their combination are all found in the prior New York can: (1) the canbody; (2) the float; (3) the concave top or funnel; (4) the opening leading from the funnel through the float. Judging by a comparison of the models before the court and by the evidence adduced, it is difficult to find any essential difference between the principle of the New York can and of the complainant's invention. The immediate purpose of both was to prevent the agitation and churning of the liquid as far as possible, and to insure its return to the can over the concave surface and through the opening in the center when the milk or cream happened to be forced by the jostling of the can through the opening of the float. This was accomplished in both cans by means of the float, the concave top, and the opening in the center through which the liquid could be poured without removing the floatall combined with the ordinary milk can in use in the gathering and transporting of cream and milk. If the combination and function of the two cans is the same, it is not material to the argument, as counsel seem to assume, that many individuals in using the New York can invariably removed the float in filling the can. The question is not how it was actually used, but rather how it was capable of being used. Farmers, in filling a can for transportation, would very naturally remove the float and replace it when the can was filled. This would be more convenient for them, and the chief function of the float being to prevent splashing and churning in the transit they would see no object in pouring the milk or cream through the opening in the concave float before delivering it for transportation to the cream-gatherer. But the cream-gatherer himself, in going from house to house collecting the cream or milk in small quantities, would find it highly inconvenient to remove the float and replace it whenever he should receive a pint or quart of the liquid. With him, moreover, the necessity of using the float would commence with the gathering of the cream and continue to the end of the transit in order to prevent its agitation and churning. The complainant's counsel contend that the two cans were not identical; that the float is an essential element of the complainant's combination, and that there was no float in the New York can; that the contrivance in the New York can was not a float, but a close-fitting piston cover which had to be moved up and down within the can by the application of external force. I do not understand the learned counsel to contend that with respect to all of the other elements the New York can was essentially different from the complainant's combination. It is insisted that only two witnesses called by the defendants testify to the existence and use of the New York can, and that these witnessesBy design or accident, in giving their testimony, call these covers "floats," one of them using the two termus-i. e., "covers" and "floats "-indiscriminately; and that these witnesses fail to state, either by design or accident, how the cans actually worked, and whether the covers fit tight or loose in the cans. But it happens that not only the defendant's two witnesses but several witnesses called by the complainant testify to the use of the New York cans, and they repeatedly call these contrivances "floats." Why did the complainant's witnesses call them "floats" if they were not "floats"? If the contrivance was a piston cover fitted tightly to the can, why did the complainant's witnesses repeatedly misname them "floats"? Was this misleading misnomer the result of "design" on their part, or, if it was merely an accidental misuse of the words, why did not counsel in the examination cause hem to explain their meaning more clearly? Again, it is said that the New York cans "all had tightfitting piston covers and not floats, whether made flat, convex, or concave," and that "it is perfectly clear from the testimony, and beyond all dispute, that these New York cans were nothing but piston-cover cans." This is certainly a grave misapprehension of the testimony, first, because the witnesses for both plaintiff and defendant repeatedly call them "floats,” and we must assume that they knew the meaning of words. But several witnesses are more explicit. Hawley says, speaking of the New York cans : The cans we used for transporting milk had what we called "covers that floated on the top of the milk." The same witness, called in rebutting by the complainant, says in his testimony-in-chief: The float was smaller than the can, and would move up and down in the inside of the can. William Tallman, called by the complainant, says in chief: The float to the first can that I used was made so that the float would readily slip in the can. The float had a concave top with a hole in the center and a tube longer than the depth of the float, extending, I think, an inch and a half below the bottom of the flange. Again, same witness One of the floats I used fit tight to the can and the other did not. The one I sent to Des Moines did not, and would settle down to the milk. I also had another can that I used. It would readily drop to the bottom of the can of its own weight. It would not remain in the position in which it was placed. Asher J. Barrett, complainant's witness, testifies touching floats used in New York: Have had floats that fit tight and have had them that would not. John E. Lourey, complainant's witness Some of the floats fit tight enough in the cans to stay where you put them. It may be implied that there were other floats known to this witness that did not fit tight to the can and stay where they were put. George L. Cane, complainant's witness, says: Have used floats on hauling-cans, like Model No. 7, as long as twelve or fifteen years ago. Never saw a can used with any cover, except what you call a "float," except milk-cans for shipping milk to the city, and don't know that they had anything but a cover. Other witnesses examined by the complainant testify to having seen made or used cans with covers concave on the top, and with opening in the center closely fitted to the walls of the can. These covers could be moved up and down in the can, and would stay where they were placed. Now, this evidence, taken all together and fairly considered, clearly proves that cans with contrivances of both kinds were used in New York-some with concave floats resting on the surface of the fluid, others with what counsel call "piston-covers," concave at the top and closely fitted to the can. The latter might be moved up and down with the haud. When the liquid was poured into the can, the cover could be elevated without being removed from the can. When this was accomplished, the cover could be pushed down to the surface of the fluid, thus preventing the churning of the milk or cream. Some purchasers might prefer one contrivance and some the other, and so both would get into use, as they did according to the testimony of some of the witnesses. This view sufficiently answers the argument of counsel that Some of the witnesses state they had difficulty in getting the covers in and out, they fit so tight, and that the handles would frequently pull off. Counsel would infer from this fact that there were in fact no floats, in a proper sense of that word, but only "tight-fitting piston-covers.' This argument is untenable for several reasons: First, because the difficulty experienced by these witnesses was probably with the tightfitting covers, which, as we have seen, were in use as well as the floating covers; second, because nothing is more probable than that the cans frequently, in handling, became bruised or battered, so that it would be difficult to remove the float, which would be made to fit the can as closely as possible consistent with its office of moving in the can on the surface of the fluid; third, because if the can and the float did not exactly correspond in form, one being, perhaps, perfectly circular and the other not-which might often happen from imperfect workmanship-there would be difficulty in getting the float or cover in and out of the car. Counsel in this argument particularly advert, as quite conclusive, to the testimony of a witness for defendants, who, as quoted by the counsel, says "he remembers what a time he used to have in getting the covers out." This is in the testimony of Tallman. What he does say is as follows: It was a part of my work, when I was a boy, to wash these floats. I remember what a time I would have getting the floats out of the can and getting them in again, as they would sometimes get burst out of shape. The omitted words—“they would sometimes get burst out of shape”— change the entire effect of the witness's testimony. The complainant's invention having been anticipated, his patent connot be sustained, and his bill must be dismissed, with costs. United States Circuit Court-Southern District of New York.] NEWBURY ET AL. v. MOSSMANN. Decided September 25, 1884. 29 O. G., 277. Where the patent covered a time-lock in which some part of the mechanism between the power and the bolt is made yielding by means of a spring, so as to leave the bolt fast in case of a shock to the lock from the outside, a preliminary injunction refused where the yielding portion of the alleged infringing device consisted of a screw, which is to be stripped of its threads by the shock, and there was no proof that the shock would so operate. Mr. Samuel A. Duncan for the orators. WHEELER, J. : The clock-work of time-locks regulates the movements of machinery to make way for the lock-bolt in unlocking, so that way will be made at the proper time and not sooner. If the delicate or other parts of the time-movements are broken or displaced, so as not to hold the machinery, it will run down at once and free the bolt. The orator's patent, No. 262,094, dated August 1, 1882, and granted to Newbury, is for an improvement in such locks by which some part of the mechanism between the power and the bolt shall be made yielding by a spring, so as to disconnect there more readily than the time-movement will and leave the bolt fast in case of a shock to the lock from the outside. There are two claims, one of which is for the combination of the connecting mechanism, "some part of which is made yielding for the purpose of interrupting the operative continuity of the mechanism under the force of a shock," with other parts of the lock. The other is for the same combination, with the addition to the parts of a device for holding the parts out of engagement when disconnected. The alleged infringement consists in making the connection between the plates of the clock-work more firm, moving the yoke-lever by which pins on the dials make way for the lock-bolt away from the front of the dials to make room for throwing them forward out of place and disconnecting them, and weakening the screws by which they are attached to their arbors to make them more easy to be removed from their places by a shock from without. Strengthening the parts aout the clock-work might make the other line of mechanism comparatively more likely to yield to a shock by making this line less so, but that would not of itself seem to be an infringement of the patent, which is for making one, of a set of parts yielding, and not for making another of another set unyielding. Removing the yoke-lever out of the way of a forward movement of the dials does not appear to be new with the defendant's locks made since this patent. Locks were made with the yoke-lever back of the dials long before the patent and before the invention. 9373 PAT-26 The most important question is whether the dials are a part of the mechanism made yielding for the purpose of disconnecting under the force of a shock within the meaning of the patent. They are in their former places fastened by the same form of fastening, but made weaker and perl.aps made so for the purpose of being made to appear liable to disconnect in case of a shock. But there is no evidence that they will so yield. They are fastened by a screw apparently made to hold and which cannot yield to the force of a shock without being stripped of its threads. The threads are small, but tae dials are light, and it does not seem as if any shock that would not shatter the whole structure of the lock would give the dials momentum enough to strip the screws out of their threads. Without proof that a shock would so operate there is not sufficient proof to warrant granting a preliminary injunction. The motion is therefore denied. [United States Circuit Court-Eastern District of Missouri.¦ MCLAUGHLIN . PEOPLE'S RAILWAY COMPANY. Decided September 18, 1884. 29 0. G., 277. 1. Where a patentee has for thirteen years acquiesced in infringement of his patent, and in his bill shows no excuse for his delay, nor ignorance of the conduct of the defendant nor inability on the complainant's part to assert his rights, held that whatever action at law he may have for damages his own laches prevent a court of equity from interfering by injunction. 2. The general principles of equity jurisprudence control in patent cases (Rev. Stat.. secs. 629 and 4921), and the question of laches can be raised by demurrer, and is a good defense to a bill in equity. (Walker on Patents, sec. 597.) BREWER, J.: The bill charges that letters patent for a street-car gate were issued to the complainant and one J. F. Madison on August 3, 1869; that neither of said patentees ever licensed or granted to the defendant, the the People's Railway Company, or any one else the right or privilege to make or use said grate, and that said defendant railway company is now, and has been for thirteen years last past, using and constructing such patented street-car gates upon its street-cars. The prayer is for injunction and accounting. The single question which I deem necessary to consider is whether there has been such laches on the part of complainant as will prevent a court of equity from taking cognizance of this suit. The bill shows no excuse for his delay, neither ignorance of the conduct of the defendant, nor inability on the complainant's part to assert his rights. It is left upon the naked assertion that the patent existing for now over fifteen |