This claim is for a combination, in a gripping device for connecting a street-car or other vehicle with an endless moving rope or cable for propelling the vehicle along the track, which consists of two elements: (1) a movable jaw; and (2) a transverse bar carrying pulleys. The specification describes and the drawings show a gripping device provided with two jaws, one fixed and one movable, the lower one of which is caused by suitable mechanism operated from the car to advance towards the other and grip a cable moving upon pulleys between them, and to recede and release the cable. The transverse bar, O, described and illustrated, has vertical rope supporting pulleys, one at each end, so located and arranged that the movable jaw can be raised and lowered between them, and carry the cable resting on the pulleys into contact with the fixed jaw when it is raised, and release it when the jaw is lowered, so that the cable will rest upon the pulleys. The bar is a longitudinal frame, to which the pulleys are journaled and held in a fixed relation to the movable jaw. This bar may be connected with the movable jaw, so as to be partially rotated by the movement of the jaw as it advances to or recedes from the upper jaw; but this feature may be dispensed with, and it may be secured immovably to the fixed jaw. The lower, movable jaw and the transverse bar with the pulleys, constructed and arranged substantially as thus described, are the elements of the claim. The function of the devices in this combination is to enable the pulleys to support and carry the cable when the jaw is lowered, and hold the cable in such a relation to the two jaws that the lower jaw, when raised again, will restore its contact with the upper or fixed jaw. The combination is confined to parts which co-act when the movable jaw is lowered. The patentee was not the first to employ a jaw and pulleys as parts of a gripping device for propelling the vehicle by an endless cable, constructed and arranged so that the pulleys support and carry the cable when the jaw is opened, and hold the cable in such relation to the jaw that it is removed from the pulleys to the jaw by the closing of the jaw. A combination of these parts, having these functions, is described and shown in the patent to Andrew S. Hallidie, No. 129,130, granted July 16, 1872. The gripping-jaws of this patent are moved towards or from each other by means of a wedge actuated by a hand-wheel. The pulleys are oblique, (two at each end of the jaws,) operate in pairs, and are carried by a transverse bar. When it is desired to stop the vehicle the wedge is lowered sufficiently to free the jaws from the rope without dropping it from the pulleys. The rope will then be carried by the pulleys at its ordinary speed, ready to be gripped when the wedge is lifted by turning the hand-wheel, and the jaws are forced together. The Hallidie patent is the nearest anticipation of the invention claimed which is shown in the prior state of the art as exhibited in the record. Except as showing devices which perform in combination the function of the combination of the claim, it is of no value. The other patents in the record, which have been adduced by the defendant for the purpose of negativing novelty, do not merit attention. It is apparent from the Hallidie patent alone that the claim in controversy does not extend to

every combination of pulleys and releasing jaw which will perform the functions mentioned. Consequently the claim is limited by the construction impressed upon it by the prior state of the art, as well as by its reference to the specification to a combination in which the jaw and transverse bar are substantially such as are described, and in which the pulleys and jaw co-act by the same mode of operation to discharge the function assigned to them.

The real question in the case is whether the gripping devices of the defendant, which discharge the same functions, are substantially those of the patent. The gripping device of the defendant has no transverse bar as a distinct and independent element of the combination, but the lower jaw itself supports the pulleys. The lower jaw is the movable jaw, and when raised or lowered carries the pulleys with itself towards or from the fixed jaw. The pulleys are one at each end of the jaw, and have their upper faces on a plane above the jaw. When the two jaws are in contact the fixed jaw rests upon the lower jaw between the two pulleys, and the seat of the fixed jaw is below the plane of the upper faces of the pulleys. When the movable jaw is lowered, the cable is released from the grip of the fixed jaw, and rests wholly upon the pulleys; and when this jaw is raised again the cable resting on the pulleys is held by the grip of the two jaws. Plainly the lower jaw does the work of the transverse bar, and also of the lower jaw, of the complainant's patent. The doubt is whether it should be considered as embodying both a jaw and a transverse bar, or should be deemed a single device which dispenses with one element of the combination claimed. If the claim had been one for the lower jaw and the pulleys, substantially as described, it would have appropriately specified the combination described in the patent, and would have covered in terms the combination of the defendant. The transverse bar of the patent is nothing but a pulley carrier. The movable jaw of the defendant's apparatus is a pulley carrier, besides being a jaw. It supports the pulleys in the requisite location as respects the fixed jaw, which is the only office of the transverse bar of the patent. If the transverse bar of the patent had been called a "pulley carrier" in the claim, the movable jaw of the defendant's apparatus would answer the descriptive term. The lower jaw of the defendant's combination does the work of transferring the cable from the gripping jaws to the pulleys, and enables the pulleys to support and carry the cable when the jaw is lowered, and hold it in such a relation to the two jaws that the lower jaw, when raised again, will restore the contact of the cable with the upper or fixed jaw, precisely as does the lower jaw of the combination of the patent. The only difference between the two gripping devices is that the pulleys in the defendant's device are connected with the movable jaw, while in the device of the patent they are connected with the fixed jaw, and in the patented devices the movement of the lower jaw to release the cable is a vertical movement both as respects the fixed jaw and the pulleys, while in the defendant's apparatus the movement of the lower jaw is a vertical movement as respects the fixed jaw, but not as respects the pulleys. These are merely formal differences. They

do not involve any inventive thought, and are immaterial as respects the function and mode of operation of the parts of the combination. usual decree for an injunction and accounting is ordered for the complainant.

PENNSYLVANIA DIAMOND DRILL Co. v. SIMPSON et al.

(Circuit Court, W. D. Pennsylvania. June 18, 1889.)

PATENTS FOR INVENTIONS-INJUNCTION-CONTEMPT.

Where, upon motion after final decree in favor of the plaintiff in a patent cause for an attachment against the defendant for contempt, it appears that the device, the use of which is alleged to be a violation of the injunction, is made under a patent granted since the decree, and it is not obvious that the differences between it and the plaintiff's device are colorable or immaterial, and the question of infringement thus raised is new, and demands an inquiry into the state of the art prior to the plaintiff's patent, and also involves the construction of the claim of that patent,-the motion will be denied, and the plaintiff left to assert his rights by an original suit.

Sur motion for an attachment against the defendants for contempt, in violating the injunction granted at final hearing.

G. G. Frelinghuysen, for the motion.

Edwin T. Rice, contra.

ACHESON, J. The claim of the patent sued on (the Frisbee patent) is in these words:

"The combination, operating substantially as described, of an annular corelifter and a tube or ring constructed with a tapering recess in its inner surface."

The described operation is this:

"In operation, as the bit excavates the rock and the core enters D, [t. e.. the core-lifter,] the latter first becomes stationary on the core, and is then forced over it by the shoulder of the recess, C, the tube, B, revolving round D till the required depth is reached. When the drill-rod is withdrawn, D is forced towards the small end of the recess, clamping the core more firmly as the tube, B, recedes, until it detaches the core from the solid rock."

The court has heretofore adjudged that the defendants infringed this patent by the use of the Case Core-Lifter, in which the court found a combination substantially the same as Frisbee's, operating substantially in the manner described in his patent. Upon reference to the opinion of the court (29 Fed. Rep. 288) it will appear that this decision was put, not simply upon the ground that the two devices, when in position to act as core-lifters, operated in the same way, but in part upon the additional facts that during the operation of boring each device clasped or hugged the core, and was forced over it by the shoulder of the recess; that in each the tubular rod revolved freely around the core-lifter until the desired depth was reached; and that each was wedged tightly in the tapering recess by the upward pull of the drill-rod. But the core-lifter

now employed by the defendants, and the use of which, the plaintiff insists, is a violation of the injunction, is a device described in and covered by letters patent subsequently granted to Albert Ball, being No. 366,913, dated July 19, 1887, upon application filed November 13, 1886. In mode of operation this latter device differs from the Frisbee core-lifter, and also from the Case device, in two particulars: First. During the work of boring, the Ball device does not embrace or come in contact with the core, but by an outward spring pressure clings to the tube or core-barrel, and partakes of its rotary motion. Secondly. The Ball core-lifter is not forced towards the small end of the recess by the withdrawal of the drill-rod, but is driven into the conical chamber, and thus made to grasp the core by hydraulic devices brought into action by the operator in charge of the boring machine. Now, I am not prepared to declare that these differences are colorable or immaterial. They are not obviously so. The decision of the question of infringement, here for the first time raised, demands an inquiry into the state of the art prior to Frisbee's invention, and involves, too, the construction of the claim of his patent as limited by the phraseology "operating substantially as described." In cases of this kind a motion for an attachment is not granted unless the violation of the injunction is plain and free from doubt, (Refrigerating Co. v. Eastman, 11 Fed. Rep. 902; Smith v. Halkyard, 19 Fed. Rep. 602,) and upon the whole I am of opinion that the question whether Ball's patented device infringes the Frisbee patent ought not to be determined upon such a motion as this, but only by an original suit. Pump Co. v. Manufacturing Co., 31 Fed. Rep. 292. And now, June 13, 1889, the motion for an attachment for contempt is denied, without prejudice to any suit the plaintiff may bring to test the question of infringement involved in this motion.

SCOTT v. FOUR HUNDRED AND FORTY-FIVE TONS OF COAL.

(District Court, D. Connecticut. June 29, 1889.)

1. SALVAGE-COMPENSATION.

A schooner laden with coal struck and sank in very dangerous water at the entrance of Long Island sound, only the main rail being out of water. The locality was an exceptionally bad one in which to save either vessel or cargo. Libelant, the owner of a wrecking equipment, offered to save the top-hamper for 50 per cent. of its value, if successful, and subsequently offered to save it for 40 per cent., if he could have 75 per cent. of the cargo also as salvage service. The agent of the vessel's owners accepted this proposition. The libelant communicated this offer to the consignees and insurers, without receiving any reply. Libelant took a lighter, a tug, and 12 men, and in 2 days had the top-hamper ashore safely. He secured the services of a large steam wrecking vessel, having a foreman and two men, and with his own lighter and tug proceeded to pump the coal out of the hull. After getting a small part out, by the aid of the current the vessel was raised and, with difficulty, gotten ashore on the same day. Shortly afterwards the coal was removed. The top-hamper alone was worth $800 to $1,000, and the schooner and hamper

were worth $1,200 to $1,500, and the coal was worth $1,575. The owners of the vessel paid libelant $600 more than 70 per cent. of his estimate of the value, and the insurers offered him their interest in the cargo for $600. The steam wrecking vessel usually earned $100 per day, and libelant paid her owners $600 for her services, which were indispensable to the saving of the vessel and cargo. Held that, considering the pecuniary risk and expense incurred by libelant, he should receive $1,000 for his salvage service upon the cargo. 2. SAME-APPORTIONMENT.

While, as a general rule. the same ratio of assessment of salvage service should be applied to all the property, the expense of saving the hull and cargo being so much greater than that connected with the top-hamper, a higher rate of salvage should also be allowed.

8. SAME.

Whether the vessel owners' agent was authorized to contract on behalf of the owners of the cargo as to the rate of salvage or not, the contract made by him, by which he secured better terms for the vessel at the expense of the cargo owners, tended to unfairness, and should not be enforced.

In Admiralty.

Samuel Park, for libelant.

Walter C. Noyes, for claimant.

SHIPMAN, J. This is a libel for salvage. The schooner Josiah Whitehouse, bound from Port Johnston to Boston with 445 tons of coal, struck, about half past one o'clock on Monday morning, (April 29, 1889,) on the south-west part of Race Point, the southwestern point of Fisher's island, at the entrance of Long Island sound. The night was dark, and there was a thick fog. The crew were compelled to leave the vessel. On the 29th and 30th there was a strong wind from the south southwest, and the sea was rough. The vessel bilged and sank, and the main rail was under water. The locality is rocky, and full of boulders, and is an exceptionally bad place from which to save a vessel or cargo. At this time the prospect of saving either was poor. On the morning of the 30th Henry F. Kallock, the special agent of the owners, went to New London and saw the libelant, who is the owner of steam-vessels and a wrecking equipment, and makes wreck-saving his business, who offered to try and save the top-hamper for 50 per cent. of its value, if successful. On the evening of that day he said he would endeavor to save the tophamper for 40 per cent., in case of success, if he could have 75 per cent. upon the cargo as a salvage service. This offer was accepted by Kalloch, who had no express authority from the owners of the cargo, or its insurers. He telegraphed to the consignees of the coal, but without reply. The libelant telegraphed to the shippers, offering to save the cargo for 75 per cent. in case of success. They told him to telegraph the insurers, which he did, and made the same offer. They made no reply. On Wednesday the libelant went to the wreck with a lighter and 1 tug and 12 men. They took all the top-hamper from the wreck, carried it to New London, and on Thursday put it ashore. He telegraphed to Poughkeepsie for the steamer Chester, a large steam wrecking vessel, with a large steam pump, which could pump coal. This vessel reached New London on Friday evening, and on the next morning (May 4th)

went to the wreck with the libelant's lighter and tug. The Chester had