in his factory in 1889 or prior thereto. He admits that the defendants have purchased swivels of the complainant. S. L. Lederer testifies that as early as 1887 the firm were manufacturing swivels similar to that identified as Defendants' Exhibit V-Spring Swivel, and produced as one of the first swivels made by the firm of S. & B. Lederer. Nathan B. Evans testifies that in 1886 his brother, George H. Evans, made a model of a swivel similar to the swivel marked "Defendants' Exhibit V-Spring Swivel," and applied in said year for letters patent therefor. William J. Thompson testifies that he witnessed the making of swivels similar to the Defendants' Exhibit V-Spring Swivel; "that in the spring of 1886 George H. Evans entered the employ of the firm of S. & B. Lederer, and that a few months thereafter deponent noticed swivels of the character above identified being manufactured at the Lederer factory; that deponent's interest in this swivel was emphasized by frequent conversations with George H. Evans, who talked a great deal about his new swivel." Edgar A. Mowry testifies that Evans, in an interview, alleged that he had been for a long time successfully making for S. & B. Lederer swivels containing a V-shaped spring, and desired to make such swivels for the deponent's firm.

Upon the whole evidence, there can be no doubt that the defense of anticipation by the defendants rests upon swivels made in consequence of suggestions of Evans. The defendants do not fortify. their testimony by any evidence as to the application by Evans for letters patent.

The complainant, however, introduces a copy of the application of Evans for letters patent, filed October 19, 1886. While this application shows a V-spring swivel, it is very clear that it does not show the features described and claimed in the patent in suit. It follows, therefore, upon the evidence submitted, that the defendants' Exhibit V-Spring Swivel does not conform to the description of the swivel which Evans sought to patent. Upon this condition. of proof, I can attach little weight to the contention that the patent in suit was anticipated by the manufactures of the defendants. Moreover, testimony as to the character of the defendants' exhibit, and an inspection of that exhibit, tend to throw additional doubt upon it as a sample of what was produced in defendants' factory. during the time of Evans' employment. In view of the explicit statements by both B. B. and S. L. Lederer as to the exact conformity of the article made by them with that described in the patent in suit, and of the apparent inaccuracy of that statement in view of the testimony as to Evans' connection with the manufacture, I cannot accept as sufficient their affidavits to the effect that they had asserted the invalidity of the Robinson patent. The defense of anticipation by the defendants, and acquiescence by the patentee in infringement by these defendants, in my opinion, is not sufficiently made out for the purposes of the hearing on this petition.

Certain prior letters patent are produced by the defendants to show anticipation, or the lack of patentable novelty: No. 337,908, to W. F. Whiting, dated March 16, 1886; No. 299,336, to D. F. Briggs, dated May 27, 1884; No. 348,811, to A. Abrahams, dated

September 7, 1886; No. 39,659, to O. S. Judd, dated August 25, 1863; No. 55,563, to R. L. Webb, dated June 12, 1866; No. 155,843, to W. E. Sparks, dated October 13, 1874; No. 286,739, to E. H. Smith, dated October 16, 1883; No. 322,438, to J. Gibbons, dated July 21, 1885. While these patents are sufficient to show that the patent in suit is narrow in scope-involving, perhaps, no important novelty in the mechanical principles of operation-they do not seem to me sufficient to show that the patent is not valid, as showing an improved construction, which combines simplicity, durability, and cheapness. In fact, they tend to show that the patentee succeeded in accomplishing by few and simple means what others. had accomplished by means less simple and practical. Regarding the invention as dealing with the problems of practical manufacture, rather than as the solution of any novel mechanical problem, I do not think that the prior patents are sufficient to overcome the presumption of validity. While the patent has not been sustained by prior adjudication, there is evidence of general acquiescence for about 14 years.

Under these circumstances, a preliminary injunction may issue.

AMERICAN CARAMEL CO. v. THOMAS MILLS & BRO. SAME v. QUAKER CITY CHOCOLATE & CONFECTIONERY CO. (Circuit Court, E. D. Pennsylvania. June 8, 1905.)

Nos. 26, 42.

PATENTS INVENTION-MACHINE FOR CUTTING CARAMELS.

The Hershey patent, No. 532,554, for a machine for cutting candy, is void for lack of patentable invention in view of the prior art.

In Equity. Suit for infringement of patent. On final hearing. Wm. J. Smyth and Henry E. Everding, for complainants. Henry P. Brown and Augustus B. Stoughton, for respondents.

J. B. MCPHERSON, District Judge. The patent involved in these two suits, No. 532,554, was applied for on May 3, 1893, and was granted to the applicant, Milton S. Hershey, on January 15, 1895. It is for an improved machine for cutting caramels, candy, and similar products, the object of the device being to subdivide. sheets of the material into parts suitable for use. The machine may be described as follows: A stationary table, having a transverse slot or opening, is supported by a frame. Above the slot a blade. shaft is journaled, having rigidly fixed thereto annular cutting blades, so placed as to cut the material into strips of a suitable. width. Below the slot a plain roller is journaled, and the shaft and the roller are so geared that their meeting surfaces revolve in the same direction, and whatever is caught between them is drawn through to the other side. The sheet of caramel or other candy is placed upon a flexible plate or pad of felt, rubber, blotting paper, or similar material, and the end of the pad is inserted between the

shaft and the roller by the hand of the operator, whereupon the pad is drawn through and the sheet of candy is cut into strips. The pad is then turned half way around, and the cutting operation is repeated, thus converting the strips into small squares. The fol-lowing paragraphs from the specification show what the patentee believed to be the advantages of this method:

"The frictional contact of the blades with the pad is the result of thorough, clean, and continuous cuts in the sheets of material carried by said pad, as there can be no motion thereof other than that communicated to it jointly by the blades and roller, which are actuated positively by the same gear, and as the nature of the pad permits the blades to bite into the same and insure the cutting of the material by the movement of said pad.

** * *

"By my construction the successful application of the device through which is applied the frictional force required to move the pad carrying the material to be cut also necessitates the cutting of that material, thereby utilizing said device in a two fold manner and reducing the amount of machinery necessary for the purpose, as well as making a corresponding reduction in the friction to be overcome and the cost of the more numerous parts otherwise necessary."

The claims are as follows:

"1. The combination, with a slotted table, of a shaft having blades and journaled above said slot, a roller journaled below the slot, said shaft and roller being so geared that their adjacent parts move in the same direction, and a plate or pad adapted to be drawn between said blades and the roller by the frictional action thereof, for the purpose specified.

"2. The combination, with a slotted table, of a shaft having blades and journaled above said slot, a roller journaled below the slot, said shaft and roller being so geared that their adjacent parts move in the same direction, and a flexible plate or pad adapted to be drawn between said blades and the roller by the frictional action thereof, for the purpose specified.

"3. The combination, with a slotted table, of a vertically adjustable shaft having blades and journaled above the slot, said shaft and roller being so geared that their adjacent parts move in the same direction, and a flexible plate or pad adapted to be drawn between the blades and the roller by the frictional action thereof, substantially as and for the purpose specified."

Several defenses are made to the charge of infringement, but I shall refer to only one, the lack of patentable novelty, since I believe this defense to be well founded. It cannot be doubted that every element in the machine is old-the pad, the annular cutter, the slotted table, and the rotary bed-and therefore, unless these elements in combination show novelty, there is no invention to support the patent. I have considered with care the testimony and the arguments of counsel upon this point, and shall announce without discussion the conclusion to which I have come, namely, that the patentee has done no more than to take an old and well-known pad, and put it through a cutter resting upon one kind of bed rather than upon another, both kinds being also old and well known. In the last analysis, this seems to me the essence of the machine, and I have been unable to see that this required the exercise of the inventive faculty.

In each case, therefore, a decree may be entered dismissing the bill at the costs of the complainant.

THE NECK.

(District Court, W. D. Washington, N. D. May 19, 1905.)

No. 2,896.

1. TREATIES-RULES OF CONSTRUCTION.

Treaties between nations are usually prepared with great care by men of learning and experience, accustomed to select words apt to express precisely and fully the intention of the contracting parties, and should be given a reasonable, rather than a liberal, construction. There is no authority for reading into a treaty, under the guise of construction, extraordinary provisions, not necessary to give full effect to the intention expressed.

2. SEAMEN-JURISDICTION TO DETERMINE RIGHTS-EFFECT OF TREATY WITH

GERMANY.

Article 13 of the treaty of December 11, 1871, between the German empire and the United States (17 Stat. 928), which gives the consular officers of each country exclusive power to determine differences between the captains and crews of vessels of their own nation, and prohibits the courts of the other country from interfering therein, does not expressly or by implication grant privileges or confer powers which exempt a German vessel employing seamen in a port of this country from the obligation to observe the restrictive provisions of section 24 of the act of December 21, 1898, c. 28, 30 Stat. 763 [U. S. Comp. St. 1901, p. 3079]; nor does it deprive the admiralty courts of the United States of jurisdiction to determine the rights of an American seaman who enters and leaves the service of a German vessel within this country. [Ed. Note. For cases in point, see vol, 2, Cent. Dig. Ambassadors and Consuls, §§ 16-20.]

3. ADMIRALTY

TREATY.

JURISDICTION-RIGHT

OF CITIZEN ΤΟ

INVOKE-EFFECT OF

A citizen of the United States cannot be deprived by treaty of his constitutional right to invoke the jurisdiction of the national courts of admiralty to determine a cause within the admiralty and maritime jurisdiction to which he is a party, and which is cognizable within the United States.

4. SEAMEN-SIGNING IN VIOLATION OF STATUTE-RIGHT TO WAGES.

Libelant, a citizen of the United States, signed as a seaman on a German vessel before the German consul at the port of New York for a voyage to Japan, and was paid a month's wages in advance, in violation of section 24 of the act of December 21, 1898, 30 Stat. 763 [U. S. Comp. St. 1901, p. 3079]. When the vessel reached a Pacific port of the United States, he left it without the consent of the master, and brought suit in a court of admiralty to recover his wages for the time served. Held, that the court had jurisdiction, since, having been signed in violation of the statute, the contract was void, and he never became legally a member of the crew; that for the same reason he had the right to leave the vessel at any time, and was entitled, under such statute, to recover wages for the full time served, without deduction on account of the advance payment.

[Ed. Note.-For cases in point, see vol. 1, Cent. Dig. Admiralty, § 74.]

In Admiralty. Suit for seaman's wages by a citizen of the United States against a German vessel. The case involves questions as to the jurisdiction of the court to take cognizance against the protest of a German consul, and the right of a seaman hired in this country, who received an advance at the time of signing shipping articles, to leave the vessel before expiration of the stipulated term

for which he was hired, and to claim compensation for the time of actual service. Decree in favor of libelant.

A. W. Buddress, for libelant.

Edward Von Tobel and James Kiefer, for claimant.

HANFORD, District Judge. The material facts in this case are that the libelant, a citizen of the United States, was hired at the port of New York in the month of April, 1904, to serve as a seaman on board the German ship Neck on a voyage from New York to Japan, and return to a port in Europe or in North America, not to exceed a period of three years' duration, for which he was to receive wages at the rate of $18 per month. Shipping articles for said voyage were signed before the German consul at New York, and the libelant was paid one month's wages in advance, and went on board and served as a seaman until the 27th day of December, 1904, on which date, at Port Townsend, in the state of Washington, he left the vessel without the consent of the master. Including said advance, the libelant had been paid on account for his services $60.80, and this suit is to recover the balance of the wages earned, without credit for the advance; the libelant claiming that the shipping articles are invalid, as to him, by reason of the advance being made in violation of the twenty-fourth section of the act for the protection of American seamen, approved December 21, 1898, c. 28, 30 Stat. 763 [U. S. Comp. St. 1901, p. 3079].

An answer has been filed by the captain, who appears as claimant of the ship, in which he pleads as a defense that the libelant is a deserter he having left the service of the ship in violation of the contract contained in the shipping articles signed at New Yorkand denies the jurisdiction of this court, on the ground that the ship is a German ship, and that the German empire is represented at Seattle by a consul of that nation, duly accredited and recognized, and by the provisions of article 13 of the treaty between the United States and the German empire, concluded and signed at Berlin December 11, 1871, said consul is invested with the exclusive power to take cognizance of and to determine all differences between captains and members of the crews of German vessels, and the courts of this country are expressly forbidden to interfere in these differences. The German consul has also, in writing and orally, protested against the exercise of jurisdiction by this court in this case. The article referred to reads as follows:

"Art, XIII. Consuls-general, consuls, vice-consuls, or consular agents shall have exclusive charge of the internal order of the merchant-vessels of their nation, and shall have the exclusive power to take cognizance of and to determine differences of every kind which may arise, either at sea or in port, between the captains, officers, and crews, and specially in reference to wages and the execution of mutual contracts. Neither any court or authority shall, on any pretext, interfere in these differences, except in cases where the differences on board ship are of a nature to disturb the peace and public order in port, or on shore, or when persons other than the officers and crew of the vessel are parties to the disturbance." 17 U. S. Stat. 928.

It is to be observed that by the terms of the article the power conferred upon consuls is restricted to the determination of differ

138 F.-10