AREY V. DE LORIEA.
323
carbon anode. "Carbonaceous" means "pertaining to carbon," or "made of carbon." It includes anodes made partly of carbon and partly of some other substance, but it certainly covers an anode made all of carbon. A decree will be entered for the complainant, finding that complaina.nt's patent is valid, and that the defendant infringes both the first and second claims thereof, and perpetually enjoining the defendant from further infringement, with the usual reference to a master to determine the damages.
AREY et a!. v. DE (Circuit Court of Appeals, First Circuit. No. 18.
et aI. February 28. 189:3.)
PATENTS FOR INVENTIONS-ACTION FOR INFRINGEMENT-IxSTHUCTIOl\S.
In an action for the infringement of a patent, to which the defense was want of novelty, the court in its charge read to the jury an extract from the opinion of the court in a case between other parties involving th" same patent, in which it was held, upon the law and the facts, that patents put in evidence to show the prior state of the art did not embody the combination claimed by the patent then in litigation; and the same patents were in evidence for the same purpose in the present suit. Heltl, that this was reversible error, even though the court told the jury that they were not to be controlled by this opinion, but were to regard it as a statement of the law merely, and to find the facts for themselves.
In Error to the Circuit Court of the United States for the District of Massachusetts. This was an action by Joseph F. De Llriea and Griffin Place, as executors of James "W. McDonald, against Reuben Arey and George H. Maddock, partners doing business under the name of Arey, Maddock & Locke, for damages for the infringement of letters patent No. 210,797, issued December 10, 1878, to said McDonald, for a machine for unhairing and scouring hides and skins. One of the defenses was want of novelty in the patent, and a number of patents were introduced to show the prior state of the art. 'rhe charge objected to was given upon this point. The jury brought in a verdict for plaintiffs, and defendants bring error. Reversed. Ralph W. Foster, (Joshua H.Millett, on the brief,) for plaintiffs in error. James 'Milton Hall, for defendants in error. Circuit Judges, and NELSON, DisBefore COLT and trict Judge.
NELSON, District Judge. At the trial in the court below the presiding judge read to the jury, as a part of his charge, an extract from the opinion of Judge Colt in McDonald v. "Whitney, 24 Fed. Rep. 600. To this the defendants excepted. Weare of opinion that this action of the court below was erroneous, and that the exception was we]] taken. The case of McDonald v. Whitney was a
324
FEDERAL REPORTER,
vol. 55.
Buit i:ti equity in the circuit court for this district, between different parties, brought for an alleged infringement of the McDonald pat8nt. In the extract read to the jury Judge Colt gave his views upon the questions of law and fact involved in the case before him, and found expressly, as a matter of fact, that the gist of the McDonald invention, as described in claims 1 and 2, was the separation and adjustment of the rolls held together by spring pressure by means of a treadle and levers. The first and second claims were for combinations of feed rolls, supporting roll, and other mechanism, and the mechanical effect of these combinations, as well as the relations of the various elements to each other, and whether there was a substantial identity between them and the prior pat· ents introduced in evidence, or with the machine used by the defendants, involved questions of fact to be considered and passed upon by the jury. Upon these issues the finding of another tribunal in a case between other parties was not competent evidence, and should not have been called to the attention of the jury. The presiding judge was careful to state that the jury were not to be controlled in their judgment by the opinion of Judge Colt, but were to consider his language as a statement of law only, and were to find the facts for themselves; but, in spite of these cautionary words, we think the jury were more than likely to give to the views of Judge Colt upon the issues before them a decisive effect in making up their verdict. Other exceptions were taken by the defendants to the rulings of the court below, but as they do not present questions of importance, and may not arise on the second trial, we have not thought it necessary to consider them. Judgment reversed, and case remanded to the circuit court, with directions to set aside the verdict and to order a new trial
SEAGAR v.
YORK & C. MAIL S'fEAMSHIP CO.' OF CARGO-CUSTOMAHY li'ACJLITms-\VUAHF FAf'TLITfF.S.
(District Court, S. D. New York June 21, 1892.)
1.
The contract in n ctarter party to discharge with "customary ,lispatch" is fulfilled if the vessel is afforded the cnstomary facilities for speedy and hence, when charterers furnish ample dock room for a vessel, but the latter, either through misapprehension on the part of her stevedore, or acting under direction of the consignee,s of the cargo, given without the kllowk'{lge of tlw clmrterers, so discharge her cargo as to block the dock, and 11ms occasion delay, the charterers are not liable for demurrage. SA:\IE - "DELIVEHY WITHIN HEACH OF SnIP'S AFTl'R DELTVEHY ON "VUAR];', VESSEL'S D!"I'Y
2,
'1'he clause in a charter that goods are to be delivered "alongside and within reach of the ship's tackles" does not necessarily require the consignee to receive the goods directly from the tackles, and determines nothing as to what may be required of the ship after the goods have been dropped from the tackles. The deposit of certain goods in tiers on the wharf has long been tlIe ordinary practice; hence, where a vessel, after 'Fol' opinion on appeal, SE'e 55 Fed. Rep. 880.