ZAN V. QUONG SANG LUNG.

901

inventions having been patented or described in a printed publication is a defect in form which is demurrable, and should be remedied by amendment. . The defendant next demurs to the first and third interrogatories. The three interrogatories are as follows: (1) Whether the defendant has not, since the 31st day of January, 1890, made, or caused to be made ar1d used, one or more walking tracks for gymnasiums. (2) Whether said walking tracks, or some of them, did not consist of a floor, a layer of felt or of an elastic or yielding material, fastened to the floor by an adhesive substance, and a covering of canvas 01' duck, coated with paint. (3) If said tracks, or either of them, were not so made, how were the same made and applied? The first and third interrogatories are not objectionable, if a careful and thorough method of framing such questions is to be adopted, and the extent to which these interrogat,ories go is sanctioned by eminent text-writers. Mitf. & T. Eq. PI. 142, 143; Story, Eq. PI. §§ 38, 39; Curt. Eq. Prec. 32. The fifth and sixth grounds of demurrer are sustained, with leave to amend within 15 days, upon payment of costs, to be taxed.

ZAN

et al. v.

QUONG SANG LUNG.

(Circnit Court, N. D. California.

PATENTS FOR

October 12, 1891.)

Letters patent No. 159.409, to William S. Hancock, for an improvement in brooms by dyeing the broom-corn so as to prevent destruction by rats and mice, and to ob. viate the injurious effects to the worker in broom-corn from the sulphur with which the corn is usually bleached, and also to designate different qualities of the corn by different colors, describes, in the specifications, particular compounds to form the colors, but states that the inventor does not limit himself to these ingredients. Held that, as the art of dyeing is not new, the patent must be limited to the particular ingredients named. '

STATE OF ART-DYEIl'fG BROOMS.

In Equity. Bill for infringement of patent. John L. Boone, for complainants. T. O. Van Ness, for respondent.

HA,nEY, J. This is a bill in equity for the infringement of letters patent No. 159,409, granted to William S. Hancock for an "improvement in brooms." In his specification forming part of the letters patent he claims to "have invented certain new and useful improvements in brooms," and states that his invention" consists in coloring broomcorn, or brooms made of broom-corn." To enable otbers skilled in the art to use tbe same, he described how his invention may be carried out, as follows: "My idea is to color broom-corn in different colors, to designate different qualities; for instance, green and red, or any other colors desired. For cul-

FEDERAL R.EPORTER,

vol. 47.

oring, grl:leo , I use a dye composed of methyl-green, indigo, carmine, picricand alum, in about equal parts, dissolved in water. " And then he uses another compound, and states that he does not confine himself to these ingredients, but that there are other coloring materialsthat can be used. The advantages to b£3 derived from his inventionare stated in his specification substantially as follows: "It preserves the corn, particularly after being made into hrooms. from heingcut or eaten by rats or mice. Great destruction of broom-corn is cause(lby thesE' vermin, and bleaching by SUlphur or brimstone in no way hinders them. Hundreds of dollars of damage to astock of brooms or broomis frwuently caused by these vermin in a few hours. Rats and mice will not. eat broom-corn colored as I propose to do. Another and far greater advantage, and which is of paramount importance. is the advantage to the health of the worker in broom-corn by the absenee of the smoke of sulphur or brimstone, which is always used in the old process." Having given a full description of his invention, he claims as new "a ,bToom mltde from broom-corn colored by dyeing, as above set forth." It upon the face of the letters patent that the idea of coloring brooms made from broom-corn was not new, but the inventor claimed an improvement in this respect by coloring brooms by the dyeing process instead of by the sulphur process. No other interpretation can be given to this patent. The advantages claimed to be gained by the improvement of the patentee relates directly and solely to this point. The dyeing process necessarily required the immersion of the broom-corn in water,-either cold, tepid, or boiling water. The patentee does not prescribe what the particular temperature of the water shall be. The art of dyeing is not new. If the invention was for a cold process, as claimed by com.plainant's counsel, the patent should have so stated in clear and explicit terms. If the inventor failed to particularly point out and distii1ctly claim the improvement which he now claims constitutes his inventiOn, it is his own fault. The patent can only be upheld upon the ground that the invention is for a new process of dyeing broom-corn. The mixture of dye is specifically named, and the patent must be confined to the named ingredients, notwithstanding the specification in the patent that the inventor stated that he did not confine himself "to these ingredients." The testimony is clear and convineing that respondent has never used the mixture of the ingredients specifically named in the patent. It shows beyond controversy that the dye used by respondent was purchased in the: open market of merchants, and was an entirely difierent compound from that specified in the patent. No infringemeni: of complainant's patent has been shown. The bill must be dismissed.

THE JESSOMENE.

903

DALY V. WEBSTER

et al.

November 4,1891.)

(Circuit Court, S. D.

COPYRIGHT-FILIXG TITLE.

l'tew

York.

The copyright in a dramatic composition entitled "Under the Gas-Light; a Drama of Life and Love in These Times, "is invalid when the printed copy of title filed under the copyright act reads "Uuder the Gas-Light; a Romantic Panorama of the Streets and Homes of New York." Daly v. Brad.y, 39 Feci Rep. 265, followed.

In Equity. Bill for infringement of copyright. S. H. Olin, for complainant. A. J. Dittenhofer and David Gerber, for defendants.
COXE, J. This court decided upon a motion for an injunction that the complainant's copyright was invalid because of a fatal variance between the title as registered and the title as published. Daly v. Brady, 39 ]'ed. Rep. 265. The facts, so far as they relate to the question decided, were in all material particulars, the same then as now; the law is precisely the same. Every authority now relied upon was presented to the court on that occasion. There is additional evidence tending to show that the defendants were not misled by the variance, but that it existed, precisely as stated in the decision, is admitted. It is entirely clear, therefore, that if the record in its present form had been before the court the decision would necessarily have been the same. On inspection of the two titles this court held the copyright void; with the same two titles before it the court cannot now hold the copyright valid. The records and briefs have been examined with care to discover a theory upon which the court would be justified in considering the question de novo, but hone has been found. The court is constrained to follow the former decision. It is res judicata. The bill must be dismissed.

THE SPRECKELS

J ESSOMENE.

V. THE

et al,

JESSOMENE.

October 17, 1891.)

,

(District Court, N. D. California.

1.

SALVAGE-ToWAGE SERVICES-ExORBITANT .AGREEMENT.

The ship Jessomene, on a Saturday night, after vainly attempting to enter the Golden Gate in a furious gale, put to 'sea,]JUt, failing to weather"Point Reyes light, came to anchor in 18 fathoms of water. vuring the night she dragged her anchors into 11 fathoms, and then lay within 150 yards of sunken rocks, where loss of ship and crew would have been almost certain had she drifted upon them. Sunday morning- she again began to drag, when the maintop-gallant masts were cut away, after which she held fast. Monday afternoon the gale had somewhat abated, but was still dangerous, when the tug Relief appeared, and demanded $12,000 for towing her in. After vainly trying to secure better terms the master acceded to this demand upon the tug's threat to leave them. Held., that the agreement was made under compulsion, and would not be sustained.