authoritatively decided by the supreme court of the United States, than to leave them as open subjects of political discussion, forensic debate, and disagreement of judicial action in subordinate state and national courts. Such a course of procedure tends to preserve the dignity of both state and national courts, to prevent unseemly conflict of judicial authority, and to secure the peace, harmony, and stability of the Union under our peculiar system of government. The counsel for petitioner admitted that such general rule of practice was well established, but insisted that it should not be applied in cases affecting interstate commerce, as the delay, vexation, and expense to parties seeking the enforcement of plain constitutional rights through the successive stages of procedure in state courts, and then by writ of error to the supreme court of the United States, would greatly hinder and restrain the freedom and utility of interstate commerce, and deprive nonresident citizens of equality of privilege in the sale of the articles and products of their enterprise and industry. I am aware that such considerations have influenced some federal judges in the exercise of their discretion in cases which had passed to judgment in a state court, or where the questions of law involved had been often determined by courts on a similar state of facts. Ex parte Kieffer, 40 Fed. Rep. 399, and other subsequent cases. I will not express concurrence or dissent as to such discretionary rulings, as judicial action has not been uniform, and they do not apply to the case now before me. In re Spickler, 43 Fed. Rep. 653, and other cases. In this case no hearing has been had in a state court of inferior or superior original jurisdiction, and the constitutionality and construction of a recent state statute are the questions of law involved. The amount of the penalty sued for is small. The petitioner does not allege any unnecessary delay in the proceeding, any facts or circumstance of injustice and oppression, or any inability to give the small amount of bail required.

I am of opinion that when a person goes into a state to carry on business he should be ready and willing to comply with the requirements of local law, and have his rights determined, in the first instance, by the courts of such state, where the rights of resident citizens are determined; and he should not complain unless his case is unnecessarily delayed, or he is in immediate danger of being subjected to manifest and grievous wrong and oppression. I am well satisfied that the legislature of this state intended to enact a revenue law that was not repugnant to the constitution of the United States; and if, through inadvertence, the section of the statute which we are considering was a regulation of interstate commerce, I am confident that the constitutional rights of the peti tioner could and would be readily secured and enforced in the courts of this state. Before any court of this state had an opportunity of hearing the parties and determining the rights involved the petitioner applied to this court to arrest the legal proceedings just begun, where no facts or circumstances of wrong or oppression had occurred, and no spirit of unfairness or injustice had been

manifested, and a very small amount of bail had been required to secure his presence before the justice of the peace who issued the warrant. Under such a condition of facts and circumstances I would have dismissed the petitioner if the counsel of the plaintiff in the proceeding in the state court had not entered into a written and filed agreement with the counsel of petitioner that "the petition for the writ of habeas corpus may be heard and the case disposed of by the United States court at Greensboro on any day without notice to the plaintiff." This agreement shows a consent to have the case disposed of on its merits, but, as I have confidence in the ability, integrity, and learning of the counsel of the plaintiff, I desire to hear him in argument or by brief as to his legal views in support of the prosecution in the state court.

For the purpose of affording such opportunity I direct the following entry to be made of record:

The court at this term having heard argument and considered the matters of fact alleged in the petition, and being strongly inclined to the opinion that the matters of fact alleged are sufficient to sustain the propositions of law relied on by the counsel of petitioner.

First. That if the act of assembly of North Carolina bears the construction which was insisted upon by the plaintiff in causing legal process to be issued for the collection of a penalty for the nonpayment of taxes on sales by sample of goods not then within the state, then the act is a regulation of interstate commerce, and repugnant to the constitution of the United States.

Second. That the statute of North Carolina involved in this matter does not apply to sales made by sample of goods not within the state at the time of sale, and ready for immediate delivery, but applies only where goods are actually exposed and offered for sale, and, upon the sale being effected, are ready for delivery at once to the purchaser.

The court, however, in a spirit of comity towards state courts, is desirous of the plaintiff having an opportunity to show cause why a writ of habeas corpus shall not issue, and why he shall not be allowed to enforce his rights in the courts of this state.

Now it is ordered that, unless the plaintiff shall show such cause on or before Monday next, August 14, 1893, or unless he procures the discharge of the petitioner from custody on or before the said date, and so notifies this court, then a writ of habeas corpus as prayed for is hereby directed to be issued by the clerk of this court, returnable to this court on or before Monday, August 21, 1893.

In re R. J. Flinn.

The following order was made in open court, this August 14, 1893:

In this case, J. G. Grant, sheriff, the plaintiff in the case at law in Henderson county, having notified the court in writing, duly

signed, that he had caused the defendant to be discharged from custody,

It is ordered that the petition be dismissed, at the cost of the petitioner.

MERGENTHALER LINOTYPE CO. v. PRESS PUB. CO. et al.

(Circuit Court, S. D. New York. July 21, 1893.)

1. PATENTS FOR INVENTIONS-TYPESETTING MACHINE-INFRINGEMENT. Letters patent Nos. 313,224 and 317,828, issued, respectively, March 3, 1885, and May 12, 1885, to Ottman Mergenthaler, for "improvements in machines for producing printing bars," consisting in part of a combination of a series of independent matrices representing characters, holders or magazines for said matrices, finger keys representing the respective characters, intermediate mechanism to assemble the matrices, and a casting machine to co-operate with the assembled matrices, are for inventions of unusual merit, and, in view of the prior art, entitled to liberal construetion, and are infringed by the Rogers machine, which, while in some respects an improvement, operates on the same principle, contains the same general features, and produces substantially the same results. 2. SAME-FAULT IN ORIGINAL MACHINE.

The fact that the machine, when first produced, failed to justify perfectly, which fault was remedied, and perfect justification produced by improved machines subsequently made, is no reason for denying relief to the original patentee.

In Equity. Action by the Mergenthaler Linotype Company against the Press Publishing Company and others for infringement of letters patent. Decree for plaintiff.

For opinion on motion for preliminary injunction, see 46 Fed. Rep. 114.

Frederic H. Betts, for complainant.

M. B. Philipp, Leonard E. Curtis, and George H. Lothrop, for defendants.

COXE, District Judge. This is an equity action for infringement based upon two letters patent granted to Ottman Mergenthaler for "improvements in machines for producing printing bars." The first of these patents, No. 313,224, is dated March 3, 1885, and the second, No. 317,828, is dated May 12, 1885.

It is insisted by the complainant that the principal invention covered by these patents is fundamental, that it has revolutionized the art of printing and is the first practical advance in the art since the days of Guttenberg. The machine which embodies this invention produces a line of type cast in a solid bar, complete in itself and ready for printing, and, as to its printing face, possessing all the characteristics of a line produced by the hand of the compositor in the old laborious way. The advantages of the new method over the old are so obvious and so numerous that it is unnecessary to attempt their enumeration. They are conceded on all sides; by men of science, and men of labor, by editors, by compositors and by the defendants themselves. A minute and accurate description of the ingenious and complicated machine of the patents would

extend this opinion far beyond appropriate limits. It suffices to say that the operator, by playing upon finger keys, is able to assemble a line of intaglio type as desired. This line is locked in position so as to close the open face of a mold into which type metal is injected. In this way a type bar is cast, of the proper height and length, containing a complete and properly adjusted line of words. The line is then unlocked and the matrices composing it are returned to their original positions. All of these functions are performed automatically. The inventor says regarding the invention of the first patent, No. 313,224, that it

"Is directed to the rapid and economical production of letterpress printing, and relates to a machine to be driven by power, and controlled by finger keys, adapted to produce printing forms or relief surfaces ready for immediate use, thus avoiding the usual operation of typesetting, and also the more recent plan of preparing by machinery matrices from which to cast the forms. By the use of my machine the operator is enabled to produce with great rapidity printing bars bearing in relief the selected characters in the sequence and arrangement in which they are to be printed. In short, the machine will produce printing forms or surfaces properly justified, and adapted to be used in the same manner and with precisely the same results as the printing forms composed of movable type. My machine embraces two leading groups of mechanism: First, those which form a temporary and changing matrix representing a number of words; and, second, those by which molten or plastic material is delivered to the matrix and discharged therefrom in the form of printing bars."

The claims involved are the forty-seventh and the sixty-third. They are as follows:

"(47) In a machine for producing stereotype bars the combination, substantially as hereinbefore described, of the changeable or convertible matrix, the mold co-operating therewith, and appliances, substantially such as shown, for melting metal and for forcing the same into the mold." "(63) In combination with a mold open on two sides, a series of moveable matrices grouped in line against one side of the mold, a pot or reservoir acting against the opposite side of the mold, and a pump to deliver the molten or plastic material into the mold, as described and shown."

Less than two months after the application for this patent was filed the second patent, No. 317,828, was applied for. The machine of the second patent is an obvious improvement upon that of the first and for this reason it was the machine that found favor with the public. I cannot doubt, however, that the machine of the first patent was operative and able to do the work described by the patentee. The machine of the second patent, though operating upon the same general principle as the first, differs in several important details, the most radical change being the substitution of independent matrices for the connected matrices of the first patent. In the former the matrices were arranged one above the other on the edge of a long bar, in the latter each is independent of every other, and all are stored in appropriate holders from which they are released by the finger keys. If, for instance, the operator desires to form the word "and," he touches the keys bearing, respectively, the letters a-n-d, and corresponding matrices are immediately discharged and carried in proper order to a common assembling point. Regarding the machine of this patent the inventor says:

"My invention relates to a machine in which a series of loose independent matrices or dies each containing one or more characters, and a series of blank dies for spacing purposes, are combined with finger keys and intermediate connecting and driving mechanism in such manner that when power is applied to the machine and the preferred finger keys actuated the matrices will be assembled or composed in line. A mold of suitable form is arranged to be operated in connection with the assembled dies and with means for supplying molten metal or its equivalent, whereby a printing bar may be formed in the mold against the assembled matrices, so as to bear on its edge in relief the characters represented by said matrices."

The first claim only is involved. It is as follows:

"(1) In a machine for producing printing bars, the combination of a series of independent matrices each representing a single character or two or more characters to appear together, holders or magazines for said matrices, a series of finger keys representing the respective characters, intermediate mechanism, substantially as described, to assemble the matrices in line, and a casting mechanism, substantially as described, to co-operate with the assembled matrices."

A broad construction was given this claim when the patent was considered by this court upon a motion for a preliminary injunction. 46 Fed. Rep. 114.

The defenses are the usual ones-lack of novelty and invention and noninfringement.

The two patents will hereafter be considered together as they relate to the same fundamental invention.

The inventor says in the description of No. 313,224:

"I also believe myself to be the first to combine with a changeable or convertible matrix-that is to say, a matrix composed of a series of dies or individual matrices adapted for transposition or rearrangement, a mold and a casting mechanism."

In No. 317,828, he says:

"I believe myself to be the first to combine with independent disconnected matrices each bearing a single character, finger keys, intermediate mechanism for placing the designated matrices in line, and a casting mechanism which co-operates with the line of assembled matrices in such manner as to take a single cast from the entire line; and it is to be distinctly understood that my invention covers such combination in any form the equivalent of that herein detailed."

It is thought that these assertions are well founded-that he was the first to do both of these things. His patents are, therefore, entitled to a liberal construction. Machines operated by fingerkeys, the object of which was "to cast, dress, and set up type in a continuous line for solid matter or book or newspaper work, the line being afterwards divided off, justified, and set up in column, as usual," were old. So were machines "by means of which types or dies for printing can be set up in rows in the requisite succession by means of pivoted keys, and on which provision is made for instantly and simultaneously redistributing all the characters to their proper places by a slight movement of the distributing frame." So were machines designed "mechanically to arrange an alphabet or alphabets of dies which dies shall form impressions in the material for a mold corresponding with the composition of matter desired in a stereotype, and, second, in the same or similar mechanism with a substitution of female dies, and other appliances,