or perhaps more, as claimed by complainant. Perhaps defendants have the perfect right, prior to January 30, 1900, to make arrangements to manufacture, after said date, machines containing complainant's device; but they have no right, prior to the expiration of complainant's patent, to assemble any machine containing such device, although they may lawfully have the different parts in their possession. The question, then, is, do all the facts and circumstances of this case bring it within the reasoning announced in American Bell Tel. Co. v. Western Tel. Const. Co. (C. C.) 58 Fed. 410, or within the reasoning of the court in Overweight Counterbalance Elevator Co. v. Crane Elevator Co. (C. C.) 96 Fed. 231, or do the special facts of this case place it without the reasoning of both of said cases? In my judgment, all the facts and circumstances of this case considered, the ruling in neither of said cases applies to the case at bar. There remain but four days now of the life of complainant's patent. To be sure, the bill was filed three months prior to the expiration of the patent, but the record was only in proper form to grant the injunction eight days before such expiration. In the Elevator Cases, but ten days of the life of the patent remained after the filing of the bill, and, under the practice of this court, it would have been practically impossible to bring on for hearing a motion for a preliminary injunction within that time. In the Telephone Co. Case, about three and one-half months of the life of the patent remained subsequent to the application for the preliminary injunction. In the case at bar, there is no doubt but that complainant is entitled to the protection of this court in the premises, but manifestly the relief which can be obtained by an injunction to cover a period of only four days will be but nominal, providing it is made to serve only its legitimate function. If the defendants are required to give a bond covering such damages and costs, both past and future, as may be decreed to complainant upon a final hearing of this cause, I am of the opinion that the complainant will derive therefrom all the relief which equity and justice would require, under the circumstances of this case. There is no such threatened irremediable injury shown in this case as demands the issuance of an injunction, providing defendants will file herein an adequate bond; but unless the defendants shall file a bond in this cause, within 24 hours, in the sum of $2,000, conditioned upon the payment of costs and damages as above set forth, a preliminary injunction, as prayed, may issue.

AMERICAN ELECTRICAL NOVELTY CO. v. NEWGOLD et al.

(Circuit Court, S. D. New York.

January 13, 1900.)

PATENTS-SUIT FOR INFRINGEMENT-PRELIMINARY INJUNCTION.

A decision sustaining a patent in a case not contested is not such an adjudication as will entitle the complainant in a different suit to a preliminary injunction against infringement, where there is no proof of long acquiescence, and the validity of the patent is contested.

This is a suit in equity for infringement of a patent. On motion for preliminary injunction.

Thomas Ewing, Jr., for the motion.

Arthur v. Briesen, opposed.

LACOMBE, Circuit Judge. The decision of Judge Wheeler (98 Fed. 895), being rendered in a case where there was no opposition, is not such an adjudication as will entitle complainant to a preliminary injunction in another suit, where there is no proof of long-continued public acquiescence, and where the validity of the patents, if construed broadly enough to cover defendant's device, is vigorously contested. Motion denied.

PATENTS-INFRINGEMENT-SALE OF INFRINGING ARTICLE.

One who bought and resold at a profit the separate parts of an infringing machine, and was thereafter employed by the purchasers by the day to set up the complete machines, is within the rule that one who makes a profit for himself out of the infringing goods incurs liability as an infringer.

This is a suit in equity for infringement of patents. Hearing on plea.

Dickerson & Brown, for complainants.

J. E. Maynadier, for defendant.

TOWNSEND, District Judge. Hearing on plea. Complainants own certain patents for machines for quilting fabrics, the validity of which has been sustained in suits of these complainants against Crefield Mills (C. C.) 57 Fed. 221, and against the Brown Manufacturing Co., 35 C. C. A. 86, 92 Fed. 925. The defendant herein was originally employed by complainants as a skilled workman in making quilting machines, and, having severed his relations with them, entered successively the employment of said two infringing concerns. The plea is as follows:

"I, C. Tyler Landphere, the defendant, by protestation, not confessing or acknowledging all or any part of the matters or things in said bill of complaint contained to be true in such manner and form as the same are therein set forth and alleged, do plead thereto, and for plea say that I have never made, used, or sold machines embodying any material part of the invention described and claimed in any of the several letters patent counted upon in complainants' bill of complaint, nor have I had any concern whatever in making, using, or selling any machines embodying any material part of the invention described and claimed in any of the several letters patent counted upon in complainants' bill of complaint, further than this: That I have been employed at daily wages in the construction of sundry machines for sewing or quilting fabrics, but I am not now so employed, nor have I been for many months; and whether the said machines in the construction of which I labored as an ordinary workman, as aforesaid, embodied any material part or parts of the alleged invention secured to the complainants by letters patent of the United States I was not and am not aware. Furthermore, I am not, and have never been, interested, directly or indirectly, in any machine for sewing or quilting fabrics, nor in the profits derived from the use or sale of such a machine; and I do not, and never did, own any such machine in whole or in part."

From the testimony in support of the plea it appears that, after having left the employment of said infringing firms, he bought various parts of infringing machines "as a matter of speculation," which were stored at his mill; that he employed persons to replace certain parts which had been destroyed; that he sold these parts for a good profit to the California Cotton Company, to which he furnished every part of the infringing machines except the sewing machine. He further testified that he sold all the parts of a scroll quilting machine to the Cold Blast Feather Company; that he was thereafter employed by said companies at $10 to $15 a day, and that part of his duties consisted in setting up the completed infringing machines of which he had sold the parts. Upon these facts coun sel for defendant claims that he was merely a skilled workman, who had a right thus to sell his services; that in no event could he be held except for contributory infringement; and that, under the decision in Nickel Co. v. Worthington (C. C.) 13 Fed. 393, he is not liable. Said decision has been distinguished, doubted, or directly disapproved in Cahoone Barnet Mfg. Co. v. Rubber & Celluloid Harness Co. (C. C.) 45 Fed. 582; Cramer v. Fry (C. C.) 68 Fed. 201; Graham v. Earl, 34 C. C. A. 267, 92 Fed. 155; Cash-Register Co. v. Leland, 37 C. C. A. 372, 94 Fed. 502, and by Mr. Walker in section 410 of his work on Patents. The question of liability of a mere skilled workman is not involved herein. The facts proved bring this defendant within the settled rule that any person who has made a separate profit to himself out of the sale of infringing goods, and. even a servant who has derived a distinct and independent benefit from invasions of the patent, incurs a distinct separate liability. Rob. Pat. § 920; Estes v. Worthington (C. C.) 30 Fed. 465; Graham v. Earl, 27 C. C. A. 377, 82 Fed. 737, 742; Cramer v. Fry (C. C.) 68 Fed. 201, 207; Featherstone v. Cycle Co. (C. C.) 53 Fed. 110; Fishel v. Lueckel (C. C.) 53 Fed. 499; Armstrong v. Soap Works (C. C.) 53 Fed. 125; Steiger v. Heidelberger (C. C.) 4 Fed. 455, 18 Blatchf. 426; Maltby v. Bobo, 14 Blatchf. 53, Fed. Cas. No. 8,998. The plea is overruled.

MUNICIPAL SIGNAL CO. v. NATIONAL ELECTRICAL MFG. CO.

(Circuit Court, D. Connecticut. January 19, 1900.)

PATENTS-SUITS FOR INFRingement-REHEARING.

A defendant in a suit for infringement is not entitled to a rehearing on the ground of newly-discovered evidence, where the existence of such evidence was disclosed by the file wrappers of the patents in suit.

On Motion for Rehearing. For former opinion, see 97 Fed. 810.

TOWNSEND, District Judge. Counsel for defendant has moved to reopen this case and introduce certain new evidence, comprising the file wrappers of the patents in suit, and of a certain abandoned application, and further testimony thereon. The ground on which this motion is based is a statement in a footnote of the replying brief of the counsel for the complainant, which was as follows:

"Applications for patents 687 and 686 were filed on the same day; application for patent 688, one week later. Application for 686 went through the patent office as 'Case B,' and that for 688 as 'Case C.' This would have appeared in the record, had defendant introduced evidence on which to ground its contention with respect to the relation between the patents in question."

This statement covered matter outside the record, and was not considered by the court in the disposition of the case. The only allegation in the motion of prior want of knowledge and due dili gence is that the existence of said abandoned application was not known to defendant's counsel previous to the argument, and the file wrapper and contents thereof "could not, with reasonable diligence, have been presented to the court by defendant's counsel at the argument of this case." Counsel for defendant claims that the statements in said footnote put him on inquiry as to the existence of said abandoned application, and that the file wrappers of the patents in suit and further expert testimony are essential in order to explain said abandoned application. It appears, however, that, if the file wrappers of the patents in suit had been examined, they would have disclosed the facts alleged in said footnote. Counsel for defendant does not allege that he was ignorant of said file wrap pers. The motion is therefore denied.

Counsel for defendant states that his rights on appeal are liable to be prejudiced by the following statement in the opinion of the court:

"The first claim need not be considered, because defendant's counsel admits that he does not wish to have the case disposed of on this technical point, because, if necessary, the defect may be remedied by joining the owner of the naked title to the patent, and because it sufficiently appears from the evidence that the defendant corporation has, since the acquisition of title to these patents by the complainant, maintained the apparatus alleged to infringe, through its employés, and that it threatens, by its circulars, to construct other similar apparatus in other cities."

Counsel for defendant in his reply brief did discuss said contention, which he had abandoned on the argument, and therefore is not to be deemed to have abandoned it on appeal.

UNITED STATES v. MORGAN.

(Circuit Court of Appeals, Fourth Circuit. February 6, 1900.)

No. 811.

1. SALVAGE-ACTIONS AGAINST UNITED STATES

COURT.

JURISDICTION OF CIRCUIT

Act Cong. March 3, 1887 (24 Stat. 505), gives jurisdiction to the court of claims, inter alia, on any contract, express or implied, with the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable. Section 2 gives the federal district and circuit courts concurrent jurisdiction with the court of claims as to matters named in the preceding section, except that the district courts have jurisdiction not to exceed $1,000, and the circuit courts between $1,000 and $10,000. Held, that a claim against the United States for salvage in the sum of $10,000 is within the jurisdiction of the circuit court. & SAME-TOWAGE-AMOunt.

A lightship belonging to the United States government broke loose from her moorings, and was carried out into Chesapeake Bay. The sea was

described by many as being the highest ever known in Hampton Roads. A tug sighted the lightship, which hoisted a signal for assistance, described as a signal for a tow. The tug immediately answered the signal, but, owing to the gale of wind and heavy sea prevailing, was unable to approach her in the usual manner from the leeward, and pass a hawser, but had to go to the windward side, and use a heaving line. Three efforts to cast the line were made before it was caught, the tug, in the meantime, being in the trough of the sea, with the seas breaking over the man casting the line. Some three hours later the lightship was brought to the wharf. Held, that $1,200 for salvage service, though on the border line of towage service, will not be disturbed as excessive.

Appeal from the Circuit Court of the United States for the Eastern District of Virginia.

This case comes up on appeal from a decree of the circuit court of the United States for the Eastern district of Virginia. The action below was brought by way of petition on the part of A. D. Morgan, master of steam tug Frank A. Lowe, against the United States. The cause of action is a claim for salvage of the lightship No. 49, the property of the United States. The form of pleading is in admiralty in personam. The amount claimed is $10,000. The court below considered it a case of salvage, and awarded $1,200 salvage. The case comes here on exceptions to the decree. The errors assigned are to the finding of the district court. This is an evident typographical mistake, the petition for allowance of appeal being to the circuit court. These alleged errors are: (1) That the petitioner was allowed to file his petition; (2) that the court erred in not sustaining an exception to the jurisdiction of the court; (3) that the court erred in requiring the respondent to answer the petition; (4, 5) that the court erred in holding it a case of salvage, and in allowing an award of $1,200. Edgar Allan, U. S. Atty.

Floyd Hughes, for appellee.

Before SIMONTON, Circuit Judge, and PAUL and BRAWLEY, District Judges.

SIMONTON, Circuit Judge. The vital question in this case is, had the court jurisdiction? The action is against the United States. It is a claim for salvage. The proceeding to recover salvage is in the circuit court, not in the district court, and it is in form a libel. The United States, a sovereign, cannot be sued, except by its own consent, and in the mode prescribed by congress. Act Cong. March 3, 1887 (24 Stat. 505), gives jurisdiction to the court of claims of "all claims founded upon the constitution of the United States, or any act of congress, except for pensions or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity or admiralty, if the United States were suable." By the second section of the act, the district and circuit courts of the United States are given concurrent jurisdiction with the court of claims as to all matters named in the preceding section, with the provision that the district courts have jurisdiction when the amount of the claim does not exceed $1,000. And the circuit courts have jurisdiction when the amount of the claim exceeds $1,000, and does not exceed $10,000.

The first question is, is it a claim for salvage upon a contract, express or implied, or is it a claim for damages, liquidated or unliquidat