780

FEDERAL REPORTER.

to accept such fraudulent ballot without challenging the same or making any objection thereto. In conclusion I will say to you, in view of what has occurred during the argument, that defendant is on trial merely upon the charge stated in this indictment of intentionally neglecting to challenge a fraudulent ballot, knowing it to be fraudulent. You will confine your attention solely to that charge, ignoring any other charges against the defendant that may have been made by counsel in the course of the argument. The entries in the poll-books, and in the defendant's report, are before you, and nreto be considered solely for the purpose of enabling you to determine whether the charge in the indictment is true or false.

LEATHERBURY tJ. UNITED STATES. l

(Oircuit Court, 8. D. Mi8Bi88ippi. November 7, 1887)
PUBLIC LANDS-CuTTrNG TIMJ3ER-BoxrNG PINES.

Boxing of pine trees for turpentine, uy which the trees are not felled nor severed from the soil. is not a cUtting of timber with intent to dispose of the same" in a manner other than for the use of the navy, within the meaning of Rev. St. U. S. § 2461, where the trees so boxed are not upon public lands reserved for supplying timber for the navy, and where there is no intent to export, dispose of, use, or employ the trees or timber in any manner whatsoever. 1

Luke Lea, for plaintiff in error. J. B. Harris, Dist. Atty., contra.
PARDEE, J. This writ 9f error is prosecuted to reverse It conviction under an indictment of which the following is the mate,rial part for this case: "That heretofore, to-wit, during the years 1883, 1884, 1885, and 1886, in said district, aud Within the jurisdiction of this court, Geo. S. Leatherbury did u.nlawfUlly cut, and cause to be cut, a quantity of timber, to-wit. 31,784 pine trees of the value each of fifteen cents, then and there standing and growing upon certain lands, of the United States, theretofore acqUired, to-wit, (inserting description of lands,) with intent to dispose of the said timber, in a manner other than for the use of the navy of the United States, to-wit. for his own use and benefit against the peace and dignity of the United States," etc. The statute of the United States under which the indictment was found and the prosecntion had, is section 2461, Rev. St. U. S.; and it provides, among other things: "If any person shall cut, or cause or procure to be cut, or aid, or assist,or be employed in cutting, any live-oak or red cedar trees, or other timber on, or shall remove, or cause or pi'ocure to be removed, or aid, or assist, or be emIBee 27

phy, ante,

'As to the right of a settler on public lands to cut timber thereon, see U. S.
376.

Fed. Rep. 606.

and'Dote.

Y.

Mur-

LEATHERBURY '/J. UNITED, STATES. '

'781

ployed in removing, any live-oak or red cedar trees, or other timber from, any other lands of the United States, acquired, or hereafter to be acquired, with intent to export, dispose of, use, or employ the same in any manner whatsoever, other than for the use of the navyof the United States, every such person shall pay a fine not less than triple the value of the trees or timber so cut, destroyed, or removed,1 and shall be imprisoned not exceeding twelve months." On the trial the following biHof exceptions was taken: "On tHe trial of this cause it was proved that the cutting charged in the indictment was done by boxing pine trees, on the lands therein mentioned, for turpentine purposes; that none of the trees boxed were thereby felled or severed from the gronnd; that the lands on which the trees were standing had been entered under the homestead law; that no patent had been issued to any of the enterers; that the boxing was with their consent, and under contracts with the defendant, made, as they and he testified, in good faith, and with no intent to defraud the United States or violate any 13w; that the gum extracted from the trees was conveyed to a distillery operated by the defendant, and there converted to his own use; that there WM an average of one and a half boxes to each tree, making 1000 boxes to about 667 trees. the yield of gum from that number of boxes being three barrels per month for a turpentine season of eight months; that the value of the gum delivered at the distillery was from $1.50 to $2.50 per barrel, the average being $2.00 per barrel. There was no evidence of the net value. of the gum at any time or place; and, apart from the yield of the boxes and the value of the gum, as above proved, there WM no evidence as to thl' value of the trees when boxed or afterwards. "The court, in charging the jury, instructed them that the boxing 'of the trees for the purposes stated was an unlawful cutting of them, and an indictable offense. And the jury were also instructed that the value of the gum, as proved, was a circumstance from which they might infer the value of the trees. To these rulings of the 'court the defendant, by his counsel, immediately excepted, and now tenders this, his bill of exceptions, which is signed and made a part of the record in this court." The following is the verdict in the case: "We, the jury, find the defendant guilty as charged in the indictment, and assess the damage at thirty-one thom,and trees at the rate of ten cents a tree; say three thousand and one hundred dollars." The contention in this ('ourt is that there was error in the instructions (1) That bo:Jting trees for turpentine is not cutting trees with intent to export,dispose of, use, or employ the same in any manner whatsoever. (2) That the value of a pine tree cannot be inferred from the value of the gum taken therefrom delivered at a distillery. Section 24061, Rev. St., was originally the first section of an act approved March 2, 1831, entitled" An act to provide for the punishment of offenses committed in cutting, destroying, or removing Ii ve-oak and other timber or trees reserved for naval purposes." See 4 Statutes at Large, 472. The first part of the section provides for the offense of cutting or destroying oak, or cedar, or other timber standing or growing or being on lands reserved for supplying timber for the navy. No intent is specified. Provision is next made for the offense of removing such trees or timber from such lands. In this, also, the act of removing constitutes the offense, without reference to any intent. Then follow the provisions

to the jury to the prejudice of the plaintiff in error.

782

REPORTER.

quoted above, which providefor'the'cutting or removing of trees or timber 'With intent to export" diBposeofiU8eor employ the same in any manner whatsoe:ver, other, etc. Frorilthis'it appears that, in the legislative mind, cutting trees or other timher isnbtthe' same as destroying trees or other timber, and that while cutting,destroyillg, or removirig timber from lands reserved for supplying Jimberfor the navy are each denounced, without intent referred to, the'c:utting'or removing of trees or timber on or from landsIlot reserved is denounced when done a certain specific intent. Arid it is safe to conclude that, while the object of the section was and is to preserve the timber on all the pUblic lands, where the lands have not been the use navy, trespasses other than the cutting or removing of the trees or timber with the intent to export, dispose of, etc., were not contemplated nor provided for. See U. S. v. TheHelenu, 5 McLean, 273. But in this case the question is clearly made whether the boxing of trees for turpentine, by which the trees are not telied, nor Elevered frpm the soil, aQd where there is no intent to export,dispose of, use, or employ the trees or timber in any manner whatsoever, is a cutting of intent to dispose of the said timber in a manner other than for the use of the navy. It is very difficult to make out that the boxing of a pine tree for turpentine, which is well understood in turpentine districtEl to mean cutting into a tree more or less deep, in such a way as tociluse the resin or gum of the tree to run and gather in the basin fo:rmed at 'the 'bottom of the cut, isa cutting of the ,tree in the sense in which the word cut is used in the statute, . where it evidently means to sever or fell. And if this should, be factllrily answered, and it be shown that the cutting of the statute includes ariy cutting, however'slig'ht, then it seems th,at the requisite in.. tent, to constitute an offense, is wholly lacking. It is not even plausible ,to argue that an intent to procure turpentine from a tree is an intent to dispose of the timber. It is not necessary to comdder whether, under statute referred to, the value of the resin obtained from a pine tree; delivered at a distillery, is a proper circumstance to be considered in termining the value of the tree. The j udgmedt, of the district court will be reversed, a new trial awarded, and the case remanded to the district court, there to be proceeded with according to

'n.).:.

NEW YORK PAPER-BAGM. CO. V. UNION PAPER-BAG M. CO.

783

NEW YORK PAPER-BAG MACHINE CO. 'V. UNION PAPER-BAG MAOHINE CO. 1

(Oirc,!"it Oourt, B. IJ.PennaYl'IJania. November, 1887.)
1.

PATENTS FOR INVENTIONS-AGREEMENT TO ASSIGN-RECORD-NOTICB.

is no authority under the patent laws to record an agreement for future assignment of a patent not yet issued, and if' recorded it does amount to notice. . .

II.

2.

SPECIFIC PERFORMANcE-LACBEs-NoTICE.

Specific performance of a contract to assign a patent will not be decrec'ld when the .complainant has been guilty of laches, unless the defendant has acqUiesced in the delay; and when specific performance of such a contract is sought after lIi subsequent assignment of the patent to a third party. the CO"Ilplainant must shQw that he performed. or tendered performance of, his. p,rt ofthe contract. and that the assignee had notice of his contract. .

.M-ederic H. Betts and MacVeagh, for complainant. Francia T. ChQ/mbers and., George H. Hardftng, for respondent.
BUTLER, J ·. On the twenty-si;th day of January, 1880, Leinbach & Wolle, copartners in trade, eJltered into a CO;Iltract. with Mark L.' ing; in the fonowing words: .. That whereas the. partyofthe. first part, (Leinbach & Wolle,) and the pllrty ()f the second part; (Deering,) 'have. ea'chand severally applied to the United. States for a patent covering ,a new style. of paper bag, known aEl the' Square Satchel-Bottom Bag,' and whereas these applications have been adjudged'in interference one 'With the other; now, therefore, it is mutually agreed by and between the patties hereto as follows, to-wit: Party of the first part, fOl: and in consideration of 'the sum of one dollar in hand paid by party ()fsecondpart, the receipt whereof is hereby acknOWledged, and also in conllideration of the covenants and agreements on the part of the party of secund part to be performed lmd kept,l;1ereby agree to withdraw their appliCation for said patent aforesaid in favor of the said Mark L. Deering. party of sect>nd part, so thatthe patent-office may at once allow a. patent to hUn; and, furthermore, said party off1rst part agreeto have issued to said dollars olthe full-paid stock of a company about organiZing in New York, to :be styled the ·N llW York Paper-Bag Machine & Manufacturing Company" or in lieu thereof, at their option,to pay him the sum of one thousand dollars in ,cash. Party oUhe second part, forand in'consideration oftha covenants and agreements' of the 'party of first part to be performed and kept, and also for one donal' in hand paid, the receipt whereof is hereby acknowledged,hereby agrees and binds himself to assign over to the·' New York Paper-Bag Machine &, Ma1'lufacturingCompany.' when said company shall have been organized as aforesaid, the patent which shall be granted to him by the United states patthe said new square bag as aforesaid; with any and all future patents which:he maybe able to obtain covering paper bags, and he also agrees to apply for an interference with the patent hl1retofore ,granted to Ohio, the aforesaid company to pay all expenses, and, when a patent has been a.llowp,d him on that claim or -claims, toalsoal!sign that pa.tentover to the above named company. "In WitneS8'Whereof'the pa.rtieshave hereunto set their hauds, and seals!'
1 Reported:byC.

In Equity·

Berkeley Tayior/ Esq., of the Philadelphia. bar.