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am satisfied that the doctrine for which the defendant contends is inconsistent with the unlimited right of monopoly intended by the patent law. It rests with the patentee to determine the methods for its exercise, and he is at liberty to fix any price for the machine, and reserve as well benefit in its use. The sales in question are not unrestricted, but are plainly limited or conditional in use, and, if the allegations of the bill are sustained by proof, the complainant is entitled to the relief sought.

The demurrer is overruled, and the motion to dissolve the injunction is denied, in conformity with these views.

BRUNSWICK-BALKE-COLLENDER CO. v. KLUMP et al.

(Circuit Court, S. D. New York. May 19, 1901.)

1. PATENTS-SUIT FOR INFRINGEMENT-Costs MADE AFTER OFFER TO CONSENT

TO DECREE.

Where defendant in a suit for infringement, before any testimony has been taken, offers before the referee to consent to a decree as prayed in the bill, and his counsel makes no further appearance, no costs will be taxed against him for the subsequent taking of testimony, nor for the printing of the record, both of which the offer rendered unnecessary.

In Equity. Final hearing on pleadings and proofs. The suit is one for infringement of United States patent 623,933, April 25, 1899, to William H. Wiggins, for improvement in bowling alleys.

J. C. Clayton, for complainant.

LACOMBE, Circuit Judge. Issue was joined by service of an answer in November, 1903, and replication was filed. Subsequently defendants asked leave to withdraw their answer. This was denied in the following memorandum:

"No good reason for withdrawing the answer is shown. If defendants decide that further prosecution of the defense is not worth its cost to them, they may offer to submit to a decree in the usual form sustaining title and validity of patent, finding infringement, and for injunction and accounting. This will relieve them from liability for any subsequent costs for taking testimony and printing record. They cannot escape accounting by no longer litigating the main issues. But there seems no doubt, in view of what was said on the argument, that a fixed sum for each alley may be agreed upon, and possibly, also, the number of alleys made or sold which embody the device of the patent as found by the decree."

Thereafter, and on January 18, 1904, in the presence of the examiner, and before the taking of proofs had actually begun, counsel for the defendants announced that defendants had sold on or about January 1, 1904, all the alleys made or used by them containing the construction of the patent in suit, and therefore have no interest to carry on this suit. “They will therefore," he stated, “not contest the case further, and will consent and submit to a decree against them as prayed for in the bill of complaint.” He also made an offer to pay $5 per pair of alleys as liquidated damages, stating that the only bowling alleys made or used by the defendants did not exceed eight in number. Thereafter he did not attend or take any part in subsequent proceedings, nor did he appear at final hearing. Complainant's counsel declined to accept the offer, took testimony, and now presents the cause for disposition. In view of defendants' concession, it may be readily disposed of. Complainant may take a decree reciting that defendants interposed an answer, but did not attend at the taking of testimony, nor appear at the hearing before the court. Except for this recital, the decree will be in the usual form sustaining title and validity of the patent, finding defendants' device to be an infringement, and for injunction and accounting. The granting of this injunction will effectúally overrule the order heretofore made denying preliminary injunction, and there is no necessity of going into an examination of proofs when defendants concede all that is prayed for except as to extent of infringement and damages, as to which no proofs are now presented. As indicated in the memorandum filed, when leave to withdraw the answer was refused, there should be no costs taxed against defendants for taking testimony subsequent to the offer to submit to decree, nor for printing of the record, both of which, as soon as offer was made, became unnecessary.

AMERICAN ACETYLENE BURNER CO. V. KIRCHBERGER.

(Circuit Court, S. D. New York. June 4, 1904.) 1. PATENTS-INFRINGEMENT-ACETYLENE GAS BURNERS.

The Shaffer patents, Nos. 617,942 and 634,838, for acetylene gas burners, if valid, can only be sustained as to minor details of construction shown. As so construed, held not infringed. In Equity. Final hearing on pleadings and proofs of suit for injunction and accounting. The suit is for alleged infringement of two patents, No. 617,942, January 17, 1899, and No. 634,838, October 10, 1899, both granted to Henry E. Shaffer for improvements in acetylene gas burners.

Frederick F. Church, for complainant.
Louis C. Raegener and S. L. Moody, for defendant,

LACOMBE, Circuit Judge. A full discussion of the art of acetylene gas burners will be found in the opinion of the Circuit Court of Appeals, Second Circuit, sustaining patent No. 589,342, August 31, 1897, to E. J. Dolan, reported 128 Fed. 599. In that suit the present defendant was complainant, and the present complainant defendant.

The burners of the defendant are made under the Dolan patent, and burners made under the two patents in suit have been held to be infringements of the same patent. The only material changes suggested in the patents in suit are, first, to arrange the inlet and discharge passages at an angle with each other, instead of in a continuous curve; and, second, to make both tips and the branched burner which carries them of a single piece of refractory material. It is conceded that similar burners were made wholly of metal, and that the refractory material was well known in the art as a substance well adapted for gas tips. It is shown that so-called Napheys burners, made under the Dolan patent prior to complainant's date of invention, had the passages arranged at an angle, instead of in a curve. Under these circumstances there is found only the substitution of one well-known material for another, and the patents could be sustained, if at all, only for some minor details of construction (there seems to be an additional air passage provided), which defendant does not infringe.

The bill is dismissed.

CUYLER v. ATLANTIC & N. C. R. CO.

In re DANIELS.

(Circuit Court, E. D. North Carolina. July 23, 1904.) 1. FEDERAL COURTS - JURISDICTION - CONTEMPT-STATUTES — CONSTRUCTION

NEWSPAPER PUBLICATIONS.

Rev. St. $ 725 (U. S. Comp. St. 1901, p. 583), provides that the federal courts shall have power to punish contempts by fine and imprisonment, provided that such power shall not extend to any case except misbehavior in the presence of or so near the court as to obstruct the administration of justice, the misbehavior of officers of the court, and the disobedience or resistance of any such officer, party, juror, witness, or other person to any lawful writ, process, order, decree, or command of the court. Held, that the jurisdiction prescribed by such act was exclusive, and deprived the court of power to punish a newspaper publisher for contempt consisting of an edi rial in his paper criticizing the official conduct and integ

rity of the court. 2. SAME-IMPRISONMENT-VOID JUDGMENT-HABEAS CORPUS.

Where a federal court rendered judgment against a newspaper publisher for contempt, which judgment was void as in excess of the court's jurisdiction, the publisher was entitled to discharge on habeas corpus. In Equity.

James H. Pou, Thos. J. Jarvis, R. T. Gray, and R. W. Winston, for petitioner.

Harry Skinner, opposed.

PRITCHARD, Circuit Judge. In order to determine whether the petitioner is entitled to the relief prayed for in the petition upon which the writ of habeas corpus was issued, it is necessary to determine two questions: (1) Did the court which imposed the sentence in this case have jurisdiction? (2) Does this court have jurisdiction to hear and determine this case on a writ of habeas corpus?

The section under which the court based its action is 725 of the Revised Statutes (U. S. Comp. St. 1901, p. 583], which reads as follows:

“The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority : provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence or so near thereto as to obstruct the administration

[ 2. See Habeas Corpus, vol. 25, Cent. Dig. $ 20.

of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said courts."

This act not only limits the power of the court, but employs language which clearly defines the power of the courts with respect to summary punishment for contempt, and applies to all courts, except perhaps the Supreme Court. It applies to the District and Circuit Courts, inasmuch as they were created by act of Congress, their powers and duties being granted by the act creating them and subsequent acts enlarging and diminishing their jurisdiction. The act of 1831 is a chart by which these courts are to be guided in cases where summary punishment for contempt is to be inflicted.

Justice Field, in Ex parte Robinson, 19 Wall., at page 510, 22 L. Ed. 205, in referring to the act of 1831, says:

"It limits the power of these courts, in this respect, to three classes of cases: First, where there has been misbehavior or a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; second, where there has been misbehavior of any officer of the courts in his official transactions; and, third, where there has been disobedience or resistance by any officer, party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the courts. As thus seen, the power of these courts in the punishments of contempts can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments, and processes."

In Kent's Commentaries, volume 1, note on page 310, at bottom, it is said, in speaking of the act of 1831:

"That act had withdrawn from the courts of the United States the commonlaw power to protect their suitors, officers, witnesses, and themselves against the libels of the press, however atrocious, and though published and circulated pending the very trial of the cause."

In the Case of Savin, 131 U. S. 274, 9 Sup. Ct. 701, 33 L. Ed. 150, Justice Harlan, among other things, says:

"The act of 1789 did not define what were the contempts of the authority of the courts of the United States in any cause or hearing before them, nor did it prescribe any special procedure for determining a matter of contempt. Under that statute the question whether particular acts constituted a contempt, as well as the mode of proceeding against the offender, was left to be determined according to such established rules and principles of the common law as were applicable to our situation. The act of 1831, however, materially modified that of 1789, in that it restricted the power of the court to inflict summary punishment for contempt to certain specified cases, among which was misbehavior in the presence of the court, or misbehavior so near thereto as to obstruct the administration of justice."

In Ex parte Poulston, 19 Fed. Cas., on page 1206 (No. 11,350), Baldwin, J., says:

"On March 2, 1831 (4 Stat. 487, c. 99 (U. S. Comp. St. 1901, p. 583]), Congress passed an act declaratory of the law concerning contempt of court. The history of this act, the time of its passage, its title and provisions, must be considered together, in order to ascertain its meaning and true construction. It was enacted shortly after the acquittal of Judge Peck, of Missouri, on an impeachment preferred against him for issuing an attachment against a member of the bar for making a publication in relation to a suit which had been decided by that judge. On the trial the law of contempt was elaborately examined by the learned managers of the House of Representatives and the counsel for the judge. It was not controverted that all courts had power to attach any person who should make a publication concerning a cause during its pendency, and all admitted its illegality when done while the cause was actually on trial. It had too often been exercised to entertain the slightest doubt that the courts had power, both by the common law and the express terms of Judiciary Act Sept. 24, 1789, c. 20, $ 17, 1 Stat. 83, as declared by the Supreme Court, to protect their suitors by the process of attachment. With this distinct knowledge and recognition of the existing law, it cannot be doubted that the whole subject was within the view of the Legislature; nor that they acted most advisedly on the law of contempt, intending to define in what cases the summary power of the courts should be exercised and to confine it to the specified cases. From the title and phraseology of the act it would seem to have been their intention to declare that it never existed in any other cases than those enumerated. It is 'a declaratory act,' which is a declaration of what the law 'was, is, and shall be hereafter taken' when put into the form usual in statutes which operate to settle the law retrospectively. The acts of 1831 must be taken to be the declared construction of this and all other laws limiting its operation in the manner prescribed, and, as generally considered, Congress is to this court what the Constitution is to the Supreme Court.

It is in the discretion of the legislative power to confer upon the courts a summary jurisdiction to protect their suitors or itself by summary process, or to deny it. It has been thought proper to do the latter in language too plain to doubt of the meaning of the law, or, if it could be doubted by any ordinary rule of construction, the occasion and circumstances of its enactment would most effectually remove them. It would ill become any court of the United States to make a struggle to retain any summary power the exercise of which is manifestly contrary to the declared will of the legislative power.

The law prohibits the issuing of an attachment except in certain cases, of which the present is not one. It would, therefore, be not only utterly useless, but place the court in a position beneath contempt, to grant a rule to show cause why an attachment should not issue, when an exhibition of the act of 1831 would show most conclusive cause. The court is disarmed in relation to the press. It can neither protect itself nor its suitors. Libels may be published upon either without stint. The merits of a cause depending for trial or judgment may be discussed at pleasure. Anything may be said to the jurors through the press, the most willful misrepresentations made of judicial proceedings, and any improper mode of influencing the decision of causes by out of door influence practiced with impunity.”

Rapalje on Contempt, in section 56, says:

“But mere libels on the judge as a man and an officer, printed in a newspaper, are not contempts. Thus a newspaper article, published during the sitting of a court, pending the trial before that court of the prisoner indicted for murder, charging the presiding judge of being an abetter of the murderer, is not a contempt of the court, but a mere libel upon the functionary. The force of public opinion in this country in favor of the freedom of the press has restrained the free exercise of the power to punish this class of contempts, and in many jurisdictions statutes have been enacted depriving the court of the power to punish them. It was taken from the federal courts by the act of Congress of 1831, which act deprives those courts of the common-law power to protect by this process their suitors, witnesses, officers, and themselves against the libel of the press, though published and circulated pending the trial of a cause therein.

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Under the judiciary act of September 24, 1789, c. 20, § 17, courts of the United States were given "power to punish by fine or imprisonment, at the discretion of the said court, all contempts of authority in any cause or hearing before the same.” The act of 1789 did not define or limit the power or authority of the court of the United States to inflict summary punishment in any cause or hearing before

131 F.-7

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