POPE MANUFlG CO.V. WARWICK CYCLE MANUF'G CO.

321

some state courts, I should not be inclined to apply it here. That it might lead to great injustice is very apparent when we look at the circumstances of this case. The defendant had been sued in a foreign state, a thousand miles from his home. He had been thrown into prison. He employed counsel from the necessities of his situation. His case was He wall released from imprisonment, and thereupon paid off and discharged his attorney, and returned to his home in Kansas. Must he hold himself in readiness to return to New York and renew the litigation upon motion of his antagonist and notice to his former attorney upon an allegation that the settlement was fraudulent? If so, for how long? Certainly not for two years. Certainly not for any period beyond the end of the term, if until that time. To hold him bound for two years to answer to any motion thus made would be in effect to compel him to have an attorney in a foreign state during that period, whether he will or not. The consequences of being sued in a foreign jurisdiction are serious enough, without adding this unusual and unreasonable requirement. 2,. I am also of the opinion that, even if, after the term, it had been competent for the court, upon motion, to set aside the order of discontinuance, notice to the former attorney of defendant was not notice to him.. The relation of attorney and client had long been ended, so far as it was possible for the parties to end it. It was possible for them to end it for all purposes except the service of such process as was necessary to the exercise of the appellate jurisdiction of the courts of the state of New York. A motion to set aside a judgment for fraud after the terrn.has in it all the elements of a bill in chancery. It is in its nature an original proceeding. It is not a part of the original suit, and therefore service upon the defendant is necessary. As the court which rendered the judgment had no jurisdiction, its proceedings are without force or validity, and the question is properly raised here. Judgment for defendant for costs. .

POPE MANUF'G

Co.

t1. WARWICK CYCLE MANUF'G Co.

et aI.

(District Oourt, D. Massachusetts. April SOt 1899.)
Letters patent No. 245,071, issued August 2, 1881, to George Illston, for a device for readily adjusting the vertical height of bIcycle handles, or rendering them entirely detachable, by making a dovetail or grooved seat on the bicycle head, in which a slide carrying the handle bar works, the same being fixed at any desired height by a set screw, are limited by the prior state of the art to the devices described, and are not infringed by a handle bar connected with a spindle which slides in a socket, and is secured by a set screw.
FOR INVENTIONS-ExTENT OF CLUM-PRIOR ART-INII'RINGEMENT-BICYCLB HANDLES.

In Equity. Suit by the Pope Manufacturing Company against the Warwick Cycle Manufacturing Company and others for infringement of a patent.· Bill dismissed. v.50F.noA-21

322

. (;

..

, .:I'JWERALMPOR:t'Jl:B ,vol

50.

t r J'W:'iUi£am ,d,. Redding and) iE. Pratt, for complainant. ""JoM IkS. Robe:rtB, for defendants.

",Q6L1.Cireuit Judge.' The bill in this case is based upon the alleged infringement of letters i patent N&.,245,071 ,granted to .George Illston, August 2, 1881, Jorimprovements in bicycles.· The invention relates to the 'constrnctionof ,the head of: 8. bioycle so. that the handle on the head/.maybe. adjusted/and readily removed from the machine. The specification says: ·····On I6n6'faee oltha-heRd, I make'al ..ertleal or grooved seat, on or in wbidW 8" i!lid,eworks; the said IIlide being .fixed ,in any.position on the saId lJeat b!f.P1jlansof ,a 8,c,rew.: In ,the :upperplu:tof the lJaid slide the handle Tbe ha",llle bar Olay, eitl1er pe pennanently the said be cl:\pableof therefrom. ,When it is reqnired to adjust helgbt of the bandle'on the, head, lt Is onlv necessary to slacken the set seta'" 'of the slide, whenthie s/loidslideearrying'the bandle bar may be raised or lOW8r'ed on' its seat,' and refixed In its adjustell position by driving home the set screw...
! i6 this airangetnerit,· f is' ,anotherforrn cif mechanism set fottli'inth,e patent,c()i.1sisting ()f a vertica:l slot on the face of the head of tHe' in which a sliding This' sliding socket the handle at the required height by a screw 'The first form of the 'device is covered by the first tilaim of the'patent,whict) is as follows:' , the heads of tricycles herehlbefore dl'ilCribedanli illilstrated in F,lgs.!., II., II!.. IV., V., VI., and VII. of the acco,mpanying"'rawings, for: the ,purpose of readily adjusting the ver· tical height 'otthe hall'dles o'n the said' heads. and rendering- the bandIes de· tacl18ble fromthll beads,. that is to say,making on the face of the head a dove· Ql' gfQov!lllseat, on or in wlJich a sllde carrying the bandle bar works, the said slide beipg adjusted at any heip;ht on the said and fixed in its adjusted position by means of a set screw equivalent arrangement, substantially as described and illustrated...· .

The scope of the I11ston invention seems to me to be clear. He describes in his patent two forms of mechanism for adjusting the handle on the head of 8 bicycle" with great nicety." In the present suit, we are QQncerned witn,the first fQ.l'Q.l, w'hich consista in placing 'on one face of the head a dovetail grooved seat, in or upon which a slide carrying the handleworksj the' slide being fixed in any position 011 the seat by means of a set screw. This mecmanism is simple and easily under.. 8.lld .are specifically set out in thl;l. first claim. , Stress is laid by t1W complainant upon the fact that the specification says that qarrying the handlebar arid the seat on the head may have a :figure ·other than the dovetail figure represented." I do not thinktha.t this' language should be cqnstrued to include other a.nd different forms of adjustable mechimism, but that, within the sense of the patent, it can only at most, a modification of the dovetail form in wMch the, alide works. The claim itself,by reference to the figures shown in the drawings, and by its specific language" refers to the dove-

THE DAVIDSON'.

tail construction. AnexlI.mination ItiiG 'the 'prior state the art fdrbids any soch broad, 'construction of this claim as the complainant conterids for. In the Hanlon patent, of July 7, 1868, there is found adjustable mechanism for the seat and the cranks of a velocipede, and that patent says, after desoribing these devices, that lIthe handles may; if desired, be also made extensible." In the McCleave patent of April 13,' 1869, the handle in connection with the frame of the machine is raised and lowered for the purpose of adjusting the distance of the crank from the seat to the size of the rider. The use of a dovetail seat with a slide and set screw for the purpose of adjustability appears to be old in other branches of the art. In the old milling machine what was known as the II back rest" or "back center" was constructed after this form. In view of the prior state of the art the Illston patent must be limited to the forms of devices therein described. The defenses to this suit are non-infringement, and want of patentability. In the defendants' device the handle bar is connected with a spindle which slides in a socket upon the head of the machine, and is fastened at any desired place by a set screw. I question, in view of what was old and well known, whether there is anything patentable in the defendants'device; but, however this may be, it is perfectly clear to my mind that the defendants' device is no infringement of the first claim of the Illston patent. Although argued with much force by complainant's counsel, it· would be beyond all sound rules in the construction of patents to so construe the first claim of the IURton patent as to cover the defendants' mechanism, not only because of the position which that patent occupies in the art, but aiso because the defendants' device is different in consttuction. The spindle, socket, and set screw which make the defendants' handle adjustable are not the' dovetail grooved seat on the face of the head, with its slide carrying the handle bar, of the Illston patent. 'faking the Illston patent to mean what it says, and construing it in the of the prior state of the art, I am clearly of opinion that no case of infringement has been made out. It is unnecessary to consider the second ground of defense. Bill dismissed.

of

THE

(1XBtrlct Court, E. D.

DAVIDSON.

Wisconsin. January, 1880.)

SEAHBN-SALVORs-I'RIORITY Oll' LIENS.

It is the duty of seamen to remain by the wreck of a vessel so long as their personalsafety will permit, aud save as much as possible from the vessel; and when they have done so the fragments of the vessel, and the outfit saved, constitute a fund pledged for payment of their wages, superior to the olaim of the salvors.

In Admiralty. Libel by seamen for wages. Decree for libelants.

Intervention by salvors.