THE MAYOR, ETC., OF NEW YORK.
the general treasury of the city itself must be liable to account for them. . It is further argued, that the case does not show any infringement by the fire department, even by using the patented invention. The answer does not really deny, but rlither admits, what would amount to· an infringement. If that were not so the proofs fa.irly show infringement to some extent; to what extent, if to any, before the bringing of the bill, is not now material. The extent is aniatter to be set. tIed in the accounting. Let there be the usual decree for a.n injunction and an account, with costs.
ALLEN fl. THE MUOR,
OF NEW YORK.
(Circuit Oourt, S. D. New York. June 15, 1880.)
EQUITY-PRACTICE-ApPLICATION OF EQUITY RULES.
Rules of equity are framed to bring a cause to hearing, and do not apply after a hearing, unless the necessary steps are taken to bring it within their opera.tion, and start the cause anew towards a hearing. 2.
After a hearing and decree a cause will not be opened for mere technical and unimportant defects in the steps preliminary thereto, where no injustice has resulted to the parties. Such defects, if not objected to at the time, must be considered as waived.
PATENT-DECREE PRO CONFESSO.
In a suit upon a patent for school furniture against a city, its board of education, and its several successors, where the board last organized failed to answer, and no decree pro confesso was taken against it, and the cause proceeded without objection to a :tinal hearing and decree upon the pleadings, held, that such board could not take advantage of the omission to enter .the decree 'j11'O confesso and :tile its answer.
WHEELER, D. J. This suit was brought against the city and the then board of education, a corporation within that of the city, and an instrumentality of the city having charge of its educational interests and institutions, for infringement of
a patent in the use of the school.furniture of the schools of the city. The suit proceeded until the legislature of the state provided a successor of the board of education, called the department of public instruction, and then a successor to that, called,again, the board of education. Answers and replication were filed and testimony was taken. After the new board of education was created it was summoned to appear and answer asa party defendant, but did not. The bill was not taken pro confesso against. it, and after several terms the cause was fully heard, on the issues made by the pleadings which were .in, without objection by either party, and without bringing the fact that the bill against the new board of education had not been answered nor taken pro confesso to the attention of the court. The cause was decided, and an interlocutory decree ordered, since which the new board has filed an answer, and the plaintiff has moved to have it taken from the file, and the cause has been heard on this motion. The rules in equity are framed for bringing a. cause to a hearing, and do not apply after a cause has been heard unless some proceedings are taken to bring it within their operation again, and to start it anew tqwards a hearing. When the cause is heard, without objection by either party, all steps not taken by either, which the other had a right to insist upon for the orderly bringing the cause to a hearing, must be considered as waived. Any other course would lead to reopening causes, after hearing, for technical and unimportant defects, and greatly embarrass the prompt administration of justice by the courts, which is for the good of the people. In this case, theoretically, probably, these new corporations were new parties, whom it was necessary to bring in, but, practically, they were successors in the same right and duty. Whatever would be a defence for one would be for the other, and when pleaded by one, and tried on the issues made, the trial would be the same as if the same defence was pleaded anew. Each of these corporations is understood to be representative in its chara<lter, and, if the principal is represented in every defence by one, it is not necessary to the
, WISNER V. GRANT.
preservation of its rights that it be represented in the same defences by all. The want of an answer by-tbe new board has not, so far as is made to appear, affected the issues. The decision has not been made at all upon the bill not answered, as if 'it had been taken pro confesso, nor upon anything but the proofs applicable to the issues. No injustice has resulted from the course taken, so far as'is seen, and none appears likely to result if the pleadings remain as they are. The motion is granted, and the answer ordered to be taken off the file.
No'rE. See Munson v. The Mayor, 3 FED.
and others v.
(Circuit Court, N. D. New York.
February Ii, 1880.)
No. 69,713, for horse hay rakes, granted to Joseph H. Shireman October 8,1867, and re-issued to James E. Wisner December 11, 1877, construed, and fourth, fifth, and sixth claims sustained. A combination of parts never before combined does not necessarily involve invention, as where a well-known contrivance is used to perform a function exactly analogous to that in which it was formerly used; but where such combination produces a new'mode of operation and a more efficient machine, and the conception of which involved thought and intellect, it implies invention.
In Equity. L. Hill, for complainants. C. M. Peck,. for defendants. WALLACE, D. J. I am precluded, by the urgent demands upon my time at present, from doing more than briefly stating my conclusions in this case. Shireman, in his patent of 1867, discloses the first invention in which the entire power of both carrying wheels is utilized at the middle of the rake head in the tilting operation of the horse rake. The power of a constantly revolving axle, driven by both carrying wheels, had been applied at the middle of the axle to communicate
motion for running the machinery in harvesters, seed drills, hay tedders, etc. The power was applied in these. machines by the same devices employed by Shireman, but, to utilize it in. the hay rake, Shireman had also to employ a lifting device adapted for a horse rake. He found this lifting device in prior inventions; but he certainly made a combination which was new. Not only had not the same parts been employed to do the same work before, but the mode of operation was new. It cannot be doubted that the new combination produced a more efficient machine. There are, undoubtedly, cases where It combination may be made of parts never combined before, where no invention is involved. Such is the case where a well-known contrivance is used to perform a function exactly analagous to that in which it was formerly used. This is not such a case, and I am unable to doubt that thought and intellect reside in the conception. My principal difficulty has been to determine which of the several claims embody correctly the subject of the patent. The first omits the lifting device, withuut which the other parts of the combination are useless. The second does not claim a patentable combination in view of the prior state of the art. The third omits the ratchets and pawls, and is so broad as to cover any devices by which a constantly revolving axle can be secured in a hay rake. It would cover an axle 'made fast at both wheels. The fourth covers a lifting wheel in a horse rake which rotates constantly by power applied from both wheels when the rake is advancing, "substantially as described;" which means, when arranged and constructed substantially as pointed out in the specification. The fifth I construe as the equivalent of the fourth. The sixth should be construed as though the words "substantially as described" were added. The seventh and eighth include the pressure contrivance, which must be limited to the particular construction described, or else is too broad, and if thus limited is not used by the defendants. A decree for an injunction and accounting as to the fourth, fifth, and sixth claims of the patent is ordered, which will be settled upon the usual notice.
ANTOLA V. GILL.
ANTOLA V. GILL
May 21, 1881.)
(Oircuit Oourt, D. MarVland.
L CHARTER-PARTY. Stipulation that vessel, "now at Genoa, to proceed fbitllhut il4ag to to enter upon this charter; vessel having permission to take cargo of coals alii ballast out." The vessel remained at Genoa 31 days, discharging a cargo of coals, before she began to take in ballast for the voyage. Held, that the language implied that there was nothing in the existing engagements of the vessel to prevent her entering upon her new contract at once; that the delay, so far as it concerned the charterers, was, under the stipulation, unreasonable, and that they 'were absolved from loading the vessel when tendered to them. Antola v. (JiU, 5 FED. REP. 128, affirmed.
In Admiralty. Appeal from dis,trict court. A. StifZing,Jr., for libellant. , Marshall ct Fisher, for respondents. WAITE, Circuit Justice. On the 29th of September, 1879, Antola, the libellant and owner of the Italian bark Padre, through a firm of ship-brokers in Baltimore, chartered his vessel to Gill & Fisher, the respondents, to carry a. cargo of grain from Baltimore to some safe port in the United Kingdom, or on the continent between Havre and Hamburg. The charterparty contained the following: "Bark · ,. · now !lot Genoa, and to proceed without delay to Baltimore to enter on this charter; vessel having permission to take cargo of coals as ballast out." When the charter was effected the vessel was at Genoa. She had arrived on the 23d of September, with a cargo of 987 tons of coal, to be delivered to consignees at that port. The delivery commenced on the 25th of September, but was not finished until the 30th of October. The vessel then took in sand for ballast, and on the 7th of November sailed for Baltimore. There was no unnecessary or unusual delay either in putting out the cargo or in getting ready to sail after that was done; under her contract for taking the coal to Genoa the vessel was allowed thirty-five tons a day, working days, to discharge.