PER CURIAM. Appellees, as heirs at law of Alexander Hannah, successfully prosecuted this suit to set aside certain deeds from Hannah to appellant Phillip A. Karr.

The record fails to support appellants' contention that the reference to the master was by consent, and therefore that the court was bound to let the report stand unless it clearly involved error of law or misapprehension or oversight of facts. Kimberly v. Arms, 129 U. S. 524,

9 Sup. Ct. 355, 32 L. Ed. 764. The recital is that:

"On motion of defendants, by their solicitors, this cause is referred to Walter McClellan Allen, one of the masters of this court."

Some months later appellees filed a supplemental bill attacking a new claim of title (from Hannah to Henry Karr and from Henry to Phillip Karr) acquired by Phillip Karr pendente lite. Thereafter a stipulation was signed that:

"The parties hereby consent and agree that the said court may enter an order instanter referring the said cause, with respect to said supplemental bill, answers, and replications, to the said master in chancery, for the same purposes as the original bill, answers, and replications now stand referred to said master, and further consent and agree that the said master may include, in his report of the case made by the original bill, answers, and replications. his report of the case made by the said supplemental bill, answers, and replications."

Clearly, it seems to us, the stipulation, instead of broadening the original order of reference, confined the master's authority over the supplemental issues within the limits of the authority given him over the original issues. It was, therefore, proper for the judge of the Circuit Court, when his authority was invoked for that purpose, to examine the evidence and determine the issues of fact and law.

An extended examination of the case has led us to conclude that the trial judge's findings of fact should not be disturbed; and on those facts there are no propositions of law that require reiteration. The decree is affirmed.

UNITED STATES v. NEW YORK, C. & ST. L. R. CO. (Circuit Court of Appeals, Second Circuit.

No. 66.

March 16, 1909.)

1. CARRIERS (§ 37*) — TRANSPORTATION OF LIVE STOCK-FOOD AND REST-STATUTES-CONSTRUCTION-PENALTY.

Act Cong. June 29, 1906, c. 3594, § 1, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), prohibits a carrier from confining animals longer than 28 consecutive hours without unloading for rest, water, and food, but provides that on the written request of the owner, or person in custody of the particular shipment, the time may be extended to 36 hours, and imposes a penalty for each violation of the act. Held that, where several shipments of live stock belonging to different owners are carried in the same train in violation of the act, each shipment, and not the train load, is the integer for the purpose of ascertaining the number of offenses committed.

[Ed. Note.-For other cases, see Carriers, Dec. Dig. § 37.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. PENALTIES (§ 40*)—ACTIONS-RIGHT OF REVIEW-Nature oF PROCEEDINGS. An action against a carrier to recover penalties for violation of Food Rest Act Cong. June 29, 1906. c. 3594, § 1, 34 Stat. 607 (U. S. Comp. St. 1907, p. 918), is civil, though the statute is penal; and hence the government is entitled to have a judgment in such a proceeding reviewed by a writ of error.

[Ed. Note. For other cases, see Penalties, Dec. Dig. § 40.*]

In Error to the Circuit Court of the United States for the Western District of New York.

This is a writ of error to review a judgment of the Circuit Court, Western District of New York, which held defendant liable for a penalty of $200 under Act Cong. June 29, 1906, c. 3594, § 1, 34 Stat. 607 (U. S. Comp. St. Supp. 1907, p. 918), forbidding railroads and certain other carriers from transporting cattle and other live stock confined in cars for a period longer than 28 consecutive hours without unloading. The train whose management was complained of contained shipments by two different owners, and each shipment was assigned as calling for a separate penalty. Violation of the provisions of the statute is admitted. The judge at circuit held that but a single penalty could be imposed for all shipments by the same train, and the government has appealed.

Lyman M. Bass, U. S. Atty., and J. O. Moore, Asst. U. S. Atty. Hoyt & Spratt (Thomas D. Powell, of counsel), for defendant in

error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

PER CURIAM. Since the decision below the Court of Appeals in the Sixth Circuit has held that each shipment not transported in conformity with the statute constitutes a separate offense. U. S. v. Baltimore & Ohio S. W. R. R., 159 Fed. 33, 86 C. C. A. 223. We concur in its reasoning and conclusion.

Defendant in error also objects that there can be no review of the judgment by the government on the ground that this is a criminal action. This point has been overruled in U. S. v. Baltimore & Ohio S. W. R. R., supra, and in the Circuit Court of Appeals for the Ninth Circuit in Montana Central Ry. v. U. S. (C. C. A.) 164 Fed. 400. The judgment is reversed.

COOK et al. v. KLONOS et al.

(Circuit Court of Appeals, Ninth Circuit. March 2, 1909.)

No. 1,510.

MINES AND Minerals (§ 29*)—ASSOCIATION PLACER CLAIMS-FRAUDULent LoCATION-RIGHTS OF INNOCENT LOCATORS.

Where the location of an association placer mining claim is invalid for fraud on the part of some of the locators, if the work has been kept up and the law and district regulations complied with, locators who were not implicated in the fraud, but acted in good faith, may individually select and hold their proportionate part of the land within the limits of the association claim.

[Ed. Note. For other cases, see Mines and Minerals, Dec. Dig. § 29.*] For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

On rehearing. Denied.

For prior opinion, see 164 Fed. 529.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

PER CURIAM. The petition for rehearing is denied. We are satisfied with what is said in the opinion in respect to Barnette and the six absent locators; but a further examination of the record does not satisfy us that Cook and Ridenour were parties to the fraud. If they were not, and they joined in the location in question in good faith, and the ground was open to location, we think they are entitled to select 20 acres each within the exterior boundaries of the associated claim, provided they have continued to conform to the requirements of the statute and the local rules of the mining district. We accordingly modify our judgment so as to read:

The judgment of the court below is affirmed as to the appellants A. T. Armstrong, W. H. Sumner, Y. L. Newton, M. E. Armstrong, L. T. Selkirk, and A. R. Armstrong, and as to the appellants Henry Cook and J. C. Ridenour it is reversed, and the case remanded, with leave to them to file a supplemental bill, should they so elect, and in that event for further proceedings in accordance with the views here expressed.

CAZIER V. MACKIE-LOVEJOY MFG. CO.

(Circuit Court of Appeals, Seventh Circuit. January 5, 1909.)

No. 1,499.

PATENTS (§ 326*)—Suit for InfringemENT-CONTEMPT PROCEEDINGS FOR VIOLATION OF INJUNCTION-RULINGS APPEALABLE.

In contempt proceedings instituted in a suit for infringement of a patent, and in which the defendant was adjudged in contempt for violating an injunction and a fine imposed payable to the United States, the refusal of the court to permit the complainant to introduce evidence of his damages on account of the new infringement, and to recover such damages and costs in the contempt proceeding, related to a matter of procedure, within the discretion of the court, and is not reviewable by appeal.

[Ed. Note. For other cases, see Patents, Dec. Dig. § 326.*]

Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.

See, also, 157 Fed. 88, 84 C. C. A. 591.

Joseph Cummins, for appellant.

Thomas F. Sheridan and George L. Wilkinson, for appellee. Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP, Circuit Judge. The appeal is by the party in the court below in whose favor the decree was entered. The ground of the appeal is that although by a former decree, the appellee was found to be an infringer of patent No. 696,940, issued to appellant April 8th, 1902 (Cazier v. Mackie-Lovejoy Mfg. Co., 71 C. C. A. 104, 138 Fed. 654; Mackie-Lovejoy Mfg. Co. v. Cazier, 157 Fed. 88, 84 C. C.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

A. 591), and by this decree appellee was found guilty of contempt on account of a new infringement of appellant's patent, for which a fine of fifty dollars was imposed, to be paid to the United States, the Court erred in denying appellant's motion to take evidence, in connection with the contempt proceedings, as to his damages by reason of the new infringement, and his costs and expenses, in the contempt proceedings-the contention of appellant being that he was entitled, as a matter of right, to a hearing, in the contempt proceeding, not only of the question whether there had been a contempt, but also of the question of whether there were damages by reason of the infringement constituting the contempt, and the amount thereof, and to have such damages made a part of the decree.

Whether appellant can appeal at all from a decree that finds the appellee guilty of contempt and imposes a fine to be paid to the United States, is a question we do not decide, for that is not the part of the decree appealed from that is assigned as error. We dismiss this appeal because, limited as it is by the assignments of error to the alleged error of the Circuit Court in not broadening the hearing and the decree so as to cover damages and costs, as well as the fine, the portion of the decree thus complained of is not appealable.

Substantive rights are one thing, procedure or the way to attain substantive rights, is another. A decree disposing of substantive rights is usually, in some way or other, appealable; the exercise of discretion by a court as to the procedure, or way of attaining those rights, is not usually appealable. True when the validity of a patent has been established, and the defending party decreed to be an infringer on account of certain specific devices brought before the court, the infringing party may not, by mere colorable changes, avoid the effect of the decree as an adjudication between the parties; and the offending party may be reached either by separate suit or by a supplemental bill. Murray v. Orr & Lockett Hardware Co., 153 Fed. 369, 82 C. C. A. 445. But whether the procedure be by separate suit or by supplemental bill, the party in one way or the other securing his substantive right, is a matter in the discretion of the court, and therefore not appealable.

The denial to appellee of his motion for damages, costs and expenses to be decreed to him in the contempt proceedings, is not a denial of his substantive right to have, in some form or other, damages, costs and expenses. The only thing denied him is a particular method of obtaining his damages, costs and expenses. And if the court may choose, as above pointed out, the procedure or method whereby a substantive right shall be pursued, and such choice is a matter of judicial discretion (Murray v. Orr & Lockett Hardware Company, supra), we see no reason why the court may not, also, as a matter of discretion, determine that the method shall not be in connection with, or a part of, the contempt proceedings; from which it follows that that portion of the decree upon which error is assigned, is not appealable. The appeal is dismissed.

PAGE MACH. CO. v. DOW, JONES & CO.

(Circuit Court of Appeals, Second Circuit. February 16, 1909. On Rehearing, March 25, 1909.) No. 147.

1. PATENTS (§ 328*)-INFRINGEMENT-PRINTING TELEGRAPH INSTRUMENT. The Joy patent, No. 780.664, for a printing telegraph receiver, as to a claims except claim 12, held valid and infringed.

[Ed. Note.-For other cases, see Patents, Dec. Dig. § 328.*]

2. PATENTS (§ 324*)-SUIT FOR INFRINGEMENT-DISCLAIMER-EFFECT OF DECI SION OF PARTIAL INVALIDITY BY TRIAL COUrt.

Where a Circuit Court, in a suit in equity for infringement of a patent has held certain claims of the patent invalid, as too broad, but has entered an interlocutory decree granting an injunction and accounting for infringe ment as to other claims, from which defendant has appealed, the Circuit Court of Appeals, on an affirmance of the same, will not require complainant to enter a disclaimer, under Rev. St. § 4922 (U. S. Comp. St. 1901, p. 3396), as to the claims adjudged invalid by the Circuit Court, until by the entry of a final decree he has had the opportunity to appeal and have such adjudication reviewed by the appellate court.

[Ed. Note.-For other cases, see Patents, Dec. Dig. § 324.*]

Appeal from the Circuit Court of the United States for the Southern District of New York.

For opinion below, see 166 Fed. 473.

Emerson R. Newell (Brown & Seward, of counsel), for appellant. Gifford & Bull, for appellee.

Before LACOMBE, COXE, and WARD, Circuit Judges.

PER CURIAM. Decree of Circuit Court affirmed, with costs, on opinion of Judge Hazel.

On Rehearing.

LACOMBE, Circuit Judge. The Circuit Court, inter alia, held that all of the claims of the Joy patent, No. 780,664, were valid and infringed. Upon a rehearing this decision was modified by giving to claim 12 of that patent a broader construction than at first, and, as thus construed, finding anticipation in a prior patent. Interlocutory decree for injunction and accounting on the other claims was entered accordingly. Defendant appealed from so much of the decree as held these claims valid and infringed. Complainant could not appeal from so much of the decree as dismissed the bill as to claim 12, because the decree was not final. This court, after argument of the appeal, affirmed the Circuit Court. Defendant contends that this court should instruct the Circuit Court that no decree should be granted—or, at least, that no injunction should issue-upon this patent until a disclaimer of claim 12 has been filed in the Patent Office and a certificate thereof lodged in the case. Reliance is had on sections 4917 and 4922, Rev. St. U. S. (U. S. Comp. St. 1901, pp. 3393, 3396).

The practice indicated in the motion apparently originated in this circuit, and has been there followed in a large number of cases. enu*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes