i454
,FEDERAL :REPORTER,
'In view'of the Taylor:' patent of 1872, and the -John Arnoldpateilt of July 1, 1873, it is a narrow patent, and consists in the fact that the parts are assembled without special fitting or riveting, but by sliding spring into place. It has a spring and hinged latch, and is therefore unlike'Exhibit O. . The other exhibits which are said to infringe have four castings .and a; spring, and are not so arranged that they {Jan beheld in place without riveting. In the Rice fastener, the latch is so held in place by the spring that, if it was broken, the latch would be liable to drop out of its bearings. This is not true of the defendants' :fasteners: In the Rice patent, both fasteners must be held out pf engagement by the hand when the lid is lifted. Undelt the Taylor patent of 1872, and in the defendants' fasteners, the sprmg holds the latch out of engagement when the lid is to be lifted., There is no infringement of the Rice patent. The bill is dismissed.
SLESSINGER
and others. 1 January 29, 1883.) "
(Circuit Court, D. California. ,
In Equity. John L. Boone, for complainant. },[. A. Wheaton, for defendants. SAiVYER, J., (orally.) In tbis case t am compelled to decide that the evidence is insufficient to show an infringement before the filing of this bill; or, indeed, an infringement at anytime. ,The evidence is very slight upon those points. There are two points made by defendants, both· of which, I think, are well taken. One is that if it is conceded that the articles clIarged to have been made are an infringement of the patent, it does not appear tllat those articles were sold or made prior to the filing of the bill. The defenuants make that point and !ely Upon it. The only testimony is, taking it in its aspect , .: :From 8th'Saw}'iJr.
SLESSINGER' V. BUCKINGHAM.
455
to the eompiainant,that'there was a'pair of boots 11lIrcimsed from the defendants, some time before the taking of the witness' festimony, and that it was somewhere within the last two or three months before that date. The testimonywas taken about three months after the filing of the bill.. There is nothing to show that the purchase was before the filing of the bill. It may have been, so 'far as anything to the contrary appears, a month, or two months, after the filing of the bill; and the affirmative of the issue is upon the complainant. There is, then, no testimony, even if we concede that those boots were made and sold by the firm-no evidence to show that they were sold, or made, before the filing of the bill. The answer denies, categorically and distinctly, that the defendants have infringed the patent, or made the boots, as alleged to have been made in the bill, or otherwise. We have, then, the teflti:nony of one witness only against that of another, and the testimony of that one witness does not show that the of boots was sold, or even made, before the filing of the bill. Again, there is no positive testimony that these boots were made, or sold, by the defendants at all. The one witness on the point testifies that he sold the boots to the complainant in this case, and he thinks it is a pair of boots that his own finn purchased of the defendants. He does not know it, but thinks so. That is all there is of that. The other circumstance relied en is that there is a mark on the boots, which purports to be the mark of the defendant; but there is no testimony that it is the mark of the defendant, or when or by whom it was put on the boots. Defendants are required to answer under oath, or, what is the same thing in substance, an answer under oath is not waived in the bill, and they deny, under oath" categorically and di. rectly, that they made the baots alleged in the bill to have been made, "prior to the filing of the bill, orotherurise.'.' They deny the infringement alleged, and it requires positive testimony to overthrow that answer. The answer, so far as responsive to the bill, directly denying the matters alleged, not only makes an issue, but it is testimony in the case called for .by complainant, proving the issue. for defendants; and it must be overthrown by the testimony of two witnesses, or the testimony of one witness, and circumstances equivalent to another, or, at least, sufficient to make a preponderance of testimony in !avor of complainant. Solicitors, generally, in this circuit, seem fa overlook the great disadvantages under which they often labor, in not. wai"ing an answer under oath in equity cases, now that the 'complainant and defendant are themselves both competent witnesses, and can be orally examined under equity rule 67, where the complain,ant can get the e,'idence of !:.is opponent, fresh from him in person, und,er a sharp and pressing examination, instead of having it deliberately shaped by, and cautiously arranged and shaded for him, by ,when, examined his solicitor, at his leisu,re" in his office., .
456
FEDERAL REPORTER.
orally as a witness, the defendant counts butolle; and the complainant may offer himself in opposition as to matters within his knowledge, if he swerves in the least particular from the truth; while, if called upon to answer a bill of discovery under oath, the defendant's answer, if responsive to the allegations of the bill, must be overthrown by the evidence of two witnesses, or of one witness, and other circumstances equivalent to a second. Besides, if complainant has other evidence sufficient to overthrow defendant's answer under oath, he has no occasion for a discovery. It would seem that a discovery by answer under oath may now be advantageously waived by the complainant in at least a great majority of cases. No sllch discovery is needed when the proofs can be otherwise made, ann. when it cannot be thus made, the evidence can be brought out, ordinarily, much more advantageously to the complainant, and less effectively for the defendant, by a skillful, sharp oral examination of the defendant as a witness. Since I have occupied a seat on the circuit court bench, I have been surprised to see how carelessly, if not recklessly or ignorantly, solicitors for complainants often, not to say generally, throw awa.y the advantages of their position by not waiving an answer to a bill in equity under oath. In this case there was no positive testimony that defendants made, or sold, the boots. Only one witness testified that he thought his firm bought the boots of defendants. I am compelled to say that this testimony is insufficient to overthrow the positive denials of the answer, or to establish an infringement. The burden was on the complainant to show that fact by affirmative evidence. It is not necessary to investigate the other points. The bill is dismissed on the grounda alone of an insufficiency of the evidence to show an infringement, and failure, also, to show an infringement before the filing of the bill.
The E. B. CARLSDOTTRR
WARD,
Jr. WARD,
and others v. THE E. B.
Jr. 1
(Circuit Court, E. D. Louisiana. June, 1883.) 1. JURISPRUDENCE-AcTION Fon Loss OF LIFE ON HIGH SEAS.
An action fordamages for the loss of a human life, caused by a maritime tort, survives in uumiralty. .
2.
S.UlE-STATUTE OF STATE.
\Vhere the statute of a stute gives a right of action for loss of human life, and snch loss occurs hy reason of the tort of a vessel upon the high seas, whose owners reside in that state, and whose home port is in that state, such vessel was a part of the territory of that state, and its courts would entertain an action under the statute against. the owners for the wrongful conduct of their agents on the high seas which resultcd in loss of human life. A court of admiralty can enforce such right of action in a proceeding in rem. lReporled bl Joseph P. Hornor, .· of the New Orleans tar.