UN1TEDl!ITATES 'V. INGRAHAM.
155
the marShal or his deputy, commanding him to deliver ·the prisoner to the keeper of tho common jail; and when the mandate of the warrant is obeyed. thliln the marshal is relieved from the responsil!ility .of oustody. Randolph v. Donaldson, 9 Cranch. 78. I The marshal is clearly entitled to the fees oharged fo1' attending and guarding the defendant on the 27th of August. as the 'defendant was put in his custody by order of the commissioner until sufficient bail was given for an appearance at court to answer an indictment. After hearing a case, and determining to hold a defendant to bail, the commissioner can by verbal' order put the defendant iu custody of an officer until the bail required is given; but the officer cannot commit to jail without a written mittimus ftom the commissioner.' It is ordered that the clerk ofthia court rl;ltax th.e costs in this case jn conformity with. this opinion.
UNITED STATES 'V. INGRAHAM:.
(otrcuit oourt, D. RhOde IBland. February" 1892.) 1. CLAIM8 AiJAINST UNITED BTATE8-FBUJD-INDIOTHENT·
.An indictment for the offense of presenting to any officer "in the civil, mUltary, or naval service of the United States" a false claim (Rev. St.1 5438) Is sufficiently certain in alleging that 8ucb claim was ,fresented to the "third auditor of the treasury department of the United State.. It need not allege that be is an oftlcer in tbe civll service of the United State.. .An indiotment alleging the presentation of a false affidavit need not aver that the officer before whom it was taken was authorized to administer oathR. The word "affidavit," as used in the statute. relates to the form of the false paper, and not its legal oharacter.
2. SAME·
At Law. Indictment of Royal Ingraham under Rev. St. § 5438. Motion in arrest of judgment. Rathbcme Gardnm', Diat. Atty., for the United State8. F'ranklin P. Owen, for defendant. CARPENTER, District Judge. This is a motion in arrest of judgment after verdict on an indictment under section 5438 of the Revised Statutes, whicb is as follows:
"Section 5488. Every person'who makes or callses to be made, or presents or causes to be presented. for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or .against the government of the United States, or any or officer thereof. knowing such claim to be false, tlctitiOIlS. or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of sucb claim. makes, uses. or causes to be made or used. any false bill, receipt, voucher, roll, account. claim. certificate. affidavit, or deposition, knowing the same to contain any fraudulent, or fictitious statement or entry. ·.· · shall be imprisoned," etc.
156
FEDERAL REPORTER,
vol. 49.
The language of the indictment, so far as it is pertinent to the quea-: tions raised by th!s motion, is as follows: In the first count"That Royal tngraham. -* ... did knowingly, willfully; and unlaw. fully make and present, and canse to be made' and presented, for payment and approval, to: the Jthirdauditor of the treasury department of the United States of Amel'ica,_,., certain claim against the government of the United States."
*
-And in the second count"That said Royal Ingraham, ... ... ... for the purpose of obtaining and aiding to obtain tqe payment and, approval of II certain claim against the governmentof the UJ;li,ted States, to-Wit," etc.· "* ... * did knOWingly, will· fully, and unlawfully use and, cause to be used a certainfalse affidavit, towit, the affidavit of one Perry In/.{rahamand one Mary E. Ingraha.m, ... '" ... subscribed and sworn to on the ninth day of December, in the year of our Lord one thollsand eight hundred and ninety, before Daniel H., Remington, a justice of the peace, he, the said Royal Ingraham, then and there well knowing the said affidavit to contain a fraudulent and fictitious statement, to-wit," etc.
The motion in arrest of judgment is based upon the following grounds: (1) That the first count is uncertain and charges. no offense, in that it does not set forth that the third 'auditor of the treasury department of the United States of America was a person and officer)n the civil, military, or naval service of the United States. (2) That the second count is uncertain and charges no offense, in that it does not set forth that the claimilg!1inst the government ofthe United States had been or was to be presented to a person or officedn the civil, military, or naval service of the United States, and also in that it does not Aet forth that said Daniel H. Remington, a justice of the peace, was authorized to administer oaths, and in"what jurisdiction said Remington was justice of the peace, and affidavit WM swprn. tq ip his jurisdiction. I am of opinion that in both the above particulars the offense is sufficiently stated under the statute. iAeto the first objection, it is to be obServed that tne. purpose of the indictment is to make it clear beyond a peradventur!3that the claim in question was presE'ntedtoaperson such as is described in the statute. The grand jury, the court, and the 'prisoner, being conclusi vely'pre. sumed to know the law, are therefore conclusively presumed to know that-the ,third auditor is a; ,perS0n andoffi<,:er in the civil service. The language;'therefore, Ii1al;:es. certain the meaning of the grand jury, and sufficiently informs the prisoner of the charge against him. The person was presented is lltlscribed in which show him to who lll t,he to l;le one of the general class of per/?ons intended by the statute, and it is not necessary explicitly·to state that he belongs to that class. It can be no more necessary to tlllege that the auditor is a person in the civil service than it would be to' allege that Royal Ingraham is a person. As to the second objection, I observe that the substance of the crime consists thepresentatiori of a" false * * *. affidavit, * * * knowingt:he same to contain any fraudulent or fictitious statem(lnt." Olearly, the affidavit so alleged to have been presented ID\l.1St be so f.olly
in
NA'I'IONALSURFA,CE GUARD CO.
'I).
Mli'RRILL.
157
described that the prisoner may be able to identify the particular affidavit intended by the grand jury, and it is not necessary that it be described further. In this indictment it is described by date of jurat, and name of the person taking the same, and also by a recital of the alleged false statement contained in the affidavit. The allegation that Remington was authorized to, administer the oath could not add to this certainty of description. Still further, it seems to me to be clear that it is not necessary that Remington should have been authorized to administer oaths in order that the offense here charged shall be complete. The word "affidavit" relates to the form of the false paper which is presented, and not to itslegalcharacter.: If Remington were not a justice of the peace, or if he did not administer the oath,and his signature to the jurll.t were forged, I think the paper would still be a "false affidavit," within the meanipgof the statute. The motion must,therefote, be denied and dismissed.
'NATIONAf., SURFACE GUARD (Cfn'cuit. Coort
Co.
fJ. MERRILL.
oJ Appea,lB,
81zth, Ctrcutt. October 6, 189L)
1.
FOR INVENTIONS":'ANTi:cJPA'l'ION-CATTLB-GUARDS. Letters patent No. 873,859, issued November 15,1887, upon the application of JOhn T. Gi11;Jert, to James T. :aall, \IS assignee for a cattle-gul\.rd consisting of strips of perforated metal placed on edge, and fastened together' by transverse rods passing through the perforations, aad through sleeves placed between the strips, were anRYj;the -i\kin pateIlt.,(No. 183,099, October 10,187:6,) which shows parallel bars'/if·wdda,secured by notches in transverse timbers; and the Kline patent, (No. 141,566, issued August 5,1873,) showing parallel wooden bars set at an incline, an.d: angle\! at the upper edge, and secured in substantially the metal bars of the Gilbert patent. 8.um-<BIT' AND SURFACE' GUARDS.
S;
: The cannot on the ground t,hat the device is a surface guardj as distinguished a pit guard, since no claim is made for this feature, and since such a claim won1d be invalid for anticipation by both the Kline and Akin patents" the Dillon . and Gartner patent, (No. 275,388, issued April 3, 1883,) which is'a:eclared by the spllciftcation to be an improvement, "whereby the use of the cllstomal'Y pits, 88 now Constructed by railroads, may be aispensed with." .' Letters patent No. 403,582, issued May 21,1889, to James T. Hall, for an impr()vement in the guard by fastening the bars only at the ends, thus leaVing them free to vibrl1teJaterally when trod,upon by animals, involves no patentable invention, and is, besides, substantially shown in the Akin and patents. , ;BARS.
8.
,
SAME. '
l.
Letters patent No. 418,014, issued December 24, 1889, to James T. Hall, for an improvement consisting in using bars with the ends turned down so as to raise the body thereof, and allow the use of a cross-bar so low as not to be caught by anything. dragging under the train, and also presenting an angle at the upper Ilide of the bar, contaln nQ patentable invention. Letters' patent No. 421,928, issued February 25, 1890, to the same inventor, for inVerted V-sl1aped shields, set upon the rods, and presenting a surface inClined in both directions, apd extendiIlg from the top of the guard-rail to the tie, to avoid danger from· ariy' besin'01' chain: hanging from a passing train, is a mere mecban-
icaJ.J de.i""
.
':
. ':
l'£DERA''t REPORTER. \TOl;
49..
;Appeal frC>m;·the CirouifCourt of the United States>forthe Eastern DiBtribt of Mi'chigan. " . . . Suit by the National Surface GuardCornpany against Parker Merrill fOl'infringementof ·patents. .Decree below dismissing tlie bill. ComParker' & Burron and George Lotkrop,.for appellant. lriBhrft;·'Knappen, for appellee. Belore·BROWN, Circuit Justicej JACKSON, Circuit Ju.dge; and SAGE, District Judge.' .
SAGE,' District Judge. The suit is' tor. the mfringement of four patents fOr'milway cattle-guards·. The first, No. 373,359, :was issued November 111;; 1887, upon the application·of John T. Gilbert, assignor, by mesne assignments, to James T. Hall; the second, No. 408,532, May 21, 1889, to James T.· :Hnll; the third,No. 418,014, December 24, 1889, to James T. Hall; and the fourth, No. 421,928, February 25, 1890, to James T. Hall. The appellant is the owner of all these patents. The Gilbert patent is for a cattle-guard consisting of thin strips of perforated metal, placed on edge, and tied together by rods fastened through interposed the There are the strips two claims, each for a specific constttlction of thl1t character; the first reciting the .st,rtps. bolts,. and 13leeves geperal terms, and the second in more specific terms. The drawings show strips serrated on their upper edges, and the specification states that they may be serrated 01' not, at will. .'" . . .' The Hl:\ll'patent No·.403,532 is composed of flexible bars set upon edge lengthwise of the track in the form of a grating, and free to vibrate laterally. His suppdrtedby raised ties under the ends. and combined with fences. -In the Hall patent No. 418,014 the novel feat1,1re set up is the form of the bar, which is longitudinal, and turned down at each end, whereby the body of the bar is raised; and a cross-bar, so low as not to be caught by anything dragging under the train, can be used. The inVention claimed in the Hall patent No. 421,928 consists in the peculiar construction of inclined, inverted, V-shaped metal shields, set upon rods between the bars, and serving the double pur,. pose of sh,ields and of spacing blocks. As shields they present a surface inclllled in both directions from the top of the guard-rail to the tie, to avoid danger'from any bealD or chain hangIng or dragging from a passing train, and as spacing blocks they prevent lateral movement of the bars upon the connecting rods. The argument upon the hearing was devoted exclusively to the validity of the patent to Gilbert, No. 373,359, and to the question of its infringementbythe d('fendant. The contention of cQUJ:lsel for the com1>lainant w81lthat that was the pioneer patent,and,as such, entitled to a .broadand. liberal construction. The other two patents were referred to as subordinate or structural patents, the principles of which, it is
NATIONAL SURFACE ,GUARD CO. 11. KiERRILL.
159
dlilimed in the brief,are embodied in the struct.urewhich the defendant hl!B been making and selling. It IS, however, praotically conceded that turns upon the validity and the infringement of the Gilbert patent. We do not concur in the proposition that it should be recognized as a patent. The Akin patent, No. 183,099, October 10, 1876, bars of "food, placed on edge, at stated distances, and secured by notches or gains in transverse timbers or sills. The moment, therefore, that complainll.nt undertakes to sustain the charge of infringementby showing that the defendant uses a mechanical equivalent, although· be. does not use the precise method described and claimed in the Gilbe,rt patent, he au anticipation in the Akin patent. Th13 specification of material in that patent is nothing more than a matUlr ofseleetiQl1, for it is stated that it is, preferably, though not necessarily, wood. ,MQreover, the language of the specification in regard tathe method of attaching and supporting and securing the bars is that "the parts Int\Y attached by .any af known methods and devices equivalent to those ehown." ' The pLtentto Kline, of. August 0, 1873, No. 141,566, for improvement in show8 parallel wooden bars, set at an incline, and presenting a sharp angle at edge. These are secured substantially as the bars in the Akin patent. These two patents clearly show that the uae of .pal'allel bars set on edge so as to present a sharp angle at the upper surface, and secured ,at fixed distances from each other, was not new· at the date of the issue· of .the Gilbert patent, which disclosed no new features excepting the peculiar and exact meanj!l of securing the bars, and the notched Upper edges, which latter are not claimed. But it is urged that the Gilbert guard is a surface guard, and that, al_ though there was nothing novel in the mechanical device of fastenIng strips of wood or metal together by means of rods or bolts passed through perforaijone, or in the use of a $leeve or jacket ovar a rod to keep a bar from slipping up, and. althougi\ (to use the expression in the testimony of the exp(:}1't for complainant) there were thousands of pit guards in existence before· the Gilbert patent. in which the pit was covered over in one way or another by bars or strips of wood- to enable persons walking the track to pass over, auli those. bars were laid at intervals apart. and made to affor4 very small 'and insecure footing, so that it would be difficult for animals to pass over, and although it was common to set wooden bars or board!J on edge across pits, the use oLthe same upon theaurface,'or,iuQther words, without the pit, was a novel feature. and unknown prior to the Gilbert patent. Upon the argument it was admitted that if the defendant's device---which consists of rods or bars, parallel with the rail, attached at equal distancea to cross-beams between the rails, formed of sheet-steel, bent nearly together in, the form of an inverted U,into which the bent ends of, bars of steel are hooked, the bars being, stra.ined toa tension over, the centra1 crossbt}Qm, which is higher than the others. and tied there by stapleswere placed over a pit, instead,of upon the surft\ce, it would not be an blfringement. .The a:nswers to. thiel contention are: Ji1i.r:Bt. That the com-
160
plainant riJakes no claim to this feature. ThE\ claims are cotifined to the structure of ,the guard itself. 'Second. This contention brings the complainant' face to face with anticipations whi.ch would make sncli a claim altogether invalid. ' In the Kline patent the under surface of the bars is shown by the drawingstobeona level with the top of the ties, and some of them rest thereon. to the specifications, we find a clear indication that it was a surface guard. The language is that the edges of the boards 'or bars ('do 'bot afford any -foothold. The cow's foot slips down between the boa1'd$ 'to the ground below. As soon as the cow advances to put down the next foot, she finds the other foot jammed by ,the change of her position," etc. ,The Akin patent shows a shallow pit under two of the' 'slats and der the sills "ofsufficient depth to prevent hogs, sheep, and other animals having mall feet from stepping through said slats on the ground below." 'With these exceptions, that guard is a surface guard., There is patent which is a complete anticipation,in this regard. It was granted' April 3, 1883, to Dillon and Gartner, and is No. 275,3.:33. It employs rollers, instead of the bars shown in the patents above referred to. 'It is declared in the specifications to be an improvement "whereby tbe use of the customary pits, as now constructed by railroads, may bedispEmsed with. ll It i8 therefore clear that the <lomplainant can derive this feature of his patent. The 'defendant does not ueestrips of metal placed on edge; nor in any other respect does he employ the construction described iIi the complainant's patent; and we are ofopinion that, if the patent were held valid, the defendant should not be: held to be an infringer. . Our conclusion, however, is that the complainant's patent is anticipated by the patents above referred to, and that it is not valid. , . With reference to the other patents involved in this 'SUit; it is not necessary: to consider thelli at length. No. 403,532 relates first to the matter of sO'canstructing the guard that its rails'ot bUl'sshould be flexible, and free to vibrate laterally. This feature is covered by claims 1 and 2. Claiins 3 and 4 relate to the combination of the 'guard with the fences arid' extended ties underneath the track. ThemaJnobject sought is to securetl1e lateral vibration of the bars when trod upon by animals; To this end the patentee does away with the bearing of the bars upon all the ties underneath the guard, and uses only a minimum of supports under them, which he preferably accomplishes by the use of two ties, one at eachend of the guard. We do not think that a patentable feature. Ris shown substantially in the Akin patent and in the Kline patent. It is scarcely necesRary to add that, the patent being invalid in this respect,theclaims relating to the combination are also invalid. ' We are ,of bpinion that there are no patentable features in No. 418,014. Each, bar is provided with turn-down ends, forming legs or supports. These raise the body of the bar, and dispense with the necessity of using a cross-bar of: any considerable depth, but there was nothing new in this feature. Aeto the other feature, of presenting an angle at
nE MARY H. 'BROcKWAT.
161
the llpper side of the bars, that is shown in the Kline patent bars. In our opinion, this patent is invalid. . The shield or guard pieces which are claimed singly and in combination ill No. 421,928 are'substantially the same, and amount practically to substitutes for the sleeves on the rods shown in the Gilbert patent, excepting that they present inclined surfaces to any hook or chain dragging from a passing car. We find that this was nothinf.;' more thaoll. mechanical device, which, before the date of the patent, had been in commo'nuse in various structures, and that it shows nothing novel or patentable. either singly or in any of the combinations claimed. The decree of the court below dismissing the bill is afl4'med.
THE MARyH. BROCKWAl'.· STARK
et al.
tI. THE
MARY H. BROCKWAY. January 14, 1899.)
(Dl3tr1.ct Cowrt, & D. Neio Yor1c.
CosTS AND FBBB-MARSHA.I}S, COIDIISSIONB-RBV. ST.
In a suit to possession of a vessel, where the marshal seizes and takes possession of the vessel. and. on settlement of the suit, delivers up possession of the property subject, to his fees, he is enj;itled to bis rej;tular commissions on the value of the vessel, under Rev. St. 5 829, besides keeper's fees, though the olaim was not for a money demand.'
5 829-Pj;)SSESSORY
Burr··
In
James Parker, for libelant.
On appeal from taxation of costs. .
BROWN,District Judge. Upon a libel filed to recovat' possession of the schooner Mary H. Brockway from ll. plItt owner; who had been removed l1S master, but who refused to give up possession, the marshal arrested and to9k possession of the veSsel under process. Thereafter the suit was between the parties, and the, possession of property was accordingly delivered by the marshal, subjeCt to the payment of his fees. The vessel being ufthe value of 825,000, the marshal's fees were taxed at the sum ()f $127.50, under section 829 of the Revised Statutes. The libelant appea.ls from the taxation, on the ground that section 829 allows only '$2.50 per day for keeping the vessel; that the language of the folloWing paragraph of that section, giving the marshal a commission "wben the debt or claim in admiralty is settled by the parties without a sale of the property," is not applicable; and that, under section 857; upon the analogy of the state practice, (Code, § 3307, subd. 2,) be should only receive such reasonable compensation for his trouble lUI the court or judge should allow. lReported by Edward G. Benediot, Esq., of the New Yorl&:bu.
v.49F.no.2-11