prosecuted. 'In view of the duty imposed upon a sheriff. by the Code of Virginia, and the necessary and incidental power conferred by the im,positiori, of that duty, and the. marshal, by section 788 of Revised Statutesofthe United States, having the same power, the petitioner had a right, when he suspected the Nelsons of violating the revenue .laws of the United States, to make of them, or other persons, all properinquiries as to such violations of law; and being a conservator of the peace, like a Sheriff; it was his duty to do so, and in doing eo he was Acting in the line of his duty. So' the court is of the opinion that, under the facts presented in this case, whether it was the purpose of the petitioner to artestthe deceased and his brother, or to make inquiries of them with a view of ascertaining whether they were or had been engaged in violating the intern81 revenue laws, he was acting within the scope of his authoritYi and that the circuit court of the United States has jurisdiction of the prosecutibn institntedagainst him in the state court, and that the petitioner has a right t()have the same removed into the circuit court for trial. Counsel for the petitioner claims that, under the evidence, he is .entitled to an absolute discharge. The court does not care at this time to enter into a discussion of the facts as shown by the evidence on which this demand is based. For the present it contents itself with saying that it deems it its duty not to. discharge the petitioner. He will be allowed bail in the sum of $1 ,000 to appeAr before the United States circuit court at regular term at Abingdon.
WILMORE, County Jailer.
D. Virginia. May 14, 1892.)
L ApPEALABLE ORDERS-iIAUE.6.8 CORPUS. A distriot in vaoation, allowed a wrIt of habeas C0TP'U8 for the person of a deputy marshal in custody under state process, and, after hearing, entered an order finding that the petitioner was in oustody for an act done in pursuance of a law of the United States, that he had a right to have the prosecution against him ·moved to the federal circuit oourt, and therefore held him to bail for his appearance before that court. Held, that this a final order, from which an appeal would lie to the United States supreme oourt 2. SAME. , The writ of habeas corpUB. allowed by the. district court was not the writ provided for in Rev. St. § 6t3, in 'cases of removal of a prosecution against a revenue officer from a state to a federal court, which writ is issued by the clerk of the circuit C()urt after the filinll: of the petition for removal, and therefore was not merely ancillary to a petition for removal which was filed in the circuit court the day after the writ was allowed.
Petition for Leave to Amend an order made after hearing on habeas corpus, so as to allow an appeal :tberefrom to the supreme court. Granted. On.the18th day of December, 1891, petitioner presented his petition to the judge of the district court, in vacation of the court, alleging that be was unlawfully detained in custody by the respondent on an alleged
CARICO V. WILMORE.
charge of murder in killing one James Nelson, and alleging that the killing of said Nelson was no murder, but was done in petitioner's own necessary self-defense, while in the discharge of his duties as deputy marshal in enforcing the internal revenue laws of the United States, and praying fot a writ of habeas corpua cum cauaa, and also alleging that he had a right to be tried in the circuit court of the United States for said alleged offense. Upon this petition the judge of the district court made the following order: "In the lJistrict Court of the United States for the Western lJist1'ict of Virginia, in Vacation. "Upon the petition of Joseph H. Carico, stating that he is illegally detained in cllstody by W. D. Wilmore, the jailer of Smyth county, Virginia, a writ of habealJ corp'J,s is granted him, directed to the said W. D. Wilmore, jailer oq;mytb county, Virginia, commanding him to have the body of the said petitioner, Joseph H. Carico, before the judge of this conrt on Wednesday, the 23d day of December, 1891. atl0 o'clock A. M., at Abingdon, Virginia. together with the day and cause of his caption and detention.
"U.S: District JUdge for the Western District of Virginia. "lJecember 18, 1891."
On this order a writ of habeas. corpua. was issued, returnable to the 23d day Of December, 1891. On that day respondent filed his to said writ, as follows: "'1'0 the Hon. Judge Paul, JUd,ge of the District Court of the United States for the Western lJistrict of ViTginiQ.: W. D. Wilmore, keeper oBhe jail of Smyth county, to whom the Within writ is directed, has now here before the court the body of Joseph H. Carico, therein named, as thereby commanded; and I certify that the cause of the detention of said Joseph H. Carico is a warrant of commitment directed to me, a. ,copy of which is hereto annexed, marked' Exhibit A.' and the procet'dings of the county court of Smyth county and the commonwealtb of Virginia, marked' Exhibit B,' and made part and parcel of this return. "Dated this 23d day of'December, 1891. "W. D. WILMORE. Jailer of Smyth Co., Va."
Upon this return admitted to bail, and the further hearing of the case continued to the8th day of January, 1891, and at a cial term of the district court pegun on the last-named day at Abingdon, Va., the court heard the evidence in the case, and on the 12th day of January, 1892, entered the following order: " It appearing to the court..that petitioner is in custody for an act done in pursuance of a law of the United States, and is held in custody contrary to law by the of Smytb county, and that be has a to have removed into the CircUit court of the Uliited States for the western district of Virginia the prosecution pending against him in lhe county court of Smyth county, Virginia, it is therefore ordered that the petitioner be recogniZed in the sum of one thousand dollars for his appearance before the circuit court for this district on the l:lrst day of the next regular term thereof to answer the indictment found against him by a grand jury of the county court ot Smyth county, Virginia."
F. S. Blair, for petitioner.
haviBgbeen tak.eB to this order by at the ltime itwaseBtered, he now asks leave at this, the first term of the district ,court ;since the special term at which said order was enter.edl, tdameBd, the1lMlle, l1Bd grant him an appeal to the supreme ooul'tofthe United Petition",rQbjects to said, order being amended as prayed for, on the grouBd that an appeal lies only from, a ,final decifliop" th,e ,()rder.of January 12, petitioner from the custody of respondent, anll holding him to answer the indictment to the cour,t.cls,not such a,final order as wpuldgive respondent the right;toappealj and on, the further, ground that respondent has no dght of Iti>peal,'even if, the said order be regarded as fiBM. The oourt does not in, tllese objectio1).s. It thinks the order releasing petitioner 9f resPtpndent',and 'piach1g him in' th:e custody of the marshal,and hqJAipg,h,iril to answer in the circuit court of the UBited States the indictment found against him in the county court of Smyth, is RIJ final, as far as the respondent is concerned. as if the order had been for the absolute discharge of the petitioner from the custody of respondent. In the argument counsel fO,r the petitioner claimed that no case can beJound iJl. the reported decisi,ons of the United States'court where such an appeal has been allowed to respondent. This position is incorrect. S,uch an tQ the sheriff of San Joaquin county, Gal., ip ,th.ej:ase lino}VJ;las thl? 135 U. 1, 10 Sup. Ct. Rep. 658. Suchan ,appeal was ahlQdl-llowed in the case Qf Brimmer v. Ribman, 138U.S. 78, 11 Sup. Ct. Rep. 213; and no doubt Qther decisioBs might 'be; found 'to :tbe same effect.' NorJsth'e, taken by cQunselfor the petitioner correct that the writ of.lutpccfPCQrpufi anciilarx, the petition. for the removal of the Case of The Commonwealth of Virgin'ia v. J08eph H., Carico from the county court Qf Smyth cQunty, ya., ,tot4e circuit CQurt of the United ,and different,p,lQceeding, held in a differeBt cQurt, and ,under a dilfer.ent statute. .It was nQt taken under the provisionsbf sectiol1' 643' oftlie Revised'Stiitutes of the UBited' States, as cotulsel fQrpetitioiler clairiis, in the writ ,WOUld have been issued by thtlclerk.of the circuit court 'as'provided in said sectiQB. The #r1t was'allowed' by the district: judge on 'the 18th day of December, 1891, whereas the petition fQl' removal; as shown by recQrd evidence usedinthEfdiacUllSiQn of this motion, was not filed in the clerk's offica of the,' ciTcbiit .<!Qurt .the 19th December,1891. The court .is oftbeOpinioh that respondent,inth1fl, the right tQ 'appeal ,to the court Qf theUnited and the order will be amended .ftceordingly. '
FlAUJ,; District Judge.
HARSH t1.. QUIcK-MEAt STOVE
(Ci1'CtHt Court, E. D. Missouri.
April 25, 1892.)
The question of the constl'uction of the claims of a patent is the province of the court, and does not rest with the jury. .. Where a claim of a patent readll, "In a gasoline stove, "etc., and then enumerates, a number of other elements, the words, "In a gasoline stove," will be understood as including the well-known essential elements of such stoves; and, to enable the plaintiff to. recover, the oth0relements of the claim, or their substantial equivalents, must be all found in the defendant's stove.
AT LAW-JURY TRIALS.
Where the claim of a patent contains, as an element, a commingling chamber capable .of accomplishing two purposes, which are fully set forth in the patent, (such chamber being in addition to thtl chambers common to all gasoline stovell,) and the defendant's stoves have only the ordinary commingling chamberll,he!d, that the combination of the claiql is not present in defendant's stove. A licensee w.ho covenants not to dispute the validity of a patent, under which'he is licensed, will not be permitted to d,o so, but the burden is nevel'theless 01/ the licensor to show that the licensee has operated under hislicenBe, and, in the absence of such proof; the licensor cannot recover. ..
(Syllabuslry "'-e Court.)
necting said retort arid sliidchamuer, in .comlJiniltlon with a side burnflf and a communic;lting pipe lx'tween the said chalnl.er and thE: side burner, whereby ignited gas maybe carried from one to tile other, as and for the purpose set forth." ., '
At Law. Letters patent of the United States were iSSU'eQ to James A. Marsh, February 22, 1887, No. 358,284. On the 10th day of March, 1887, the Quick-Meal Stove Company took a license under the patent, a stipulated royalty on ailstr>ves made by the company under the Marsh patent. An action at law', under the license, was brought, by Marsh to recover royalties upon certain stoves made by.the Quick-MealCompany, which.Marsh maintained eallleunder his patent, while the Quick-Meal Company contended tbey did not. The .claim of the patent'involved reads as follows: "1. In a gasoline stove, a retort, a l'omminglfng chAmber, and a duct con-
The defendant's stove contained only the ordinary commingling chambers, with a tube between the burners which communicated with one of the commingling chambers, and which served as an antomatic lighting device between the burners. At the close of plaintiff's evidence. defendant asked the court to direct the jury to find for the defendant, on the ground that the plaintiff had not made out a 1)rimafacie case. F'i8se <(: AUen and Edward J. O'Brien, for plaintiff. Geo. H. Lothrap, Geo. H. Knight, and Lubke Muench, for defendant. THAYER. District Judge, (charging jury.) I ha\'e given this case such an examination as I have been able to in the short time that bas elapsed since the plaintiff closed his case, and I have come to the following conclusion: It is the province of the court to construe the claims of the
patent that has been offered in evidence. That construction, of course, is to be made in the light of such expert tes,timony as has been offered. In the Marsh patent the commingling chamber, D, is both described and claimed as a distinct and independent part (havingspecial functions) of the combination covered by the first claim of the Marsh patent. The commingling chamber is provided with a separate needle valve marked 011' the drawing, e, to operate it, and both the commingling chamber and the accompanying needle valve seem to be necessary to. enable the a:ntomatic lighting tube, F, to perform one of the fnnctionsthat the inin view; that is to say, the function of heating the side bUTner, K, for initial lighting purposes. Now, it may be true, and I think it is true, that the commingling chamber in the Marsh patent, with its valve, e,isa useless device; but the fact remains that it has with great detail, and is'cl.earlyclaimed ,as an integral Marsh combination or invention. His patent must accordingly be'lithited toa combination containing that' part;, that. is to say, to aeornlPWt\mon containing a commingling chamber in addjtion to the orchamber or chambers attached to, the burners. In the i;1uic'k-Meltl stove this separate and independent commingling chamber is wanting. It is obvious that the relighting tube in both modes of construction acts upon the same principle, and subserves the same purpose;· tlfe:Qlllick.,.Mealstove the,tu'be is continuous from one light to tpe other, while in the Marsh stove it is, broken, and passes the flame through -the:comminglingchamber,and out through the small orifice that is marked b' on the drawing. Bu,t this concession d-oes not alterthe facttbat Marsh has described and claimed It part not found in the QuickMeaJ:modeof construction. Having so described and claimed it, it bElcomesone of the necessary elements of his combination, though it is praotiCally useless. The the defendant in this case, is not here alleging that the Marsh patent is void; that he could not do under his He.siJ:Qplysl:\Ys: "I have.not used the patented device covered by, my license; ", and there is no evidence, in the opinion of the court, to show that he has used it. The result is that you, gentlemen of the jury; will be directed tbtetul'Il avetdict in favor of defendant. Plaintiff thereupon took a nonsuit with
IN RE, CORNING.
UNITED STATES V. GREENHUT
(District Court, N. D. Ohio, E. D. June 11, 1892.)
An Indictment under the act of JUly 2, 1890, relating to monopolies, averred that defendants, in pursuance of a combination to restrain trade in distillery products between the states and monopolize the traffic therein, acquired by lease or purchase , prior to the passa/te of the act, some 70 distilleries, producing three quarters of tno distillery products of the United States, and that they continued to operate the same,after the passage of the law, and by cer,tain described means sold the product at increased prices. Held, that no crime was charged in respect to the purchase or continued operation of the distilleries, since there was no averment thatde!endants Qbli/PIted the vendors of the distilleries not to build others, Or to withhold their capital or experience from the business.! '
The indictment further averred that defendants, in pursuance of the combination, shipped certain of the products to Massachusetts, and sold them there through their , distribnting agents to dealers, who were promised a rebate of five cents per gallon on, their purchases, provided, sueb dealers' purchased their distillery products exclusively from the distributing agents, and sold them no lower than the prescribed list prices, said rebate to be paid when such dealers should sign a certificatl! that they h,ad 80 purchased and'sold for six months; and that by this means defendants had controlled and; increased the price of distillery products in Massachusetts. Held, that no crime was 'c\larged with respect to such sales, since there was no avertnent of any contract whereby the purchasers bound themselv,es not to purcllase from others, or not to sell at less than list prices.
CRXMINAL LAW-FEDEluL COURTS-REMOVAL OJ!' PRISOSER.
indictment, disregar,ding technical defects, but to refuse the warrant if the crime alleged is not triable in the district to which a removal is sought, or if the indict,ment fails ,to charge any offense under the law.
to, a distant state and district for trial, it is the duty of the court to scrutinize the
On an application to a federal court for the removal of a resident of the district
At Indictment against Joseph B. Greenhut and others for violating the law against monopolies. Heard on application for a warrant to re,Iuove defendants to another district for trial. Denied and prisoners discharged. Allen.T. Brinsmade, Dist. Atty., for the United States. Elihu RQot, Tho8. Tluitcher, and S. E. Williamson, for defendants.
RICKS,District Judge. This cause comes before me upOD, the application by the district attorney for a warrant for removal to the district of Massachusetts of Warren Corning and Julius French, citizens of this judicial district, against whom is pending an indictment prefl;lrred by the United States in the district court for district of Massachusetts. A certified copy of the indictment, together with the return of A. J. WilHams, a United Statel! COU,lmissionerfor the circuit court of this dilltrict, that said defendants refulled to give bail, and were by him qOmmitted. is filed. The defendants object to the granting of a warrant for removal, theli\WB Of the because the indictment does not Qharge an offense Unite9-. ,States. Being residentsaQd citizens of this judicialdj,st#ct,' they
,l8oe U. s. sachusetts on motion to
50 Fed. Rep. 469. :for a4ecision iuthe district " of M&s.,