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into the mortise at the end of the beam, being curved, and resting on the clamping bolt at proper distance from the point where it is pivoted to the beam. Is the curved form of the head of the shank the equivalent of complainants' bracebar, in the sense of the authorities cited ? It was argued that the word “brace," as used in complainants' specifications, has reference to the functions of an arm, or an enlargement of the upper portion of the shank of the shovel, and that the curved head of the standard or shank in the defendants' device, lying within the mortise, operates as an arm, and secures the same leverage or frictional power as does the complainants' brace-bar. Whether this feature of complainants' combination be called a brace or an arm, there can be no question of the function it is intended to perform. It is not only to be clamped in the slot in the beam so as to hold the tooth securely in working position, but it is evidently intended to strengthen the shank below the beam so as to prevent it from bending or breaking when in operation, which is one of the primary functions of a brace. The complainant John S. Rowell testifies that the brace thus welded to the shank between the tooth and the beam stiffens the shank, and allows the use of a lighter material for the shank than could otherwise be used. It operates as a support, which it would seem removes the terminal strain from a point immediately below the beam to a point midway or below the center of the shank. This function of the brace is not found in the construction of defendants' machine, for it is evident that, as it is constructed, the strain terminates on the shank at the point where the shank is clamped. So that while it may be said that frictional resistance or leverage between the pivoted point and the clamping bolt is obtained in both devices, it is observable that the complainants' brace performs a function that is omitted in the defendants' machine. It affords support to the shank, strength to the structure, and the suitable term, “brace-bar," is used in complainants' specifications as expressive of power of resistance. And it is, therefore, not difficult to understand, as some of the witnesses have testified, why the complainants' device is recognized by the public as the
“brace-tooth," and as capable of greater resistance, and less liable to bend or break than the defendants' machine.
Then, I think, there is force in the claim that the curved part of the shank lying within the beam in defendants' device performs a function not found in complainants' combination. The curved head rests on the clamping bolt, so that thereby all the teeth may be adjusted to a line. The function of alignment is thus secured, and, by this arrangement of the parts, the bolt on which the head of the shank rests becomes not only a clamping device but an aligning bolt. Furthermore, it is quite apparent, from an examination of the models, that in the operation of the defendants' machine, when, for example, the team is backed, the pressure does not move the teeth out of position, because the clamping bolt on which the curved head of the shank rests operates as a stop and prevents any forward movement of the teeth; whereas, in complainants' device, it is evident that if the brace is not set so tightly in the mortise that it cannot escape, it might, in backing, be drawn entirely out, and the teeth would be pressed forward, with nothing to operate as a stop except the pivot which fastens the shank to the beam, and with a liability that as the machine should be started forward its movement might be such as to cause the brace to catch on the beam, or to prevent it from passing directly back within the slot or mortise.
From what has been said, and without further elaboration, it would appear that the claim made by defendants is not without reason to support it, namely, that in their device they omit the brace-bar and do not substitute for it an element which wholly performs the same function; that, therefore, their substituted element, if there is one, is not an equivalent, because, “by an equivalent in such a case it is meant that the ingredient substituted for the one withdrawn performs the same function as the other.” Gills v. Wells, supra. Further, that in the construction of their device a new element is introduced which performs a function substantially different from that which the complainants' device was designed to perform, (see Babcock v. Judd, 1 FED. REP. 408;) and, in short, that the defendants' combination is a new arrangement
of parts so different from the complainants' as not to be the equivalent, within the principles applicable to combination patents.
There is considerable similarity, at least in the application of principles, between this case and the case of Prouty v. Ruggles, supra. Adopting the language of the court in that case, it may be well said here: "None of the parts referred to are new, and none are claimed as new; nor is any portion of the combination less than the whole claimed as new, or stated to produce any given result. The end in view is proposed to be accomplished by the union of all arranged and combined together, in the manner described, And this combination, composed of all the parts mentioned in the specifications, and arranged with reference to each other in the manner therein described, is stated to be the improvement and is the thing patented. The use of any two of these parts only, or of two combined with a third which is substantially different in form or in the manner of its arrangement and connection with the others, is therefore not the thing patented. It is not the same combination if it substantially differs from it in auy of its parts.”
Certain models were prepared and submitted by one of the expert witnesses, as illustrating the supposed identity of the two devices in question, but I do not think they demonstrate such identity. The structural arrangement of the parts in the two machines is substantially different. The brace-bar is a distinct member of the complainants' combination. They have claimed it in their specifications to be an essential part of their invention. It is the construction of the several parts, not separately, but in combination, which they claim to be new, and their improvement consists in arranging different parts of the cultivator, and combining them together in the manner stated in the specifications, for the purpose of producing a certain effect. Prouty v. Ruggles, supra. Applying to the case what I conceive to be correct legal principles, my conclusion is that the defendants do not infringe the complainants' patent.
Let the bill be dismissed.
THE SCHOONER JEFFERSON BORDEN.
(District Court, D. Delaware. February 19, 1881.)
1. ADMIRALTY JURISDICTION-U. S. COMMISSIONER-REV. ST. $ 4546.
In the absence of the district judge from his place of residence, where the same is within three miles of the place where a vessel is moored, the jurisdiction conferred upon him by section 4546, U. 8.
Revised Statutes, may be exercised by a United States commissioner, 2. SAME-SAME-SAME.
He should satisfy himself of the absence of the district judge from his place of residence, and, having once assumed jurisdiction, the court will not go behind his certificate of “probable cause," but will assume that, as he is acting as a public officer, the principle, " omnia præsumuntur esse acta rite,” will apply to his conduct, and that he
has not usurped jurisdiction that does not belong to him. 3. SEAMEN_WAGES-DISCHARGE.
Seamen not allowed wages upon days when they wrongfully refuse to work or obey orders.
What facts will constitute a discharge of seamen.
In the matter of seamen's wages, for which a libel has been filed and proceedings taken in this court against the schooner Jefferson Borden.
John C. Patterson and Charles G. Rumford, for libellants.
BRADFORD, D. J. This case was certified into this court by S. Rodmond Smith, a United States commissioner for this district, under the provisions of section 4546 of the Revised Statutes of the United States. I do not agree to the proposition of the counsel for the respondent, that the United States commissioner was guilty of usurpation of authority in hearing this case. While by the terms of the act of congress the district judge of the United States for the judi. cial district where the vessel is, is primarily charged with the duty of hearing these cases if his residence be within three miles from the place where the vessel is; yet, if he be absent from his place of residence, jurisdiction is without doubt given by the act of congress to any commissioner of the
circuit court in the district to hear and dispose of the case in the manner pointed out by law. It is true, the commissioner is bound to inform himself of the absence of the judge from his place of residence, but the court will not go behind his certificate in that matter. Indeed, the court is not certain that the certificate of the commissioner should show affirmatively the absence of the judge from his residence. It does not appear in the form prepared by Benedict, now a distinguished admiralty judge, and formerly a United States commissioner; and it would further appear that this being the action of a United States official, that the maxim omnia presumuntur esse acta rite should apply to his action. In point of practice these cases are almost universally tried before a United States commissioner, and not before the judges. In a maritime district the volume of this class of business requiring summary disposition is so great, if this duty was put on the judge it would seriously interfere with the proper discharge of more important ones. I have said thus much to relieve the United States commissioner from the implied censure in the remarks of the defendant's proctor,
1. The only practical question for the consideration of the court is, are these libellants entitled to any, and if any, what
2. And to determine this question it becomes necessary to settle another one, and that is, were these libellants unjustly and improperly discharged from the ship?
It is denied by the respondent that these seamen were discharged at all. He swears that they left against his wishes; that by prolonged absence they became, in contemplation of law, deserters, and he actually took proceedings to have them arrested as such. The four libellants all unite in swearing that they were discharged, or that they were ordered to go ashore. And they are corroborated in this statement by the oaths of three stevedores, impartial witnesses, working at the time on or near the Jefferson Borden. So that if oath is to be placed against oath, the court would have to believe the libellants' story the true one. But there is no such rule of