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,Unde"rOode W. Va. c. ... S§38,39, asherlffwho refyses an order prop· arly issu'e'd:by tal! 'CO'l1l1ty'court, or, ih the a'liMiioe' 01 fu1'1ds; ,to indorse there'GIl, II P,1"fl$e01:4'ti for !,n,d sign ,the if: p",bljl, OIl b,isptllcial bOIld for' tile , r
In Err()rto tliedircuit Cot1rt,of the United fodheI>istrict of West Virglriiii." , ,'" , ' ; , " , .' ,,' A9titifl'byJW6 '.stl1te to the ,qse ,o{:iH,e, Society for ltrld:.hilfsureties bond Ilsshenff of cQu;nt'Y'i ':ftlry andl caus(llnbmltted on an of .' JUdgment '((if pldiritiff. Defendants bring
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Affirmed.,' ,', ,i " " , ' ' , M,alcolmJd,ckscm, for plltindffs in e r t o r . '
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, R. 'B,FJn81ow, for'defehdantiri error,' " ' ) , Before FU'd:,ER,'CircuitJ'listi'ce, , and GOFF, Circuit .Tudges: , . . . . '1' ,. ,""
'. ;BOND,.YircuitJ!ldge'J::U·appearsfrJni the agreed Btll:lenlent offacts ,case 'qourt ofW in the state of We'st Vlrginia, ont4e l,1tl,l,d'o/,of March; entered. an order on itsrec9,rds, which recited th,at rePort ofaspecialcommissioner J>Yft,precedipgcounty court,that there was indebtedilcrss by late county or Wayne, county in ac(Jorda.nce,withthEl of the rOll-ii laws of W then due and, unpa,lq,. It furtbe': 'recited that ,the leVie,S for tIle. then coming would, riot besunIqient to pay such indebtedIJ,ess, and pther expepsesfor like purposes;; 'It then directedbonds of the county' [or$12,OOO, )Vi,th 6 per cent., payable semiannually, to be and,that these bQDc(lS imd interest coupon!) should be a .charge upon the'road levies of the districts bfthe countyw:-herethe money from the sale: bonds was expended, fOf!!' termof 10 years, bonds were to. 00. the 11th day of August, 1882, thEl county court issued another order, similar to the above, 'except that the issue;of ,bonds to the value of defenderror, the Sooiety,for Savings, bought their face The coupty OPUrt .of Wayn'ecounty has paid the thereon ,,Il,p to September,,1889 1 .trnd Qne pond of $500. In paYJjDent of this inte,resUhe cQ]lntycourt ,i.'ssped orders sued On iIi thIS' case, and denotified the,'sheriff of Wayne the same for payment'tohim in qounty that 'itheld the. summer of 1889, again 4, 1890, and again on, May 16, pay' the same in obediellce to the order 1890. The sheriff refused
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SPURLeCKV. 'STATE OF WEST' VIRGINIA.
olthe ootmtjr court, I1ndrefused toindorelinhere&D', "N6 funds,» or the date of presentation.. A in 1889;to pay said orders, and the levy wltB'collected by'the sheriff before January; 1891. The form of the order frofu tbe county court of this: ' COUNTY,W. vl., July 2nd. 1889.' E;avings. or order, the sum of thirteen hundred iiM'Si" dollars and sixty-nine cents. by special order, entered 011 ,the 2nd .day of' July, 1889. after deducting therefrom: the amount of all State. county and other taxes and levies in bia hands for collection against the sal,d for Third District Road Levy, 1889, with interest from 1st, 1889. . . . . " It FADIONCsl' P·r:sident. k CHAPMaN ;RY., ar, ", ::, . '. "WAYNE
":Tbe Sher,ifl"wiIl pay to
There is DO' allegation or pretense that ,the sheriff had in his hands for collection, ,any claims of the state, or county ltgairist the Society for Savings; which is a corporation of' the state of Ohio. This is an action vpon,theisheriff'sbond against Sanderl! Spurlock, thesheritf, and the 'S1il1'eti'eson his bond; of which there are twenty-three. THe parties; by. agreement in writing, waived a jury trial, and submitted the case to theeoU'rtupon the agreed stAtement of ·facts.·The court found for the plain.flff; in the amonillt of the penalty ·of the bond, which was to be released upon the payment of $:t,729, witb interest from the 24th day' of 1891, and costs. . ,At the: Jan!.1ary term of 1891 the county court of Wayne issued an order directing the 8heriff not to pay the former orders of the court, though the money required to pay them had been collected from the taxpayersofthe varibus'districts, and wa.s in the sherifl"s hands for that purpose in 1889. The .errors assigned in thet-ecord are that the bonds upon which these orders were· issued to pay accrued interest were invalid because they were issued in violation of section 8, art. ·10, of the constitution of West Virginia, wbich'requires the questions respecting the issue of such obligations to be submitted toi a vote of the people of the county; and that, the bonds being invalid, the interest coupons are invalid'also; that it WllS error for the circuit dourt of the distTict of West Virginia to hold that any indebtedness for money had and received could be incurred by the county of Wayne when it did not appear that the plaintifI"purchnsed the coupons from the county, or when the1'e had been no submission to tbe vote of that county of the questions connected with such indebtednesS, required bS section 8, art'.' 10, of 'the constitntionofWestVirginia; and that it was the duty of the sheriff to respect the, order of .Tanuary, 1891, fOO'l:>idding hii:n:to pay the orders, the refusaLtoindorse or paywhicb constitutes the cause of action against the defendant Spur]<>ck. . It is well to understand the legal position, under the laws ·of West of the, county of Wayne, which issued the orders to the Society for Savings, which took them in payment, and of the sheriff, Spurlock, when they were presented to him for payment, and the remedy at hand to which the Society for Savings might resort to compel payment. It
FEDERAL. ,l;lEJ?ORTER,
vol. 52.
oltha of Wayne countyt9 time tlle, indeQtedtl,'Sfl of the cg\mty and to makl;l levjes. These are, ",itp theasses$o1'!a' books, .delivered to the When this is done;. upon the application of any oreditor, the' county a in his behalf upon the sheriff, requiring him to paYi tR,polder theamount specified in the or . The county no other mOUe, of payment. When this order,has been issued, county court, except ma,ruJomU8, to compel no q,qtlion will lie against its Patmenti unless the .order has ceased to be a subsisting liability, in whieh 'case the. county1l1ay be sued on the original cause of action. Ratliff V. (Jounty. Oourt, .'33 W. Va. 94, 10 S.ID. 'Rep. 28jOanby v. Board, 19W. Va. 93. The law ofWest Vit'ginia, however,has not left its 9reditors remediless. Sections 38,39, e. 39" Code W. Va., provide that no money shall be paiej:outof the county treasury (the sheriff is the only treasurer) except upon I)norder signed by the. president and clerk oLthe county court. Wh'en an Order is presented to the sheriff, and there are no funds to pay the same, the person entitled to receive the· sum of money specified in euch order may require the sheriff to indorse thereon, or write across the for"patyroent," aneJ;/signrthe flame, and theorder,.ifit WPBdue. at the time of preSentment, shall be payable; with legal interest, from the date of indorsement by the sheriff. BuHf' the sheriff, having fundstQ pay, the; Otder with, fails to,do so, whfln properly presented during business hours by the person entitllld to receive the same, he shall be liable witb .his sureties to the person entitled to the money, for the entire amount due thereon, with interellt, and 10 ,cent. on the amqunt all damages. The :JrtQL\ey to 'pay, these orders had been .by the county court of:M'ayne:.oouht1,'assessed by the county assessors upon the property liable for suoh tax, ,and was in the hal)ds o'f the sheriff, Spurlock,. who could appropriate it to no other purpQse but to pay ,it ,out upon such .orders;as the county court might draw. against it. At .the time thase or.. ders werepreaented to .the shE'riff .there was .nothing for him to do but to indorsetheIXi aa required by law, if he had.no funds, or to pay if' he had funds. The statement of facta agreed admits that he ,would do neither. The plaintiff could have proceedeclagainst the county court, on the original cause of action, of the order of the cpurtto. the sheriff directing him nottopay the orders",or against the sheriff on his bond. The latter course was followed, as provided for by the Code of Wiest Virginia, and no good reason has been shown by either the sheriff or the county court why .the orders have not been paid. The sheriff having chosen to violate his legal obligations, and to ignore the atatutes of the state of West Virginia prescribing his dnties, there has been a bis otIicialbond, for which he and his sureties are liable, and the judgment of the circuit court isaffil,'med, with costs.
CLEVELAND TARGET CO. II. UNITED STATES PIGEON CO.
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CuvELAND TARGET Co.·tIC
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(CtrcuU Court, N. D. Ohio, W. D. Kay tl, l8W.)
No. 1,046. L P.A.'fBJl'l'8 :JOB INvnTIONS-A:RTIOlP.A.TION-MOTtOlJ :JOB PlmLJ1O'NART IN.mwCTIOlJB'LTJ1IlG TARGETS.
Letters Jlatent No. 225,261, issued March 9, 1880, to Orator F. Woodward, are for a "new and useful improvement in compositions of matter for making molded articles of manufacture. " such as flowerpots. vases, cuspidores, etc. Flying target. or "birds." though not specified by the patentee; were made in large numbers under the patent. The composition consisted of gypsum androsin mixed under heat. Held, on motion for a preliminary injunction against one manufacturing targets from a liks compound, that the patent was not anticipated by certain previous compounds il'om which flying targets had never been made, and from whioh the pate.utee.s never oont,emplated that ttey would be made.
.. S.A.ME-l!dOTION FOR PRELIMINARY INJUNCTION-ESTOPPEL.
In a suit for infringement of a patent, it appeared that defendant was formerly in the employ of ccmplainant, and. while sustaining that relation, gave testimony as an expert in its behalf supporting the validity of the patent, and, by actual process of manufacture before the court, demonstrated the noyelty and utility of the invention. Held, on a motion for a preliminary injunction, that he was in no position to deny the vWidity of the patent.
In Equity. Bill by the Cleveland Target Company and Orator F. Woodward against the United States Pigeon Company and others for infringement of a patent. On motion for a preliminary injunction. Gr.lnted. E. A.Angell, for complainants. J·. B. Fay, for respondents. RIcxs, District Judge. The complainants file their bill in this case to secure an adjudication as to the validity of the patent No. 225,261, dated March 9, 1880, issued to Orator F. Woodward, of La Roy, N. Y., and now ask for a preliminary injunction against the defendant, restraining it from the manufacture of flying targets or "birds," wbich they claim to be an infringement of the patent set forth in the bill. The patent sued upon was before this court in the case of Peoria Target GJ. v. Oleveland Target GJ., and its scope and utility were fully commented upon in an opinion delivered on May 27, 1890, in that case. 47 Fed. Rep. 725. The complainimt in that case relied upon the validity of letters patent No. 334,782, granted to Fred. Kimble, January 26,1886, fora new and useful improvement in making targets. One of the defenses set up in that case was that the complainant's patent was not novel; that neither the proeess nor the article specified constituted a patentable invention; and that a process for making a similar compound had been described in a prior patent issued to Orator F. Woodward, in 1880. In the case referred to the court, in referring to the complainant's patent, said: "The Woodward patent of March 9, 1880, was intended to produce a composition of matter which could be molded into various articles of fine texture, glazed surface, very cheap and strong. The ingredients described were gypIUIll and rosin, mixed under heat. The right to use pitch as a substitute for V.52F. no.4-25