fense should be subpoenaed, called, or heard before the said grand jury, and that such were the instructions of the judges in bank, and that he rerused on the same ground a similar request made to him by the defendant's attorney. The district attorney was clearly right if he merely informed the grand jurors that, as a general rule, the defendant had no right to produce witnesses in his defense, nor had they any right to hear them; in other words, that the proceedings were ex parte, and not a trial of the case, the general rule being that the grand jury are to hear evidence only in support of the charge, and not in exculpation of the defendant. Hale, P. C. 157; 2 Hawk. P. C. c. 25, § 145, note; Add. (Pa.) appendix, 38; Luno's Case, 1 Conn. 428; Respublica v. Shaffer, 1 Dall. 255; U. S. v. Palmer, 2 Cranch, C. C. 11; U. S. v. Blodgett, 35 Ga. 336. In the last case ERSKINE, J., observes: "To allow evidence, either oral or written, to go before the grand inquest on behalf of a defendant would be subversive of the ancient and well-settled. rules of courts of justice." The policy of this rule has been explained and vindicated with great force by ADDISON, J., (Add. Pa., ubi supra,) and by MCKEAN, C. J., in Respublica v. Shaffer, 1 Dall. 236. But its seeming hardness has led to some qualification of it. Thus the right to send witnesses for the defense to the grand jury with the consent of the prosecuting attorney, but not without it, appears to be recognized by that great judge, Mr. Justice WASHINGTON, in U. S. v. White, 2 Wash. C. C. 29, 30. On this point Mr. Chitty observes that "prima facie the grand jury have no concern with any testimony but that which is regularly offered to them with the bill of indictment; their duty being merely to inquire whether there be sufficient ground for putting the accused party on his trial before another jury of a different description. But, if they are unable to satisfy themselves of the truth sufficiently to warrant their determination, they may properly seek other information relative to mere facts, but further than this they cannot proceed." 1 Chit. Crim. Law, 318. In accordance with this view Mr. Justice FIELD charged a grand jury of the circuit court as follows: * * * "You will receive all the evidence presented which may throw light upon the matter under consideration, whether it tend to establish the innocence or the guilt of the accused. And more: If in the course of your inquiries you have reason to believe that there is other evidence not presented to you within your reach, which would qualify or explain away the charge under investigation, it will be your duty to order such evidence to be produced." 2 Sawy. 670. Legislative provisions substantially similar to the instructions given by Mr. Justice FIELD in the last sentence of his charge have been adopted in California, New York, and several other states. The diligence of the district attorney has failed to find any judicial decision in which the construction, application, and effect of these statutes have been construed. Whether the order to the district attorney to produce further testimony is to be made by the unanimous vote of the jury or by a majority of those investigating the charge, or by at least 12 of the body; whether their belief that further evidence would qualify or explain away the charge is to be founded exclusively on a consideration of the evidence already produced, or upon suggestions of outside parties; whether the bare refusal of the district attorney to obey the orders of the grand jury will per se, and without giving him an opportunity to explain his reasons therefor or the circumstances of the case, vitiate the indictment,-are questions upon which judicial decisions throw no light. It is to be observed, however, that neither in California nor in any of the states that have adopted this rule has such refusal been declared a statutory ground for setting aside the indictment. No adjudged case has been cited in any federal court where this relaxation or modification of the common-law rule has been recognized or adopted. That its adoption might lead to serious evils is apparent. The grand jury is necessarily left to be the sole judges whether there is "reason to believe that other evidence not presented would qualify or explain away the charge." If testimony contradictory or in rebuttal of the evidence before them is to be received, the district attorney must be at liberty to show that the witnesses produced are from their general reputation unworthy of belief, or that they have given a different account of the circumstances to which they testify; or, by proving an alibi, to show that they could not have been present at the occurrences to which they testify. This evidence the defendant should in turn have the right to rebut, and thus the grand jury would practically enter upon the trial of the case,-a proceeding "subversive of the ancient and wellsettled rules of the courts of justice." If the doctrine that it is the right and duty of grand juries to hear, without the consent of the prosecuting attorney, witnesses for the defense shall be incorporated into the federal jurisprudence in criminal cases, it must, I think, be restricted in its application to cases where the evidence already produced fails "to satisfy the jury of the truth sufficiently to warrant their determination," (Chit. Crim. Law, ubi supra,) and where from that evidence they believe that other testimony is attainable, not to rebut and disprove the evidence already adduced, but, consistently with the substantial truth of the latter, will explain away or qualify the charge. Such, I think, is the true construction to be given to the language of Mr. Justice FIELD and to have been his meaning in giving his instructions. If the district attorney in the case supposed declines to summon the witnesses, the jury may apply to the court, or, if they are led to believe that such application would be useless, they may refuse to find the indictment. But, if they find and duly present the bill to the court, that fact shows that (unless they have violated their duty and their oaths) the evidence before them has been sufficient to satisfy them of the truth of the charge, and that the case in which they would be entitled to call for further evidence has not arisen. Certainly, in the absence of all judicial authority and precedent, I shall not be the first to go beyond the provisions of any of the Penal Codes of the states which have adopted the rule under consideration by deciding that the mere refusal of the district attorney to summon witnesses for the defense at the request of the grand jury is a good ground for setting aside the indictment. On the whole case it may, I think, be justly said that while the rigorous and apparently harsh, though ancient and well-settled, rules of the common law have in some instances been departed from, it has always been in the interest of substantial justice, and to prevent a manifest wrong to the defendant; and, conversely, where it is plain that substantial justice will not be promoted, nor a manifest wrong to the defendant prevented, the indictment should not be set aside on grounds of technical errors, informalities, or irregularities. Such I believe to have been the intention of congress in enacting section 1025 of the Revised Statutes. NOTE BY THE COURT. In his chapter relating to the proceedings of grand juries, Mr. Bishop observes: "We come now to a class of questions which are not surpassed by any other in point of practical difficulty. The authorities appear at the first impression to be almost as conflicting as the cases are numerous, and, when we seek to reconcile or to choose between them by a recurrence to the principles of law, we find it difficult to say that, in a matter of mere practice, principle points in one direction rather than in another. The difficulties here alluded to illustrate the perpetually recurring conflict between the conservatism or inflexible opposition to change with which our profession is often reproached, and the spirit which regards "innovation" as equivalent to "reform," and "change" synonymous with "progress." This conflict of opinion is greatly a matter of personal temperament, and while, on the one hand, obstinate conservatism may lead to a bigoted adherence to rules because they are ancient, the opposite spirit may lead to crude legislation, and sometimes to hasty decisions, where judges, impressed with the hardness of particular cases, are led to violate ancient, and on the whole beneficial, rules. The history of the evolution of jurisprudence in England and in this country is replete with instances of the stubborn opposition with which reforms in law, even the most salutary, or modifications of ancient rules, the most indispensable, have been resisted by eminent members of the profession. On the other hand, the legislation of our states, and sometimes, perhaps, the decisions of the courts, disclose a rash and equally dangerous spirit of innovation. Of the former class may be mentioned the opposition made to the legal reforms introduced at various times by Lord Brougham and others into the legislation of England; the long contest between the courts of equity and the common law, resulting in the triumph of the former, respecting the true nature of a mortgage, and the rights of the mortgagor and the mortgagee; the resistance with which the introduction into the jurisprudence of England of the rules of the lex mercatoria, or the customs of merchants, encountered at the hands of the more bigoted disciples of the common law. On the other hand, the statutory innovations upon the ancient rules respecting indictments and proceedings of grand juries have been in some cases crude, and productive of evil results. The provisions of our own statute, already noticed, which declare that an indictment shall be set aside if the district attorney is present when the vote upon it is taken, while the same law provides that he may bring to trial any person who has been held to answer by a committing magistrate, upon an information filed by himself without the intervention of a grand jury, present an illustration of the contradictory, if not absurd, legislation, which has sometimes been adopted. The rule, too, under which a grand jury may, after indictment found, be examined upon voir dire as to their qualifications, bias, etc., by an accused person, who had not previously been held to answer, introduces a novelty in practice leading to delays and obstructions to the administration of justice, and which seems anomalous when we consider that, by the law of the country from which we derive that venerable institution, the grand jury might find a bill upon the knowledge of one or more of its number. The obstinacy with which ancient rules have been adhered to in the construction of indictments, presents, on the other hand, an instance of the stubborn adherence of judges and courts to precedents which have lost, if they ever possessed, any claim to adoption as practical rules in the administration of justice. Thus, if one be accused of the larceny of a horse, and it is alleged to have been a black horse, if the proof shows it to be a gray horse the variance is fatal. Yet the pleader may allege in several counts, where only one offense has been committed, several larcenies of a black or gray or brown horse, and the indictment is good; and this, though the theory of the indictment is to give to the prisoner accurate and precise information of the crime with which he is charged. So it is fatal to an indictment if time and place be not alleged for every material averment, and yet when so alleged the prosecution is not obliged to prove the time as laid, but may prove the offense to have been committed at any time within the statute of limitations, and prior to the finding of the indictment. So, too, if an averment in an indictment is in the alternative or disjunctive, and the word "or" is used instead of "and," the defect is fatal, and yet in different counts he may vary the terms of the charge, producing the same result as if in the original averment he had been allowed to make the charge in the alternative. These rules, which the courts do not feel themselves at liberty to depart from, seem to savor of scholastic subtlety and over-refinement. They probably owe their origin to a revolt of the humanity and sense of justice of the courts against the barbarism of a Draconian code, upon nearly every page of which the scaffold could be seen, and which punished with the highest penalties of the law trivial, and almost venial, offenses. There seems to be now no reason, when such cruel laws no longer prevail, either in England or this country, that these ancient precedents should be adhered to. What is the true via media between stubborn adherence to ancient rules and a rash spirit of innovation it is not always easy to discover or define, but if the rules suggested in the foregoing opinion, to the effect that while salutary and established rules or principles should in general be adhered to, yet the court in particular cases, in its discretion, may relax or introduce exceptions to the rule, where substantial justice manifestly requires it, be followed, perhaps the practical administration of the criminal law will in some respects cease to deserve the reproaches of uncertainty and inefficiency which are now so freely made against it. RAYMOND et al. v. BOSTON WOVEN HOSE Co. (Circuit Court, D. Massachusetts. July 12, 1889.) PATENTS FOR INVENTIONS-INFRINGEMENT INJUNCTION. A preliminary injunction against the infringement of a patent will be denied where plaintiff does not show a prior adjudication sustaining the validity of the patent, or public acquiescence on which a presumption of validity may be based, and where it does not clearly appear that there is an infringement. In Equity. Bill to restrain infringement of patent. David Hall Rice, for defendant. COLT, J. The complainants are the owners of two patents, numbered, respectively, 197,716 and 197,717, dated December 4, 1877, granted to J. A. Caldwell, the first being for an improved strap for securing hose to the coupling, and the second for an implement for fastening such hosestraps. The defendant is charged with infringement of these patents. The present hearing is upon a motion for a preliminary injunction. The first ground of defense is that the plaintiffs have shown neither prior adjudication sustaining the validity of the patents, nor public acquiescence upon which a presumption of validity may be based, and that, therefore, whatever the decision of the court may be upon final hearing on the merits, the present motion, under a well-settled rule of law, must be denied. I think this point is well taken. It is admitted that there has been no prior adjudication upholding the validity of these patents. As to public acquiescence the evidence goes to prove that this strap and implement have never been put upon the market. The reason assigned by the complainants for not making and selling the Caldwell strap, namely, that it is more costly than the Adlan and Earle straps, does not affect the question of public acquiescence. In the absence of the manufacture. and sale of the patented article it can hardly be said that there has been public acquiescence. If nobody had use for the article during the time of the alleged acquiescence, or its merits were prized so low that nobody cared to adopt it, no lapse of time has any tendency to raise a presump tion that the patent is valid. Walk. Pat. § 668. But further than this I have some doubt on the question of infringement. As to the tool patent, I have serious doubt whether the defendant infringes. The claim of the patent specifically recites that the grooves or notches in the jaws of the pivoted levers shall be located out of line with each other, and this feature seems to be necessary for the practical working of the tool when applied to fastening a Caldwell hose-strap. In the Hudson or alleged infringing tool we find, in place of notches out of line, two holes punched in the jaws in alignment with each other. In the case of the strap patent it must be admitted that the question of infringement is closer. The specification states that the band is made of self-annealed wire, of such length that the enlarged ends will extend beyond and overlap each other, .so as to admit of their being twisted by turning the implement, whereby they are locked or hooked together, and the portion of the hose under the band is thus forced into the corrugations of the coupling, and securely held. A wire band, provided with enlarged ends, is one of the main features of the claim of the patent. The defendant's hose-band does not have the enlargement shown in the Caldwell band, though I am aware that the language of the specification is very broad on this point. The defendant uses hooks at the end of the band, instead of the Caldwell enlargements. I do not think the defendant's band, in spite of the opposite contention, can be practically applied with the Caldwell tool. The manner of operation and the purpose of the defendant's hooks cannot be said to be the same as the Caldwell enlargements. Construing these patents in the light of the prior state of the art, I am not free from doubt on the question of infringement. Upon all the facts of this case, as presented in the papers before me, I am satisfied that the motion for a preliminary injunction should be denied. THE PIETRO G. (District Court, S. D. New York. June 29, 1889.) 1. SHIPPING-BILL OF LADING-DEMURRAGE. Upon a bill of lading issued by a chartered vessel, making the goods deliv erable to order, the bill of lading itself is the only contract between the ship and a bona fide purchaser and indorsee, who accepts the goods under the bill of lading, without knowledge or notice of the charter; and if he detains the ship in receiving the goods, and the bill of lading specifies no rate of demurrage, nor refers to the charter, the ship can recover only according to the value of her use, and not an amount in excess thereof specified in the charter, though the charterer was the shipper of the goods. 8. SAME-CHARTER. The charterer of the bark P. G. loaded her partly with his own goods, and took from the master a bill of lading, deliverable to order, making no mention of the rate of demurrage, nor referring to the charter. The charter specified demurrage at the rate of £12 per day. The shipper having sold the goods and indorsed the bill of lading, the purchaser detained the ship on delivery. On suit for demurrage, held, that the bill of lading was the only contract enforceable between the ship and the consignee, and that the latter was not liable to charter rates of demurrage of which he had no knowledge, but only for the value of the use of the vessel during her detention. |