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instructing the jury that, if they found that the conductor alarmed the plaintiff to such an extent that he jumped off the car, they should find for the plaintiff, although the allegations of the petition were that he was knocked and kicked from the train, we consider that the judge charged upon the evidence before him, and that the variance between allegata and probata was immaterial. It was not such as could mislead or surprise the adverse party. McClelland v. Smith, 3 Tex. 210; May v. Pollard, 28 Tex. 677; and Wiebusch v. Taylor, 64 Tex. 53. Forcing the plaintiff off the train in a wrongful manner was the gravamen of the complaint, and, whether it were done with the hand, the foot, or threats of bodily injury, the effect was the same. The judgment of the circuit court is therefore affirmed, with costs.




On the appointment by a circuit court, in a suit in equity, of a master to take testimony in another district, a subpoena to appear and testify before him was issued by the circuit court for that district, and served on a witness therein, who appeared, but refused to be sworn. Held, that the witness was punishable for contempt by the court issuing the sub



Where a witness declines to be sworn, in order to present objections which his counsel might reasonably have supposed well founded, an order punishing him for contempt therefor may be in the alternative, or, if peremptory and final, its operation may be stayed until an appeal can be heard and determined by the circuit court of appeals, if that court has jurisdiction of such an appeal.

An order made in the suit of the Farmers' Loan & Trust Company against the Northern Pacific Railway Company, pending in the circuit court of the United States for the eastern district of Wisconsin, directed that testimony be taken before a master, with leave to take such testimony outside the district. Pursuant to such order, the master appointed proceeded to take testimony at New York City. A petition was presented on behalf of defendants to the circuit court for the southern district of New York for subpoenas to testify. Such subpoenas were issued, and one of them was served on Charles A. Spofford, requiring him to appear before the master, and to testify. Mr. Spofford appeared, but refused to be sworn. An order was obtained in the southern district requiring said Spofford to show cause why he should not be attached and punished as for contempt of court, in failing to obey the command of the subpoena.

Wheeler H. Peckham, for petitioners.
Root & Clarke, opposed.

LACOMBE, Circuit Judge. Although still of the opinion here tofore expressed in Arnold v. Chesebrough, 35 Fed. 16, the weight of authority in the circuit courts is so strongly the other way that I feel constrained to grant this motion. Railroad Co. v. Drew, 3 Woods, 691, Fed. Cas. No. 17,434; In re Steward, 29 Fed. 813; Johnson Steel Street-Rail Co. v. North Branch Steel Co., 48 Fed. 191; In re Allis, 44 Fed. 217.

As the witness has been in no sense contumacious, but has declined to be sworn or to produce the books only in order to present objections which his counsel not unreasonably, supposed to be well founded, the order may be in the alternative. It will, however, be made peremptory and final, if witness counsel so desire; and in that case I shall, by a subsequent order, stay its operation until appeal can be heard and determined by the circuit court of appeals. The supreme court has, it is true, repeatedly held that it could not, either by appeal or writ of error, review the action of a circuit court, inflicting fine or imprisonment for a contempt (Ex parte Kearney, 7 Wheat. 38; New Orleans v. Steamship Co., 20 Wall. 387; Hayes v. Fischer, 102 U. S. 121), on the expressed ground that no appellate jurisdiction in such cases had been conferred upon it by the laws of the United States. The old common-law rule, however,-that the order of a court, whose decisions on all other questions are reviewable, is sacred, and not be inquired into, when it inflicts punishment for contempt,seems abhorrent to the sense of natural justice. It puts the property and personal liberty of one individual practically at the mercy of another, who, being human, may presumably act, upon occasions, mistakenly, or from prejudice or passion. And it may well be that the circuit court of appeals may find in the broad grant of appellate jurisdiction to review final decisions of the circuit courts “in all cases other than those (where jurisdiction to review is conferred on the supreme court)," which is contained in section 6 of the act of 1891, sufficient warrant for holding that final orders, such as the one here moved for, may be by it examined into, reversed, or otherwise determined. The case at bar certainly pre sents interesting questions as to the power of a circuit court to take testimony in equity causes outside of its own jurisdiction, and upon issues other than such as are raised by the pleadings, which have never yet been passed upon by an appellate tribunal

(Circuit Court of Appeals, Ninth Circuit. May 28, 1894.)

No. 111.

In the Smith patent, No. 442,645, for an improvement in band-saw mills, claim 1 of which is for the combination with the band wheels and main supporting frame or column of an integral standard carrying the front bear. ings of the upper and lower band-wheel shafts, the standard being attached to the front side of the main frame or column between the band * Rehearing pending.

wheels, the essential feature covered by this claim is the outside support for the front bearings of the band-wheel shafts, which, as constructed, permits the removal and replacement of the band saw without difficulty or derangement of the machinery; and the claim was not anticipated by previous patents, none of which covered the combination in the same

form, although its elements were found in them. 2. SAME-LIMITATION OF CLAIM-PRIOR STATE OF ART-INFRINGEMENT.

As there was no invention in combining such elements found in previous patents, nor in overcoming their defects by merely increasing the strength of the parts, the claim cannot be construed broadly to cover the use of an integral outer standard attached to the main column between the band wheels, but must be limited to the construction shown of such outer support in the form of a single casting, as expressed in the application, stating the object to be to lessen the number of parts usually considered necessary; and hence that claim is not infringed by a combination in which the outside support is made of two parts, although they are bolted together so as to present the effect and produce the result of a single casting; and claims 2, 3, and 4, each of which merely adds to the combination of claim 1 an element found in previous patents, not involving invention, are not infringed by like combinations having the outside support so constructed.

57 Fed. 934, reversed. 8. SAME.

Claims 5, 6, and 10 of the patent, covering the straining device whereby the saw is kept at the proper tension, all the elements of which, except the mechanism supporting the knife-edged bearings of the rock shaft, are found in previous patents, is limited by such pre-existing devices, and hence is not infringed by the straining device of the Koefod patent, No. 468,303, the differences in the supporting mechanism being greater than the changes made by the Smith patent in adapting the previous devices. 57 Fed. 934, reversed. Appeal from the Circuit Court of the United States for the Northern District of California.

This was a suit by Smith, Myers, and Schnier against the Vulcan Iron Works of San Francisco for infringement of a patent. The circuit court rendered an interlocutory decree for complainants. 57 Fed. 934. Defendant appealed.

Wm. F. Booth and John A. Wright, for appellant,
J. H. Miller and M. M. Estee, for appellees.

Before GILBERT, Circuit Judge, and KNOWLES and HAW. LEY, District Judges.

GILBERT, Circuit Judge. This appeal is taken from an interlocutory decree of the circuit court adjudging the patent sued upon to be valid, and the appellant, the defendant therein, to have in. fringed the same, and enjoining the defendant from further infringing. 57 Fed. 934. The complainant's patent is No. 442,645, and was granted to S. R. Smith on December 16, 1890, for an improvement in band-saw mills. The defenses relied upon on the appeal are: (1) The absence of patentable novelty in the combination of the claims of complainant's patent; (2) the want of patentable invention in the same; (3) that there is no infringement by the defendant. The complainant's band-saw mill consists of an endless band saw, stretched over and revolving about two large wheels, which are separated from each other by a space sufficient to admit of the operation of sawing lumber. The wheels are called the

upper band wheel and the lower band wheel. The frame of the mill, as shown in the patent, Fig. 1, consists of a base plate, A, an upright column, C, a horizontal portion, D, extending from the column, between the two band saws, and sustaining an upright arm, D1, upon the outer side of the vertical plane of the band wheels, and a similar arm, D”, extending downward, the object of both of which arms is to furnish outer bearings respectively for the upper and lower band wheels; the inner bearings being attached to the upright column, C, and both the upper bearings being placed in tubes set in the column, C, and in the outer arm, D1. The first claim of the patent is as follows:

"In a band-saw mill, the combination, with the band wheels and main supporting frame or column, of an integral standard carrying the front bearings or the upper and lower band-wheel shafts, said standard being attached to the front side of said main frame or column between said band wheels, substantially as hereinbefore set forth.”

It is urged that this claim is anticipated by the English patent to William Newbury, No. 3,105, issued in 1808; by the United States patent to W.F. Parish, No. 388,069, of August 21, 1888; by the

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patent to C. Meiner No. 246,330, of August 30, 1881; and by the patent to De Witt C. Prescott, No. 369,881, of September 13, 1887. The essential feature of the complainant's invention, as covered by the first claim, is obviously the outside support. The outside support, as constructed in his patent, in combination with the other elements, permits the removal and replacement of the band saw from and upon its carrying wheels without difficulty, and without derangement of the machinery. We fail to find the combination in this form in any of the other patents. In none of them is there a combination of a main column with an integral standard attached to the same at a point between the band wheels and at no other point. In the Newbury patent the band saws are supported between two equal columns, connected, it is true, at a point between the wheels, but neither of which is an outside standard, or so constructed as to permit the placing or removal of the band saw without disturbing the position of the machine. The same is true of the Parish patent. In the Meiner patent is found, per

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