428
FEDERAL REI>ORTER.
transferred remained in the corporation until its failure, in 1873, when it made lUl; assignment of allltsproperty to Mr. Chafee for the benefit of its creditors. The grandchildren attained their majority as follows: Mr. Lee in October, 1866; Mrs. Francklyn :in October, 1866; William T. Hoyt in January, 1868; and Edwin Hoyt in July, 1870. The actions'of ejectment were brought on October 1, 1879. I do not deem it necessary to consider any questions of estoppel against the right of the three elder children to maintain their actions of ejectment, growing out of the fact: that they accepted the dividends upon their stock, and might have known, "had they used the means and opportunities directly at their command," that the Baltic property, in Connecticut, was claimed to be a part of the assets of the corporation, incompenor shall I consider the questions growing out of the tency of Edwin: Hoyt to ,acquiesce. in any disposition of his property, because my conclusion is.that tbeBaltic property was, from the time of its purchase, partnership property, and liable fot its debts, and that, of the debts of the firm, it properly became a subject to the part of the 'assets of the corporation in 1865, and that thereafter only a bare legal title remained in the four children of Mrs. Hoyt, which title it is competent for a court of equity to direct to be released to its equitable owner. A statute of Connecticut provides that "courts of equity may pass the title to.real estllite by decree. without any act on the part of the respondent, when, in· their judgment, it shall be the proper mode to carry the decree into effect, and such decree, having been recorded in the records of lands in the town where such real estate is situated, shall, while in force, be as effectual to transfer ,the same. as the deed of the respondent or respondents." 'Courts of equity of the United States for this district have the power to administer this remedy. Fitch v. Oreighton, 24 How. 159; In re Broderick's Will, 21 Wall. 503; Oentral Pac. R. Co. v, Dyer, ISawy.641. . Let there be. a decree enjoining against the prosecution of said actions of ejectment, and vesting in Mr. Chafee .the legal title to said estate.
BURR 'V. KIMBARK.
(Oircuit Oourt, N. IJ. Illinois. January 17, 1887.)
1.
INJUNCTION-BREACH'- CONTEMPT KNOWLEDGE OF FILING.
INFRINGEMENT OF PATENT -
BOND -
.
Where a preliminary injunction to restrain the infringement of patent· rights is granted. on condition that a bond be filed by the plaintiff, and the defendant was'{lresent in court at the time the orderwll.8 read and approved, and the cOmpla1llant then exhibited the form of bond which he was required to give. and s'tated that the bond would be filed as soon as the surety's signa· ture could be obtained, and it was in fact filed on the same day, the defendant cannot, in proceedings to punish him for contempt in committing a breach of
BURR
v; 'lrIMBARK.
429
the injunction, plead in justification that he was ignorant of the filing of .he bond, it 'being his duty, without notification, to ascertain whether the b Jnd had been filed or' not. 2. SAME-MANuFACTURE OF ARTICLES INvOLVING PmNCIPLEIN IsSUE.
Where the principle involved in a patent is the point in issue in a suit to restrain its infringement, the defendant will commIt a breach of a prelim1nary injunction, and be punishable for contempt, where, for the purpose of evadthe injunction, he continues to manufacture articles involving the same prmciple, with but slight modifications of structure. '
aule to Show Cause.
Munday, Evarts & Adcock, for complainant. Coburn & T/w,cher, for defendant. BLODGETT,J. This is a proceeding to punish the defendant for an alleged contempt of the injunctional order entered in this case on the second day of August last. 28.Fed. Rep. 574. The bill was filed on the fourteenth of May last, and alleged that complainant W9S then the owner of of Patent No. 142,989, duly issued to himself from the the United States in September, 1873, for certain "improvements in wagon-bodies;" Patent No. 187,452, issued from the of the United States to himself in February,1877, for "improvements in wagon· body irons," and patent No. 187,450, issued to himself from the patent. office of the United States in February, 1877, for: "improvements in dash-boards." The bill charged defendant with the infringement of the invention set forth and claimed in all of the said patents, and that he was then, at' the lime of the filing of the bill, engaged in the business of manufacturing and selling wagon bodies containing devices covered by claims in all of these patents. A motion for an injunction pendente lite was made in the case, and, after hearing and considering the same, the court, day of August last. entered an order commanding and enon the joining clthedefendant, his clerks, and attorneys, agents, servants, and workmen, that they forthwith and, until the further judgment and cree of the court, desist from directly or indirectly, in any way or manner, making, using, or sellipg any wagon bodies, or dash-boards, or ,vagon.body irons, substantially as described and claimed in said letters patent, or either of them;" reserving, however, to the defendant the right to sell, at current prices, the completed bodies he then had on hand, to the number 112, and no more. It is now charged that defendant has wholly disregarded the said injunction, and has continued to make and sell wagon bodies and dash.boards, and to use wagon-body irons, covered by and included in the claims of the said several patents, and the court is asked to punish such alleged contempt of its process and orders. A rule to show cause why the defendant should not be dealt with for the alleged contempt was duly issued, and the defendant has made return to said rule This return assigns various reasons why the defendant should not be punished for the contempt charged: ' tI) That the injunction and order was granted on condition that the complainant should file a bond, with surety to be approved by the clerk in the
489 sum of .the payment.of suCh as might be awarded t.he defendant in caseot the dissolutlOn of the lliJunctlOn, Rnd that defendant never had, until on or after .August 16th, any notice that such bond had been filed and .approved.. . (2) That, the defendant, after the issue ofsach order, completed only 10 wagon bddies containing the improvements covered by the patents in question,an,d that said 10 wagon were in process of manufacture, and nearly finished, at the time the injunction WaS ordered. (3) That all the wagon bodies made since the injunction was ordered, with the exception of the 10 first mentioned, have not contained any of the devices covered by the patents. (4) That the wagon bodies>made by the defendant since the granting of said order have not infringed upon any of the valid claims of eitlwr ofsaid patents, when said claims are considered in the light of the state of the art. In regard to the firsfpoint, it is sufficient, I think, to say that the defenda.t:lt was ,present. in chambers at the time the injunctional order was reada.t:ldapproved, 'and the complainant at, that exhibited the f,ormof hond which he wa:srequired to give in pursuance of that order, and stated who the surety was to be, and also stated that the bond would be filed as soon as he could go to the surety's place of business in this city, /lnd obtain his signature; and the complainant,or his solicitor, left the chambers as soon as the order was directed to be entered, for the purpo$.e of lj.ay,ing the bond filed; and the records of the court SllOW the bond was fiJ.edand approved by the clerk on the day that tpe injunctioJ,lal order was entered.' . I have no doubt fro.mwhatoccurred in the chambers at the time the injunctional <;>rder was made that t4e defendant knew that the bond would be filed on day, or, at least, had good reason and reasonable cause to suppose and believe that hond would he filed on that day; and it wa,s therefor,ehis duty to have seen to it, and to have taken notice of the fact,. that it was so filed. Being a party to the record and to this suit, he notice of all· steps that are taken in it; and. it is not is necessary, to bind him by the terms of the order, that he should be specin<;>tifieilof the fact that the b,ond had beeJ,l approved and filed. It Was his business. to ascertain from .the clerk, if he was anxious upon the subje,(jt, whether a bond had been filed or not. He was bound to assume it ivot:!ld he filed, as notice had been practically given in court-room thlitihe surety acceptable, and the forJ)l of bond approved. T1w defendant admits that, in violation of this injunction, he .did pro:ceed and finisll ,10 wagon bodies which :Were in process of manufacture at.the timethejnjunction was. issued. Having obtained fromthe court of.the right to sel1,the112 then. manufactured, and in, his warehouse for sale, it seems tome the defendant ought to have been content with this 'privilege, anq not have proceeded to finish the 10 that were then under way. Certainly, in doing so, he took the responsibility and risk of the process. of the court; and, without going farther . than this, it IS 'enough to say that the defenqant's own affidavit discloses, it seems to me, a deliberate, Gontumacious intent to violate this order of the c o g r t . , " ' , '.' .', : " .... ' . .
· BURR..'11dOXBARK.
431
It is als'oadmittedthat aIter the had finished the 10 wagon bodies which were completed, after the entry of the injunctional order, hecontiriuedto construct wagon bodies with center-posts containing Bockets, but filed notches in the centre-posts, so ,that the slats or ribs could be notched or halved into same, in such manner as to make some portion of the slats continuous. As it will be undoubtedly a question presented at the :final hearing of the case whether the first, second,and third claims of complainant's patent No. 187,452, for wagonbody ironB, necessarily require that the horizontal ribs, D, shall be cut oft', and terminate at the intersecting sockets in the upright standard, and whether, by making 'a portion of this standard, E, continuous. the defendant has evaded the claims of this patent, it may be better to withhold any.. adjudication or opinion upon that point at this timej but it is conceded that the change in question was made by the defendant for the express purpose, and'with the intention, of continuing the construetionofw'agon bodies in external appearance substantially like those coveredby thecomplairiant's patent, and which could and wouldbe.801d upon the;market as and for such wagon bodies. ' As to the fourth defense, that the claims of the. complainant's, 'lmtent are void for want of novelty , it is· sufficient to say, that this is, the, nry question to, be tried in this case. .The defendant is expressly enjoined frommanlifa()turihgand selling any wagon bodies! dash-boll,rds, or wllgonbodiirons Bubstaritially as de8Cribed in the claims in said letters or either of them. One of the claims of the complainant's patent for 1873 is "for a wagon body or box frame-work, when the several.· partS are connected together without mortice or ten(WI substalltially" as This claim· broadly-covers the idea of" IPlllf,ing .a wagon body "01' box without cohnectingthe parts by mortice but conhecting them, with irons, substantially as shown in this: patent j and itiB conceded the 'defen.danthas continued the .of wagon bqdies' tbeparts, of. 'which were connected without mortioe or tenon,-andiby means of angle iroDs.and·brackets .and bolts, substantially as shown in this patent. It is .true the.t. the defendant's affidavi1:a &how that he has made four mortices and teUClll$ in theconstructipn .oithe wagon bodies, which he. has made since. thisinj:unctionj but be, hltB 000nected8Jl the ,other parts of his bodies together without m'ortices and tenons. A complete wagon body, ,without the use of irons,wbuld involve a very large number ofmortices and tenons'ineltch body.' . All these the :defendant has used,. with the exception ,of.the morticesandtenons,which connected the end-sills with the Here the complainant, has a. bl:Gac,l claim .for. wagon bodies. in a special manner, and the defendant, notwithstanding this claim, and notwithstanding this injunction, has continued the construction of wagon bodies substantially. as I must say, in accordance with the claims of this patent, making only colorable changes. So, in regard to the patent upon the dash-board. The complainant's patent covers a dash-board the' ends of which are inclosed by socket pieces of metal. The defendant has constructed dash-boards of this
FEDERAL REPORTER.
character, having the same appearance and general characteristics as those covered by the· but has riveted or fastened a of iron upon a metal casting, so as to make the socket by riveting this strap of iron upon the,easting, instead ,of caSting the socket whole, as was shown in the ,patent. . It seems to me, then, in summing up the whole of defendant's conduct since' the entry ofthis restraining order,the proof shows a deliberate intention to violate the process of the oourt, and the rights of this complainant lite, without regard to the injunction under which he ,was acting. It is no defense, under the circumstances, for the fendant to'say that, so far as he has attempted to evade this patent, he has been acting under the advice of counsel. The defendant is himself an unusl18lly intelligent man; having long been engaged in the manufacture of this kind of work, and, knows very well the value of .the exclusive right to this class of manufacture which is secured to the complainant' by his patent; and when the injunction was granted it was his duty to submit to the injunction in the language in which it was stated, and "wholly refrain from the manufacture of wagon bodies and dashboards," which were covered by any of the claims ofthese patents. The validity of these 'claims, and the question of how far the change in the construction would enable the defendant to manufacture other wagon bodies involving substantially the same principle, with .but slight modificatibils ,ofstructure, were questions to, be determined at the hearing of the case; and it was the defendant's duty to await the results of that 'hearing, and not seek, .even by the advice of counsel, for means to evade the order which was entered. A bond sufficiE:nt, in the judgment of the court, to indemnify the defendant, was exacted from the complainant as ,the condition of awarding him this injunction, 'and there was also reserved to the·defendant the right to move for a further bond, if the one mentioned in the order should be found to be insufficient. Under these circumstances, the defendant could afford, ,and itwas his duty, to wholly suspend the mantifacture'of this class of wagon bodies until his' case was heard, and properly decided uporithe proofs. Much, therefore, as I regret the necessity; a dueliegard to the dignity and efficacy of the process and decrees of the court requires, I think, such an exemplary punishment as will teach this defendant,' and all others similarly situated, that they cannot violate the decrees of the court with impunity. The defendant is .therefore ordered to pays. fine of $500, and the costs of this motion,'incll1ding $50 to solicitor; the defendant to be arrested and committed to the jail of Cook county unless the fine and costs 'are paid within 10 days from the entry of the order.
,EOHN". MELCHD.
433
I,
KOHN
and another
fl. MELCHJIlR.,
(lJircuit Oou'l't, B. D.IO'UJa, lv. D. January 8, 1887.)
INToXIOATING LIQuoRs-CONSTITUTIONALITY OF
low A CODE, !'\§ 1523, 1526. Iowa Code, 1523, 1526, limjtingthe giving of licenses to certain classes of citizllDS of Iowa to buy and sell intoxir.ating liquors, for mechanical, medicinal, 'culinary, and purposes only, by pre,;enting citizens of other states from sellIng hquorsm other states, mterfere WIth the freedom of commerce, violate the constitutional to the citizen of each state all the privilegoes and ,immunities of citizens in the several states, and !to I\ot "abridge the privileges or immunities 'of citizens of the United States, ,. :Since the purpose and effect of the act is to make a safeguard against the, un,la;wful selling of liquors.. and not to discriminate against citizens of !ltates. Crl'IZEN OF ANOTHEIt STATl!J":"IoWA CODE, § 1550. Iowa Code, § 1550, provides that all "payments orc6mpensation for intoxicating liquors sold in violation of this chapter shall l1eheld to have been received ill violation of law, and against equity andgpod conscience, and to have'l1\len'received upon a valid promise and' agreement of the receiver, in 'conllideration of the receipt thereof, to pay, on demand, to the person furnishing'8cUchcoDsideration, th.e amount of said money." Helf}" not to apply to payw,ents on a lIale for lawful purposes, but invalid by reason of the fact that the s'eller was a citizen of another state. '
At TIaw.: Demurrer to answer aud counter-claim. Wright, Baldwin k Haldane, for plaintiffs. k Park and Rockafellow k Scott. for defendants.
J. From the averments of the pleadings in this cause, itapJ.};lllt plaintiffs reside and do business in Rock Island, Illinois, as rectifiers and wholesale dealers in spirituous liquor; that the defendant is and hae Peen a qualified and registered pharmacist at AtlantIc. IQwa, holding a permit from the board of supervisors of Cass him to buy and sell intoxicating liquors for purposes.notproJ;Ubited by the staLutes of Iowa; that during the years 1881, 1882, ·.and 1884 the plaintiffs sold to defendant a.bout $6,500 worth ofintoJtiea.ting liquors; that plaintiffs claim there is due from defendant the BUJ;n of$l,OOO, to recover w.hich suit is brought. III and counter-claim filed in the case it is averred that the liquors were;sold in violation of the statute in Iowa, in that the Same were sol4 by plaintiffs at the town of Atlantic, Iowa, the plaintiffs not being authorized under, the laws of Iowa to sell intoxicating liquors for any purpose. The counter-claim is brought for the purpose ofrecQvering back 'from plaintiffs. the amounts ·heretofore paid upon the account in question, under the provisions of section 1550 of the Code of Iowa. The demurrer to the answer and counter-claim presents the question whether, under the statutes of Iowa in force during the years 1881 to 1884, inclusive, persons residing,and carrying on business as rectifiers and wh0lesale dealers in states other than Iowa could lawfully sell intoxiqatingliquQrs to be resold for culinary, sacramental, medicinal, and mecl;ul,uiettl: purposes, toll. registered pharmacist doing business. in Iowa, ,8J)d. :hQlding a proper permit authorizing him to sell liquors for the purv.29F.no.10-28 SHIl\AS,