few shoes from a straight rod upon the ribless die and die L, without the use of any other dies. Models of these dies are exhibits known as "Deeble dies Nos. 1 and 2." As the die, B, of the second claim is old, and dies, B, D, and E, of the third claim are old, if die, A, is also old, or an immaterial modification of an old die, it is insisted that the two claims are within the principle of the decision in Beecher Manuf'g Co. v. Atwater Manuf'g Co., 114 U. S. 523, S. C. 5 Sup. Ct. Rep. 1007, and are void. The motion is denied. DICK and another, Receiver, etc., v. STRUTHERS and others. (Circuit Court, W. D. Pennsylvania. September 19, 1885.) 1. PATENTS FOR INVENTIONS-PATENT ABOUT TO EXPIRE-INJUNCTION. A suit in equity was brought on May 5, 1885, on letters patent which expired on the sixteenth of June next succeeding. There was service on the defendant on May 7th, but no steps were taken to secure a preliminary injunction. The bill, however, on its face disclosing a case cognizable in equity, on demurrer, held, that the court would not dismiss the bill because of the expiration of the patent. 2. SAME-SUIT BY RECEIVER OF CORPORATION. In Pennsylvania a receiver of a corporation is the mere custodian of its property; and, not being invested with the title of the corporation to letters patent, he cannot maintain suit thereon in his own name. In Equity. Sur demurrer to the bill of complaint. D. F. Patterson, for defendants. ACHESON, J. This suit was brought on May 5, 1885, upon letters patent which expired on the sixteenth day of June next succeeding. The bill charges the defendant with past, and then continuing and threatened, infringement, and prays for an injunction, "provisional as well as final," and that the infringing drilling jars in the possession of the defendants might be destroyed; also for a discovery, alleged to be "essential and material" to a just determination of the case, for an account, and decree for profits and for damages. Process was served on the defendants on May 7th, but no steps were taken to secure a preliminary injunction; and, the patent having now expired, it is insisted that for this reason the court should not further hold the bill. But if a case is cognizable in equity at the time the bill is filed, the mere fact that the patent has expired does not oust the jurisdiction of the court. Gottfried v. Moerlein, 14 Fed. Rep. 170. True, in Betts v. Gallais, L. R. 10 Eq. 392, (cited in Root v. Railway Co., 105 U. S. 211,) it was held that the court would not entertain a bill for the mere purpose of giving relief in damages for the infringement of a patent, where suit was begun so immediately before the expiration of the patent as to render it utterly impossible to have obtained equitable relief during the life of the patent, which had only four days to run after bill filed. And in Burdell v. Comstock, 15 Fed. Rep. 395, and in Davis v. Smith, 19 Fed. Rep. 823, where suits in equity were commenced in the former case only five days, and in the latter but one day, before the expiration of the patent, the bills were dismissed. But in each of those cases it was evident that the bill was a mere device to transfer a plain jurisdiction to award damages from the forum, to which it properly belonged, to a court of equity. Here, however, such is not the apparent purpose, and this ground of demurrer is not sustained. But there is another real difficulty in the plaintiffs' way, in that they do not represent the entire right in the patent, which is necessary in order to sustain the suit. Walk. Pat. §§ 399, 400, 574; Gayler v. Wilder, 10 How. 494; Blanchard v. Eldridge, 1 Wall. Jr. 339; Hewitt v. Pennsylvania Steel Co., 24 Fed. Rep. 367. The bill discloses that the Gibbs & Sterrett Manufacturing Company-a corporation which, as the case stands, is a stranger to the suit-is the owner of one-half the patent. F. W. Ames, the receiver of that company, is, indeed, the plaintiff; but, clearly, he has no title upon which to maintain an action in his own name. Yeager v. Wallace, 44 Pa. St. 294; Kerr, Rec. p. 192, note 1; High, Rec. § 209. By the law of Pennsylvania, Ames is the mere custodian of the property of the corporation. By virtue of his appointment as receiver no title to the patent passed from the corporation to him. Doubtless it was competent for the court appointing him to authorize him to bring suit on the patent; but then it should have been brought in the name of the corporation. The objection, therefore, that the plaintiff Ames has no title upon which to maintain this suit, the same being in a corporation which is not a party hereto, is well taken, and for this cause the demurrer is sustained. DICK and another, Receiver, etc., v. OIL WELL SUPPLY CO., Limited. (Circuit Court, W. D. Pennsylvania. September 19, 1885.) PATENTS FOR INVENTIONS-WANT OF INVENTION. In this case, held, that the alleged want of patentable invention was not so obvious that the question of patentability could be examined and safely decided on demurrer. In Equity. Sur demurrer to the bill of complaint. James C. Boyce, for defendant. ACHESON, J. The cause of demurrer assigned upon the record is that the letters patent sued on are not for any patentable invention; the described improvement in the construction of drilling jars for oil wells being the mere substitution of one material for another. Now it is indeed true that the specification discloses that drilling jars had been made substantially of the form and shape described in the patent, usually of wrought iron alone, or in rare instances entirely of steel; but such jars, the specification also reveals, were defective-liable to become locked together and inoperative while in the well, or to break-for reasons fully explained. These practical difficulties, it is claimed, are obviated by the invention here, which consists in so combining iron and steel in the manufacture of drilling jars as to secure the necessary tensile strength in the parts subjected to great longitudinal strain, and the hardness of steel in the parts which give and receive the blow, and which are subject to great frictional wear, such end being secured by welding into the wrought-iron jar a steel headpiece to receive the blow, and by making of steel the inner faces of the link-bars where the frictional wear is the greatest. In view of the service required, and the obstacles to be overcome, is there an obvious want of patentable invention in this device? Whether an improvement in machinery is the result of mere mechanical skill and good judgment, or involves the exercise of the inventive faculty, is often a nice question. That the improvement here belongs to the category of invention, it must be presumed, was shown to the satisfaction of the officials in the patent-office, and I am not prepared to say, upon a mere inspection of the patent without any proofs bearing upon the subject, that the decision of the office was erroneous. Moreover, the bill of complaint alleges that Guillod was the "true, original, and first inventor" of the improvement, and that it was "not known nor used before." Still further, the bill sets forth that this court hitherto, in a contested case, particularly referred to, between other parties, made a decree, at final hearing upon the merits, sustaining the validity of the patent, and in another recited case granted a preliminary injunction to restrain infringement. The truth of all these allegations the demurrer admits. Perhaps cases may arise where the question of patentability is so clear that it may be examined and safely decided on demurrer, but I think this is not such a case. If, then, the demurrer had no other ground of support, it would be overruled. But at the hearing the defendant's counsel (as he had the right to do, Daniell, Ch. Pr. 614, and note) assigned, ore tenus, another cause of demurrer, viz., that F. W. Ames, who sues in his own name as receiver of the Gibbs & Sterrett Manufacturing Company, has no title in or to the patent, and that the bill is defective on its face for want of the party holding title. This cause of demurrer must be sustained for the reasons set forth in the opinion just filed in the case of the Same Plaintiffs v. Struthers, ante, 103. THE MARCH. MILLS, Master, etc., v. TYSON and another. (District Court, D. Maryland. July 23, 1885.) GRAIN CHARTER-PARTY-CONSTRUCTION OF WORDS "Now AT PORMAN, ABOUT READY TO SAIL, OR ALREADY SAILED." New York agents of the British steamer March were authorized to charter her for a cargo of grain from Baltimore to a British or continental port. The steamer had some time previously sailed from Venice to Porman for a cargo of mineral, and her exact situation was not known. The charter-party contained a stipulation that she was then at Porman, about ready to sail, or had already sailed. She did in fact have one-half her cargo on board, and with favorable weather could have completed her loading in a little over two days, but by unfavorable weather her loading was delayed seven days. Held, that the steamer was not about ready to sail, within the meaning of the stipulation, and that the charterers were not required to load her. In Admiralty. R. H. Smith, for libelant. A. W. Machen, for respondent. MORRIS, J. On April 23, 1884, the owners of the British steamer March, by cable authority to their agents, Funch, Edye & Co., of New York, chartered the steamer to Tyson & Brother, of Baltimore, to carry a cargo of grain from Baltimore to a port in the United Kingdom or the continent. The steamer had sailed from Venice to Porman, to take in a cargo of iron ore, to be brought to Baltimore for her owners' benefit, and Messrs. Funch, Edye & Co. had authority to procure for her a grain charter for her return voyage across the Atlantic. The charter-party, executed on the twenty-third of April, described the steamer as "now at Porman, about ready to sail, or already sailed." The steamer did not, in fact, sail from Porman until the afternoon of the thirtieth of April,-a delay of seven days. The charterers had based their calculation as to the arrival of the steamer in Baltimore on her leaving Porman not later than the second day after the date of the charter-party; and learning from the newspapers, shortly after the steamer passed Gibraltar, that she did not pass there until May 2d, they chartered, on May 8th, another steamer, at the same rate of freight, to use for the purpose for which they had intended the March. They also, about the eighth of May, notified the representative in Baltimore of Funch, Edye & Co. that if the information they had obtained about the delay in the sailing of the March was correct, they should refuse to load her, and that the agents of the owners might be looking for another charter for her. The steamer arrived in Baltimore on the twenty-first of May, and after discharging her cargo of iron ore, and having been put in readiness for a grain cargo, she was on the twenty-sixth of May formally tendered to the charterers, who refused to load her. She was rechartered on the twenty-ninth of May at a loss of $1,800, and to recover the loss this libel is brought. Porman is an open roadstead of the Mediterranean, to which vessels resort for cargoes of iron ore. They are all loaded from lighters, which receive the ore from the beach and bring it out to them, and it is passed up in small baskets from the lighters to the ship. All that appears from the evidence to have been known to Mr. Small, who acted on behalf of Funch, Edye & Co., and to the charterers with regard to the situation of the steamer on April 23d, the date of the charter, was that she, at a certain date, had sailed from Venice for Cartagena to go to Porman to take on a cargo of iron ore to bring to Baltimore. The fact was that the steamer had left Cartagena on the eleventh of April, and arrived at Porman on the next day, April 12th, and on that same day took on board 120 tons of ore. On the 13th, 14th, 15th, 16th, 17th, 18th, 19th, and 20th the weather was rough, and the surf on the beach so high that the lighters could not work, and the ship received very little cargo on any of those days, and none at all on most of them. The 21st was a favorable day, and she took on about 650 tons, and the 22d was a good working day, and she took on 670 tons. At the close of the 22d they had on board about 1,700 tons. On the 23d (the day on which the charter-party was made) the water was too rough to get cargo, and so continued on the 24th, 25th, and 26th. On the 27th the weather was favorable, and cargo was taken in all day, and on the 28th the weather was favorable until 5 P. M. On the 29th they could not work, and finally, on the 30th, although the weather was not favorable, they took on all they could until 2 P. M., when the ship was unmoored and sailed, having about 2,400 tons on board. It thus appears that the March was in all 18 days loading at Porman; that at the date of the charter-party she had been there 11 days, and had taken on board one-half of the cargo with which she sailed; and that she remained seven days after the date of the charter-party, taking on the remaining half. |