Fairbanks v. Jacobus.

As to the charge that the defendant threatens various supposed wrongs to the plaintiffs, in imitating their manufacture, and that he represents his scales to be of the plaintiffs' make, the allegations are not so made out as to satisfy my mind of their substantial truth. (Byam v. Bullard, 1 Curtis' C. C. R., 100.) I doubt whether the defendant meant anything beyond the assertion of a right to use the words on the scale, which had been for many years openly used by him and his predecessors, under claim of right, and for some time, at least, and to some extent, with the knowledge of the plaintiffs or their predecessors.

Certainly, if the words "Fairbanks' patent" do not mean to assert the existence of a patent securing the scales, but only that they are made in conformity with, and embody the invention of, the expired Fairbanks' patent, they are free to all the world. What is not free is, to pretend that a scale is made by one person, which is, in fact, made by another.

In trade-mark cases, it is by no means of course to grant preliminary injunctions, even where the plaintiff's case seems to be made out; and I shall, therefore, leave the further consideration of the case to the final hearing, when the questions as to the defendant's claim of right to the use of the words, " Fairbanks' patent," and the other questions of fact just referred to, and the unexplained circumstances and terms of the writing claimed to have extinguished the right of Chamberlain, can, if necessary, be further considered. The motion for an injunction must be denied, and the order heretofore made, granting an injunction till the decision of the motion, must be vacated.

Lucius E. Chittenden, for the plaintiffs.

Reed & Drake, for the defendant.

Blake v. The Greenwood Cemetery.

ELI W. BLAKE 28. THE GREENWOOD CEMETERY. IN EQUITY.

An application was made for a preliminary injunction, to restrain a cemetery corporation from using a stone breaking machine, in infringement of a patent. The machine was used to break stone to keep in repair the roads of the cemetery. The defendant set up a license. The plaintiff exercised his monopoly by granting licenses to use his machine. The defendants offered to pay into Court the amount of the license fee on its machine, to abide a final decision on the question of the existence of a license: Held, that, on such payment into Court, the application must be denied.

(Before BENEDICT, J., Eastern District of New York, October 19th, 1877.)

BENEDICT, J. This action is brought against the Greenwood Cemetery, to obtain an injunction and damages for the use, by the defendants, of a certain stone-breaking machine. The case is now before the Court, upon the plaintiff's motion for a preliminary injunction to restrain the defendants from using the machine during the pendency of the action. The facts are not in dispute. It is not denied that the machine in use by the defendants is an infringement upon the plaintiff's patent, as set out in his bill, and the validity of the patent is not disputed. As to these questions, there could be no dispute, for, not only this patent, but this identical machine, has formed the subject of a former action in this Court, brought by this plaintiff against the maker of this and three similar machines, in which action the validity of the plaintiff's patent was declared, and the machine in question decided to be an infringement. That decision having been since affirmed by the Supreme Court of the United States, upon appeal, (Blake v. Robertson, 4 Otto, 728,) furnishes the law of this case in respect to the question of infringement. But, in that action, brought, as it was, against the maker of the machine, to recover damages for its construction, with others, and in which the damages were fixed in pursuance of a stipulation between the parties in respect thereto, inasmuch as the evidence offered to prove the damages failed to show any amount of damages sustained by reason of the construction of the machines com

Blake v. The Greenwood Cemetery.

plained of, the recovery was limited to one dollar, as nominal damages. In this action, that former action, together with the payment of the one dollar there awarded, is set up by way of defence, and it is contended that the defendants, by reason of the said recovery, are entitled to use the machine in question, as a licensed machine, without further payment to the patentee. Pending the determination of the question thus raised, which the defendants are entitled to have determined upon final hearing, and not upon this motion, there is a difficulty in granting a temporary injunction, arising out of the nature of the use to which the machine in question is devoted. The machine complained of is a powerful and expensive stone-crusher, used solely for the purpose of breaking the stone needed to keep in repair the roads of that cemetery called Greenwood, where are the graves of nearly two hundred thousand dead-the dead of every State in the Union, and of almost every nation on the earth. Some nineteen miles of roads border the burial lots of this great city of the dead. These roads are constantly travelled by the living, upon the saddest of all their errands. There is no part of the cemetery which may not be, at any moment, required to be used for the purposes of interment, and the necessity is absolute, that its ways and paths be unimpeded and in good repair. The duty of maintaining these roads belongs to the defendants, but it is, in no proper sense, a private obligation. The machine in question cannot fairly be said to be employed for the profit of any one, but for the convenience of the public, to the end that the people, without annoyance or obstruction, may bury their dead. Such a use, it is plain, should not be interfered with by the Court, unless such intervention by the Court is an absolute right of the plaintiff. In this stage of the case, the plaintiff can have no such absolute right. His papers show that he does not derive profit for his patent by using his machines, but that he charges a fixed royalty or license fee, according to the size of the machine. The amount of this royalty upon the machine in question the defendants now offer to pay into Court, to abide the decision of the question raised

The United States v. Schroeder.

by their answer. Such a payment of his royalty will fully protect the rights of the plaintiff; and the offer to make the payment renders it impossible for the plaintiff successfully to contend that a temporary injunction is necessary to prevent irreparable injury to him. The motion must, therefore, be denied, provided the defendants pay into the registry of this Court, to abide the event of this action, the amount of the plaintiff's royalty upon the machine in question.

Henry T. Blake, for the plaintiffs.

Benjamin E. Valentine, for the defendant.

THE UNITED STATES 28. HENRY SCHROEDER.

The sentence of a convicted prisoner, sentenced to be imprisoned for twelve months, did not fix the place of confinement. The sentence was executed in Ludlow street jail. Ten months of the term having expired, the prisoner applied for his discharge, on the ground that, under the Act of March 3d, 1875, (18 U. S. Stat. at Large, 479,) he was entitled to a deduction of five days during every month: Held, that, as the State of New York had a system of commutation for its own prisoners, the deduction could not be allowed; Held, also, that the prisoner would be entitled, under § 5543 of the Revised Statutes, to the deduction of one month, there allowed, on the certificate and approval required by that section.

(Before BENEDICT, J., Southern District of New York, October 29th, 1877.)

BENEDICT, J. The prisoner, upon conviction, was sentenced to be imprisoned for twelve months. The sentence, as has been usual in this District, did not fix the place of confinement, and, accordingly, the sentence has been executed in Ludlow street jail, that jail being the one hitherto used for the temporary confinement of prisoners in this District. Ten months of the term of imprisonment having expired, the prisoner now applies to be discharged, upon the ground, that, by virtue of the Act of March 3d, 1875, (18 U. S. Stat. at Large,

The United States v. Schroeder.

479,) he is entitled to a deduction from the time of his imprisonment of five days during every month, no charge of misconduct having been sustained against him during his imprisonment. An examination of the terms of the Act of March 3d, 1875, shows, that the deduction there provided for can be allowed only to persons confined in a State which has no system of commutation for its own prisoners. The State of New York has a system of commutation for its own prisoners, (Laws of 1863, chap. 415, and Laws of 1864, chap. 321,) and therefore, the deduction of five days per month, prescribed by the Act of 1875, cannot be allowed. The fact that the State system of commutation does not allow any deduction to prisoners confined in jails does not affect the question. There is still a State system of commutation, and the fact of the existence of such a system takes the case out of the scope of the Act of 1875, without regard to the particular provisions of that system.

To avoid a second application, I may say, that, although the prisoner is not entitled to the deduction allowed by the Act of 1875, I am of the opinion he will be entitled to the deduction of one month, allowed by § 5543 of the Revised Statutes, upon the certificate and approval required by that section. The words, "State jail or penitentiary," used in that section, are not to be considered as intended to limit the provision to jails supported by the State at large, if, in any State, there are such jails, as distinguished from the common jails kept by the counties of the State, by virtue of State laws. They refer to the jails and penitentiaries within a State, whether State, city or county institutions, which are permitted by the State to be used for the confinement of the prisoners of the United States. (Laws of New York, of 1847, chap. 460, § 16.) Ludlow street jail, in the city of New York, is, therefore, a State jail, within the meaning of § 5543.

Benjamin B. Foster, (Assistant District Attorney,) for the United States.

Byron A. Cohen, for the defendant.