(OircuitCou'I't, 1.
E.D. April 8, 1889.)
a,
Notwithstanding the practice conformity act of 1872 and the judiciary act of 1875, and notwithstanding the prac<tice in Ohio of tJ,"aversingall the aver· merits of the petition by the general denial. it remains the law that a plea to the jurisdiction of the court' denying the averments of the diverse citizenship, must be,' in the. federal courts of Ohio. by a special plea· of abatement sep' arately pleaded and tried. AnY9therplea to the.. merits. i,s a waf ver of plea in abate'IDent; and all evideil-ce 'upon the subject of the citizenship isirrelevant if there be no plea in abatement raising the question of jurisdiction, or some other plea to whiQh that evidence is pertinent and rel,llvant. SAME-JURISIlIOTIONAL QUIllSTION...,.DIRECTING IsSUE."...AMENDWllNTOF PLEAD, If. however. in the Qbsence of a special plea to the Jurisdiction. the court can see by the proof that there lila:jurisdictional question as to the citizen, ship ofthe parties. it must, under the fifth section of the judiciary act of ,1875. direct an issue to be made by the pleadings. try that question. and dismiss the suit if there be no jurisdiction; and therefore an application by the defendant tOamElII,d his pleadings in order to raille the question will and be granted, even after the trial has commenced. ING. , '
IN ABATEMENT-PROOF OF CITIZENSHIP.
8.
SAME-TRAVERSING AVERMENT OF CITIZENSHIP OF CORPORATION.
4.
Th'e proper'form of averment of the citizenship of a plaintiff ,corporation. where upon special facts.it is claimed that the law under which the association is organized does no.t create a corporation, but only a limited partnership with a suable capacitY; suggested. Held. that it may be done by either a general or a special traverse. but the latter is the better form. JUBIBDICTioN OJ' FEDERAL
'
LIMITED PARTNERSHIPS - CAPACITY TO SUE COURTS-CORPORATIONS., :, '.;
The limited partnerships of Pellnsyrvl\Uia having a capacity to sue and be sued by the partnership name and exercising other functions analogous to or identical with those of corporations. are nevertheless not corporations en· titled to sue as artificial citizens of: the states, within the purview of the con" stitution and laws Of the United States in that behalf. The federal courts will not extend ,the creation of such artificial citizens of the states in order to acquire jurisdiction over organizatloll11 that are not corporations, strictly 80 called.
G.SAME-SUXT AS CORPORATION-AMENDMENT OF PLEADING.
, Where a limited partnership sued ;after the manner and 'style of a corporation. alleging itself to be such under the laws of auother state, and it was fuled that it was not entitled to that liberty or privilege in the federal courts. it was allowed to amend its pleading, and to sue as individuals. they being citizens of other states than that, in which the suit was brought. suing after the manner andatyle of partners in the Qrdinary way of sU,its by partnerships, but no.tin its partnership name pure and simple. since that would not disclose the facts as 'to citizenship. but would be to treat them as corporations are treated in that matter in its relation to the jurisdiction of the federal courts.
At Law. Hent1erson,' Kline Tolle.B, for L. A. RU88elland John w: Me Vicker, for defendants.
state of Pennsylvania, and that the defendants are citizens of the state of Ohio. The answer admits that the defendants are citizens of Ohio,
a:n incorporation duly organized ullderand by virtueof the laws of the
HAMMOND,
J. The plaintiff's declaration or petition avers that it is
DrlPEBIAL REFINING CO. V. WYMAN.
575
but otherwise CI. uenies each and every allegation and averment of the said petition not above specifically admitted." . It is conceded that der the in Ohio this denial puts in issue the of the petition as! 'to the incorporation, and under it the defendant has offered proof, subject to the exception of the plaintiff, which has been reserved, tending to show that the plaintiff is not an incorporation at all under any law of Pennsylvania, but only a limited partnership, which is composed of persons unknown, who hold some 3,000 certificates of shares of in the capital of the concern; wherefore it is contended that the court has no it not being shown that the averment of the plaintiff in that behalf is true. The plaintiff was organized under the Pennsylvania acts of 1874, entitleu, in Digest of don's Laws. of Pennsylvania for 1873-1878, p. 1891, "Limited Partwhich do indeed provide for an apparently different chara,cter of organized associations than those "Corpo;rations" provided for by another chapter of the same.laws found under this latter title in the same digest at page 1839. Yet the plaintiff claims that, whatever distiD<l, tions there.may be .between the two classes of organizations, the laws. un.. der whichi(js prganized give it a suable capacity and all other essential attributeS.necessllry to create a "corporation" to all intents and purposes within the purview of the laws of the United States regull1ting the jurisdiction of its courts over corporations; and the learned counsel cite the case of Inauranee Co. v. MassachU8eltB,lO Wall. 566, which was not, however, one involving the jurisdiction of the federal courts in its relation to corporations as "citiZens" of the states, and does not decide the point sought to be raised here; unless it may be. inferentially; and it will be found, I think, that it is not safe always to infer very much, however naturally, from such decisions upon a question like that suggested here, particularly in Yiew of the dissenting opinion ip. that case. However, we are not at this !p'oment called upon todeci!ie that question, if it shall arise at all in this .case. Theobjecti6n of the plaintiff to the testimony is that it is incompetent and irrelevant to the issue made by the pleadings, because, it is urged, a general cannot, in the federal cou;rts, rail'je !bis jurisqictional question, since a plea to the merits waives the matter of jurisdiction; if proper averments appear ofrecord to confer it, which can only be challenged by a special plea in' that behalf. Such was undoubtedlythe law prior to the practice conformity act of 1872, and the judiciary act of 1R75, (Rev. St. § 914; 18 St. 472, § 5,) and is still the notwithstanding thokjeacts, in my opinion. And thereis a good in the. that in a certain but very particull\-f a.nd reason. fOf' it, somewhat peculiar kjense the federal courts are tribunals of limited jurisdiction; l,tndth,e rule that the jurisdiction of all co,u;l',ts oflimited powers in, that general sense which is not at all applicable to the federal courts,m.ust exhibit has ,been applied.to them nevertheless, and theirjurisdiction, must appear;1,lp!>n the technical record. So that, if we permit aIDere gfilner8l pufin issue these special averments of jurisdiction along with all other averments, we should have the jurisdictional facts tried and settled anl Dlade of that issue upon t.he record,
576
. FEDERAL REP<-STER,
'vol. 88.
and there would be no showing whether the suit failed for want ofjurisdiction iIi thjs liInited tribunal or upon other grounds of a more formidable effect when passed into the general judgment. Therefore. if for no other rea:;;on, if the state courts, which are not troubled with this limited quality in their jurisdiction, have prescribed for them a different practice on this subject, the federal courts cannot, in the nature of the matter, adopt that practice, ,and it will be observed that the act of 1872 only requires us to conform to the state practice "as near as may be," which saying was inserted in the act for the very'purpose of not embarrassing the courts of ,the United States with incongruous rules of state practice, such as that relied on here would be. Besides this, I find the decisions of the supreme court of the United States as uniform on this point since the practice conformity act of 1872 as before, though I find in them no mention of that act in its relation to this matter. [)' Wolf v. Rabaud, 1 Pet. 476,498; Society Y. Pawlet, 4 Pet. 480, 501; Evans v. Gee, 11 Pet. 80, 83; Smith v. Kernochen" 7 'How. 198,216; Sheppard v. Gravcs, 14 How. 505, 512; Joncs Y. League, 18 How. 76, 81; Dred Scott Y. SandfMd, 19 How. -where this rule of federal pleading is fully and thoroughly discussed upon reason and authority; Spencer v. LapBley, 20 How. 264; Railroad Sobry v. Nicholson, 3 Wall. 420, 423; 00. Y. Q;wiglm.J, 21 How. 202; U. S. v. Inkurance COB., 22 Wall. 99, 100; Pullman v. Upton, 96 U. S. 328,329; E'J7prcsB 00. Y. Railroad Co., 99 U. S. 191,198; Williams v. Nottawa, 104 U. S. 209; Farmington v. Pillsbury, 114 S.138, 143, 5 Sup. Ct. Rep. 807; Hartog v. Memory, 116 U. S.588, 6 Sup. Ct. Rep. 521. As to the act of 1875, § 5, Bupra, OHe w<;lUld suppose, after the decisions in Williams v. Nottawa, Bupra, and FarmingtOn Y. Pillsbury, Bupra, that this federal rule of pleading had been designedly changed, so that the court should, as the act seems tO'direct, dismiss a case whenever and ever the want of jurisdiction might appear; and the latter of the above cases specifically says that "the old rule established by the decisions, which required all objections to the citizenship of the parties, unless shown on the face of the record, to be taken by plea in abatement before pleading to the merits, was changed, and the courts were given fnll ity to protect themselves against the false pretenses of apparent parties. · * * It was intended to promote the ends of justice, and is equiviIJ lent to an express enactment by congress that the circuit courts shall not have jurisdiction of suits which do not really and substantially involve a dispute or controversy, of which they ha\'e cognizance, nor of suits in which the parties have been improperly or collusively made or'joined fOJ the purpose of creating a case cognizable under the act." And the other case quite as emphatically declares that "in extending a long way the jurisdiction of the courts of the United States, congress was specially careful to guard against the consequences of collusive transfers to make parties,and imposed the duty on the court, on its own motion, withput waiting for the parties, to stop all further proceedings, and dismiss the suit the moment anything of the kind appeared." No., it will be noticed that the fifth section of the act of 1875 makes
De
n.
IMPERIAL REFINING CO. tI. WYMA,N.
577
no distinction in. this. qarefulgul!-rdianship of. the jurisdiction, between.. those suits which "do not really and substantially iuvolve a dispute or controversy properly within the jurisdiction of said circuit court" and those in which "the parties to said suits have been improperly. or collusively or joined, either as plaintiffs or defendants," and commands the court!l in either class to reject thejurisdiction in precisely the sameterrns. And so, on the authority of the act as interpreted in the two cases just mentioned, which involved the turpitude of collusive assignments, the circuit court, in Hartog v. Memory, 23 Fed. Rep. 835, ina case which involved no turpitUde, but was a mistake, made "in good faith," as to the citizenship of the defendant, very naturally supposed that the rule of pleading as to the jurisdiction had been changed by the act of 1875, as the supreme court had said it was, and that it imposed the duty on the court, "without waiting for the parties," and "on its own motion," of dismissing the case if the facts developed a want of jurisdiction, as was directed in the extracts already made from the decisions of the supreme court, and it so ruled. But it seems that this was error, and the ruling was reversed. Hartog v. Memory, 116 U. S. 588, 6 Sup. Ct. Rep. 521. From this latest case, as far as. the court is advised, and from Barry v. Edmunlh, 116 U. S. 550, 6 . Sup. Ct. Rep. 501, which also considered aud construed thissectiou of the act of 1875, it 'IWW seems that "the old rule astablishEld by the decisions" has not beeu changed, but is still established, notwithstanding the ,act; and a new rule has been super-added, which is that the court may of its own motion institute an inquiry, "either by having the proper issue joined and tried, or by some other appropriate form of proceeding" aA to jurisdiction, and act accordingly. The statute says that the court shall ,dismiss the suit when it shall appear to the 8atisfaction of the court that the jurisdiction does not exist, and, of course, if this be mandatory, it is the duty of the court always to institute the inquiry above mentioned. Nevertheless, by this latest decision, it cannot do this without directing a proper issue to be made, which is still a plea in abatement to the jurisdiction as before, unless there be some other "appropriate form of proceeding" available; and I take it there is none other in actions at law. The result is that the defense set up here cannot be made under the general issue, as it may have been done uuder the state practice in Ohio, but should have been raised by a plea in abatement, either generally or specially traversing the capacity of the plaintiff to sue, as was so learnedly pointed out by Mr. Justice CURTIS in the Dred Scott Caae, supra; it is worthy of remark that this case, in the matter of pleading, as here considered, presents a very striking analogy to that case as analyzed by Mr. Justice CuRTIS. In that case the question was whether Dred Scott, a natural person, was a "citizen," he being of African descent; and here it iii whether the plaintiff is a corporation, and therefore pro hac a "citizen," it having been organized as a limited partnership. If the suit were in the state court of Ohio, and no question of the jurisdiction ora tribunal of limited powers were involved, but only the simple,questlon of v.38F.no.7-37
1I'EDERAL REPORTER,' vol.
38.
whether We plaintiff be a corporation, that issue, as t understand it to the general denial, and no special be cOllceded, might be made plea of nul tiel corporation, as it is called, would be required. But here again these federal decisions, and many others that might be cited, all show that the federal practice, like that in many other of the states than Ohio, requires that special plea. If it were not for this fact it might be doubtful, and it may be that it is dOUbtful notwithstanding that fact, whether this case falls within the rulings of Williams v. Nottawa, supra, and Farmington v; Pillsbury, supra, in neither of which was there any plea in abatement to the jurisdiction, and yet the evidence that overthrew the jurisdiction was held pertinent under the issues that were , :rnadeupon the merits. or within the case of Hartogv. Memory, supra, where the plea in abatement was required. But my best judgment is and must be controlled by it, and that that it falls within the the evidence which relates to the incorporation of the plaintiff should to be incompetent and irrelevant, as the pleadings noW stand. But I am certainly of the opinion that the court should of its own motion obey the imperative command of the act of 1875, and perform the dilty imposed upon it by the act and the decisions under it,by directing aI,l issue to be made to test the question of jurisdiction, and should, for that reason, and because the federal statute of jeofails is the most liberal as to amendments afpleadings of all kinds and at all stages of the case, allow the defendants' application to amend their pleadings, and itwill be granted. But here we areagain'confr6nted with the difficulty that these decisions establish beyond peradventure that this special plea to the jurisdiction, cannot be jointly pleaded with other issues to the merits, the latter overruling and waiving the former, and this amended plea should be therefore tried and disposed of separately; but, exercisingthe plenary powers of the court over this subject under the act of 1'875, I think it is competent for us to avoid the abortion that must reemIt from withdrawing the. pleas to the merits and discarding all the proof that pertains to them, and forcing us into two trials, by directing this jury to find a special'verdict setting out the facts, none of which are disputed, relating to the, organization and alleged incorporation of the plaintiff; and on this special finding the court can direct judgment, and dismiss the suit, if it shall tilrn out that the plaintiff is not an incorporation under the laws ofPe:nnsylval1ia, as it sets itself up to be by the declaration or petition; and it will be so ordered. But I suggest to counIklfor thedEifel1dant that, while it is true that he may by a general traverse, such as he has'drawn for his amendment, make the issue of the jurisdiction, it would be betterto follow Mr. Justice CURTIS' suggestion in the Dred ScottCaae, and raise it by a special traverse setting out the facts in proof as to theplai:ntiff's organization; and a demurrer to that' would present the precise. question that would be presented by the special findings ofthejUty; ·But'hecll.litake his choice of procedure, as he is clearly entitled to l'lead inhis own way· " ' ' " But now 'comes the plaidtiffand asks to amend Hs declaration, if the judgment of the 'court UPOIi the demurrer or upon 'the; special findings
shall bEl thaUt,isnot acoIf}llqrationof Pennsylyaniat and is, not entitled to sue as "a ofthnt state,rby: suing in tbenames of the persons who constitute; the organimtion, some, half dozen 'citizens of New, York, New Jersey, and Pennsylvania, as the proof .showsthem to be, lmd under the firm name and style of the organi1.lltion, after the usual manner of partners bringing suits. Surely they would be entitled to this amendment, and it would rid us, of all fUl'ther trouble as to the jud&diction. The court is therefore willing to ruleprojorm.a-'-and I say that because, while I believe it to be the correct ruling, Ihave not had time or opportunity to give that oritical study to the point which its importl).nce deserves-that the plaintiff, on the facts shown, is not a corporation of Pemisylvania, and therefore. is not entitled to sue as such in respect to the rule of the federal courts governing their jurisdiction of, controversies between citizens of different states. The case ance Co.v. MQ,88achUBett8, 10. Wall. 566, does not decide:the point, as already intimated. A joint-stock company or other organization siu}ilar to partnerships, whether limited or general, may be for the p'lllpoSeS of in that case declared to be, and for the reasons therein sta.-ted, within a legislativ,eact "corporations," eo nomine, and yet not within the designation of the term "citizen," as used in the constitution of the Ullited States defining the limited judicial powers of the federal government. Dinsmore v. Railroad Co., 1, Law & 351; S. C. 3 Chi. Leg. N. 157. One has only to reflect a moment upon the well-known and interesting conflict, political and judicial, which has raged over thedruling of the supreme court that llcdrporation may, by a fiction, be brought within the designation of the constitutional term "citizen of a state," to see that the courts may well halt before extending any further, as our constitution now stands, the business of creating artificial citizens of the states by taking within the fiction already estahlished any other than legitimate corporations de jure, and thus acquiring jurisdiction over partnerships or associations that are called qua8icorporations and corporations rk facto, merely to obtain this jurisdiction; and I cannot, as now advised, assent to the circuit rulings in thatdirectibn, which have been cited at the bar. Maltz v. Express Co., 1 Flip. 611; Fargo v. Railroad 0>.,6 Fed. Rep. 787. If the jurisdiction is to be maintained it is not by the assimilation. of these nondescript organizations into corporations,'for the constitutiondoes not use that term, but by an expansion of the power,of the court, and the selection of a similar material out of which to manufacture other artificial "citizens" of a similar or analogous character to those already admitted to thisptivilege of thecol1stitution. Or, to be more precise).......for it is admitted on all hands that this creation of an artificial "citizen" is the product of a somewhat dubious process,-we are to extend the absolutely conclusive legal presumption in favor of corporations that all the incorporators ara citizens of the state granting·the, charter, to organizations which have no charter, strictly speaking, but by authority of f;ltatute exercise an analogous privilege of suing and being sued by a common name or style, instead of in their That
580
FEDERAJ. REPORTER,
vol. 38.
the same reason maybe given for extending the presumption as is given for its original establishment there can be no doubt, but whether its extension may not provide a too easy method of evading the constitution deserves careful consideration at our hands. By the same reason we might include in the presumption associations of persons exercising the privilege by a contract inter 8e8e, without authority of statute in the premises, if sub silentio the state permitted them to do that thing, and so on ad infinitum. The plea of the defendants to the jurisdiction will be, therefore, sustained upon the findings of the jury in that 'behalf, or upon a demurrer to a plea setting up the facts specifically as suggested, which..;' ever is adopted. And counsel may make up the record accordingly. But the plaintiff's amendmflnt,suing in the names of the individuals COIilposing the limited partnership, in the firm name and style, as partners ordinarily sue, will then be allowed, but only in that form; for we do not wish to fall in with the controversy whether a statute authorizing a partnership to sue by its firm name, and not by its individual members, has any extraterritorial force through the comity of states. This mode of suing would not disclose the faqts as to their citizenship, and would practically be only to confer on them the privilege of a corporation suing citizens of another state in the federal courts. The petition being thus amended, the case will proceed upon the other issues involved to verdict and final judgment.
as
NOTE. The deolaration, as amended, became that of A, B, C, etc" citizens of New York, New Jersey, and Pennsylvania,. respectively, "doing business under the firm name and style of the Imperial Refining Company. "
In re 1.
PALAGANO
et al·.
«(J£'re-ult (Jourt, 8. D. New York. April 12,1889.) APPEAL-REvIEW-DECISION OF COMMISSIONEB OF EMIGRATION.
Decision of commissioners of emigration as to indigent immigrants nol to be reversed by collector.
9., IMMIGRATION-DETENTION. Removal from ship and detention by commissioners of emigration for purposes of examination not a landing. (Syllabus by the Oouri.)
Habea8 C{)1jJUB. The relators are immigrants who arrived at the port of. New York on 13th February, 1889, on the Utopia, from Naples, Italy. The commissioners of emigration, after, an examination, determined that they were liable to become a public charge, and so reported to the collector of the port. For'the purposes of the examination the relators were removed from the ship, and after",the ship started on her return voyage they were kept at Wards' island by:the commissioners. The collector, after the receipt of the report of the commissioners of emigration, heard
l1iRE .FALAGA:\O.
581
other evidence as to the relators' condition, and determined that they were not likely to become a public charge. The relators sued out a writ of habeas CorpU8 directed to the collector and the commissil)ners of emigration. Joseph J. Marrin, Jr., for petitioners. Stephfm A. Walker, U. S. Atty., and Abram J. Rose, Asst. U. S. Atty., for the collector. Kelly &: MacRae, for the commissioners of emigration. LACOMBE, J., (orally, after stating the fade as abot'e.) This is the position of affairs as I understand it: These persons challenge their detention. It appears as matter of fact that they are now actually restrained of their liberty by the commissioners of emigration. Upon inquiry as to why this is, it is shown, in the first place, that the commissioners determined that they were unable to take care of themselves, and were likely to become a public burden. Therefore they were. under the language of the statute of 1882, persons who should not be permitted to lalid. I am inclined to follow the decision of the supreme court of this state in Peoplev. Hurlburt,67 How. Pro 356, and to hold that it was not in reality a landing when they were removed from the ship to a place entirely in the control of the commissioners, for the express purpose of' making an examination with regard to their condition. The commissioners made their examination, and sent their report to the collector, so that the relators are evidently not now held or detained for the pur-; pose of further examining into their condition. Under what authority, then, do the commissioners still hold them? I find by the statute that it is made the duty of the secretary of the treasury to carry out the provisions of the act,-to prevent the lanrling of, and thus practically to send back, all individuals who are by these commissioners found to be likely to become a public charge. Of course, the secretary cannot do' that by his own personal acts. He employs agents for the purpose.' It further appears that he has so employed agents in this port, viz., these commissioners; and that they are holding the women until proper provision can be made for their return. It seems, therefore, that they, hold them under the authority of the secretary of the treasury, conferred upon them by subdivision 2 of the treasury order of September I, 1885. I am satisfied that there is no power in the collector of the port to reverse the action of the commissioners in determining the statU8 of these persons, and think that there is sufficient in subdivision 2 to warrant the emigrant commissioners, as the agents of the secretary of the treasury, in keeping these persons in a suitable place until some arrangement can be made with the steam-ship company to conveniently return them to the port whence they came. If there are peculiar circumstances, as . suggested on the argument, which would tend to modify the former find-· ing oLthe commissioners of emigration, such facts should be laid before them. They do not becomejunctus officii by a single decision, but may review such decision whenever justice requires such action. Writdismissed.
682 "if! . ;'!1ii,;+ .j; , .';:
FEDERAL REPORTER,
,REDWAY :.: .1
etal.V. '. ",;1'
OHIO STOVE .:
CO· '. :',
((}ircuit Court, S. D. Ohio,
w: D.
,:
)lay 4,1889.
1.
PATENTS FOR INVENTIONS-DESIGN PAit'ENTS,,-NoVELTY, "
to be patentablem\lst be: 110 qifferent from aU others existing before it as to appear to be different to ordinary observers, and.it is immaterial that the amount o.f novelty is small. , ' "
S. SAME-INFRINGEMENT.
The test for infringement of a design patent is that the designs appear the SaQl6 ttl observers. and the fact that there are minor differences of , 'detail filth mariner in which the appearance is produced, noticeable only by , experttl!do6S' not relieve the design from condemnation 8S an infringement; noris,itjll8terilt\ thaUhe allegoo;itlfringer used his owil name and the name of hJS qw:n, CQnnection with the design.
In Equity. Action for infringeinentof a patent. William Hubbell Fishe:r;; for cotiiplainants. , Bateman &JHarper, for defendant. ;':', ')1,
This suit is for infringement of design patent No. 16,664, granted April 27, :1886, to the complainants as assignees of John F. Martens,Jor;a design for acooking.stove. The claims relate to the or. namentation of the doors and other parts of a stove with sprigs, flowers, bud, ,butterfly, and bird, ,as shown and described in the letters patent; also'the oonfigurationand, ornamentation' of the legs, substantiallya$s4.owp.; The defenses. relied upon are that the designs claimed and Showllll'Nnot novel; that they are not inventions, nor patentable; that was not the first produoer or inventor thereof;' and that the defendant: does not infringe. "The ornamentation of the oven door...... which will)gerve as an illustration ,of the ornamentation of the stove, and avoid the necessity of forth the specifications and claims particby a series of twigs or sprigs, extending from the lower rear corner upward across the door. On the upper branch is a flower ofrose;.like form. The lpwer branch passes forward somewhat under thehaJ;lgle of the door, and depending from it is a bud; to the upper rear sid,e ofthe braaches is a bird, and on the lower branch a butter· fly; but the leadiag feature of the ornamentation is the particular branch with stems alld flowers as above described. The defendant has put in evidence quite a ,number of designs, all of date prior to complainants' patent, and ,claimed, to be in anticipation thereof. Prominent among thl;'seare the "Jewel Range, "a Detroit stove, and the Vedder patent, No. 609, graqted November 8, 1853. In Ol'l1amentation of the oven door of the found a series of twigs or sprigs extending from the Ipwerrear, oprner forward and upward across the door. On the upper branch is a Jlowerof rose-like form, and the lower twig or branch passes forward the handle of the door. In word, thedescription above oX the Qrnamentation of the complainants' stove-which is ill the Olll.in from ,the specification of the patent-would answer in the particulars for a description of the ornamentation of the Jewel range. In addition to the points of resemblance already stated, the SAGE,J.