In Harris v. The Commonwealth, 23 Pick. 280, it is held that where, for an offence, the punishment is a fine without imprisonment, the settled rule of law is that the sentence is to pay the fine, or stand committed until that sentence be performed.

In Wilde v. The Commonweallh, 2 Met. 408, 411, it is said that where the statute authorizes a punishment by fine, costs may be awarded as incident, and the party convicted may be committed till such fine and costs be paid.

In Regina v. Dunn, 12 Ad. & Ell. (N. S.) 1026, the defendant was indicted for an offence, and convicted, and sentenced to be imprisoned for 18 months, and to give security to keep the peace for two years after the expiration of the 18 months, and to stand committed till he should give such security. The exchequer chamber, on a writ of error, held that the sentence was proper.

In the case of Drayton and Sears, 5 Opinions of Attorneys General, 579, cited in In re Mullee, 7 Blatchf. 23, they were convicted on an indictment-under a statute which imposed only a pecuniary fine for the offence. A fine, with costs, was inflicted, and the court ordered them to be imprisoned till the fine and costs should be paid. They were imprisoned for four years, and then applied to the president for a pardon, and the attorney general, Mr. Crittenden, was of opinion that the president had the power, by pardon, to discharge them from prison and to remit the fine, although, by the statute, one-half of the fine was to go to a private person and the other half to a county.

In United States v. Robbins, 15 Int. Rev. Rec. 155, the defendant was convicted on an indictment, and sentenced to be imprisoned for a year, and to pay a fine and costs, and to staud committed until the fine and costs should be paid. After the expiration of the year's imprisonment, the fine and costs not being paid, and the defendant being still in jail, he was brought up on habeas corpus, and claimed that the part of the sentence which ordered him to stand committed until the fine and costs should be paid was void. The statute authorized both a fine and imprisonment. The court held that,

where a statute imposes a fine, the power to commit a person convicted of the statutory offence to jail until the fine is paid is an inherent power in the court.

In United States v. Kellerman, 23 Int. Rev. Rec. 202, the defendant was convicted on an indictment, and sentenced to pay a fine and the costs of the prosecution, and to stand committed until said fine and costs be paid, and to be imprisoned for one month. After the defendant had suffered the impris onment for one month he sued out a writ of habeas corpus. The statute authorized the imposition of a fine and costs, and of imprisonment for a specified time, but said nothing about commitment until the fine and costs should be paid. The court held that the judgment for commitment was proper, and that, as the fine and costs had not been paid, the defendant was rightfully in custody.

The foregoing cases were not cases of contempt of court, but, as a fine for a contempt of court is a judgment in a criminal case, the same rule applies.

In In re Mullee, 7 Blatchf. 23, the party was fined for contempt in violating an injunction restraining the infringement of a patent, and was ordered to stand committed until the fine should be paid.

In In re Allen, 13 Blatchf. 271, the party had disobeyed an order of court requiring him to produce and surrender certain books and papers. He was adjudged guilty of contempt, and was ordered to deliver them up and to pay the costs, and, upon refusal, to be committed to custody by the marshal until discharged by order of the court. On habeas corpus it was urged that the imprisonment was illegal because it was to continue during the pleasure of the court. The court say: "When the contempt consist of a violation of the order of the court, and is a contempt not committed in its presence, and the statute does not prescribe the form of the order of commitment, the defendant may be imprisoned until he be discharged by order of the court, or until further order of court. Green v. Elgie, 8 Jurist, part 1, p. 187, per Denman, C. J.; opinion of Chief Justice Kent in In re Yates, 4 John. 317; S. C. 9 John. 395. Chief Justice Kent, in In re Yates,

says that as it is the established course in matters of contempt to receive the submission of the party whenever he is ready to offer it, and, on reasonable satisfaction made, to discharge him, an order to commit him during the pleasure of the court is favorable to him, for if a definite time is fixed in the sentence the court cannot alter it even on his submission. This was said in a case where the sole punishment inflicted for a contempt of court was imprisonment until the further order of the court. The principle applies a fortiori to the present case, where submission may be made by paying the fine, and where the commitment must terminate when the fine is paid.

In Green v. Elgie, above cited, also reported in 5 Ad. & Ell. (N. S.) 99, the court of review in bankruptcy ordered one Green, a party before it, to pay certain costs within four days, or, in default, to stand committed to prison. He was committed. Afterwards he sued in the queen's bench, for false imprisonment, the person on whose application he was committed and his attorney. There was a verdict against the latter. One ground urged for sustaining the verdict was that the warrant of commitment was void because it did not direct how long the party should remain in prison. The court held that in that respect there was no objection to the warrant; but it was held bad because the order on which it was founded did not adjudge a contempt, or direct anything to be done by the party to clear himself from it.

In Doubleday v. Sherman, 8 Blatchf. 45, a fine was imposed for contempt in the violation of an injunction, and the defendant was ordered to stand committed until the fine should be paid.

It must, therefore, be held that this court had power to order the defendant to be committed until the fine should be paid. It is equally clear that the court did not exhaust its power by the order of February 17th. That order adjudged the contempt, and set on foot a proceeding for ascertaining what amount of pecuniary fine should be imposed therefor, directing on what principle and by what means it should be fixed. The subsequent order of March 13th fixed the amount, im

posed it as a fine for the contempt, to be paid within a fixed time, and ordered commitment till payment. This was proper and regular.

All the points urged in favor of the motion made by the defendant fall within the foregoing considerations, and the motion must be denied. The motion of the plaintiff is granted.

FISCHER V. HAYES.

(Circuit Court, S. D. New York. January 26, 1881.)

1. EQUITY PRACTICE-REPLICATION-RULE 66.

A replication, filed without leave, after the expiration of the time prescribed by rule 66, may be ordered to stand, in the discretion of the

court.

2. SAME-PROOF-Rule 69.

Testimony taken more than three months after the filing of such replication, may be admitted in evidence at the hearing, in the discretion of the court.

3. EQUITY PLEADING-SUIT FOR Infringement-BILL.

In a suit for the infringement of a machine patent, the bill need not state what articles the defendant has manufactured by the use of the machine.

4. INFRINGEMENT-WANT OF CONSENT-PROOF.

Want of consent need not be shown in a suit for the infringement of a machine patent, where such fact was alleged in the bill and not denied in the answer.

5. LETTERS PATENT No. 74,068, granted Valentine Fischer, February 4, 1868, for an "improvement in machine for forming sheet-metal mouldings," is not void for want of novelty.

Fischer v. Wilson, 16 Blatchf. 220.

6. SAME-SPECIFICATION-CONSTRUCTION.

The expression, "all kinds of smooth mouldings," contained in the specification of such patent, should be construed to mean, "all kinds of smooth right-angled mouldings;" and the expression, “all sorts of angles," should be construed to mean, "all the kinds of square or right-angled angles" which can be made by the square dies, therein described.[ED.

In Equity. Suit for Infringement.

Charles F. Blake, for plaintiff.

James H. Whitelegge, for defendant.

BLATCHFORD, C. J. This suit is founded on letters patent No. 74,068, granted to the plaintiff February 4, 1868, for an "improvement in machine for forming sheet-metal mouldings." The patent was before this court in Fischer v. Wilson, 16 Blatchf. 220, and was there adjudicated upon. In that case it was held that the defendant had infringed claims 2 and 4. The novelty of claims 2 and 4 was attacked. Claim 4 is in these words: "4. Arranging the female die, G, above the male die, E or F, for the purpose of keeping the female die clear, as set forth." It was construed to be a claim to the described arrangement of the two dies, so that, having such a lower male die as E or F is, the female die shall be above the male die, and thus be kept clear, resulting in keeping both dies clear, instead of having the female die below, in a position to be clogged and mar the work, even though the upper male die should clear itself; and it was held that the lower male die must be so made and arranged as to afford no chance for the collection of dirt that would destroy the perfection of the work. Even though the female die is placed over the male die, yet the Fischer invention is not found if the male die has concavities or surrounding hollows in which dirt or foreign matter can collect. With that view of claim. 4 it was held, in the Wilson case, that nothing was shown. which affected the novelty of that claim. Various patents were introduced on the question of novelty, with other evidence. One of these patents was the Worthen and Renwick patent, referred to hereafter. It was held that nothing which was shown affected the novelty of claim 2 or claim 4.

In the present case several questions are raised which were not brought up in the Wilson case:

(1) As to the objection that the replication to the answer was not filed until after the time prescribed in rule 66, and that then it was filed without prior leave of the court, and that the plaintiff's proofs were taken after the expiration of three months from the time the replication was in fact filed.