though the act be silent as to accessories. Why not the procurer and aider here? The argument that the abettor and aider should escape the punishment affixed on the statute which declares the act a misdemeanor, does not commend itself to my judgment. See authorities cited in 4 Dill. 410; also, Russ. Crimes.

The prisoner is remanded. Bail fixed.

AMERICAN SAW Co. v. EMERSON.

(Circuit Court, W. D. Pennsylvania. December 21, 1880.)

1. LETTERS PATENT-INFRINGEMENT-MEASURE OF DAMAGES.

The measure of damages for the unauthorized sale of a patented article is the difference between the cost price to the patentee and the market price when the sales were made.

In Equity. Exceptions to master's report.

The suit was for infringement of patent No. 66,692, granted to defendant on July 16, 1867, for improvement in saws, and assigned to complainant. The improvement consisted merely in providing the saw with a series of holes, corresponding with the wear of the teeth, to facilitate dressing or filing the saw. Defendant contended that complainant was entitled to only so much of the profit as was due to the presence in a saw of the holes, over an ordinary saw without them. Complainant contended and the master held that there was or should be only one perforated saw, and that the complainant was entitled, as damages, for all saws sold by defendant, to the difference between complainant's cost and selling price of an equal number of saws.

The master cited Rubber Co. v. Goodyear, 9 Wall. 788; Cawood Patent, 94 U. S. 695; Pitts v. Hall, 2 Blatchf. 229; Cowing v. Rumsey, 8 Blatchf. 36; Hostetter v. Vowinkle, 1 Dill. 329; and found that the case of Buerk v. Imhaeuser, 10 O. G. 907, differed from this, because in that case it appeared that there were other watches in the market.

Knox & Reed and C. A. Van Dorn, for complainant.

Bakewell & Kerr, for defendant.

MCKENNAN, C. J. The rule for the ascertainment of the damages, adopted by the master, is fairly deducible from the cases discussed in his report, and, it may be said, from others of corresponding tenor which might be cited. It is appropriate to this case, if it is not the only practicable one. The difficulty is in the administration of it. It is not an unreasonable inference that the profit derived by the complainants from the sale of their saw is due to the patented improvements embodied in it. Hence it was proper to take the difference between the cost of its manufacture and the price at which

the infringing saw was sold, as the measure of the complainant's damages or loss. Upon this basis the master has assessed the damages. He has taken the whole number of infringing saws made and sold by the defendant, and in view of the localities where the sales were made, the readiness and facilities of the complainant for sup plying the market in those localities, and the strong probability, therefore, that it would have supplied it, if it had not been occupied by the defendant, has allowed the difference between the cost and market prices as the aggregate amount of the complainant's damages. We cannot say that this is unwarranted by the proofs.

The exceptions are therefore overruled, the master's report is confirmed, and a decree will be entered for the damages reported, with

costs.

CARNRICK and another v. MCKESSON and another.

(Circuit Court, S. D. New York. July 7, 1881.)

1. LETTERS PATENT-DEFENCEOF PRIOR PATENTS AND PUBLICATIONS-PLEADING IN EQUITY UNDER REV. ST. § 4920, SUBD. 3.

The defences of a prior patent or previous description in a printed publication, specified in subdivision 3 of section 4920 of the Revised Statutes, must, in a suit in equity, be set up in an answer and not in a technical plea.

J. A. Whitney, for plaintiffs.

F. H. Betts, for defendants.

BLATCHFORD, C. J. The purport and object of the plea in this case seem to be to put in evidence certain specified patents and publications which the plea alleges existed prior to the original patent sued `on, and describe and show inventions and subject-matters embraced and contained in the reissue. These patents and publications are set up in the plea as showing that the reissue is not for the same. invention as the original patent, "but embraces and contains" what is found in such prior patents and publications. It does not follow that because what is found in the reissue is found in patents and publications which existed before the date of the original patent, the reissue is not for the same invention as the original, because, equally well, what is found in such patents and publications may be found in the original; and it is not alleged in the plea that what is so found in such prior patents and publications is not found in the original. It is true that the plea says that the reissue contains matter not known tɔ, or invented by, the patentees at the date of the original, and mat

ter shown in the prior patents and publications, but it does not aver that the matter thus referred to is one and the same matter. So, really, the plea aims to set up the defence specified in subdivision 3, of section 4920, of the Revised Statutes, namely: that the invention. was patented or described in a printed publication prior to its supposed invention by the patentees. The clear purport of section 4920 is that such a defence must, in a suit in equity, be set up in an answer, and not by a technical plea. The plea is overruled, with costs to be taxed, but the defendant may answer the bill in 30 days on payment of such costs.

CRANDALL and others v. RICHARDSON and others.

(Circuit Court, S. D. New York. February 23, 1881.)

1. REISSUE No. 4,223-CHILDREN'S CARRIAGES-NOVELTY-VALIDITY.

Reissued letters patent No. 4,223, granted January 3, 1871, to William E. Crandall, for children's carriages, held void for want of novelty as to first, and anticipated as to second, third, and fifth claims.

2. SAME-SAME-ANTICIPATION.

Complainant's riding device, consisting of two profile frames representing horses, mounted on rockers, connected together with a seat, so as to allow the feet of the rider to extend downwardly between the frames, with a hinged toy-box in front of the seat, serving to hold the child in place and as a receptacle for its playthings, held, anticipated by the Brown devices-one consisting of side frames representing a horse, terminating in rockers below and connected together with a seat and foot-board, allowing the feet of the rider to extend downwardly between the frames, joined in front and rear by two vertical boards, one having extending from the front a profile horse-head, and from the rear a profile of a flying horse-tail; the other consisting of two solid frames representing an eagle or swan, continuous to and terminating in rockers below, with a seat connecting the frames together and a toy-box in front to keep the child from falling out.

3. SAME-SAME-MODIFIED FORM.

Whether the frames are the profiles or outlines of horses or are solid, or whether they are in the form of horses, eagles, swans, or of any other bird or animal, is a matter purely of taste or design, and, so far as any mechanical effect or result is concerned, is of no importance.

4. DEFENCE OF PRIOR USE-DOUBTFUL EVIDENCE-SUCCESS OF LATER DEVICE NOT CONCLUSIVE.

In a defence of prior use it is often a controlling circumstance, where there is doubt in the proof, that, considering the success of the later device, if it had been made previously it would have attracted the attention of the trade and immediately have gone into use; but it often happens that from various fortuitous circumstances a complete invention, in a branch of business where much depends on energy and facilities and capital, fails to attract that attention which, under different and better auspices, it receives when independently produced at a later day.

P. Van Antwerp, for plaintiffs.

B. Wadleigh and Frederick P. Fish, for defendants.

BLATCHFORD, C. J. This suit is brought on reissued letters patent No. 4,223, granted to William E. Crandall, January 3, 1871, for an "improvement in children's carriages;" the original patent, No. 100,121, having been granted to him, as inventor, February 22, 1870, and reissued to him, No. 3,972, May 17, 1870. The specification of No. 4,223, including what is outside of brackets and what is inside of brackets, and omitting what is in italics, reads as follows:

"Figure 1 is a side view of the device, illustrating my invention. Figure 2 is a central vertical longitudinal section thereof. Figure 3 is a top or plan view. Similar letters of reference indicate corresponding parts in the several figures. My invention consists in constructing the body of a child's carriage of two frames [representing horses in profile, each mounted on a rocker, and] which are connected together [by] so as to form a seat [and a foot-board] between them. It also [of] consists in a toy-box [arranged between the profile] which is connected to the frames, and serves to keep the rider in the seat, but it may be readily moved over in order to release him when desired. [And furthermore, it consists of a combination of parts, as will hereinafter more fully be set forth.] The body may be mounted on wheels or rockers, and thus form a carriage or rocking-horse at the pleasure of the child. In the draw. ings, A A [are] may represent two frames [representing] which, in the present case, are made in the form of horses, which are arranged parallel to each other, with their feet resting on a base, B, which, if desired, may be in the form of rockers of an ordinary rocking-horse. The [profile] frames are connected together by cross-pieces, [forming a seat,] C, which, with the former, constitute a guarded seat, so that a child can easily ride without danger of being thrown or falling out. In order to render his position still more secure, there is connected to the frames in front of the seat a [A] box, D, [is hinged in front of the seat, serving to hold the child in place, and forming] which, in one position, hold the child in the seat, and likewise forms a receptacle for his playthings, and [which can be turned over to let the child out] in the other position allows the child to remove himself, or be removed, from the seat. The base, B, and [the] frames respectively may be connected together by auxiliary cross-rods, bars, or braces, or otherwise, for strengthening purposes, and the child may rest his feet on a foot-board, E, which is secured to the base, B. To the base, B, there is connected, in any suitable manner, a series of wheels, F, whose bearings should be so constructed that the wheels may be swung or raised up or down, whereby the whole weight may rest either on the wheels or on the [rockers or] bed. When it is desired to employ the device as a carriage, the wheels are swung or moved downwards, and by means of suitable pins, G, or other retaining devices, the [rockers are] bed is cleared from the floor, and the carriage can then be [used] drawn forward as an ordinary child's carriage. When the wheels are raised or removed, then the bed should consist of rockers, so that the child can rock [itself] himself after the manner of a rocking-horse. Should the arms or shafts of the wheels

be immovable fixtures, the bed, E, may consist of a flat board or strip, and not be in the form of rockers. It will be perceived that the construction of the body, A C, not only produces a convenient and safe [The frames, A A, representing horses in profile and then connecting] seat [form an attractive and amusing riding mechanism, and present] for the child, but that the appearance is presented of two [animals] horses which the child can [imaginarily] drive simultaneously, without straddling either, and thus [without danger of] be protected from falling [out] off. Suitable harness may be placed on the horses, and the bridle extend within convenient reach of the child. It is noticeable that the child can neither fall forward, backward, or sideward, and I thus produce an attractive, amusing, and safe riding medium."

Reading, in the foregoing, what is outside of brackets and what is in italics, and omitting what is inside of brackets, we have the text of the original specification. The claims of No. 4,223, seven in number, are as follows:

"(1) A riding device, consisting of the profile frames, A A, connected together by a seat, so as to allow the feet of the rider to extend downwardly between the said frames, substantially as described. (2) Two profile frames terminating in rockers below, and connected together by a seat and a footboard. (3) The combination of a box, D, profile frames, A A, and a suitable seat, C C, substantially as described. (4) The profile frames, A A, seat, C, box, D, bed, B, rockers and wheels combined, and operating, in relation to each other, substantially as described. (5) A hinged toy-box arranged between two profile frames, substantially as described. (6) The wheels, F, arranged upon the rockers in front and rear, in combination with the two profile frames connected together by a seat, substantially as described. (7) A riding device, produced substantially as described, that is to say, that it can be converted into a carriage or rocking-horse, through the medium of rockers and wheels, the latter adapted to be raised or lowered, substantially as described."

The claims of the original patent were four in number, as follows: “(1) The frame, A, connected together by a seat, C, forming the body of a riding device, and allowing the feet to project through it, when combined and operating substantially as described. (2) The box, D, connected to the frames, A, in combination with the seat, C, substantially as and for the purpose described. (3) The wheels, F, or rockers, B, in combination with body and seat, A C, substantially as and for the purpose described. (4) The frames, A, seat, C, box, D, bed, B, and wheels, G, combined and operating together, substantially as described."

The claims of No. 4,223, which are alleged to have been infringed by the defendants, are claims 1, 2, 3, and 5. The "profile frames" are an element in each one of those four claims. These profile claims are shown, by the text of the specification, to be frames showing the profiles of horses and not profiles of anything else. The drawings of the original patent and of No. 4,223, which are the same, show profiles of horses. Under the original patent the claims were,