Opinion of the Court-Sawyer, C. J. [October, "First, that the complainant Louis Meyers was not the first inventor or discoverer of any material or substantial part of the device for fastening gloves, covered by the letters patent mentioned in complainants' bill of complainant; second, that the said device for fastening gloves so covered by said letters patent had been in public use or on sale in this country for more than two years before the application of said Louis Meyers for a patent therefor; third, that the defendant has not infringed the patent of the complainants." The provisions of section 4920 of the Revised Statutes, under which the first and second of the defenses are pleaded, are as follows: "(4) That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented. (5) That it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public. If any one or more of the special matters alleged shall be found for the defendant, judgment shall be rendered for him, with costs." Mr. J. H. Miller, for complainant. Messrs. Gray & Havens, for defendants. SAWYER, Circuit Judge. In this case there is really only one defense that is available, and on which any testimony was taken, or could be taken under the answer, and that is, as to the prior public use for two years before the application for the patent. The fourth defense under the statute, that it is not new, and the invention has been made before, is a distinct defense from the fifth, and the defendants have given no sufficient notice of any testimony-and no testimony other than that applicable to the defense of two years' prior use, on the question of prior invention; no notice of place of residence, or name of any party who invented it before, or knew of it before it was invented by the patentee in this case. As to the other defense, no two years' public prior use has been shown, unless it be in the state of New York. I do not think the defendants have made out the defense, that it was in use in New York state two years, or at any time 1887.] Opinion of the Court-Sawyer, C. J. before the application for a patent. It is true, that one man at one shop, another one at another, testified that they had seen it; that the patented article, a similar glove, had been made and sold at the manufactory where they worked in 1869, or about that time, but they are contradicted by other witnesses, by one of the owners himself, of one shop, who said he carried it on, and was perfectly cognizant of what was done there, during the time referred to, and also by his glove-cutter. They both testified, positively, that the invention was not made in that shop, or sold or used by them. They knew the facts, and were the very persons pointed out by the witness who testified for defendant in the case, that he had conversed with upon the subject, and in conjunction with them investigated the mode of making. The witness is thoroughly contradicted. It seems to be one of those cases where somebody, years afterwards, in looking back to find an anticipation, imagines that he remembers some such case. I do not think the two years' prior use, or any prior use at all, is satisfactorily shown. On the contrary, I think it is clearly contradicted. It is not merely the negative testimony of some one who had never seen the thing. It is the positive evidence of parties, one the owner and the other the cutter, who must have seen the invention, had it been manufactured by them in their shop, and there sold. The same is true in the other case in New York. The testimony of defendant's witness is contradicted by several witnesses who could not be mistaken. In both cases at Chicago of parties, one of whom said he brought a pair of similar gloves from Norway, and wore them in Chicago in 1872, and another who also brought a pair to this country in 1874, the evidence is not satisfactory. If either is correct, the case was not in time, as the application for the patent was made July 16, 1873. I very much doubt the reliability of the testimony. There was but a single pair brought some fifteen years ago from Norway. It is scarcely probable that a pair of gloves would be kept or remembered so long, there being nothing in particular to attract attention to the matter. It would be a very unsafe incident upon which to overthrow a patent, at this late date, on the ground relied upon. At all events, it was not two years, or one year before the making of the application Opinion of the Court-Hoffman, J. [October, for a patent in this case, which was made on the 16th of June, 1873. One of these pairs of gloves was brought to this country in 1874 or 1876, long after the application, and the other was alleged to have been brought in 1872, within the period of two years, even if the testimony be true; but I greatly doubt if that glove was brought from Norway in 1872. There must be a decree for the complainant, and a reference to the master to ascertain the net profits and the damages, and it is so ordered. THE UNITED STATES v. R. J. HARRISON. DISTRICT COURT, DISTRICT Of California. CUSTOM DUTIES—INDICTMENT FOR FALSE SWEARING-EXISTENCE OF OTHER BILLS OF LADING.-The fact that at the time a person entered merchandise at the custom-house there were in existence, to his knowledge, several copies of the bills of lading and invoices presented by him, does not make his sworn statement, as required by the Revised Statutes, United States, section 2841, that he does not know of, or believe in the existence of any invoices or bills of lading other than those produced by him, a false oath, as the other invoices or bills of lading intended by the statute are bills of lading or invoices different from those presented, and not merely the copies thereof which by commercial usage or statute are required to be procured. Charge to the jury by HOFFMAN, Judge. Gentlemen of the jury: This defendant is indicted for false swearing. The facts of the case are not disputed. It is admitted that he took, when entering certain merchandise at the custom-house, the owner's oath, in the form prescribed by law. This form requires him to swear that: "I do not know or believe in the existence of any invoice or bill of lading other than those now produced by me, and that they are in the state in which I actually received them." (Rev. Stats. sec. 2841.) When he took the oath there were in existence two other copies or counterparts of this bill of lading presented by him, the master of this vessel having, according to immemorial custom, affirmed to three bills of lading, "all of this tenor and date, one of which being accomplished the rest to stand void." This fact appeared on the face of the bill of lading presented. Opinion of the Court-Hoffman, J. 1887.] With respect to the invoice, the law required it to be made in quadruplicate, each copy to be certified by the United States consul at the port of shipment. Two of these copies are to be furnished to the party producing the invoice-one is to be retained by the consul, and the other is to be by him transmitted to the surveyor or collector at the port of delivery. The only question in this case is, did the fact that these copies or counterparts of the documents presented by the defendant were in existence (a fact, of course, well known to him and the deputy collector, who administered the oath), make his sworn statement that he did not know or believe in the existence of any invoice or bill of lading "other" than those produced by him a false oath. It is plain to me that it did not. If it did, no entry of imported merchandise can be made at the customhouse by either owner or consignee without false swearing. For bills of lading, like bills of exchange, are always signed in several parts. And the law requires that invoices shall be certified by the consul in quadruplicate. It is evident that the other invoices or bills of lading, of the existence of which the party making the entry is obliged to swear he has no knowledge or belief, are bills of lading or invoices different from those presented by them, and not merely copies or counterparts of those instruments which by universal commercial usage or by express statute are required to be procured. By contemplation of law all the bills of lading or invoices constitute but one instrument in several parts, just as a lease by indenture wherein the lessor and lessee each retains a counterpart is but one deed. It is absurd to suppose that Congress, when prescribing the form of oath to be taken by owners or consignees of imported merchandise, intended to make entry of the goods impossible, without false swearing. I direct you to render a verdict of not guilty. Opinion of the Court-Deady, J. [October, JAMES H. FISK v. DANIEL V. B. HENARIE, ELEANOR MARTIN, ET AL. CIRCUIT COURT, DISTRICT OF OREGON. OCTOBER 26, 1887. 1. TRUTH OF AFFIDAVIT OF PREJUDICE OR LOCAL INFLUENCE.-The provision in section 2 of the act of 1887 (24 Stats. 553), authorizing the court to examine into the truth of an affidavit for removal of a case from a state court, on account of prejudice or local influence, applies only to cases removed before the passage of said act on the application of the plaintiff; and otherwise than this, such affidavit being not a matter of jurisdiction, but only a condition imposed on the party seeking the removal, it cannot be questioned or contradicted; nor is it necessary that the affiant should state the grounds of his belief. 2. WHO ENTITLED TO REMOVE ON ACOUNT OF PREJUDICE UNDER THE ACT OF 1887.-Subsection 3 of section 639 of the Revised Statutes, as amended by section 2 of the act of 1887, gives the right to remove a suit "in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state," to "any" defendant, being such citizen of another state, on account of prejudice or local influence, without reference to the citizenship of other persons who may be parties thereto. 8. JUDICIAL POWER OF THE UNITED STATES-CONTROVERSIES BETWEEN CITIZENS OF DIFFERENT STATES.-The judicial power of the United States extends to "controversies" between citizens of different states, which include a "case" in which such controversy exists without reference to the citizenship of the other parties therein, and Congress may confer jurisdiction of such controversy, including the case in which it is involved, on the circuit courts, by removal or otherwise. 4. TIME OF APPLICATION FOR REMOVAL. -An application for the removal of a case from a state court, if made while the case is pending for trial, is made "before the trial thereof," within the intent of the removal acts, although there may have been any number of mistrials, or trials in which the verdict was set aside or the jury disagreed. Before DEADY, District Judge. Mr. George H. Williams, for the plaintiff. Mr. James K. Kelly and Mr. John M. Gearin, for the defendants. DEADY, J. This action was removed to this court from the state circuit court for the county of Multnomah, on the petition of the defendants, Daniel V. B. Henarie and Eleanor Martin, and James M. Donahue, Annie Donahue, and Mary Ellen von Schroeder, the executors of the last will and testament of Peter Donahue, deceased, filed July 30, 1887, together with their bond, in form and effect as required by law, and the affidavit of said Henarie and Eleanor Martin, to the effect that they, and each of |