not affect his patent. All that is described in the prior publications the defendants may use with perfect impunity. They may use "lint steeped in a hot saturated solution of boracic acid," or "wadding saturated with a certain quantity of glycerine," or boracic acid dissolved in glycerine; but they should not be permitted to use cotton saturated with a solution of boracic acid and glycerine in the manner described in the specification, for that belongs to Am Ende.

The complainant is entitled to the usual decree.

[United States Circuit Court-Eastern Judicial District of Missouri, Eastern Division.] TAFT. THE STEPHENS LITHOGRAPHING AND ENGRAVING COMPANY.

Decided March 26, 1889.

47 O. G., 1355.

1. COPYRIGHT-SECTION 4963 CONSTRUED-PENALTY.

The language of section 4963, Revised Statutes, providing a penalty for falsely marking articles "Copyrighted" is not "for each copy," and while it may be true that if upon different days, under different circumstances, separate copies are printed, each transaction thus separate would constitute a separate offense, yet when the printing of many copies is a single continuous act only one offense is committed thereby.

2. SAME-SAME-ARTICLES NOT COPYRIGHTABLE.

The law is clear that no offense is committed when the word "Copyrighted" is placed upon an article that is not the subject-matter of copyright-that can not be copyrighted.

3. DEMURRER.

It being alleged in the petition that the prin '1is not the subject of copyright, the demurrer sustained.

ON demurrer to the petition.

Mr. W. E. Fisse for the plaintiff.

Mr. Paul Bakewell for the defendant.

BREWER, J.:

This is a demurrer to the petition. The action is a qui tam action brought by the plaintiff as informer under section 4963 of the Revised Statutes of the United States to recover the penalty therein named.

The petition alleges that the defendant printed and circulated 10,000 copies of a chromo, which is described, putting on each the word "Copyrighted" or some equivalent word.

The section provides that

every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, musical composition, print, cut, engraving, or photograph, or other article for which he has not obtained a copyright, shall be liable to a penalty of $100, recoverable one-half for the person who shall sue for such penalty and one-half to the use of the United States.

The petition alleges that the defendant thus printed and issued 10,000 copies, and plaintiff asks judgment for $100 penalty for each copy, or $1,000,000 in gross. All this is stated in one count. And one ground of challenge is that either there are 10,000 different causes of action which should each be stated in a separate count, or if there is but one cause of action, a single penalty of $100 only is recoverable and the amount prayed for is excessive. The plaintiff pleads the great trouble and inconvenience there would be in setting out 10,000 causes of action. We think that the rule is unquestioned, and see no reason why it should be deviated from in a case like this.

Plaintiff is not suing for the value of his services or for injury to his property, but simply to make profit to himself out of the wrongs of others, and when a man comes in as an informer and in that attitude alone asks to have a half million dollars put into his pocket, the courts will never strain a point to make his labors light or his recovery easy. So that if each separate imprint is a separate cause of action, we have no doubt that the petition is demurrable as joining 10,000 causes of action in a single count. But we think that, fairly construed, there is only one cause of action stated.

The petition alleges―

that heretofore, to wit, on the 2d day of November. A. D., 1838, and at divers times between said day and the commencement of this action, the said defendaut did eugrave, print, publish, and sell to the number of 10,000 copies a certain print, etc.

Now, the language of the statute is not "for each copy," and while it may be true that if upon different days, under different circumstances, the defendant printed separate copies, each transaction thus separate would constitute a separate offense, yet when the printing of many copies is a single continuous act only one offense is committed thereby. We had a similar question under the election statutes a year or two since, where false registrations were charged. We held there that where several names were falsely registered and all done at one time and as a single continuous act, it constituted but one offense, although if registered on different days, and under different circumstances, they might constitute separate offenses. Here the allegation is that "on the 2d of November, and at divers times thereafter." This of course suggests a separation at least in the matter of time. Yet if the pleader claims that there were separate and distinct offenses, there should be a clear divergence of each transaction both as to time and circumstances, and the court in a quasi criminal action like this ought to hold the pleader to language free from doubt, and hold as to a pleading like this that it simply alleges a continuous action in the printing and issuing of these 10,000 copies, and as such states but a single offense.

Another ground of demurrer is that the chromo upon which the word "copyrighted" was placed was not the subject of copyright.

The law is clear that no offense is committed when the word 66 copy. righted" is placed upon an article that is not the subject-matter of copy

right-that cannot be copyrighted.

The law is designed to guard against deception, and no one is deceived when the word "copyrighted" is placed upon an article that cannot be copyrighted, such as a kitchenstove or a railroad-car.

Now, the plaintiff in this case describes the chromo, and the description discloses an article which could be copyrighted, and if the petition stopped with this description it would doubtless be sufficient. But it goes further and alleges that

said printing and chromo has not been copyrighted by the defendant or any other person, nor was the same subject to copyright under said laws.

Thus it appears that the averment of disability is not limited to the person, but is cast upon the print. It was not the subject of copyright. There is in this an apparent contradiction to that which might be inferred from the language of description. Counsel suggests that the thought he had was that under the particular circumstances this print could not be copyrighted, and it is possible that there might be circumstances which would thus at the time exclude this print from copyright, although in its nature it was the subject-matter of copyright. But in a criminal or quasi criminal action the pleading should be clear and consistent. The court is not called upon to strain any language to remove doubt or secure consistency. There should be no labored effort at reconciliation of apparently contradictory averments, at least when the pleading is challenged before trial. So, because it is alleged that the print was not the subject of copyright, we think the demurrer should be sustained, and it is so ordered.

Subsequent pleading may be prepared with reference to the views the offense as above expressed.

UL

Plaintiff will be granted thirty days in which to file an amended petition, and defendant thirty days thereafter to plead thereto.

[United States Circuit Court-Northern District of New York.]

J. B. BREWSTER & Co. v. SHULER. SAME v. D. W. SHULER, W. S. SHULER, AND WATERLOO WAGON WORKS. SAME v. CORTLANDT WAGON WORKS ET AL.

Decided February 25, 1889.

47 O. G., 1485.

1. WOOD-CARRIAGE-SPRINGS-REISSUE VOID.

Reissued Letters Patent No. 6,018, granted to Thomas H. Wood August 18, 1874, for an improvement in carriage-springs, Held void, not only because it is for au invention not disclosed or suggested in the original, but also because, as in the case of Coon et al. v. Wilson, (30 O. G., 889; 113 U. S., 268,) there was no defective or insufficient specification, and no mistake inadvertently committed in the wording of the claim of the original.

Mr. Livingston Gifford and Mr. B. F. Thurston, for the complainants. Mr. M. L. Stover, Messrs. Witter & Kenyon, and Mr. Causten Browne for the defendants.

WALLACE, J.:

This suit is brought to restrain infringement of reissued Letters Patent granted August 18, 1874, to Thomas H. Wood for an improvement in carriage-springs. The defendants rely upon the invalidity of the patent as a reissue of the original, and upon prior public use by others of the subject of the invention, among other defenses to the suit.

The original patent to Wood was granted May 27, 1873. The inven. tion is described therein as follows:

· This invention relates to an improved arrangement of transverse springs on light wagons, and has for its object to combine, in a wagon supported on single transverse springs and side bars, the advantages of elasticity, double elliptic transverse springs, and of the deep setting of the body obtained at present by using the single springs. Light carriages supported on double elliptic springs raise the bodies too high for convenience, and are inoreover more expensive than those having single springs. On the other side such carriages as are at present supported on single transverse springs, whose ends connect with side bars rigidly secured to the wagon bodies, are not sufficiently elastic and yielding to suit the rapid motion to which they are frequently subjected. The invention consists in the improvement of light vehicles, as hereinafter described and pointed out in the claim.

In the accompanying drawing, the letter A represents the body of a light carriage of suitable style. B and C are the axles of the carriage, and D D the wheels. Upon the axles are fastened the middle portious of transverse springs E E, whose ends are secured to side bars F F. These side bars are made of hickory wood or other material, and aid, with whatever elasticity they may possess, in making the support of the body A yielding. To the under side of the carriage-body A are secured transverse springs G G, whose ends connect, by suitable couplings, with the side bars F F, as is clearly shown in the drawing. These springs G G and E E can be made of metal or wood or other material, and are semi-elliptic or flat springs in contradistinction to the fall elliptic spring heretofore used as direct supports for carriage-bodies on their axles.

The claim of the original patent is as follows:

A frame, consisting of the longitudinal side bars F F, downwardly-bowed end springs E E, and upwardly-bowed middle springs G G, constructed, arranged, and applied as and for the purpose described.

The description in the reissued patent is as follows:

This invention has for its object to improve the manner of connecting the bodies of light carriages with the side bars, whereby they are supported; and consists in in terposing a pair of semi-elliptic springs between said side bars and the wagon body. In the accompanying drawing, the letter A represents the body of a light carriage of suitable style. B and C are the axles of the carriage, and DD the wheels. The axles are connected by springs E E or otherwise, with the side bars F F. These side bars are made of hickory wood or other material. To the under side of the carriagebody A are secured transverse springs G G, whose ends connect, by suitable couplings, with the side bars F F, as is clearly shown in the drawing. These springs G G can be made of metal or other material, and are semi-elliptic or flat springs, in contradistinction to the full elliptic springs heretofore used as direct supports for carriagebodies on their axles.

The claim of the reissue is—

The semi-elliptic springs G G, interposed between the side bars F F and the wagonbody, all combined substantially as specified.

It is obvious that the invention of the patentee, as explained in the original patent, consisted in altering a side-bar buggy having downwardly-curved transverse springs over the axle in which the ends of the side bars rest on the ends of the springs by putting in upwardly-curved springs transversely between the side bars and the body of the buggy. The conception and aim of the patentee was to employ additional halfelliptic springs in a side-bar buggy having half-elliptic springs, so arranged in reference to each other that the body would be practically mounted on full-elliptic springs for purposes of elasticity and on halfelliptic springs for purposes of elevation above the axle. The description fully and clearly, without ambiguity or obscurity, sets forth the exact invention made by the patentee, and the claim fully and precisely specifies it, and from both it is perfectly evident what invention the patentee intended to describe and sought to secure. So ample and exact are the specification and claim that it can not be doubted he knew accurately the scope and limitations of his invention, and intended to describe and claim it as nothing more or less than an improvement upon a spec ac type of side-bar buggies, which consisted in interposing supple mentary half-elliptic springs between the body and the side bars to reenforce and co-operate with the half-elliptic springs theretofore employed between the side bars and the axles in the existing buggy. What the patentee did was to put two springs adapted to do that work into a buggy of that type. He might have put transverse semi-elliptic springs between the body and the side bars of a buggy of a different type; but he did not do it or think of doing it. Apparently he subsequently discovered that it would be desirable to do this, and concluded to get a patent for doing it, and he was probably advised that such a patent would give him a larger monopoly than he had secured originally, and would enable him to hold as infringers all those who should use the transverse semi-elliptic springs between the side bars and the body of a buggy, whether in a buggy with or without semi-elliptic springs, or any springs, between the side bar and the axle.

The reissued patent is for an invention which apparently did not exist in the mind of the patentee when the original was obtained, and which also is of more doubtful inventive novelty than that in the origi nal. The original is for a combination of half-springs with other halfsprings in reverse in a side-bar buggy in which the parts co-operate to produce a given result. The reissue is for a combination of which halfsprings in reverse are not a part and from which the essential character. istics of the original invention are eliminated. The use of the combination of parts claimed in the reissue would not be an infringement of the original patent.

It must be held that the reissue is void not only because it is for an