ADEE tl. PECK BROTHERS &: CO.
'209
lar offense disposed of, and then to depart in peace." And Mr. Spear considers it "the duty of courts to secure to him, as against all attempts at legal interference therewith, a reasonable opportunity to exercise this right." Spear, Extr. (2d Ed.) 131-145, 557. I must hold, therefore, upon the principles and authoritips approved by the supreme court in the Case of Rauscher, that the prisoner, at the time of his arrest, not having had a reasonable time to return to Ireland atter his acquittal, was under the protection of the United States, and not subject to arrest in the state or federal courts for any cause arising prior to his extradition, and that the state court, when thtl prisoner was arrested by the sheriff, "did not have jurisdiction of the prisoner at that time, so as to subject him thereto." 119 U. S. 433,7 Sup. Ct. Rep. 248. When persons are in custody under process of the state courts, and the same remedies exist there, althongh it may sometimes be more appropriate to refer the applicants for relief to the state tribunals, (Ex parte Royall, 117 U. S. 251,6 Sup. Ct. Rep. 742; Ex parte Coy, 32 Fed. Rep. 911,) yet, in a matter involving personal liberty, and considering the several successive appeals to which the petitioner might be su bjected in the state courts, I think the prisoner is entitled to the more expeditious remedy of the federal tribunals. The prisoner is accordingly discharged, and the court fixes a week after his release by the sheriff as a reasonable time under the statute during which he is entitled to exemption from arrest for the purpose of returning to Ireland.
ADEE
v.
PECK BROTHERS
& Co.
(Circuit Court, D. Connecticut. June 27, 1889.)
PATENTs-INFRINGEMENT-PLEADING.
A bill alleging that defendant has infringed a patent owned by complain. ant, and originally granted to James Foley, for an improvement in wastevalves, and that complainant has sold said valves under the trade name and style of " Foley's" and" Foley's Patent," and" that said trade name, during the life of said letters patent, is identified thereWIth, and of great value * * * in describing said patented valves as a trade-mark, and that the defendant has sold his infringing valves under the trade name of 'Foley's Patent Valves,' " and praying', inter alia, that defendant be enjoined from sellin?, any waste·valves under the name of "]'oley's" or "Foley's Patent Valves, , states only one good cause of complaint,z·. e., for infringement of a patent. The name of the patented device is not properly speaking a trade· mark.
In Equity.
On bill for infringement of patent.
Arthur V. Briesen, for complainant. Edward H. Rogers, for defendant.
SHIPlIfAN, J. This is a bill in equity, which is brought by a citizen orthe state of New York against a corporation created under the laws of the state of Connecticut. The billalleges, with the usual and necessary v.39F.no.3-14
210,
;f;EDJj:RA,L ,ltEPORTER,
vol. ,39, '
averments in has letters patent No.6, 739/ dated Novemper 1,6, 1875, which were granted, to James Foley and George C. Gunniog for an improveli1ent in wastevalves and overflows, and are now owned by the complainanL The original patent was issued James Foley,as inventor. The billalso alleges that the complainant has sold said valve:;Junder the trade name and style of "Foley's" and "that said trade name, during the life.of said letters patent, is identified therewith, and of great value to your orator in describing said patented valves as a trade-mark, and that the d,efendant has sold his infringing valves under the trade name of 'Fo}ey's Patent Valves. '" The bill prays, among other things, that the defendant may be enioinedagainst selling "any waste-valves or overflows known as or under the name of 'Foley's' or 'Foley's Patent' valves and overflows." The defendant has demurred, because the bill exhibits distinct; separate, and unconnected matters, viz.: "The infringement of letters patent of the United States, and the infringement of a trade name or trade-mark." tn my opinion, the bill shows upon its face that an infringement of patented rights only was committed. It will be observed that the defendant is not charged with having done anything which is prohibited by section 4901 of the Revised Statutes, and that the alleged trade-mark is simply the name which is usually or properly given to the patented article. It is not any peculiar form, label, brand, or device which is put upon the article to designate its origin, or the person by whom it is manufaetured, and it is not the patent mark which is required to be stamped upon patented articles by section 4900. The name which is given to a patented device to distinguish it as a patented article from other articles of the same character is not, even during the life of the patent, properly speaking. a trade-mark. It designates nothing except that the structure has a definite character, as the structure which was patented, and itidicates nothing in regard to the character of the workmanship or the person by whom it is manufactured. A trade-mark "is somethin!{ different from the article itself which the mark designates," (Fairbanks v. .Jacobns, 14 Blatchf. 337,) and is a name or a mark or a device which is attached to the article to point out its origin. This alleged trade-mark, "Foley's Patent Valves," signifies that they are the kind of valves which Foley invented and patented, and not that they are the, valves which he or his successor is manufacturing. "In all cases where rights to the exclusive use of a trade-mark are invaded, it is invariablyheld that the essence of the wrong consists in the sale of the goods of one manufacturer or vendor as those of another, and that it is only when this false representation is made that the party who appeals to a court of equity can have reHef." Canal Co. v. CkLrk, 13 Wall. 311. By this bill it appears that the defendant is deceiving no one in regard tothe origin of the goods. It is infringing upon the complainant's patentby making a valve substantially like his, and it is asserting that ite valve ii;! the complainant's patented invention. 'l.'hus far no false repl"esentationisnlade, but t11e truth is asserted. But if it is said that the
THE HENRY BUCK.
211
assertion is that the defendant has a right to make Foley's patent valve, and that thus the public is deceived, this assertion and the act of sale are notbing mure than an infringement of the exclusive patent-rights of the complainant. It is not intended to be asserted that if a person manufactures and splls an article which is not an infringement, but which he falsely brands as the patented device, that for such fraud and consequent injury a bill for an injunction may lie, not upon the ground that he is simulating a trade-mark, but because he is committing a continuous fraud for which the preventive remedy by injunction affords the only adpquate relief. Mamifacturing Co. v. Haish, 9 Biss. 141, 4 Ban. & A. 571. Neither is it intended to be asserted that the owner of a patented device may not have a trade-mark affixed to his articles which distinctively declares the origin, in point of manufacture, of his goods. The imitation of the patent mark is another and separate act from the one which is alleged to have been committed. It is evident that the pleader intended in the bill to treat the name as a trade-mark, and to aver that the defendant had not only infringed the complainant's patent-rights, but his rights as the owner of a trade-mark. His theOl'y is that the defendant, by the sale of its valve under this name, has, by one act, infringed two rights of the complainant,-his patent-right and his right to the unrlistmbed use, during the life of the patent, of the trade-mark which he has adopted. If his theory was true, his bill, perhaps, would not be open :to the charge of misjoinder, upon the ground that if two good causes of complaint grow out of one transaction for which the same character ()f relief is sought, and in regard to which all the defendants have the same claim of right, such causes may be included in one bill, (Story, Eq. PI. § 284;) but the bill in this case shows only one good cause of complaint. The demurrer is overruled.
THE HENRY BUCK. STOKES
(Ei8(rict Court, D. South Carolina.
June 7, 1889.)
1.
AND REMOTE.
The owner of a raft of lnmber employed a tug to bring it down to C.. where it was to be loaded on a schooner under contract with tbe charterer. Owing to the tug's negligence the raft was wrecked. delaying the loading of the schoopor. and causing the charterer to incur demurrag'e, which tile owner of the ratt hact to pay, On libel by the latter against the tug he testified that when he engaged it he told the master: "I had a vessel that was delivering with demurrage. and 1 wanted him to bring this lumber to town with dispatch." The master testified that libelant merely told him that he was in a hurry for the lumber, and wanted it brought down as soon as possible. Held, that demurrage was not an item of damages within the contemplation of the parties. and could not be recovered. SAMJ<l-ELEMENTS OF DAMAGE.
2.
Libelant having made diligent efforts to save the raft after it was wrecked, respondent is liable not. only for the lumber lost,but also for all proper expenses in saving the remainder. .