amend the claim by adding t:1efore the word"'jointer" the words,udou· ble moldboard."Accordingly they amended the claim so asto read as it now stands. Referring totha specification, the only descriptiotlof the moldhoard jointer is as follows:
"This moldboard is so shaped as to present a land in proper line on the one side, and ampldboard on tbe other, when turned in one direction, and therevetse when turned the otber way."
UnlesstbedouQlemoldbo,aid il:1,COmpOlledOftwo parts, of which one forms a. land. and. the other a. furrow side, it is not the jointer of the patent. In llone of the alleged, infringing plows is there SUGh a board: '., ., , It may be true; ,and probably is, that a land side does not any imp0l'tap.t function in the'lpoldboard of jointer. land side in the main moldboard of the plow bears against the land side row, an,d thus rl:ll:1ists the ,strain causE,ld. by the preSSure oftpeearth on the furrow, side; but :lateral pressure exerted on .the moldbo,arc;l. of the jointer is inBignificant, because the resistance of the land side of main m041board prevents lateral displacement, and holds the beam in place. Nevertheless" thepll.tentees have seen fit, by their description, of the jointer moldboard as so shaped as to present a land side in proper line on one ,side and a moldboard on the other, to specify it as one ble of performing the functions incident to that form of moldboard. Having made this feature essential by their specification, it cannot be eliminated. The double moldboard jointer of the claim must be regarded as a moldboard having this feature. The bill must be dismissed.
(Circut.; Court, S. D. New Yor1c.
Mathias Hohner is a well-known maker of harmonicas in Wurtemberg, most of which are sold under his name in this country. He makes no particular style, but his workmanship is good. Ernest Leiterd made harmonicas in and put upon them his own name, partly in monogram. with the word "nacn" ana the words "Improved Hohner" in larger and plainer letters, and sold them in this country through an agent. Held, that Hohner's right to the use of his own name was infringed, and he was entitled to an injunction and accounting.
In Equity. Bill by Mathias Hohner against William R. Gratz for infringement of a trade name. On final hearing. A motion for leave to file a supplemental answer setting up a foreign judgment was heretofore denied. See 50 Fed. Rep. 369. Decree for complainant. Louis O. Raegener, for orator. Benno, Loewy, for defendant.
orato,r is his
tbjll Ernellt 1Daker ot barrpp,J;1iql\ll3 in "Jor whom, in the sale of which, the defendant isag;rnt in p;lade thenl "'f1;o,ch" larger his own name, partly in monogram'dHl,d lel'!s, ,plain,wpichhave been and are.I:>ein,g sold ,through, the defendant in this, country., This bill, is ijrqUgliH6resttdin such and fdr other relief. The t() soldanypatdcular style to 'which' his name has been applied,' but his workmanship n,,a".m" C?}Vn but m find the ,l;tohner" woul,d sIgnrfy hIS make of 9Rttef ·u'alit.. , ,". , ' I i "'\.... , ,', " ., " ' to use name to an! form orms,trumel?h !9tfor anypurp,oseBut to e?Cpress hIS, ,The use of the word, "naeh" would, not show that the were no:t his rna kei 'rie#hef would name of Leiterd show make. "This'use of ,theol'atpr's name tends directly tnil:fthey were of are ofthe orator's make. ,Many cases show kindsimd styles, but jll$t,ify theQlgo so far as this. 'V ,Jacobus, 14' Blatchf. 337;, WileD:!; M'acMne, eo. 17 Fed:.'Rep. '623; , Leela'rtche Battery Co. v. Wester';" ittectriceo: ,1 23 Fed. Inqur' Rubber Glove Mo/n'tiP[l 00. v. Goodyear Rubber 00., 'U. S. 598? 9Sur>,Ct. Rep. 166. The orator has the right to use his own name on' his oWn wares. The defendant has shown no right to use the orator's name on Leiterd's wares. Let there be a decree for an injunGtion..against this use of the orator's name, and for an account, with costs.
AMERICA V. THE VENEZUELA el
at. t1. THE
(Circuit Court of Appeals, Second Circuit. October 4,
Nos. 64, 68.
ADJQRALTY ApPEALS"7NIlIW EVIl>IlINOE-RULES OFCOUR'l'.
Rule 7 oftheadmirMty rules promulgated by the circuit court of appeals for the second oircuit, to t"ke efl'ect Joly 2, 1892, authorizes the taking of new proofs only on,sumol(lnt oaus.eshown to the court or a judge thereof purslj.ant to an application made Wi,thiIi'15 days after the filing of the apostles, aod upon 4 days' notice to the adverse party. .Held; that this: rule will not be enforced as against a party case :W:l!oS,.tried in the district court prior thereto, in reliance upon the right to mtroduce!i®1i new testimony on an appeal as was permissible under the then e:l\:isting rtilelland practice of the oircuit; and in soch a case the court will, as under the old new evidence which was not intentionally held 'in the diiitrict court. The new rule is' not an Inllovation iIi admiralty prac-
Appeal from the Circuit Court, of the United States for the Southern District of New York. In Admiralty. Separate libels filed· by' the Insurance Company' of North America and the Atlantic & Gulf Wrecking Company, on the one hand, and by brael J. Merritt and Israel J. Merritt, Jr., on the other, against the steamship Venezuela, her tackle, etc., and her cargo;' (John Dallett and others, constituting the firm of Bailton, Bliss & Dallett, being claimants,) to recover for salvage services. The case9 were' heard together in the district court, which awarded $6,500 to the fltstnamed libelants and 833,500 to the Merritt Wrecking Company. See, 50 Fed. Rep. 607. An appeal was taken by the first-named libelants' in the one case and by the claimants in the other, the appeals being numbered 64 and 68, respectively, on the docket of this court. The case is now heard on the motion of the appellees to suppress certain depositions filed in this court by the appellants, and containing new evidence not offered below. Robert D. Benedict. for the motion. George A. Black, opposed. Before WALLACE,' LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. We think the facts stated in the opposing affidavits should excuse the appellant for not making the application for leave to fake neW proofs required by rule 7, Appeal Rules in Admiralty, promUlgated by this court May 20,1892, to take effect July 1, 1892. It would be unjust to a party whose case has been tried in the district court'in,reHat:lce upon the right to introduce such new testimony' I1pon an appeal as was· permissible under existing rules to preclude him