TUBMAN V. WASON MANUF'G CO.

429

TUBMAN 'V. WASON MANUF'G

Co.

(Oircuit Court, D. Massachusetts. December 19,1890.)
1.

PATENTS FOR INVENTIONS-SUITS FOR INFRINGEMENT-PLEADING.

In a suit for infringement of letters patent, complainant will not be allowed to file a supplemental bill, making other persons defendants, in which the principal allegation is a charge of conspiracy between the original defendant and such other persons, to maintain the defense, and whic,h does not allege that such other persons have infringed the patent, where defendant excepts to its flling,·and noth-, ing has occurred since the filing of the original bill requiring a supplemental bill. The court will not compel defendant to fllean ink-drawing of an exhibit. whioh is, on lile in pencil, on complainant's motion.

2.

PRACTICE-EXHIBITS.

InEquity. , James H. MandeviUe, for complainant·. Benjamin Price and Andrew for defendant. COLT, J. The complainant in this case moves for .leave to file asup-, plementl:tl'bill. The original suit was brought, by the complainant ai the owner of letters patent No. granted to George S. for certain improvements in the constru'cti()Ilo'[ railway cars. . The bill, charged infringement On the part of the defendant, the Wason Manu7'. facturingCompimy, and contained the usual prayers for an injunctioll; and account. By the proposed su!)plemental bill, the Boston & Alba,ny, Railroad Company, the Boston & Lowell Railroad Compauy, the Colony Railroad Company, and A.' A. Folsom are 'made defendants, and' the main allegation of the bill is a charge of conspiracy entered into between the original defendant; the Wason Manufacturing Company, and these other delpndants, to maintain the defense of this suit. The bill further alleges that these defendants are members ofan association comprising over one hundred railroads, and called the" Eastern Railroad Association," and that the Wason Manufacturing Company handed over to this association the defense and maintenance of this suit. The bill then sets out certain facts in support ofthe alleged conspiracy between,these de-: fendants. The bill prays that an injunction may issue against the Wal30n Manufactllfing Company, restraining it from conspiring with the other defendants, apd that it be ordered to take upon itself thedefense'of this suit; also, that these other defendants may be restrained from intermeddling in or maintaining the defense of this suit; also, that the Wason' Manufacturing Company, or the other conspirators, be compelled to pay over to the complain;.mt, by way of damages, all the expenses thus' far incurred in the prosecution of this suit. . The allowance of this supplemental bill is not assented to by defendant, but is excepted to on several grounds, viz.: . ..

m4

(1) By the proposed supplemental bill an entirely new and distincUl[Isue is sought to be raised. (2) Becallsl' the suit is not defective, and nothing has the tiling of the original bill.wllicb calls for or ing of asiJpplemental bill. (3) Because bill complainant proPO!!elI to file is not asu:pplemental bill or continuationoBhe ol'iginal suit, andwo1:d(f'fn

·n:DERAL REPOll.TER,

vol.

44.

no way affect the decree originally prayed for. (4) Because the new defendbill are not( thereby made parties ants mentioned in said in said supplemental to the original suit. (5) Because it is nowhere bill that the made defendants thereto have infringed the letters patent bill.(6) 'Because the decree granted to RolfflrtS j 'as'set 'furth in the prayed for by the original bill would not affect the new parties mentioned in saidsupPletpental bill. ,(7) Because by said alleged supplemental bill the decharged with the crime of conspiracy. the remedy for whichls :by indictment or information laid by the attorney of the commonwealth.q,r other public officer. and not by a l'ill or suit inequil;y. (8) Becanlle th,estatutory congress for infringement of letters patent is specific as to what may be charged. and there iS"Do clausl' in the staW!ie l®killg, to, consplrl\eles. (9) Because said allegedsnpplelucntal bill is scandalous and imvertinent. I am of opinion that these exceptions, taken as a whole, are unanswered by anything brought forward in complainant's brief, and that, by the rules of equity practice governing bills of this character, it is clear that the filing of this supplem'ental bill should not be allowed. The cOlpplninant also moves that the court order the defendant to file anink-draw'ing of an exhibit knownas "Sketch of the Roebling Patent." The exhibit 'all file is in pencil. I do 110t think it would be proper for the.'cou'rt to make such ft11ordl'r. The- counsel fordefendant has charge oithe puttiiig in of proofsori his side of the case, and he may, at defendant's'risk, offer an exhibit in one form or another. If it shoulcl turn ()utthat'the in lead-pencil Oil this exhibit becarrJe indistinct orohliterated, it wouldseetll to be a loss to the delendallt, rather than to the complainant. Motions Qellied. '

, FEE

et al·. 11. 'OnIENT

GUANO MANUF'O

(C(rcuU CouTt,E.D. New York. August 111, 1890.)
"A mast,l>r !lncI crew wrQJ,lgtully discharged by the owner, 01 a fisbing vessel from eDlployment under a' llimtract for the entire season. wages to be in the ratio of the .,..... quanti,ty: ,aS9 ¢augllt. ,mill '4'llcover'd.amages for such discharge, based on the amount would bave as wages on ,the catcb of the season, less 'the amoun'b!llJtouny paid thelll, and any wages earned by them dunng the season, " J'ftl:lr,thflb;discQarge. ,,:, . .
, .' "A re't'elpt by the m'astertusuch CBse tor bls, in lull to the time of bis dis'" is no bar to a libel' Jfor, wages for the residue of, the' seasun, the ,evidence ','1' .b9win g t):J.ay it was not lntellocled asa settlement for the wrongful discbarge. ' , , ' . AfIlrlD'fhg 36' Fed. &p. 509; , "
A:oI,D ,,",''. , " DJ8<m,\MB-D'\lI(AGB-}llISBING VESSEL. " .

H,'

";'frri'.Adrriiralty. "On apPf'Al from district court.' Goodrich, Dendy &'forlil5elants. ; f-qrclaimallts.
" ',: '". , '

'Fed. Rep. 509.

'with

the"district judge in the views ex24, agree