52 F. 203 -

UNITED STATES V. CHIN QUONG LOOK.

203

SElrvanceof.their own rules by the complmy,accept tickets which have expired,ortake up tickets which are being used in the wrong direction, as wasaotually done by the conductor from Quebec to Montreal intbis case. Such conduct might easily induce· a person of ordinary intelligencElto suppose that the company' waived astrict compliance with the . termsofthe ticket in this particular. The question of negligenCe .depends, too, not wholly upon what was done in a particular case, but somewhat upon tbe age, capacity. and experience of tbe party doing the act. Had. tbe plaintiff been an experienced railroad man, a jury would probably find little difficulty in bolding that he must have known his ticket would not have been accepted; and that he soould have returned to the office of the company, and had tbe mistake corrected. On the other: hand, had he been an ignorant man, wholly unacquainted with traveling and the usages of railroads, a jury would be quite likely to find that he was not guilty of negligence in acting upon the advice of a mnn in charge of the office of the company at the station, and I should have been disposed to uphold a verdict in his favor. The question for the court in every such case is whether tbe· evidence of contributory negligence ie so clear that intelligent men should not differ in their conclusions. This being the test, it seems to me the question in this case should have been submitted to the jury. The opinion of the court seems to· hold that the plaintiff was bound to know, as A matter of law, that his ticket would not have been accepted. This is practically holding that if the agent who sold the ticket,himself bad'told the plaintiff that his tickettthough defective,would be accepted, the plaintiff would still be guilty of contributory negligence in acting upon his advice. It seems tome that this is carrying the maxim concerning ignorance of the law to au unwarranted extent:

UNITED STATES 11. CHIN QUONG

Loox.

(Dt8tr!ct Court, D. Washington, N.·D. August 50, 18112.)
CHINESE EXCLUSION ACTS-MERCANTILE DOMICILE.

A Chinaman who formerly resided in the United States, and acquired an Interest in a firm long established and doing business here, although he returned to China, and remained over six years, retaining. his interest in the firm, and receiving his share of the profits, has a "commercial domicile" in the United ,States, and cannot be sent back to China under the exclusion act. Lau Ow Bew v. U. S., 12 Sup. Ct. Rep. 517, 144 U. S. 47, followed. .

At Law. Proceeding to enforce Chinese exclusion act. Appeal from judgment of United States commissioner convicting the defendant of ,being unlawfully in the United States. Reversed, and defendant discharged. p.e. ,SuUimn, Asst. U. S. Atty. W. H· .White and F. Hartley Jones, for defendant.

FEDERAL

REPOR'.!:ER,vol. 52.

, IjANFPfiJ;>., J;listrict Judge. The defendant was arrested on his arrival at the. Hity from China. via Vancouver; B. C:,and after a h!;larililg KIEFER, one of the commissioners of the circuit court, to be a Chinese person not lawfully entitled to enter; ,the ,uqited States, or to remain therein, and ordered to be sent baqkJp 9hina,. ,By an appeal he has secured a new trial in this court. 'rheevidenc;:e is very <ilear and satisfactory, and establishes the followThe defendant formerly lived in Seattle, and ing as the while he acquired a. one-fifth interest as a member of a firm called tlw Said firm has maintained a mercantile establispment in8eattle continuously for nearly 18 years. The business of t9.e, tlrm iSiimporting, buying, and selling groceries and all kinds of glilOds llsedby theChinesa.people, and it is now doing a business amounting tc? froQi$40,·OOQto$5G,OOOper annum. The defendant returned tq.Ohina six.p,r sevep yea,rs ago. but retained his interest lnthe Gee Lee CAQ;lP&nY, hl:W received ftom time to time his dividends from the PJ:otits<>f said, business., I understand the commissioner to have held returning to his and remaining there over ,tpe delEmdantsurrendered his right to claim a domiCile in t1;lis country. Conceding. this to be true, still, by maintaining amercantile establishment, he has a commercialclomicile here, which,according to·qly. understanding ,of the decisi()nof .the supreme court in the case of,LIJ'U Ow B,ew v. U. S., 14:4 U. 8.47,12 Sup. Ct. Rep. 517, is suffito .entitle him to come .and as any other merchant may. In that case Chief JustiCl;! FULJ,ER sayS: " !'Weareof opinion that it was notihteuded that commercial domicile should be forfeited by temporary absence at the domicile of origin, nOl' that merchar,ts should besubjelltedto 10s8 of rights guarantied by treaty, if they failed to produce from the domicileof origin that evidence which residence in the domicile of choice may have rendered it ditliClllt, if not impossible, to obtain; and, as we said in considering the application of this petitioner for the writ of Ce1"UOrari, (141 U. S.583, 588, 12 Sup. Ct. Rep. 43,) we do not think that the decision of this court in Wan Shing v. U. S., 140 U. S. 424, 12 Sup. Ct. Rep. 729, ruled anything to the contrary of the conclusions herein expressed. As there pointed out,Wan,Shing was not a merchant, but a laborer. He had ,acquired no commercial domicile in this country, and whatever be bad acquired, if any. he had forfeited by the departure and absence for seven years with no apparent intention returning."
o

Evidently the phrase "commercial domicile" was selected and used inbyCqief Justice FULLER, for th,e purpose .of conveying the idea that the rule which that decision affirms is broader than would be necessary' tomereIyopen away for and egress of those Chi..nese merchants who personally dwell continuously within tbe country. l:}p1:',i?er's 4e finitioll of "comJllercialdomicile" is as follows: "There may domicile acquired by maintenance of a commercial esill a country, i,Q ,reJJLtion to transactions connected: with such establishments." 1 Bouv. Law Dict. (15th Ed.) 557. It is my conclusion, therefore, that the commissioner's decision should be reversed, and thaqhl'l!defendant is entitled to be discharged.

fOX V. PERKINS.

205

Fox v.'

PERIUNS

et aZ.

October II, 1899.)

Court of Appeals. Sixth

No. SO. L

PATENTS J!'OR INVENTIONS-NOVELTY-PRIOR AnT.

9.

Reissued letters patent No. 11,062, issued February 25, 1890, to William R. Fox. for an improvement in miter cutting macbines, are void for want of patentable novelty. in view of the prior state of the art, as shown more particularly in the Howard patent of August 21, 1l:!86, No. 57,325; the Aiken patent of February 21, 1871, No. 111,800' the Jones patent of July 21,1874, No. 153,343; the Nichols patent of July 18, 1876, No. 179,944; and the Lannartson patent of Apri116, 1878, No. 202,445.
, '

SAME-ExTENT 011 CUlM-PRIOR A R T . '

of a series of improvements, all baving the same general object and purpose, and the patent must tberefore be limited to the precise form and 'arrangement of parts described in the specifications/..and to the purpose indica;ed therein. ' Brar1gv. Fitch, 7 Sup. Ct.Rep. 980, 121 U.,I:). 483, and Caster Co. v. /:ipiegel, 10 Sup. Ct. fl,ep.409, 133 U. B. 360, followed. '
8.

SAME-ABANDONMENT.

If tlle Irox machine could be held to show patentable invention, it constitutes one

:rhis construction of the Plltent is also rendered necessary by the fact that various broader claims were rejected and abandoned, under both the original and the reissue applications. '
' , ,

,"SAM:E-NoVELTy-E1I1IECT OJ!' LAnGE SALES.

I.arge sales,of a patented machh... e, while evidence, more or less cogent, of valu13 and uS13fulness, are not conclusive evidence of patentable novelty, and are of little weight when it appears that SUch sales are the result of llctive and energetic l'lfforts by means of circulars and traveling agents. McCUliI.n v. Ortmayer.12 Sup. Ct. Rep. 76. 141 U. B. 427-429, followed. '
,

,

AppeaUrom the Circuit Oourt of the United States for the Western District(jf Michigan. , In Equity. Bill by William R. Fox against Harford J. Perkins, William J. Perkins, and Joseph W. Oliver for infringement of a patent. Decree for defendants. Complainant appeals. Affirmed. George H. Lothrop, for appellant. Edward Taggart and Arthwr C. Denison, for appellees. Before BROWN, Oircuit Justice, and JACKSON and TAFT, Oircuit Judges. JACKSON, Circuit Judge. This is a suit ih equity, brought by appellant against appellees for, alleged infringement ofreissued letters patent No. 11 ,062, granted to William R. Fox, February 25, 1890, for certain new and useful "improvements in miter cutting machines." The defenses chiefly relied on are that the supposed invention was described in previous patents; that, in view of the state of the art, the device claimed as new was not a patentable invention; and that, uppn a proper construction of the patent, the defendants do not infringe it. The circuit court entertaineddoubtswhether, in .view of the previouspatented devices setup'inthe 8,p.swer anq, shown by the eJl'.hibits, therewas anything patentable)nthe alleged invention covered by said reissued letters patent, but,without deciding that point, held that defendants' machine was not an infringement of complainant's patent,even assuming the latter to be valid, and thereupon 'dismissed the bill. From this decree the complainllnthasappealed,assigning as ground for its reversal that the erred in deciding that the defelldants had not infringed, lower in . ., .