together, whereby they are operated simultaneously, all substantially as set forth."

The construction and operations of the corresponding parts in the two patents are substantially the same, and the result produced by their action is the same. It is true that Marmon, in the patent under consideration, does not limit himself to any particular means for the simultaneous adjustment of the two ends of the counter-shaft, but he exhibits. 12 different devices for such purpose, which are thereby made mechanical equivalents, each of the other. If this be so, then it would follow that his patent will be anticipated by the use of any one of these equivalents in the prior patent to Marmon and Warrington, since a patentee making use of any mechanical equivalent of the Marmon and Warrington combination would be equally liable as an infringer, as if he made use of the special devices therein set forth. Upon the face of these two patents there appears to be an anticipation of the claim sued upon in this case.

Plaintiff, however, seeks to avoid the force of this, by showing that Marmon and Warrington, the original patentees, conceded priority of invention to Marmon of the device in question. It appears from the file-wrapper and contents of the Marmon patent that in his application Marmon stated that "many of the devices and combinations shown and described herein are the invention of Jesse Warrington, or the joint invention of said Warrington and myself. They are therefore of course not claimed in this application, but are made the subject-matter of other applications for letters patent, either pending or in course of preparation. I regard myself, however, as the first inventor of a roller-mill having a counter-shaft extending from end to end of the mill, parallel with the roll-shafts, and simultaneously adjustable, as a whole, towards or from the roll-shafts. I therefore intend to claim the above invention broadly in this application, together with the specific means shown in the principal drawings, leaving the other constructions to be covered specifically by the other letters patent, the applications for which may have been made, or may be made, either by myself or by others." There seems to have been some effort made to have the Marmon patent advanced and passed upon before the Marmon and Warrington patent, but this does not seem to have been done, since the Marmon and Warrington patent seems to have been issued before the correspondence on this subject took place. On December 22, 1882, the examiner writes to Marmon's attorney, refusing claims 1, 2, and 3 of his patent, and stating that "an application cannot receive protection in a separate application for matter which was described, claimed, sworn to jointly by himself and another, and jointly patented prior to the filing of the subsequent application. Whatever rights the present applicant may have had, solely, for broad claims on the driving mechanism should have received protection prior to the filing of the application for the joint patent; or the right to apply for broader claims subsequently might have been saved by an express reservation in said patent." In reply to this the attorney wrote that there was no dispute between the parties as to

the matter of invention; that "each is preparing further applications, which will show just what each is entitled to separately, and what jointly with the other, and the proper steps will be taken to put the record in shape, so that the objection urged by the examiner will be overcome;" and at the same time he forwarded to the patent-office a concession on the part of Marmon and Warrington of priority of invention to Marmon of the device for simultaneous adjustment. This was stated by the examiner not to be "sufficient to warrant the office in issuing two patents for the same invention,-a joint patent to two parties and a separate patent to one of them;" and how the second patent came to be issued does not clearly appear by the record. There is nothing before us to show that the first patent was ever canceled or reissued, nor do we see how a mere concession of priority by one patentee to a later applicant, after the prior patent had been issued, could be binding as against infringers. Indeed, we are unable to see upon what theory this concession and correspondence is admissible at all. If the first patent be valid, then any infringer could be prosecuted under it at any time within 17 years from the time the patent was issued; and if the second patent, which was issued nearly 6 months after the first, be also valid, infringements could also be prosecuted at any time within 17 years from the time that was issued, so that the monopoly of the invention might thus be indefinitely extended. No one can have two patents for the same device, either as joint inventors or as sole inventor. No one can take out a patent, either jointly or severally, for an invention, and, after the patent is issued, without reservation in his original application, obtain a second. patent, with broader claims, for the same device. The authorities upon this point are numerous and conclusive. Sickels v. Falls Co., 4 Blatchf. 508; O'Reilly v. Morse, 15 How. 62; Odiorne v. Nail Factory, 1 Robb, Pat. Cas. 300; Smith v. Ely, 5 McLean, 76; James v. Campbell, 104 U. S. 356.

If there be anything in defendant's point that plaintiff's remedy is at law, the objection comes too late to be of any service. If such want of jurisdiction appears upon the face of the bill it should be taken advantage of by demurrer, (Clark v. Flint, 22 Pick. 231; Ludlow v. Simond, 2 Caines, Cas. 40, 56; Underhill v. Van Cortlandt, 2 Johns. Ch. 369; Pierpont v. Fowle, 2 Woodb. & M. 35; Grandin v. LeRoy, 2 Paige, 509;) if not, it should be set up by plea or answer, and called to the attention of the court at the earliest opportunity, (Roberdeau v. Rous, 1 Atk. 543; Bank v. Railroad Co., 28 Vt. 470; Livingston v. Livingston, 4 Johns. Ch. 287.) The objection cannot be taken at the hearing. Niles v. Williams, 24 Conn. 279. It would be a great hardship in a case like this, where the parties have spent years of time and many thousands in money preparing for a hearing upon the merits, to deny the plaintiff relief upon the ground that it should have resorted to a court of law.

It results from this that the plaintiff is entitled to a decree for an injunc tion, and the usual reference to a master to assess damages upon the Gray patent, and that the defendant is entitled also to have inserted therein a clause dismissing the bill as to the Dowling and Marmon patents.

COLEMAN HARDWARE Co. et al. v. KELLOGG et al.

(Circuit Court, N. D. Illinois. May 27, 1889.) .

PATENTS-SASH-BALANCE-INFRINGEMENT.

The patent granted September 18, 1883, to Warren Shumard for a "sashbalance," which has a brake so arranged as to be adjustable from the outside, the brake being an ordinary brake shoe bearing on the periphery of the drum, with the pressure secured by a spring, is infringed by the use of a band-brake, bearing on the periphery of the drum, and adjustable from the outside; bandbrakes having been well-known equivalents for spring-brakes at the time of the issue of the Shumard patent.

In Equity. On motion for injunction.

Bill to restrain infringement of a patent by the Coleman Hardware Company and others against Kellogg, Johnson & Bliss, impleaded with the Pullman Sash-Balance Company.

Banning & Banning & Payson, for complainants.
George P. Barton, for defendants.

BLODGETT, J. This is a motion for an injunction to restrain the infringement by defendants of a patent granted September 18, 1883, to Warren Shumard, for a sash-balance. The device covered by this patent is what is known as a "spring-balance" for a window-sash, instead of the ordinary pulley balance. The proof now before me shows that this class of devices is not new, one of the patents cited having been issued in 1856; but the feature in the complainants' patent, which seems to me to be new and meritorious, is the brake so arranged that it is adjustable from the outside. Defendants' patent also shows a brake adjustable from the outside, and differing only from the complainants' in the fact that it is what is known as a "band-brake," bearing upon the periphery of the drum, while complainants' brake is the ordinary brake-shoe, bearing upon the periphery of the drum, and the pressure secured by a spring. There is no essential difference in the function of the two brakes, but the band-brake was a well-known equivalent for a spring-brake like the complainants' at the time complainants' patent was issued. I think, therefore, as at present advised from the proof before me, that the difference, so far as the brake is concerned, between complainants' and defendants' device is merely colorable, and that defendants infringe upon this feature of complainants' patent, and possibly upon other features. An injunction will therefore be ordered according to the prayer of the bill.

DOOLITTLE v. KNOBELOCH et al.

(District Court, D. South Carolina. June 14, 1889.)

ADMIRALTY-JURISDICTION.

A claim against the owner of a vessel for services in purchasing her, and in traveling on her, looking after the owner's interests, but having no control over or concern in the navigation of the vessel, and for advances to the master and vessel as the owner's agent, is not within the jurisdiction of admiralty.

In Admiralty. Libel for services and advances by Alvin Doolittle against William Knobeloch, owner of steamer Bellevue, and the steamer Bellevue.

Trenholm & Rhett, for libelant.

W. J. Gayer and Mitchell & Smith, for respondent.

SIMONTON, J. The libel sets up a claim against the steamer in rem and her owner, the respondent, in personam, for services and advances. The services were going to New York as the agent of Knobeloch, and purchasing for him the steamer Bellevue, and coming in her on her voyage from New York to Charleston, looking generally after the interests of the owner; not, however, having any control or concern in the navigation of the vessel. The advances consist of cash to the master from time to time, and moneys paid for supplies to the steamer, pilotage, and dock fees. The libel was amended by striking out all claim in rem on the steamer. Respondent excepts to the jurisdiction of the court. The jurisdiction in admiralty depends primarily upon the nature of the contract, and is limited to contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation. The Jefferson, 20 How. 393. It is not easy to get an exact definition of the term "maritime contract." It is far easier to say what is not a maritime contract. "The true criterion," says that eminent jurist, Mr. Justice BRADLEY, "is the nature and subject-matter of the contract, as whether it has reference to maritime services or maritime transactions." Insurance Co. v. Dunham, 11 Wall. 1. Mr. Browne, in his work on Civil and Admiralty Law, (volume 2, page 82,) asks the question: "What contracts should be cognizable in admiralty?" and answers it: "All contracts which relate purely to maritime affairs." "Maritime contracts are such as relate to commerce and navigation," says Justice CLIFFORD. The Orpheus, 2 Cliff. 29. The English courts limit courts of admiralty by the locality of the contract. Our courts look to the subject-matter. De Lovio v. Boit, 2 Gall. 398. But "to be a maritime contract, it is not enough that the subject-matter of it, the consideration, the service, is to be done on the sea. It must be in its nature maritime. It must relate to maritime affairs. It must have a connection with the navigation of the ship, with her equipment or preservation, or with the maintenance or preservation of the crew, who are necessary to the navigation. and safety of the ship. Thus a carpenter, a surgeon, a steward, though

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ing to $48, is for cider sold and delivered to the boat upon her credit, on the order of Capt. Clark, and in large part used on the boat by the excursionists and crew. Now, these claims were disallowed upon the ground that the articles were not necessaries. But in view of what I have heretofore said, and under the authorities cited I am constrained to differ from the learned commissioner. The term "provisions" has been held to embrace wines and brandy. Mooney v. Evans, 6 Ired. Eq. 363. Under all the circumstances, I think the debts due these claimants were liens against the Mayflower within the fair meaning of the act. I am unable to concur with the commissioner in his disallowance of $1,178.88, part of the claim of Wilson, Bailey & Co., for provisions furnished to the Mayflower during the few months when Fred Pastre and W. P. Clark ran the lunch-counter under an arrangement with the owners of the boat. It appears that those provisions were furnished under a general order of Capt. Lewis N. Clark. In particular instances, indeed, Pastre ordered some of the goods, but the claimants understood that he was the steward of the boat, and they gave no personal credit to him. In his report the learned commissioner refers to the evidence taken in the case of Marx v. The Mayflower, and treats it as evidence to be considered in this case. But this is not allowable. The present lien claimants were not parties to that suit. It does not appear that the evidence taken therein was offered in this case, and, if it really was, it was only admissible to the extent of showing that Pastre gave contradictory testimony in the two cases. But, independently altogether of Pastre's testimony, it is here clearly shown that Wilson, Bailey & Co., in pursuance of a general order given by Capt. Clark, sold and delivered all said. provisions to the Mayflower upon the credit of the boat, and that they were actually used on the boat. Nor is there sufficient evidence to show that these claimants had any knowledge of the alleged arrangement between the owners of the boat and Pastre and W. P. Clark. On the contrary, it satisfactorily appears that they had no knowledge on that subject. In this respect this case differs widely from that of Marx v. The Mayflower.

Touching the claim of Joseph Walton & Co., for the cost of repairing their fuel-flat, the action of the commissioner was entirely correct. The damages to the flat could only be allowed as a lien of the fifth class under the act. And now, June 1, 1889, the exceptions to the commissioner's report filed by J. C. Buffum & Co., W. H. Holmes & Son, and George S. Martin & Co., and the first and second exceptions filed by Wilson, Bailey & Co. are sustained, but all other exceptions are overruled; and the case is recommitted to the commissioner, with directions to correct his schedule of distribution in conformity with this opinion.