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jurisdiction of the court in accordance with the practice approved in United States v. American Bell Telephone Company (C. C.) 29 Fed. 17. In accordance with the views expressed in the above case, and for the reasons above given, I am of opinion that the bill should be dismissed.

INTERNATIONAL WIRELESS TELEGRAPH CO. v. FESSENDEN. (No. 2.) (Circuit Court, D. New Jersey. August 16, 1904.)


Where a bill for infringement is dismissed for want of jurisdiction, costs cannot be awarded to defendant.

On Motion for Costs to Defendant on Dismissal of Bill

T. J. Johnston, for the motion.

E. B. Leaming and W. S. Darnell, opposed.

ARCHBALD, District Judge.1 The opinion of Judge Kirkpatrick (now deceased) discloses that the bill was directed to be dismissed not so much on the ground that the subpoena had not been properly served -which possibly could be cured, and as to which the conclusion simply was that the return of the marshal should be quashed-but on the ground that, although brought against one who, on the face of the pleadings, was admittedly a nonresident of the district, it failed to state the necessary facts to give jurisdiction in such cases. Act March

3, 1897, c. 395, 29 Stat. 695 [U. S. Comp. St. 1901, p. 589]. It was not alleged, for instance, that any act of infringement had been committed within the district, nor that the defendant had a regular and established place of business there, with an agent in charge upon whom service could properly be made. In other words, the case, as stated in the bill, was one over which the court had no jurisdiction; and, if so, it is not one in which costs can be awarded. Citizens' Bank of Louisiana v. Cannon, 164 U. S. 319, 17 Sup. Ct. 89, 41 L. Ed. 451. The motion for costs to the defendant is refused.

¶ 1. See Costs, vol. 13, Cent. Dig. § 16.

1 Specially assigned.


(Circuit Court, S. D. New York. July 12, 1904.)


infringement of the Weston patent, No. 392,387, for an apparatus for measuring electrical currents of any size as well those in multiple-arc, in amperes, as full currents, in volts-is not prevented by the fact that such apparatus is described in patent No. 392,386, issued at the same time to the same patentee, for means for dividing a current in definite parts, and measuring one part in amperes by such apparatus, although the alleged infringing instrument is one for measuring in amperes in multiplearc; the two patents being for different things. Such patent held infringed on motion for preliminary injunction.

In Equity. Suit for infringement of letters patent No. 392,387, for an electrical measuring apparatus, granted to Edward Weston November 6, 1888. On motion for preliminary injunction.

William Houston Kenyon, for plaintiff.

C. A. L. Massie and Philip Mauro, for defendant.

WHEELER, District Judge. This suit is brought upon patent No. 392,387, dated November 6, 1888, and granted to Edward Weston, for an electrical measuring apparatus, which has been sustained by a decree of this court on final hearing in Weston Electrical Instrument Co. v. Jewell Electrical Instrument Co. (March, 1904) 128 Fed. 939. It has been heard on a motion for a preliminary injunction.

The differences between the defendant's instruments and those of the patent are formal, and not functional. The parts are different in shape, but they measure currents of electricity by the same means, in the same arrangement, and in the same way. That they infringe is not, and cannot well be, much disputed. But at the same time the inventor took out patent No. 392,386, for means by electrical resistance in multiple-arc circuit of dividing the current into definite parts, and measuring one of them in amperes by the apparatus of this patent, which is described in that; and the existence of that patent outstanding and not sued upon is claimed, as is understood, to shield everything covered by it from liability in a suit upon this patent, and that, as no infringement but by instruments for measuring by amperes in multiple-arc circuit before this suit is shown, no basis for an injunction is made out. The apparatus of this patent will, when properly adjusted, measure currents of any size-as well those in multiplearc, in amperes, as full currents, in volts; and, although measurement in volts is mentioned in the specification and in some of the claims, the patent is not, except as to those claims, limited to measurement of a current in main circuit by volts. The other patent has four claims, each of which is for, in some form, the combination of the electrical resistance in multiple-arc circuit with other parts of the apparatus. One patent seems, therefore, to be for the means for dividing a current into definite parts, to be measured by measuring one part, and the other patent to be for the measuring any current, whether whole or fractional. The former would be infringed only by the fractional

means, but the latter would be by the means of either whole or fractional measurement. As the patents were simultaneous, there was no abandonment of what was covered in either by description in the other, and no priority in either to prevent a grant by the other, if both in any parts covered the same thing, but they do not appear to. Each patent is for a separate invention, and was necessary to secure to the inventor what it covered, and neither affords any excuse for infringing the other.

Motion granted.



(Circuit Court, S. D. New York. June 25, 1904.)


The Misell patent, No. 617,592, for an electrical hand lamp, claims 1, 2, and 4, held void for lack of invention.


The Hoggson patent, No. 520,429, for an electric battery, held void for lack of patentable invention.

In Equity. Suit for infringement of letters patent No. 520,429, for an electric battery, granted to S. H. Hoggson May 29, 1894, and No. 617,592, for an electrical hand lamp, granted to David Misell January 10, 1899. On final hearing.

Briesen & Knauth (Arthur v. Briesen and Hans v. Briesen, of counsel), for complainant.

John T. Booth (N. L. Frothingham and Edward S. Beach, of counsel), for defendants.

HOLT, District Judge. In my opinion, the decisions of Judge Coxe in the American Electrical Novelty & Manufacturing Co. v. Newgold (C. C.) 108 Fed. 957, and of the Circuit Court of Appeals in the same case on appeal (113 Fed. 877, 51 C. C. A. 501), are decisive of this case It was held in the Newgold Case that claim 3 of the Misell patent was void for lack of patentable invention, in view of the prior art. I cannot see that anything is included in claims 1, 2, and 4 of the Misell patent which is not included in claim 3, and I think that the Hoggson patent is void for the same reason as the Misell patent. It is stated in Judge Coxe's opinion in the Newgold Case that the complainant was licensed under the Hoggson patent, and its batteries constructed in accordance with its terms. Page 960, 108 Fed. The electric batteries described in the Hoggson patent seem to me to be merely the result of a combination of previous electrical devices, fully disclosed by the state of the prior art, as shown in the patents of Roovers, Levi, and Van Horvath, the combination of which by Hoggson in the manner described in his patent did not amount to a patentable invention.

My conclusion is that the bill should be dismissed, with costs.

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Act S. C. 1882 (18 St. at Large, p. 216), chartering the G. & P. R. R. Co., authorized townships interested in such construction to subscribe for stock and issue bonds in payment therefor, and section 9 (page 217) thereof provided for the payment of interest on such bonds by authorizing the county auditor to assess and the county treasurer to collect such tax on the property of the township as should be necessary to pay such interest. By Act S. C. 1885 (19 St. at Large, p. 240) the former act was amended so as to provide that all counties and the townships in such counties along the line of such railroad or interested in its construction were created bodies politic and corporate, with necessary powers to carry out the provisions of the act, and subject to all liabilities growing out of the same, and the county commissioners of the respective counties were declared the corporate agents of the counties and townships so incorporated and situated within the limits of such counties. By constitutional amendment (23 St. at Large S. C. p. 1227), the state Constitution of 1895, art. 7, § 11, providing that the several townships of the state should constitute a body politic and corporate, etc., was amended so as to provide that such section should not apply to certain townships which had issued bonds in payment of stock in the railroad under the acts of 1882 and 1885, and that "the corporate existence of such townships be and the same is hereby destroyed and all officers of such townships are abolished and all corporate agents removed." Held, that such constitutional amendment was intended to impair the means provided by law for the payment of the bonds so issued, and to that extent was obnoxious to Const. U. S. art. 1, § 10, as impairing the obligation of contracts.


Since the county auditor and treasurer, authorized by Act S. C. 1882 (18 St. at Large, p. 216) to levy and collect the tax for the payment of such bonds, were not officers or agents of the townships issuing the bonds in any sense, and the acts they were empowered to perform could be legally done independent of the corporate existence of the township, the abolition of the corporate existence of a township which had been organized as a corporation only for the purposes of the act did not deprive such officers of authority to levy the tax to pay such bonds issued by it.


The fact that after the issuance of bonds under such acts the township issuing the same became a part of another county by means of a change in the boundaries of certain counties was immaterial, since the township's obligation to pay the bonds attached to the territory included in the township which issued the bonds, and passed with such territory into the county to which it was added.

At Law.

Shields, Cates & Montcastle and H. J. Haynsworth, for petitioners. J. B. Pork and F. B. Grier, for respondents.

PRITCHARD, Circuit Judge. This is an application for a writ of mandamus to compel the auditor and treasurer of the county of Greenwood to assess and collect a judgment recovered against the township of Nintey-Six for certain bonds issued by it in aid of a railroad company. By an act of 1882 the Legislature of South Carolina chartered

the Greenville & Port Royal Railroad Company. Sections 6 and 8 of this act authorized cities, towns, townships, and counties interested in the construction of railroads to subscribe to the capital stock of said railroad company, and to issue bonds in payment thereof. 18 St. at Large S. C. pp. 216, 217. Section 9, as a means of paying the bonds, provided as follows:

"That for the payment of interest on such bonds as may be issued by the said counties, cities, towns or townships, the county auditor or other officer discharging such duties, or the city or town treasurer, as the case may be, shall be authorized and required to assess annually upon the property of such city, town, county or township such per centum as may be necessary to pay said interest of said sum of money subscribed, which shall be known and styled in the tax book as said railroad tax, which shall be collected by the treasurer under the same regulations as are provided by law for the collection of taxes in any counties, cities, towns or townships so subscribing and which shall be paid over by the said treasurer to the holders of said bonds as the said interest shall become due, on presentation of the coupons, which said coupons shall be reported to the county commissioners by the said treasurer, or to the council of any city or town where there are coupons from bonds of such city, or town, and all said coupons shall be cancelled by the county treasurer as soon as they are paid by them." Page 217.

In 1885, an amendatory act was passed in which the name of the railroad company was changed, and other alterations and changes were made, which do not concern the question at issue in this case. This act also amended the act of 1882 by adding the following provision to section 9:

"That for the purpose of this act, all the counties and the townships in said counties, along the line of the said railroad, or which are interested in the construction as herein provided for, shall be, and they are hereby declared to be bodies politic and corporate, and vested with the necessary powers to carry out the provisions of this act, and shall have all the rights and be subject to all the liabilities in respect to any rights or causes of action growing out of the provisions of this act, the county commissioners of the respective counties are declared to be the corporate agents of the counties or townships so incorporated and situate within the limits of the said counties." 19 St. at Large S. C. p. 240.

This provision designates the county commissioners of the respective counties as the corporate agents of the counties and townships so incorporated, and clothes them with power to issue bonds in such amounts as may be authorized by the voters of the respective territories in the manner therein prescribed. In accordance with the provisions of this section, the people of the township, at an election held for that purpose, declared in favor of the issue of bonds in aid of the construction of the railroad, and the county commissioners of Abbeville county, in the spring of 1886, under the authority conferred upon them by the Legislature, issued the bonds of the township in the amounts stated in the petition. These bonds were sold to innocent purchasers for value, and for two years the taxes were regularly assessed and collected, and the interest upon the bonds was promptly paid. In November, 1888, the Supreme Court of South Carolina, in the case of Floyd v. Perrin, reported in 30 S. C., at page 1, 8 S. E. 14, 2 L. R. A. 242, held that under the statutes of 1882 and 1885 the township of Ninety-Six was created a corporation, but without any corporate purpose, and that the section of the act which undertook to authorize the issue of bonds was uncon131 F.-32

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