consideration for, not informing, ,against him.. The time is fixed. A day Is named. transaction is necessarily- to be implied from the allegation. Tlie mea,nillgof the averment is that the threat was made: that the money was paid; that the consideration for the 'payment was that the defendant would not info,rm; and so it fol1()ws, as the necessary meaning aml effect of the averment, that the money was paid both under a threat of informing, and as a consideration for not informing, and that there was but one transaction, involving the commission'Of but one offense."
To the same effect is the ruling ot the court in the case of U. S. v. Nunnemacher, 7 Biss. 131, li'ed. Cas. No. 15,903,-one of the cases approvingly referred to in the case of U. S. v. Fero, supra. In the of said cases, at page i34, the court quotes from a Missouri case as follows:' '
"When 'a statute, in one clause. forbids several things. or creates several offenses in the alterl\ative, which are not repugnant in their nature or penalty, the clause is treated, in pleading, as"though it created but one offense. and they mal\'" be un,itedeonjunctively in one count."
Thus it appears that the essential condition, upon which several things disjunctively, fOi'bidden in one clause of the statute may be conjunctively united in the same ,count, is that they are of such a nature that they may be considered as parts of the same transaction. This condition does not exist in the present case. The terms "theft" and "embezzlement" cannot characterize the same act, because they are repugnant to, and .irreeoncilable,;with, each other. The cases above cited, if not directly in point, are at least closely analogous to, and, I think, detenninative of, the present case. It seems to me that an accurate statement of the objection to the indictment here is not that it is uncertain, or that .it stf\;tes in one count two offenses, but that it fails to state anydffense whatever; that the crime sought to be charged is that the defendant aided in buying and sflling a draft, knowing thesltme to have been stolen or embezzled, whereas the charge in the indictment is that the defendant knew that the draft was stolen and embezzled; and that this last allegation being the statement ofa manifest impossibility; and therefore nugatory, the indictment fails to state an essential element of the offense sought to be charged. I am of, opinion that the objection is well taken. The demurrer is sustained.
LEATHERBEE et aI. v. BROWN. (Circuit Court, D. Massachusetts. September 16, 1895.)
PATENTS-INFRINGEMENT SUITS-:-PI,EA IN Eq,UITY.
USed, 01' sOld any article embodying the patented invention, and that the alleged infringement was committed, if at all, solely by a foreign corporatiol;1 of ,Which he was treasurer. Hc!d, that the plea was not bad as tendering two issues, but sl:lOuld be construed as raising the single question whether a bill would ,lie agai'nst personally for an infringe, comUliUed, if at all, by a corporation of which he was an , officer. .:!: .
' A plea to a bill for infringement alleged that defendant never made,
a bilI- lp!j!quity by James,'D. Leatherbee and others ;M.W. UI'9wn .fQr alleged infringement of a patent. Com-
plainants moved to strike from the files it plea filed by the defendant. James E. Maynadier, for complainants. Edward S. Beach, for defendant. OOLT, Circuit Judge. This is a bill inequity, charging the defendant with infringement of complainants' patent, and praying for an injunction and an account of profits and damages. The defendant has filed a plea setting up that he never made, used, or sold, or caused to be' made, used, or sold, any telephone receiver embodying the invention of the patent in suit, and that the alleged infringement complained of was committed, if committed at all, solely by the Thompson-Brown Electric Company, a corporation organized and existing under the laws of the state of Ne:w York, of which he is treasurer. The present hearing was had on complainants' motiqn to. strike the plea from the files on the ground that it tenders two issues-First, that the defendant has not infringed; and, second, that the foreign corporation of which the defendant is treasurer has infringed, if .any· infringement has been committed. The counsel complainants contends that if he sets the 'plea down for argument it. is an admissio'n of Jloninfringement, he admits the truth of the facts alleged in the plea, and, if. he joins issue on the plea, the proofs must necessarily be the same as if the defendant had filed his answer, denying infringement. In his brief he states his position as follows
"It is submitted that the plea in the case rtt bar must bestrldken from the files, for the that the complainant ca,np.ot set it down for, argrtlnent without admitting that defendant has never made, used, or sold, or caused to be made, used, or sold, any· article embodying the invention of the patent in suit, and 'also admitting tbat the alleged infringement, if any, was com'mitted by a foreign; corporation, and that defendant was not a joint'tort feasor:with that corporation. But these are facts which cannot be admitted, ll'nd' Which complainant should not be compelled to try twice--'First, by joining issue on the plea, and prOVing the falsity of the alleged facts in that issue; and there,after proving tlleir falsity on final hearing on bill, answer, replicatiqn, and proofs."
The construction of the plea by complainartts' counselseenis to me to be wrong. Oonsidered as a whole, the plea wa,s intended to raise, and, in my opinion, does raise, a single question,-:-whether a bill in equity for the infringement ofa patent can be. brought against the defendant. personally for an infringement committed, if committed at all, by a foreign corporation!of which he is an officer. The complainants' counsel admits that if the plea had only alleged that the acts complained of were committed by the defendant solely as an officer of the Thompson-Brown Electric Oompany, and not otherwise; he would offer no objection; and tlie defendant's counsel admits that this is the only question raised by the plea.! Upon the facts brought out at the hearing on motion for preliminary injunction, it is clear that this is the real question which both parties wish to have raised and determined. It is true, as contended by the countjel for complainants,thatthe
naked question of infringement cannot be raised by plea. Sharp v. Reissner, 9 Fed. 445; Korn v. Wiebusch, 33 Fed. 50. It is also equally true that where the infringement complained of has not been committed by the defendant, but by another person, this issue may be tendered by plea. Boston Woven Hose Co. v. Star Rubber Co., 40 Fed. 167; Linotype Co. v. Ridder, 65 Fed. 853. Upon a proper construction of the plea, considered as a whole, and which agrees with what defendant's counsel says it means, and with what com.plainants' counsel declares would be a proper plea, I must deny the motion to strike the plea from the files. :Motion denied.
HEATON PENINSULAR BUTTON-FASTENER CO. v. SCHLOCHT· MEYER. (Circuit Court, S. D. Ohio, W. D. July 22, 1895.)
A bill containing this language, "All of which will more fully appear by the said letters patent, or by a copy of the same duly certified from the records of the patent office, and in this court to be produced as your honors may direct," makes formal profert of the patent, so that it may be considered on demurrer to the bill.
PATENT CASES-PROFERT OF PATENT-DEMURRER TO Bn,L.
2. SAME-INFRINGEMENT Surrs-JuDICIAL NOTICE OF PRIOR ART.
In determining the validity of a patent on demurrer to the bill, courts will take judicial notice of matters of common knowledge relating to the state of the art; but the judge must be careful to distinguish between his own special knowiedge and what is strictly within the field of common knowledge, and the matter must be so plain 8S to leave no room for doubt.
S. SAME-DESCRIPTION OF PRIOR ART-ESTOPPEL.
The description in the specification of the existing state of the art bears upon the constroction of the patent, and is a limitation of the grant. It forms the representations upon which the grant is obtained, and the patentee is estopped to say that such representationEl were incorrect.
4. SAME-BuTTON-FASTENING STAPLES.
The Vinton and the Prentice patents, Nos. 324,053 and 451,070, respectively, both for improvements in button-fastening staples, held void, on de· murreI', for want of invention.
This was a bill by the Heaton Peninsular Button-Fastener Company against Schlochtmeyer, for infringement of two patents for improvements in button-fastening staples. Jas. H. Lange, Odin B. Roberts, Gardner Perry, and S. L. Swartz, for complainant. Taggart, Knappen & Denison, for respondent. SAGE, District Judge. The bill is for an injunction and account against defendant as an infringer of two patents, owned by complainant, for button-fastening staples,-the first being No. 324,053, to John H. Vinton, August 11,1885, and the second No. 451,070, to George W. Prentice, January 26, 1891. The defendant demurs upon the grounds: First, that it is ap-