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conspiracy to rob. The district attorney could undoubtedly have charged a general conspiracy to rob. However, he did not see fit to do so, but elected to rely upon the specific charge of a conspiracy to rob the post office at Latta. Therefore evidence tending to show a general conspiracy was incompetent and should have been rejected by the court. The government having relied upon a count charging a conspiracy which is restricted to one transaction, it was incumbent that it should satisfy the jury beyond a reasonable doubt that the plaintiff in error entered into a conspiracy with intent to rob the post office at Latta, as alleged. The case of Commonwealth v. Harley and another, Metc. (Mass.) 506, is on all fours with the case at bar. In that case it was held that the averment in an indictment for conspiracy charging defendants with a conspiracy to defraud A. was not supported by proof that they conspired to defaud the public generally or individuals whom they might meet and be able to defraud.
A careful inspection of the record leads us to the conclusion that the introduction of evidence by the government tending to show a general conspiracy without showing that the defendant had knowledge that the robbery of the post office at Latta was contemplated by the conspirators was prejudicial to the plaintiff in error, and no doubt resulted in his conviction on all the counts; and, whereas, there is no evidence to justify a conviction of the plaintiff in error on the other counts, we are of opinion that the plaintiff in error is entitled to a new trial. The judgment of the Circuit Court is therefore reversed, and the cause remanded, with directions to grant a new trial.
THE CHICAGO. THE PENCOYD. THE ASHBOURNE. THE TOWN
(Circuit Court of Appeals, Second Circuit.
June 9, 1906.)
COLLISION-FERRYBOAT AND Tow-CONTRIBUTORY FAULT OF TUGS.
Three tugs started from Perth Amboy on the flood tide with a tow of 24 boats for distribution at points in the North and East rivers. It was clear when they started, but, a dense fog coming on, they decided to take the entire tow to a dock at Jersey City until it cleared. Owing to the fog they passed the dock, and after turning to go back to it were in front of a ferry slip, and because of the strong tide were able to move the tow but slowly. While in this position and sounding proper fog signals a ferryboat came out of the slip, and by reason of her excessive speed and negligent navigation came into collision with and sank one of the boats in the tow. Held, that the tugs were not chargeable with contributory fault, on the ground that they were without power to handle their tow with greater dispatch, under the particular circumstances, which were not reasonably to have been anticipated.
[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Collision, $$ 213-215.]
Appeal from the District Court of the United States for the Southern District of New York.
This cause comes here upon appeal from a decree holding the three tugs jointly responsible with the ferryboat Chicago for a collision
resulting in the sinking of the barge Eliza, one of a number of boats in tow of the three tugs. The opinion of the District Court is reported in 134 Fed. 1013.
Pierce M. Brown, for appellant.
PER CURIAM. The 3 tugs, with a flotilla of 24 boats, started from Perth Amboy for points in the East and North rivers. It is the custom for such tows to proceed up the bay, taking advantage of the flood tide, and about in the neighborhood of Oyster Island to separate the barges bound up the North river from those consigned to the East river. They reached Oyster Island about 6 a. m., the tide running a strong flood, and began to separate the tow. There was no fog when they started, and, although it had got thick by the time they reached Oyster Island, they could still see a distance of more than four miles. By the time, however, that they had got about half through effecting the separation, dense fog set in, and it was decided not to continue the work, but to take the entire tow up the North river to Packer Dock, Jersey City. This was undoubtedly the proper and prudent course to take. Packer Dock is about 1,000 feet below the Pennsylvania Railroad ferry slips. The tow proceeded cautiously, blowing regular fog signals; but so dense was the fog that they passed Packer Dock, and the first land they made out was a pier between it and the ferry slips. Thereupon they at once proceeded to round to under a starboard helm; the Ashbourne ahead on a hawser, the Townsend on the port side of the head tier, and the Pencoyd on the starboard side of the tail tier. During this operation the tide carried the whole flotilla up river, and when it was completed they were either abreast of, or a little above, the ferry slips. When the master of the Ashbourne got the tow straightened out, he found he was still going astern and blew for the Townsend, which came forward and put out her hawser, and, they both being unable to move the tow, he blew for the Pencoyd, which joined them, and, with all three pulling, gradually, but slowly, moved forward towards Packer Dock. The consequence was that for half an hour the tow remained opposite the ferry slips; regular fog signals being blown at all times. In consequence of the fog the ferryboats made trips at irregular times. While the flotilla was lying off the slips, the Chicago, starting from Jersey City under a full-speed bell, collided with the Eliza.
Inasmuch as the Chicago has not appealed, there is no need to set forth the grounds on which she was held liable. We concur with the District Judge in his findings as to her navigation. The libel was filed against the ferryboat, which brought in the tugs. The only faults charged against them in the pleadings were (1) that the fog signals required by law were not blown; (2) in endeavoring to handle the tow with only one tug; and (3) in proceeding too near the pierhead line on the Jersey shore. The District Court found that all three allegations were without merit, and the evidence abundantly sustains such conclusion. The proper signals were sounded, three tugs were used, and, being bound to a wharf in the vicinity, they were justified in being so close to the pierhead line.
The court, however, held that the tugs “were not warranted in obstructing the ferry slips an unreasonable length of time, even in a fog, and they must be held to have participated in the negligence which brought about the disaster, because of insufficient power to handle their tow with proper dispatch.”
It may be noted that, inasmuch as this was not charged as a fault in the pleadings, the testimony was not directed specifically to that point. Upon the record as it stands, however, the majority of the court are of the opinion that the three tugs were of sufficient power to handle the tow under all ordinary conditions, and are not to be held in fault because, in consequence of an unexpected combination of dense fog with a tide, which they had to breast, instead of getting its help, they could not haul the tow faster than they did. Had they started in a fog, or when one was threatening, or put themselves in an awkward position in front of a ferry slip through some fault of navigation, a different case would be presented. But as it was clear when they started, and they had sufficient power for their short trip, and, when suddenly caught in dense fog, proceeded cautiously, observing the proper rules of navigation, the majority of the court are unable to concur in the conclusion that the tugs should be held in fault.
The decree is reversed, with costs of this court to the Philadelphia & Reading Railroad against the Chicago, and cause remanded, with instructions to decree in favor of the Eliza against the Chicago alone for damages, interest, and costs.
UNIVERSAL ADDING MACH. CO. V. COMPTOGRAPH CO.
(Circuit Court of Appeals, Sewenth Circuit. August 11, 1906.)
1. PATENTS—ABANDONMENT—COMPUTING MACHINE.
The Felt patent No. 628,176 for an improvement in computing machines, claims 1, 2, and 4, which are broad and generic covering the use of a lateral movement in such machine to bring about the placing of the figures in parallel columns are void, either for anticipation by the Hiett & Cable patent No. 580,863 or for abandonment if, as claimed, the invention was substantially perfected eight years before application was made for the patent.
[Ed. Note.—Abandonment of invention, see note to Hayes-Young Tie
Plate Co. v. St. Louis Transit Co., 70 C. C. A. 6.] 2. SAME.
An inventor having grasped an idea and put it in mechanical form may not wait to secure a monopoly on the broad thought until everything in the nature of mere accessory improvement that makes it commercially better has been worked out and perfected.
[Ed. Note.--For cases in point, see vol. 38, Cent. Dig. Patents, 88 106– 108.]
Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.
For opinion below see 142 Fed. 539.
The suit in the Circuit Court was to restrain infringement of claims one, two and four, of letters patent No. 628,176, issued July 4, 1899, to Dorr E. Felt, for an improvement in tabulating machines. The claims sued upon are as follows:
1. The combination with the printing mechanism adapted to print two or more characters side by side, of a laterally-movable paper-carriage, devices for feeding the paper longitudinally mounted in said carriage, and automatic mechanism acting in any position of the carriage to actuate said feeding devices in the line-spacing movements, substantially as specified.
2. The combination with a series of type arranged to print side by side, devices for impressing the paper upon the type, a laterally-movable papercarriage adapted to position the paper for the different columns, feed-rolls for moving the paper longitudinally past the type, and meass for actuating said rolls, substantially as specified.
4. The tabulating-machine having in combination a laterally-movable papercarriage, means for feeding the paper vertically in any position of the carriage, and mechanism for shifting the carriage laterally the width of a column-space, substantially as specified.
The decree appealed from sustained these claims, and restrained the apjellee from infringement.
Other patents cited are: No. 388,119, Aug. 21, 1888, W. S. Burroughs ; No. 401,780, April 23, 1889, L. G. Garrett; No. 439,544, Oct. 28, 1890, U. S. McCormack; No. 439,847, Nov. 4, 1890, W. M. Reason; No. 441,232, Nov. 25, 1890, D. E. Felt; No. 441,233, Nov. 25, 1890, D. E. Felt; No. 465,255, Dec. 15, 1891, D. E. Felt; No. 465,451, Dec. 22, 1891, A. T. Brown; No. 471,872, March 29, 1892, G. F. Loar; No. 500,793, July 4, 1893, F. H. Bowen ; No. 501,753, July 18, 1893, J. N. Williams; No. 504,963, Sept. 12, 1893, W. S. Burrouglis ; No. 505,078, Sept. 12, 1893, W. S. Burroughs ; No. 517,735, April 3, 1894, J. D. Daugherty; No. 524.867, Aug. 21, 1894, W. Sears; No. 538,807, May 7, 1895, J. C. Wolfe; No. 543,111, July 23, 1895, C. Spiro; No. 553,331, Jan. 21, 1896, L. S. Burridge and N. R. Marshman; No. 555,039, Feb. 18, 1896, G. W. Dudley; No. 568,021, Sept. 22, 1896, D. E. Felt; No. 578,303, March
1897. J. C. Wolfe; No. 580,863, April 20, 1897, De Kerniea, J. T. Hiett; No. 595,864, Dec. 21, 1897, W. H. Pike, Jr.; No. 693,958, Feb. 25, 1902, D. E. Felt; German letters patent No. 7,393, Nov. 19, 1879, Konigsberger & Co.; German letters patent No. 66,340, March 13, 1892, to J. L. Heuber.
Further facts are stated in the opinion.
Paul Bakewell, F. R. Cornwall, Thomas F. Sheridan, and W. Clyde Jones, for appellant.
John W. Munday and Henry Love Člarke, for appelfee.
GROSSCUP, Circuit Judge (after stating the facts). The claims relied upon are generic. If sustained they would exclude any other adding machine from using a lateral movement produced by the pressing of a key. The contention is that Felt was a pioneer in this particular improvement, and is entitled therefore not only to the broad claims set forth, but to the allowance of time said to have been necessarily taken—about eight years—to bring the improvement to perfection.
The patent was applied for May 31st, 1898, and allowed July 4th, 1899. Admittedly the adding machine, tabulating figures in single columns, was at that time in full use. The improvement was intended merely to embody the tabulations in parallel columns, thus introduc
ing greater compactness, and greater convenience in the sheets containing the tabulated figures.
It turns out however, that at the time the Felt patent was applied for and allowed, there was another patent in existence—No. 580,863, applied for Sept. 16th, 1896, and issued April 20th, 1897, to Hiett and Cable; this earlier patent disclosing descriptively, though not claiming generically, all that is contained in claims one, two, and four of the Felt patent in suit. Indeed, Felt's only escape from the Hiett patent, as an anticipating device, lies in the claim that though the Felt patent was not applied for until 1898, the idea was conceived, and put into process of mechanical development in 1889. and 1890—a conception and mechanical embodiment that at that early date was entirely practical and operative, and only needed certain accessories to make it commercially a success.
These accessories are reduced in argument to five in number: (1) That though the machine of 1890 produced parallel columns adding the numbers, it had no automatic mechanism for printing the answers; the perfected machine of 1898, and the Hiett machine contains such a mechanism. (2) The machine of 1890 was so constructed that the operator was liable to feed the paper clear out of the machine at the bottom of a column, and thus lose his work; the perfected machine of 1898,
as well as the Hiett machine, embodied means for preventing this. (3) That although the machine of 1890 printed ciphers automatically, it required, to print the ciphers, that the keys be touched in certain order; the perfected machine of 1898, as also the Hiett machine, print the ciphers automatically, in whatever order the keys are touched. (4) The machine of 1890 was a key driven machine; the perfected machine of 1898, as also the Hiett machine, being a lever driven machine; that is to say, the lateral motion in the machine of 1890 was produced by pressing hard upon a key, while in the later machines the depression of the key does none of that work, but merely sets the mechanism so that all of the work is done afterwards by the hand lever. (5) The machine of 1890, although it contained means for turning the sheet of paper back by hand, did not contain an automatic mechanism for performing this operation; the perfected machine, as also the Hiett machine, contains such automatic mechanism. And the argument of the patentee is, that though it took eight years to develop and perfect these accessories, all things considered the time was not too long, and the patentee ought not, either through the doctrine of laches or abandonment to be thereby barred from claiming the date of his invention to have been 1890, while its commercial perfection did not take place until 1898, the date of his application for the patent.
A study of the development, and the appearance in the art, of these accessories, fails to sustain the equity of appellee's claim. The first one pointed out was employed in the Felt patent, No. 465,255, issued December 15th, 1891, as also the earlier Burroughs patent; and the fourth and fifth seem to have been clearly pointed out in Felt's invention, No. 568,021, applied for June 14, 1895. And respecting none of them is there any evidence in the record showing when they were conceived, or when they were perfected. For anything the record shows, all of these accessories could have been added more than two