BARBER.

55

age and capacity, to' be' dEltermined by the facts and circumstances developed on the trial. While I held that the boy was capable of exercising some degree of care,stiU he was not subjected to the same rules of conduct as an adult. I instructed the jury that it was incumbent upon the boy to exercise vigilance for his safety. yet only such care was required of him as could reasonably be expected of a child of his age and capacity. I put it to the jury to determine whether he did exercise such care, and the verdict did not sustain the defense of contributory negligence. It is a close case, and not free from doubt. If I am wrong, the remedy of the defendant.is'clear. Motion for new trial denied.

UNITED STATES '11. BARBER.

(District Oourt, D. Nebraska.

1.

November Term, 1888.)

This,last la,w has no saving clause relative to offenses arising under the sQ.id .second section, and offenses committed prior to the 26th of September, 1888. cannot be puniahed under the present law. The portion of said section which 1ixedtbe punishment for the offenses therein enumerated has been repealed by implicatioti. ·(8g Ua bt.l8 the Court.) On the.C6urt's Motion in Ar;rest of Judgment. W. , L. 'Barber was tried and convicted under the act of congress of June 18, 1888, for depositing in the post-office non-mailable matter. . George E. Pritchett, for the U oited States. Mr. Munn, for defendant. DUNDY,J. On tM18th day of June, 1888, congress passed an act, An act relating tp postal crimes, and amendatory of the statutes therein mentioned," which seems to have gone further than congress has ever before ventured in that direction. New offenses have been created · by that act, and neW penalties have been prescribed for old offenses. ·The latter part of section. 2 of said act is all that seems necessary to 'consider in connection. That is as follows: .. And all matter otherWise mailable by law upon the envelope or outside covel' or wrapper of which, or postal-card upon which, indecent, lewd, lascivious, obscene, libelous, scurrilous, or threatening delineations, epithets, terms. or language, or reflecting injuriously upon the character or conduct ot an..other, may be written or,printed, arebereby declared to be non-mailable mattl;lr, and shall not be conveyed in the mails, nor delivered from any post-office. nor by any letter-carrier:' and any person who shall knowingly deposit or caUSA to bl\ deposited for mailing ordeUv6.ryanything declared by this section to be

2.

S..um.

Act 26th September, 1888, amending section 2 of the act of 18th June, 1888, relatmgto non-mailable matter, changes all former penalties provided for that offense.

AGAINST POSTAL LAWS-ACT CONGo SEPT. 26,1888.

56

FEDERAL REPORTER.

Don.mailable matter, and any person who shall knowIngly take the same or cause the same to be taken from the mails, for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of, the same, shall be deemed guilty of a misdemeanor, and shall for each and every offense be fined not less than one hundred dollars nor more than five thousand. or im· prisoned at hard labor not less than one J'ear nor more than ten years, or both, at the discretion of the court." This is the law as it existed between the 18th of June and 26th of Sep. tember, 1888, The offense with which this defendant stands charged was committed while this law was inJull force. He wasindicted on the 19th day of November, 1888. The indictment contains four counts, and charges the defendant with depositing in the mails at Omaha city, to be conveyed by post, many postal-cards, addressed to one A. O. Stone, in the state of Pennsylvania, which cards, it is alleged, were so deposited in violation oflaw, because the writing on the same reflected injuriously upon the character of the said Stone. One ofthe cards, which is a fair sample of the whole, is as follows: "SIR: YOUI' account is long time past due. It has been running since 1875. God will not bless you until you do something to correct your nefad· ouswrongs. W. L. BARBER. "$1,020.00 & interest since 1875. Owe no man anything." This is the last of the series of postal-cards described in the indictment, and was written and deposited in the mail at Omaha city on the 19th of September last past. The defendant was tried and convicted on his own confessiolli shortly after the indictment was found by the grand jury. At that time we had not received the laws of the United States passed at. the last session of congress, but the district attorney had before him the said act of 18th June, 1888, sent.out in the shape of a circular by the post-master general, and under that act the indictment was found. But on the 26th of September last another act of congress was passed, amend. ing the said act of 18th June, respecting the penalty incurred under the last-named act. That law, or the part thereof material to consider in the present case, is as follows: "That all matter otherwise. mailable by law, upon the envelope, outside· cover, or wrapper of which, 01' any postal-card upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, obscene, libelous, scurrilous. gefamatory, or threatening character, or calculated by the terms or manner or stJ'le of display, and obViously intended to reflect injuriously upon the character or conduct of any, may be written or printed, or otherwise impressed or apparent, are hereby declared non-mailable matter, from any post-office, and shall not be con veJ'ed in the mails, nor be deli nor by any letter-carrier, and shall be withdrawn from the mails under such regulations as the postmaster general shall prescribe. And any person who. shall knowingly deposit or cause to be deposited, for mailing or delivery, anything declared by this section to be non-mailable matter, and any person who. shall knowingly take the same or cause the same to be taken from the mails for the purpose of circulating or disposing of, or of aiding in the circulation 01' disposition of, the same, shall for each and every offense, upon conviction. thereof, be fined not more than $5,000, or imprisoned at hard labor not more, than five years. or both, at the discretion of the court."

POLSDpRFER V. ·ST. LOUIS WOODEN-WARE WORKS.

57

The only material difference in the two la.ws consists in the character and extent of the punishment that follows a conviction. The present law provides for a fine not to exceed $5,000, or imprisonment not to exceed five years, or btlth, at the discretion of the court. In the law of 18th June the pUllishnient might have been made much more severe. It is quite easy to discover that congress intended the last act to ta'ke the place of the act of 18th June, because the same were passed at the same session; and the difference in the two acts consists almost exclusively in the character of the punishment provided for the same offense in both acts. It is said that repeals by implication are not to be favored. But here the intention to repeal is too obvious to be unheeded; and to hold otherwise, it seems to me, would be doing violence to language and principle as well. There is no saving clause in the repealing act, so far as it relates to the new class of offenses, for which the defendant is indicted. Without such a saving clause it will not be claimed that a person can be indicted, convicted,- and lawfully punished, under a law that has ceased to exist, though it would have been otherwise in this case had the defendant been convicted prior to the 26th of September, 1888. If we should now undertake to punish the defendant on the charges contained in the indictment, it would be under a law that ceased to exist on the 26th 0'£ September last, or under the law of the last date, which, in this case would be ex post facto in its operation. We cannot, where the liberty of the -citizen is involved, undertake to exercise any doubtful and uncertain authority; and where the law is new, and imperfectly understood as in this case, there is no inclination to go as far even as courts might in some <lases feel perfectly justified in going. This question is raised on my own motion, but, as it involves the right to punish, I conclude the defendant must have the benefit arising from the repeal of the law under which he was indicted, notwithstanding he has not demanded it. The judgment will therefore be arrested, and the defendant discharged.

POLSDORFER et

al.

'l1.

ST. Lours

WOODEN-WARE WORKS. l

(Oirouit OO'Urt, E. D. Mi88Quri, E. D. May 22, 188B.)
'PATENTBFOR INVENTION8-INFRINGEMENT-WASH·BoARDS.

A patent for a metallic rubbing·plate for wash·boards, baving transverse rows of convex, spiral corrugations, alternately right and left handed, is not infringed by a :plate having equidistant spear·head shaped corrugations. of which the lower ridges are higher than the upper ridges. and the upper arms are deeper than the lower arms, the form only, and not the idea, of a metal surface broken into protuberances, being new.

In Equity·

.t Publication

delayed by inability to obtain copy of opinion ,at time of delivery.

58

. FEDERAL REPORTER.

On final hearing of a>bill by John' H., Franklin, and Henry dorCer against the St. Louis Wooden·Ware Works, to restrain the infringe. ment of a patent. T!uYmaB B. HaU, for complainants. Dexter'Jlijfany and Leo Rassieur, for defendant.

·

BREWER, J. This case is submitted on final hearing,and the question is between patents for improvements in wash-boards. In view of the many devices which have been manufactured and patented for wash-boards, it is obvious that neither party can be regarded as a pioneer in this field of invention. In the case of Duff v. Pump Co., 107· U. S. 639, 2 Sup. Ct. Rep. 487, the supreme court, commenting upon another patent, earlier than either of those in controversy, for improvement in wash-boards, uses this language:' "The case;iil one where. in view of the state of the art, the invention must be restricted to tile form sllown and described by the patentee. In the field of wash-boards made of sheet metahwith the surface broken into protuber. ances formed·of the body of the metaJ. so as to make a rasping surface, and to strengthen the metal by its form. and to provide channels for the water to run off. Todd was nota pioneer. He merely devised a new form to accomplish tlhese results. Railway 00. v. Sayles, 97 U. S. 554. The defendant adopts another form. Under such circumstances the Todd patent cannot be extended so as to embrace the defendant's form. The .latter is not a mere colorable departlire from the form of Todd. but is a substantial departure. Those views are in accordance with those heretofore announced by this court in Merrill v,. Yeomans. 94 U. S. 568; Bridge Co. v. Iron (JO·· 95 U. S. 274. and Burns v. Me,yer. 100 U. S. 671." That which was true in reference to these earlier patents becomes more true with every additional change made by parties in the surface of washboards. Indeed, 'as the idea of parallel or irregular protuberances on the surface of a wash-board is old and familiar, it would seem that no mere change in the form of such protuberances could be considered as the ,product of the inventive skill. The number of changes in form which can be made is limitless, varying with the fancy or judgment of the maker, and to ascribe any such chang.e to the exercise of inventive skill, that skill, which. is necessary to sustain a patent, strikes me as almost absurd. Be that as it may, in giving to any patentee the full protection to his patent, it must be limited most narrowly to the mere form, and any change in form, however trifling, does away with the idea of infringement. The claim of complainants' patent is as follows: .. "What, I clailQ as new,. and desire to secure by letters patent. is the metailic rubbirig-platei B. having transverse rows of spiral corrugations. a, the di· raction of the spirals of the rows being alternately right and left handed, substantially as specified."· . These corrugations are specified;'as f1111y shown by reference to the drawings, and are described as being "arranged parallel to each other, in positions oblique to the length of the rows." "They are angular in cross-section, slightly S-shaped, and their crests or profiles are regularly convex," and are, shown by the drawings torun.from valley to valley of
. · t·; .

PROVIDENCE. .w48HINGll'ON INS. CO· .,. WAGER.

&9

the board. ','The corl'llgationsin each row, taken together, present the appearance of a screw, the threads of which are represented by the said corrugations. The spirals or twists of the rows of corl'llgations are alternately right and left handed; that is, if the top row is right-handed, the row next to it is left-handed, this alternation being continued to the bottom. The object of this is to prevent the article being rubbed from being carried against the side rail of the frame and injuring the knuckles of While defendant's patent describes its invention as follows: . "(1) In a wash-board. the metallic rubbing-plate, D, secured to the backboard, C, a.nd provided with the equidistant transverse rows of equidistant spear-bead shaped corrugations, of which the lower ridges. F. are higher than the upper ridges, e, and the spear-head shap'd depressions situated between said corrugations, arid having theIr upper arms, E, considerably deeper than their lowerarms,f, so that theformel' will act as soap-pockets, and the latter as escape-channels for the soap-water, when the board is in use, substantially as specified." Looking at the two boards as they were presented, there is obviously a difference in form. I was much interested in the argument of complainants' counsel, and the efforts he made by photographs and models to show how closely alike were the two forms, and. how slight the differences between them, as well as how easily one could be changed into the other. If I could look upon complainants asa pioneer in this field of invention, and entitled to the broad protection of pioneers, I might be inclined to sustain the allegation of infringement; but, considering the state of the art, and following the rule which I think applies soirresistibly in this line of invention, I am satisfied that defendant's wash-board is of a form different from that of complainants', and therefore must find against any infringement. Defendant is entitled to a decree dismissing the bill.

PaOVIDENCJI1.WASHJNGTON INS.

Co.

fl. WAGER.

(CirCUit Oourt. No D. New York.

ADMIRALTY-ApPEA.L-BOND.

December 20.1888.)

·

Rev. St. U. S. If 631, allowing an appeal to the circuit court from all final decrees of the district court in equity and admiralty. except prize cases. where the m",tter in dispute exceeds $50, and requiring the circuit court to receive. hear, and determine such appeal, does not oblige the court to determine an atipeal unless security is given, Such security is required by section 1000, prescribing that every judge "signing a citation on any writ of error" shall take good and sufficient surety that the" plaintiff in error or the appellant shall prosecute his writ or ap'peal to effect, " as appears also by section 1001, dispensing with security on 'writ of error, appeal. or other process in law, admiralty, or equity. " brought up by the United States.

In Arlmiralty. Appeal from district court. Hyland &: for appellant. E. D. McCarthy, for appellee.