688
nDERAL .REPOR'fER,
42. fl. FLINT
.. DABr.;E GRAIN
SHOVEL CO.
et al. l
(Otrcu.it Oourt; N. D. Itl,inois. March 81, 1890.)
. ,'Under Act Congo March' 8; 18119, (5 810 at Large 854,) which'provides tbat any pereQD' who has purchased or constructed anynewly.invented machine befote the inveJ:ltOr's. apphcation for a patent may use and !!ell such machine without liability to the 'inventor, it is'a complete defense to an action for infringing a patent that the Used by the deftlndants was for thel)], by the patentee bef?re he aPl'lied for the patent, though after obtaiDlng it he demanded compensatiOn for the'.use of .said machine, which was refused.
FOR INVENTIONS-AcTION'
INtRINGEMENT-DEFENIlBS.
AtiLaW"
William Zimmermann, forplaintifl'. BannWigj.Banning &: PayB<m, for defendants.
BLODGETT,J. This is an action at law for the .alleged infringement of a patent issued to John Dable on the 7th day of August, 1866, tor an "improvement in machineS for unloading railroad cars," and a patent granted 'to the said John Dable on the 28th day of July, 1868, for an improiY'funent upon' said til'$t-mentioned patent, which patents, it is averred,were on the 8th: day of Deeember, 1880,. duly assigned to the together with all claims and rights of action for past use of said patented de\1icesj and by this action plaintiff seeks to recover damages fori'thettSlJ of the said Ipatents, not only since it became the assignee thereofVbut for the use of the same by ·defendants before such assignment, . Defendants have interposed numerous pleas in the case; but I deem it necesSary, to consider only !the fourth, which is, in substance, that the only machines for unloading grain from railroad cars ever used by defendants'd,uring the life of either of said patents wereconstrncted and put into use in defendants' grain elevators by the said jJatentee, John Dahle, and with his consent and allowance, while he was in their employ as superintendent of machinery, and prior to his application for either ofsaid letters patent, whereby defendants claim that they became possesst>d olthe right to use all of said/machines dudng the lite of each of said patents; withoul.liability to the said John Dahle or the plaintiff, as his l:l1Jsignee.· The. parties hav-e also filed a 8tipulation in· the case admitting that the facts stated in the fourth plea 'are 'true, but with the further fatit, to in connection with the facts'stated in the plea, that the patentee,when he obtained the patents in question, demanded compensation of the defendants for the use of his said invention:By ,this stipUlation tht'l'question submitted to thecllurt is whether the plea :states, a valid defense tOJthe' 'action, admitting the fact that Dahle, when bis pateDts,were'issued;' demanded: compensation from defendants for their use. Section 7 of the act of March 3, 1839, in relation to patents, (5 St. at Large, 354,) which was in force at the time I
Reported by Louis Boisot, Jr., of the Chicago bar.
THE: PIERREPONll'. .':
.
687
these patents :were' granted,: and hlis, substahtially, been in force sin<le that time,' under thevariotis re-enactments; and revisions of the. patent laws, provides that"Every person or corporation who has, or shall have,purchased or constructed any newly-invented machine, manufacture, or composition ofmatter, prior to the application by the inventor 0:1.' discoverer for a patent, shall be held to possess the right to use, and vend to others to be used. the specific manufacture, orcomposition of Sl) madeor purchased, without liability therefor to the inventor, or any other person intt!rellted in such inventi6n." . ! . '
'l'heallegation in this tlie machines used.by the defendants were consttucted by the patentee, John Dable, whilElin delendants'.emJ>loy, and put into use in' the: defendants' elevators; ,by. his. consent and allowance, before he app'lied forhis patents, seems tome tf) makes complete under this 'statl.}te; and the only additi.onal facf:brough't into the case by the stipulation, that wbtJD he obtained the. paterits, which must. have been after they applied. for, Dable. deinand'ed compensatiQD for the tiseof the patents, 'and thedelendantsrefused tt> l'ecogni"ze'lris'rights thereto,does not, iIi niyopinitm,'affect the defens:e raised!?y the plea, because,if Dable had no right tt>compensation, a demand .90,uld not.give bim such right. By the showing of the there Wll81l0 patent upon'these machines at the time'tl;1ey wetecon:struated 'and.j>ut into use ili tI;1e defendants' elevator, and s'uch constructionaqd . according to. the statemenfs6f the plea;. \v,a8' with the' cQijsent arid, ,tnepafentee.. I do not see'hrwacasecould be maqe t-o bririgtM defilnse more. clearly within the; provisions of statutetban is made by this/plea, and the additional fact stated in'tl;ie does not change the effect of tire plea.. The plea. is therefore held to be a . complete defense to the Buit.. . ' . '. , . , .,",; ., ;'
,
:THE
PIERREPONT.
(IHstrl.ct Oourt, N. D. New,
JUDe 19, 1890.) .
opTuG ll'OR' . . , · Libelants sued for damages for injuries to a schooner insured by them, whUe being towe(1 :bya steamer in St. Lawrence river. The eviqenoe showed that the schooner was drawing' 13 feet. 'of water, and when at a p()int which, according to rang6staken by the steamer's captain at the time of the accident, was within. the of the river, etruck a rock 11 feet below the surface of tbewater. The'goverh.inent chart showeQ.25 feet of water at this' place, and the obstruction was DOt ,known to pilots. Some of. libelants' witnesses. knew of' it,.but their knowledgewa,s ,gllri,ned as Jishermen, and hot as pilots. Held, that libelants coverdliblle'the accIdent OCCUl'r6!l in the where no obstructIon Wlm known to· exist by those engaged: in: the navigutioll'of the river. : . .
In Admiralty. These libels were filed by the Union Insurance Company and the 'Marine Insurance Company against the steamer Pierrepont, to recover dam-
FEDERAL REPORTER I
vol. 42.
'ages for injuries received by the schooner Ellsworth while being towed by tqe steamer. The libelantsj. halVing policies of insurance upon the schooner, paid the amount of damages to her owners, and were subrogated'to their rights. Bl1fI,jwrnin H. Willia1l'l.8, for libelants. ;'Ha'rV&y D. GO'Ulder, for claimant.
J. On JuneJ6, 1888, schooner Ellsworth, loaded with stone and drawing about 13 feet of water, was taken in tow by the Pierrethe quarry dock, Grindstoqe,island, St. Lawrence river, bound Chicago. While passing through what is known as the "Middle Chann,el" between Grindstone island ,'and SevenPineisland, the schooner str,'."u,'.c,)t. ,a,s,h,arp pi. r,o,,ck, and, w,'a,s injured.. This'rock was 450 fee.t Pine isla;nd, the point which occasioned the injury being abC?u01 feet from the surface of the water. If the, accident occurred in opstruction was known to exist by those the navigation,()f the river, the libelants recover; if outs\de channel, the steamerwas,atfault. ,of testimony clearly, that theiockin question WM unIolown to pilots whose it was to navigate the S1. Lawrelipe "The goveJ,'Ilmeut chart shows 25 feet of water at this point, andJ t4,ere 18 hardly that prior to the accident the regular chanwf¥! to i).ea.rer than this to Seyen ,Pine island. Witl;lin 200 feet ,of the island there is ,a shoal, and there is reason to besome of witnesses mistook this shqal for the venue OOQIl If the captain o!.ihe Pierrepont, who took ranges at the tim; the schooner st'rl,lck, is correbt in locating her position at 450 feet from Seven Pi'nes;' the proof is overwhelming that. she was in the regular channel when the accident happened. But, even though some of the libelants' witnesses did have knowledge of the rock which occasioned the injury, it was a knowledge gained rather as fishermen than as pilots. If known at all, the knowledge was confined to two or three, and was not imparted by them to river pilots generally. It is well settled that a steamer is not· negligent when the tow strikes an unknown obstruction in a regnlar channel. The Angelina Corning, 1 Ben. 109; The Mary N. Hogan, 30 Fed. 921', rev'ersed on the facts, 35 Fed. Rep. 554; The.lames A. Ga'ljield, 21 Fed. Rep. 474; The Willie, 2 Fed. Sep. 95. ThEFPierrep9ut was neither insurer Dor common carrier. She was bound care, skill, and prudence, and was liable only if she failed in these respects. The burden is upon the libelants to estaband they have not done so. The accident might have happened to anyone of the river men produced at the tl'ial, and should happen inthe,future, still further south of Seven Pines, it would occasion no mOre surprise. The libels are dismissed, with costs.
for
I
a
',', I
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STATE fl. KIRKPATRICK.
689 e.t ale
STATE OF NORTH CAROLINA .". KIRKPATRICK
(C'lirewl.t Court, W. D. North CaroUna. April Term, 1890.)
L
REMOVAL OF CAUSES-CRIMINAL PROSECUTION.
Under Rev. St. U. S. § 648. which provides that, when any civil suit or criminal prosecution" is commenced "in' a state court for an act done by an ofllcer under the revenue laws of the. United States, the same may be removed into the United States circuit court a prosecution is "commenced» when the warrant is issued and the arrest made by the state o01cers, and it is no objection to the removal that no indictment has yet been found in the state court, and that there is no provision in the federal law for indictment for offenses against the state law.
I.
BAME-FuRTHER PROCEEDINGS IN STATE CoURT.
Under said section, which declares that after removal "any further proceedin¥, trial, or therein in the state court shall be void, » an indictment found in a state court after the removal of the cause to the United 'States circuit court was I\ull; and where, upon habeas corpus cum Causa. it appears that the prisoners were in the discharge of their duty as revenue olllcers of tile. United States when the act was committed. and were without fault, they will be discharged.
.. CONJl'lI:DERATES IN CRIME-REVENUE OFFICERS.
The rule t'bat confederates in an unlawful undertaking are .each responsible .for the evil c()nsel}uences that ensue does not apply where a homicide was eommitited by one ofa PartY of· revenue o01cers while the party was engaged in the duty of . foj.' illIcit distilleries. '
"
Revenne ofllcers searching for illicit distilleries came npon a furnace from which the still fixtures had been recently removed. A man was seen observing their , movements, who afterwards offered to conduct to a certain house, and walked in front'of tbemfor that Soon he began to run towards the house, and the . ,olllcers ran after him, when he..seized a, gun. fired upon aud wounded one of them, and was shot by another. Herd, that the ofllcers were warranted in suspecting him of an intention to warn gailty parties, and, although they had no warrantfoi' his were justified in running after him to fl'Wltrate that design.
RBVENUE OFFIOBRS-lLLICIT' DISTJLI.EBIES-JUSTIFJABLE HOMICID.E.
Preliminary Examination<;>n lulbeas C01'pUB cum causa. Rev. St, U. S" § 643, provides that, "when any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States, * . on account of any act done under oolorof his office, * * * the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending; * * * and any further proceedings, trial, or judgment therein in the state court shall be void." Isaac Strayhorn and Robert Winston, for the State. Jas. E. Boy,d, W. S. Ball, W. P. Bynum, and Ohas. Price, U. S. Atty ·. for defendants.
DICK, J. The petition for the removal of this case into this court, and for a writ of lulbeascorPUB cum cauaa, was duly filed iIi the office of the clerk of this cOUrt on the 6th day of March, 1890, under the provisions of section 643 of the Revised Statutes of the United States. As the circuit court was not then in session, the clerk, being of the opinion that the avennents in the petition were· sufficient for the removal of this case under the provisions of said statute, entered the case on the reeordof this court. As it further appeared that the petitioners were in actual v.42F.no.11-44
