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are, however, all avoided by the simple method of shunting one motor and protecting the other by resistance, before the break in the circuit is made, and then connecting the shunted motor in multiple with the active and protected motor. And this is the method of the patent in suit.

For the reasons stated, we think the decree of the court below should be reversed, and the record remanded, with directions to enter a decree in conformity with this opinion.

DANIELS V. RESTEIN et al.

(Circuit Court of Appeals, Third Circuit. May 2, 1906.)

No. 2.

PATENTS-ANTICIPATION-PACKING.

The Miller patent, No. 524,178, for a packing for steam pistons, consisting of two wedge-shaped sections, which slide upon each other, and widen the strip when pressed upon to form a tight joint, while for a meritorious device, is void for anticipation; the form of construction having been in use in a prior unpatented packing, and the material not being claimed as a feature of the invention. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

For opinion below, see 131 Fed. 469.
Charles Howson, for appellant.
A. B. Stoughton, for appellees.

Before DALLAS and GRAY, Circuit Judges, and McPHERSON, District Judge.

J. B. McPHERSON, District Judge. This action is brought to restrain the infringement of the two claims of patent No. 524,178, which was granted in August, 1894, to cover certain improvements in the packing that is used around the piston rods of engines. We agree with the conclusion reached by Judge Archbald in the court below, and think it unnecessary to add more than a few words to his very clear and satisfactory opinion. In order to understand completely the scope of the invention, the specification should be carefully read. It is as follows:

“The object of my invention is to make an improved packing which can be used until the sections forming the packing are completely worn, and which will be steam and water tight, yet will yield sufficiently to avoid undue friction,

"In the accompanying drawings figure 1 is a perspective view of a section of my improved packing; fig. 2 is a sectional view ; fig. 3 is a view of the packing arranged in a stuffing box; fig. 4 is a view showing the packing after considerable wear.

“A and B are sections, wedge-shaped in cross section, the beveled edge of one section resting against the beveled edge of the other section, so that when pressure is applied one will slide upon the other. The sections, A and B., are made of flexible material, preferably of layers of cotton duck and rubber. The duck and rubber are alternately arranged, and so united under pressure as to make the sections comparatively stiff, yet they will yield sufficiently to snugly fit in the box and against the piston rod. I place be

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tween the two wedge-shaped sections, A and B, a lubricant, preferably
finely divided graphite, so that one will readily slide upon the other.

At the back of the section B, in the present instance, is a cushion, C,
made of absorbent material, preferably twisted cotton, which allows for
the free action of the wedge-shaped sections, A and B, and is an excellent
lubricating surface, and also prevents the packing from becoming hard, and
transmits the lateral pressure evenly throughout the series of layers of
packing.

“The cushion section, C, is confined in a braided covering, C, and the covered cushion and sections, A and B, are confined within an outer braided covering, a, which holds the several parts of the packing in place, so that they can be readily applied to the stuffing box without requiring careful manipulation and adjustment.

“The packing is either cut in suitable lengths and placed within the stuffing box, one length of packing against another, and so arranged that the wedge-shaped section A of one length abuts the cushion, c, of the adjoining length; or, if convenient, the packing may be coiled into the stuffing box.

“As shown in fig. 3, the packing is cut in lengths, and placed within the stuffing box, D, and the gland, E, is pressed against the packing, and it will be noticed that when the packing is compressed the yielding cushion distributes the pressure evenly throughout the entire length of the packing, and when the sections, A and B, wear, by placing pressure upon the gland the section A will be forced toward the piston rod, and the section B will be forced against the shell of the box, as shown in fig. 4."

It will be observed that the patentee nowhere indicates throughout this specification, nor in the claims hereafter quoted in Judge Archbald's opinion, that he has devised a packing of which the parts will be pressed against the piston rod and the walls of the stuffing box by the force of the steam alone, the gland performing no other function than to bring the parts together. On the contrary, as we understand the specification, he describes a yielding and absorbent cushion, combined with wedge-shaped sections, to which pressure is to be applied by the gland, and we do not see how he can be allowed to extend the invention beyond what is expressly described and distinctly claimed. The claims do nothing more than restate the specification more concisely, differing only in this; that they say nothing about a lubricant, while the specification recommends its use. But the use of a lubricant is not declared to be a part of the invention, even in the specification; and, if it were so declared, we should not hesitate to say that a device so obvious to any one skilled in the art could not be appropriated as if it were the product of inventive labor.

If this view is correct, the claims can undoubtedly be read upon Exhibit A, which is a sample of the packing referred to by Judge Archbald as having been devised by the father of the patentee in 1882. This being so, it is unnecessary to consider the patent to Albert Furse, No. 208,385, granted in September, 1878, and the English patent to Samuel Turner, granted in July, 1891, each of which presents some striking resemblances to the patent in suit. It must, however, be understood that, in adopting the opinion of Judge Archbald as the opinion of this court, we refrain from approving what he has said concerning the relation of the prior art, and particularly of the Furse and Turner devices, to the patent now in litigation, postponing the consideration of that subject to a future occasion, if the controversy shall be continued. Thus limited, the opinion of the Circuit Court (131 Fed. 469) is adopted as the opinion of the Court of Appeals.

The decree dismissing the bill is affirmed, with costs.

LEVIN V. NORTHWESTERN NAT. INS. CO.

(Circuit Court, N. D. Iowa, W. D. July 3, 1906.)

No. 415.

INSURANCE-ACTION ON POLICY-AWARD PLEADED AS DEFENSE-IMPEACHMENT.

In an action at law in a federal court on a policy of fire insurance, an award of arbitrators, fixing the amount of plaintiff's loss, made in accordance with the provisions of the policy and pleaded by defendant, cannot be impeached by plaintiff on the ground of fraud or misconduct

of the arbitrators, but can only be avoided by direct suit in equity. At Law. On motion to strike reply.

Action to recover the value of property destroyed by fire, which was insuređ by the defendant company. The defendant admits the making of the policy sued upon and the destruction of the property by fire. The policy contains a provision: “In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire, the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their difference to the umpire, and the award in writing of any two shall determine the amount of such loss. No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 12 months next after the fire.” It is alleged in the answer that plaintiff and defendant were unable to agree as to the value of the property destroyed, and that in accordance with the foregoing provisions of the policy the amount of such loss was submitted to arbitrators, who made an award, finding the damage to the property by reason of the fire to be $1,298.28; that defendant has offered to pay plaintiff the amount of such award, which he refuses to accept, and the defendant brings the same into court for his use. The plaintiff replies, admitting the arbitration and the award as alleged by defendant, but alleges that said award was procured to be made through fraud of the defendant and said arbitrators after they had been chosen. The defendant moves to strike these allegations of the reply upon the grounds that the award is conclusive between the parties, that it cannot be avoided in this action upon a reply to defendant's answer pleading the same, and can only be set aside or avoided in equity.

Henderson & Fribourg, for plaintiff.

Carr, Hewitt, Parker & Wright and Robinson & Lynch, for defendant.

REED, District Judge (after stating the facts). Whether or not an award of arbitrators may be successfully assailed in a court of law is a question upon which there is some confusion in the authorities. This arises mainly, if not wholly, from the fact that under the reformed procedure awards have been defeated upon equitable grounds in law actions; but this is because equitable defenses are permissible in such actions under the Code. Any defense, however, to an action upon the award or answer setting up the same, that goes to the jurisdiction of the arbitrators, or that appears upon the face of the award, is available at law to defeat the same; but at common law it seems that matters extrinsic the award, such as fraud, mistake, or misconduct of the arbitrators, cannot be set up to defeat the same, and redress in such cases

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must be sought by direct proceedings in equity.

This appears to be upon the theory that an award of arbitrators is analogous to a judgment, the arbitrators being a tribunal selected by the parties to adjudge their disputes (Gordon v. United States, y Wall. 188–194, 19 L. Ed. 35; Burchell v. Marsh, 17 How. 344, 15 L. Ed. 96), which is final as between the parties (Burchell v. Marsh, supra; Burroughs v. David, y Iowa, 154; Thornton v. McCormick, 75 Iowa, 285–289, 39 N. W. 502; Emmet v. Hoyt, 17 Wend. [N. Y.] 410; Underhill v. Van Cortlandt, 2 Johns. Ch. [N. Y.] 366). While it has long been settled that courts of law have concurrent jurisdiction with courts of equity in matters of fraud (Swayze v. Burke, 12 Pet. 11, 9 L. Ed. 980; Smith v. McIver, 9 Wheat. 532, 6 L. Ed. 152), yet in the national courts, where legal and equitable remedies cannot be blended in one proceeding, it is generally held that relief against awards or other instruments in writing importing a consideration, upon the grounds of fraud, which does not touch the execution of the instrument, must be obtained in equity (Hartshorn v. Day, 19 How. 211-222, 15 L. Ed. 605; George v. Tate, 102 U. S. 564, 26 L. Ed. 232; Wood v. Railway Co. [C. C.] 39 Fed. 52).

In Hartshorn v. Day, supra, it is said:

“The general rule is that in an action upon a sealed instrument in a court of law failure of consideration or fraud in the consideration, for the purpose of avoiding the obligation, is not admissible as between the parties. Fraud in the execution of the instrument has always been admitted in a court of law, as where it has been misread, or some other fraud or imposition has been practised upon the party in procuring his signature and seal. The fraud in this aspect goes to the question whether or not the instrument ever had any legal existence. It is said that fraud vitiates all contracts and even records, which is doubtless true in a general sense. But it must be reached in some regular and authoritative mode. * * A record of judgment may be avoided for fraud, but not between the parties or privies in a court of law."

In George v. Tate, 102 U. S. 564, 26 L. Ed. 232, it is said: "Proof of fraudulent representations beyond the recitals of the bond, to induce its execution by the plaintiff in error, was properly rejected. It is well settled that the only fraud permissible to be proved at law in these cases is fraud touching the execution of the instrument, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which the party did not intend to give. The remedy is by a direct proceeding to avoid the instrument."

In Wood v. Railway Co. (C. C.) 39 Fed. 52, supra, Judge Thayer says:

"Such provisions in contracts [for the submission to arbitrators to find the amounts or value of the property when the same is in dispute between the parties] being binding, the next question is whether an estimate made by an engineer in accordance with such a stipulation can be avoided in a strictly legal proceeding by proof of fraud, gross negligence, or mistake? Of course, if an estimate thus made is regarded in the light of an award made by an arbitrator, the authorities are practically all one way; that recourse must be had to a bill in equity, and that neither fraud nor mistake can be alleged or proven to avoid the estimate in a suit at law on the contract to recover a balance claimed to be due.

It appears to me, also, that on general principles, whether such estimates are or are not technical awards, courts of equity alone have authority to vacate them on the ground of mistake, fraud, or gross errors amounting to fraud, when such estimates have been regularly made in pursuance of contract provisions."

See, also, Insurance Co. v. Bonner, 44 Fed. 157, 11 L. R. A. 623, affirmed in 56 Fed. 378, 5 C. C. A. 524; Robertson v. Insurance Co. (C. C.) 68 Fed. 173.

The award in question was made pursuant to the agreement of the parties. No fraud is alleged in procuring the agreement, nor in the selection of the arbitrators; but it is alleged that after their selection the arbitrators were guilty of misconduct, in that they conspired with defendant, in some way not definitely alleged, whereby they were not to, and did not in fact, find the full amount of plaintiff's loss. This is not admissible to defeat the award in this action. Whether or not it would be sufficient to authorize a court of equity to avoid the same is not determined. The motion to strike the reply is sustained, and if plaintiff shall be advised to file a bill in equity to avoid the award, this action, upon proper application, may be stayed until the determination of such suit.

It is ordered accordingly.

H. MENDELSON & CO. V. UNITED STATES.

(Circuit Court, S. D. New York. January 26, 1906.)

No. 3,359.

CUSTOMS DUTIES—APPEAL FROM BOARD OF GENERAL APPRAISERS-FURTHER EVI.

DENCE IN CIRCUIT COURT.

Held that, under section 15, Customs Administrative Act June 10, 1890, C. 407, 26 Stat. 138 (U. S. Comp. St. 1901, p. 1933), providing that on appeal from the Board of United States General Appraisers the Circuit Court “may” refer the case for further evidence "in such order and under such rules as the court may prescribe,” importers taking an appeal should not be permitted to introduce such further evidence in a case in which, while other essential evidence had been obtainable, they had given no evidence before the board, other than to file an affidavit and produce samples of the goods involved. On Application for Review of a Decision of the Board of United States General Appraisers.

The decision in question relates to merchandise imported at the port of New York, which was the subject of several protests by the importers against the assessment of duty by the collector of customs at that port. The Board gave the importers due notice of the hearing, at which they appeared and filed samples and affidavits. This evidence was held by the Board to be insufficient to establish the importers' contention, and the protests were therefore overruled. The importers duly made application for review of this decision, and within 20 days after the Board had filed its return of the record obtained from the Circuit Court an ex parte order referring the matter to a general appraiser to take further evidence. The authority for this procedure is found in section 15, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 138 (U. S. Comp. St. 1901, p, 1933], the pertinent part of which reads as follows:

“Sec. 15. That if the owner, importer, consignee, or agent of any imported merchandise, or the collector, or the Secretary of the Treasury, shall be dissatisfied with the decision of the Board of General Appraisers, as provided for in section fourteen of this act,

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* they, or either of them, may, within thirty days next after such decision, and not afterwards, apply to the Circuit Court of the United States within the district within which the matter arises,

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