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construction and repair of sidewalks. By its charter it is furnished with power to compel by assessments the repair of the public streets and sidewalks within the corporate limits, and is required and bound to keep them in good and safe condition. If an opening was left in the street or sidewalk, and the plaintiff, coming along in the evening, when dark, falls into such opening or hole without negligence on her part,—that is, without the want of such care and caution as the circumstances require,—and is thereby injured, the city is liable for the damages sustained by the injury thus inflicted; provided the city authorities knew of the existence of the cause of the injury, or were informed of it, or such a state of circumstances is disclosed by the evidence that notice would be implied.

If the plaintiff has been guilty of negligence on her part, which materially contributed to the injury sustained, then she cannot re

The municipal government would not be liable for an injury which was the result of her own misfortune. This is peculiarly a question of fact, and you will apply the law laid down by the court to this case,

The city authorities, when they had notice of this pit-hole, this dangerous place, would have a reasonable time to repair it, and they claim it was in process of being repaired, and was put in such condition that it was ordinarily safe for passengers. That is for you to determine. If they were repairing it, and it was put in ordinarily safe condition, and no warning was given or light placed to indicate there was any such dangerous hole, the city cannot be excused from liability if the injury happened through such negligence solely. That is the law, and if you find in this case the city was not guilty of negligence, your verdict must be for the defendant. If you find the city was guilty of negligence, and that the plaintiff in this case exercised due care, and has not contributed by her own negligence to the injury sustained, then you will consider the amount of damages which she is entitled to recover.

The rule is this: she is entitled to recover actual expenses, including medical attendance, if any has been proven; if not, , then you are to give her such reasonable amount as you think will compensate her for the injury sustained. If any permanent injury is proven, you must award such compensation as you think will remunerate her for that, and also for any mental and bodily distress.

Verdict for plaintiff.


(District Court, S. D. New York. December 20, 1882.) FORFEITURE-LIQUORSSTAMPS.

Where packages containing liquors have once been properly stamped and marked, and the proper duties paid thereon, and after a sale by a retail dealer of a portion of the contents the residue is diluted with water only, and still remains in the original packages, held, that such liquors are not liable to forfeiture, under section 3289 of the Revised Statutes, as “not having thereon each mark and stamp required therefor.”

S. L. Woodford and E. B. Hill, for the United States.
A. J. Dittenhoefer, for claimant.

BROWN, D. J. This case was tried before me without a jury, by the consent of the parties, the following facts being admitted :

That the three packages of spirits seized had originally been properly stamped, and still remained in the original packages; that after a part had been drawn off and sold by the claimant, under a due license, he diluted what remained by addition of water to the casks, thus reducing the proof of the spirits. Being found in this condition, and showing a lower proof than the stamps upon the casks would indicate, they were seized by the United States officers for forfeiture, under section 3289 of the Revised Statutes, as not “hav. ing thereon each mark and stamp required therefor.”

The sole question presented is, therefore, whether the mere addition of water, by a retail dealer, to a cask of spirits on which the United States duties have been once fully paid and properly stamped, renders them liable to forfeiture.

A case somewhat similar was tried before the late Judge Swing, in U. S. v. Thirty-two Barrels, etc., 5 FED. REP. 188, in which he charged the jury "that the mere addition of water would not bring the party within the inhibition of the statute.”

It is claimed on the part of the government that the various sections providing for stamps, which, under the regulations of the treasury department, must be in accord with the proof of the spirits, are designed to afford continuous means of identification of the spirits so long as any remains in the same cask, and thereby aid in the detection of frauds, and that this purpose would be defeated if the addition of water to a half empty cask were held to be legal; and that if liquors could be sold from casks not corresponding, as to their proof, with the original stamps, there would be no means of preventing further frauds by retail dealers, who, by putting into half emptied casks, first, water, and afterwards, as occasion might serve, spirits, upon which no duty at all had been paid, might thus baffle detection.

The argument is ingenious, but goes further, it seems to me, than the court is warranted in a construction of penal statutes.

The addition of spirits on which no duty had been paid to a cask partly empty, would be an undoubted act of fraud, and is severely punishable under section 3326. The mere addition of water, however, is not a fraud,—at least, not upon the governments and upon the facts admitted in this case there has been no fraud, and no injury to the United States. It would be, it seems to me, a violation of the uni. form rule requiring a strict construction of penal statutes, to hold that this unprohibited act, which it is conceded worked no injury to the government, should entail a forfeiture.

The suggestion that the stamp upon the cask must at all times correspond with the proof of the spirits within, as a means of identification, under pain of forfeiture, is argumentative only, and is not warranted by the statute. The law does not even require the proof to be specified or indicated by the stamp; and in the case above cited it was shown that the proof changes with age, so that packages rightly stamped originally would not, if long kept, exhibit a proof corresponding with the stamps But, aside from this consideration, I think that section 3289 refers only to spirits on which the full and proper duties have never been paid, or proper stamps affixed. Its object is to secure to the government its dues, and to punish by forfeiture any dealings in spirits which are insufficiently stamped; not to forfeit spirits on which all the government claims have once been satisfied, nor to forfeit spirits on which the stamps appear to be more than were necessary. When the package has once had the proper marks and stamps affixed upon it, the requirements of that section are satisfied so long as no new spirits are put into the same package, and the stamps and package remain unchanged. If a wide divergence is found between the stamps and the spirit proof of the contents of the package, doubtless a presumption of some irregularity or fraud arises, which the dealer must explain; but when he has shown, us is admitted in this case, that the spirits remain in the original cask, that the duty has been fully paid, and that no different spirits have ever been put into it, but water only, I think he has shown that the original stamp is, in the language of section 3289, “the proper stamp and mark” for that cask and for those liquors, although since diluted with water.

The court is not authorized to give a broad and loose construction to a penal statute, so as to work a forfeiture, where no fraud or injury to the government is involved, merely that the government officers may be aided in the detection of frauds by other persons in other cases.

Had congress so intended, or had it designed that the stamp should not only indicate the proof when stamped, but continue to do so at all times subsequent, under pain of forfeiture, that intention would have been more plainly indicated in the express terms of the statute, and not left to rest merely upon ingenious argument and doubtful construction. The defendant should have judgment. .

WELLING and another v. CRANE and others.

(Circuit Court, D. New Jersey. December 21, 1882.;


Any new combination of old ingredients is patentable when any new useful results follow; but the mere exercise of judgment or mechanical skill in selecting a few ingredients from a larger number already known and specified in prior patents, is not an invention.

In Equity.
Betts, Atterbury & Betts, for complainants.
J. H. Ackerman and Rowland Cox, for defendants.

Nixon, D. J. This action is brought to restrain the defendants from infringing letters patent No. 98,727, issued to William M. Welling, and bearing date January 1, 1870. The title of the patent declares it to be an improved composition, resembling horn. The specification states that a composition had heretofore been made resembling ivory, in which the ingredients were mixed together and then ground between heated rollers to render the composition uniform and plastic, and then recites three several patents which had previously been granted to Welling,—the first numbered 17,949, and dated August 4, 1857; the second numbered 75,067, and dated March 3, 1868; and the third numbered 89,100, and dated April 20, 1869,4all obtained for an improvement of compositions imitating ivory. He claims that the present invention is an improvement upon these patents, and has reference to a new composition to be worked and moulded the same as set forth therein. The defense turns chiefly upon the question of the novelty of the complainants' patent. Two inquiries are presented: (1) What is the invention which the patentee claims ? and (2) was it known to the public at the time of Welling's application for the patent?

1. The first of these questions is not readily answered. The patentee himself, although pressed strongly under cross-examination,

did not seem willing to tell us what he deemed his invention to be. The patent was issued under the act of July 4, 1836, the sixth sec. tion of which provides" That before any inventor shall receive a patent he shall deliver a written de. scription of his invention or discovery in such full, clear, and exact terms as lo enable any person skilled in the art or science to which it appertains, to make, construct, compound, and use the same; and shall particularly specify and point out the part, improvement, or combination, which he claims as his own invention."

The patentee was requested by the solicitor of the defendants to point out the particular statements in the patent which described his invention, (Complainants' Record, p. 152; cross-question 477 et seq.,) but he declined to do so, saying that his only answer was the patent itself, and the testimony taken in the case. The complainant's expert, Mr. Brevoort, was more communicative, and, in reply to a ques. tion as to what he understood was claimed and described in the patent, states, (Complainants? Record :)

“The claim I understand to be for an article of manufacture consisting of the composition described in the patent, which composition is to be prepared by the process described in the patent; that is to say, the patent is for an article of manufacture prepared by a certain process. The article is to consist, according to the patent, of shellac, fiber in the form of flock, and, if desired, of pigments, to give to the article the desired color, and to impart to the article the desired gravity. The patent also specifies that, by weight, one part of shellac and a half part of the flock material are to be used. The amount of pigment which may be used is not stated. The process consists in mixing the ingredients together in a dry state. The composition, when mixed together, is then to be worked and ground between rollers, in the presence of sufficient heat to render the mass plastic. After this the mass may be moulded to form any desired article.

To sum up the matter briefly, I would state that I understand the claim of the Welling patent to cover an article made from flock and shellac in about the proportions given, and to which coloring may be added, when said article is produced, by mixing the ingredients together in the dry state, grinding them, in the presence of heat, between rolls, so that the mass is plastic, and then moulding the mass in the desired form."

This would seem to be definite enough. Are the methods for making such an article sufficiently described in the specifications of the patent? The patentee says he has a new composition, resembling horn, which is an improvement upon all compositions before made. In manufacturing it, he uses shellac and vegetable or animal fiber, mixed together by well-known means-taking “about one part, by weight, of shellac, to one-half part, by weight, of cotton, wool, or other animal or vegetable fiber." He finds that it is best to mix the in


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