nts in the complaint are ,to the same effect. upon. the alleged yio1ation of the second They are manitestlyall, paragraph of section 4901, which makes liable to a penalty every person "w-ho,)nany manner,marks upon oruffixesto any such patented art:ic}'e,the word' Patelit' or. 'Patentee,' or the words' Letters Patent, ' or' 'any word of like import, with intent to imitate or counterfeit the mark or device of the patentee, without having the license' or consent of such patentee orhi8 assigns or legal representatives." ,.', The only question needful to be considered is whether the complaint suilieientlYllvers that the defendants have "in any manner marked q.pon ,to 'the patented article the word' Patented' with intent to imitate, or patetltee'smark," within the meaning of ,ti?h .4901. Tlle not aver that thewqrd "Patented" was upon the dishes but only upon the crates containi l1.g'the dishes. The practice of the plaintiff also was not to stamp the "Patented," but only-the crate. .' '. . ' . , ., Section 4900 of the'ReVlsed Statutes makes itthe duty of all making or vending 'Rllypatented article "to give suIficient notice to .tbepublic that ,the either by ajJilti1!'g the:eon word 'Patented I ' *** or" .when fromthecharacterb! the article tlus cannot )le .done. by aJi17i:ng to to one ortrlore ofthem lsmclosed, it lanel contll.l1uog the hkenotlce." .
SMIT.H, .,. WALTON.
It is difficult to construe the stamping of the word "Patented" on a crate containing WOOdElll dishes to ·be either a marking of that word upon the dishes, or affixing it to them. The general public, for whom the mark is designed by the statute, never get the benefit of such a stamping. They do not buy by the crate. The case is wholly different from the labels or covers thlit are attached to articles sold and accompany them to the consumers. A mark on a crate is, therefore, outside of thelaw', both in letter and in spirit. Section 4901, moreover, must be construed in connection with section 4900. The second paragraph of section 4901, which is applicable only when the act is done "with intent to imitate or counterfeit the mark or device of the patentee," does not apply to any mark or device of the patentee that is not itself within the protection of the law. The mark or device referred to and intended to be protected by the second paragraph of section 4901 is such a mark or device as the patentee is required by the former section to affix upon or to the patented article, and which conforms to the requirements of that section. The words of section 4901 "to mark upon or affix to," etc., refer to the two alternative provisions of the preceding section, which are made obligatory upon the patentee. The secon(\ paragraJ.>h of section 4901 is designed to protect the patentee's mark when made in accordance with section 4900. This is clear from the fact tbat a necessary ingredient in the offense is the intent "to counterfdt the patentee's mark." But what mark? Evidently the one required by the former section, since there is no anywhere to any other. If the patentee puts on no mark .at all, maniteRtly no penalty under the second pamgraph of section 4901 could be incurred j and a mark contrary to law, or not recognized by the law, is the same as no mark. It is not the intent of the law to protect the law. Much less will a strained constructhe patentee in tion be put 011 a penal statute for such a purpose. Pentlurge v. Kirby, 19 Fed. Rep. 503. Upon the complaint it cannot be claimed that the wooden dishes patented were "of such a character" that the word "Patent" with the day and year of the patent "could not be affixed thereon.". On the contrary, the averment of the complaint that "said dishes have been uni.ormlymarked by the plaintiff and his assigns as the' Oval Wooden Dish '" shows conclusively that there was nothing in the character of the article to prevent affixing thereon the words" Patent," etc. The plaintiff's mark or stamp upon the crate which he complains of the dellmdants for imitating, was therefore, not a mark within the protection of the law, but one altogether outside of the statute and not protected by it. The mark might be sufficient to. sustain a suit f(lr an injunction, but this is not such a suit. For this reason. sswall as because the marks both of the plaintiff and of the defendants were not made "upon or affixed to. the patented article" within the letter or spirit of section 4900 and section 4901, the dewl1l'rer is sustained.
UNITED STATES 11. BARNABY.
(C(rcuit Oourt, D. Montana. June 7,
A.l!!lA'I1LT WITH INTEN'1' TO MURDER-lIroICTMBNT.
An indiotment for an attempt to commit murder is insufficient where it merely charges that defendant made an assault with a knife upon a person named, with intent him to klll, willfully\ feloniously, and of his malice aforethought, without disclosing the character of tne knife, or averring that he struok him with it or intiiotedany wound having a tendency to produce death. Tilere is no punishmen,t provided by the laws of the United States for a simple aSsault by one private person upon another in places under the exclusive jurisdiction of ,the government. the United States is commltted in a,place oededto the government, the same shall
S. CBIMIN,A,J. LAW-ADOJ;'TING SUTE LAW:S. Rev. St. § 5391, that wMn an offense not proVided for by the laws of
force II of the state in which such place is situated, applied only to state statutes existing at the time of its passage, in 1825. U. S. v. 6 Pet. 141, followed.
" B.u.u:-INDJ:i4Ns-ORIMES ON RESERVATION. '.
1>0 subject to the same penalties provided for the like ofl'llnse by the. laws "now in
t4isstatute could be considered as ap-pl!cabla to the law of Montana, it does not apply to an offense committed by'one Indian against 'another on the Flatbecause Indians living in t4e tribal relation are not subjeot, in tl1eir internlU social relations, either'to the laws of the 'states or of'thl;! United Btares.' . . :'
AtlLaw. Indictment of Adolph Barnaby, a Flathead Indian, for' an assault with intent to murder, committed on the 'Flathead reservation, against another Indian of the sameitribe. Verdict of 'guilty. Heard on motion in arrest of judgment. Motion sustained, and prisoner dis. charged. Weed, U. S. Atty., and John M. McDonald, Asst. U. ,So Dist. Atty. Orutcher &: Garland and Chas. Conradis, for defendant.
KNOWLES, District Judge. The defendant was charged in the indictment iIi ihiscase with an assault with the intent to commit murder. He was triediand by the jury found guilty of this offense. Counsel for defendant now come into this court and move the court that the judgAmong the grounds ,f6r this motion are that ment herein be the alleges no offense known'to the Jawsof the United States; that for'the cri'ine alleged. in the indictment and proven at the trial there is nopurllshment provided by the United States laws; Upon an exam· ination of the statutes of the· United States, I find no such crime named as an assault with the intent to commit murder. There is a punishment 'prl:Wided in'the5342d section Of Rev. St. U.S. for the crime of an attempt tl). commit murder or manslaughter by any means not constitutihgan llssaultwitha. dangerous weapon. Isrippose the meaning ofthis latter clause,notconstituting an assault with a dangerous weapon, means n6tlling Ihore thnn,thatthe attempt tocomniit mn.rder mustallount to something more or differe·nt from that of an assault with a dangerous weapon, because such an assault is made a crime of itself. In the crime of an attempt to commit murder, or an assault with the intent to commit