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The Sunswick.

and hence failed to deliver it. The District Court decreed for the libellants, and the claimant appealed to this Court.

Washington Q. Morton, for the libellants.

Skeffington Sanxay, for the claimant.

NELSON, J. The main point in the defence is, that there was no contract of affreightment made on behalf of the vessel, but, on the contrary, that it was a contract of hire by the libellants, of the vessel and her crew, she to be navigated by them, and on their own responsibility. The contract was made between Hedenberg, the owner and claimant, and an agent of the libellants. Both of them were examined before the Court below, the one sustaining the contract, as one for freight in the usual way, and the other the hiring of vessel and her crew, she to be under the exclusive control and pilotage of the agent of the libellants. There are some corroborating facts and circumstances tending to support each of these conflicting views of the transaction. All the witnesses were examined before the Court, and, as the case turns very much upon the weight to be given to the witnesses, and the question is simply one of fact, I would not disturb the finding, even if I differed with the Court. But I am inclined to think, on the proofs, as they appear on paper, that the finding was according to the weight of testimony and the attending circumstances, and must, therefore, affirm the decree.

A point is made upon the damages. The iron cost $2,050. The libellants, after notifying the claimant that they would hold him responsible for it, and that, if he did not get it up and deliver it, they would do so at his expense, raised it, after his refusal, at an expense, according to the proofs and the report of the Commissioner, of $671.22, including interest, for which a decree, with costs, has been rendered. I see no valid objection to this assessment. The items appear fair and reasonable, and make up the loss which the libellants have sustained by the non-delivery of the iron under the contract.

Decree affirmed.

Wooster v. Crane.

EMMA C. WOOSTER

vs.

JASON CRANE AND OTHERS.

IN EQUITY.

Under the 11th section of the Act of March 2d, 1861, (12 U. S. Stat. at Large, 248,) a patent for a design for a reel, consisting of the making of the reel in the shape of a well known mathematical figure, the reel itself, as an article of manufacture, being old, is not valid.

(Before BENEDICT, J., Southern District of New York, November, 1865.)

THIS was a final hearing in Equity, on a bill founded on Letters Patent, issued October 20th, 1863, for a design for a reel to contain ruffles, ladies' dress trimmings and other goods, and consisting of two parallel discs of pasteboard connected by four bits of wood, on which the ruffle was wound between two pasteboard sides. The pasteboard was cut in the form of a rhombus with the angles rounded, and what the patentee claimed was "the design and configuration of the reel."

Thomas P. How, for the plaintiff.

Samuel T. Freeman, for the defendants.

BENEDICT, J. The statute relied on, as giving to the plaintiff the right sought to be enforced, is the 11th section of the Act of March 2d, 1861, (12 U. S. Stat. at Large, 248,) which provides "that any citizen or citizens, or alien or aliens, having resided one year in the United States, and taken the oath of his or their intention to become a citizen or citizens, who, by his, her, or their own industry, genius, efforts and expense, may have invented or produced any new and original design, or a manufacture, whether of metal or other material, ** or any new and useful pattern or print or picture, to be either worked into or worked on, or printed, or painted, or cast, or

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Wooster v. Crane.

otherwise fixed on, any article of manufacture, or any new and original shape or configuration of any article of manufacture not known or used by others before his, her or their invention or production thereof, and prior to the time of his, her or their application for a patent therefor, and who shall desire to obtain an exclusive property or right therein to make, use and sell and vend the same, or copies of the same, to others, by them to be made, used and sold, may make application in writing to the Commissioner of Patents, expressing such desire, and the Commissioner, on due proceedings had, may grant a patent therefor, as in the case now of application for a patent."

I am not aware that any judicial construction has been given to this section. No authorities were cited on either side, showing any adjudication upon the question involved. There seems to me, however, little doubt as to what should be the construction to be put upon it, when sought to be applied to a case like the present. In this case, the reel itself, as an article of manufacture, is conceded to be old, and not the subject of a patent. The shape applied to it by the plaintiff is, also, an old, well-known mathematical figure. Now, although it does not appear that any person ever applied this particular shape to this particular article, I cannot think that the Act was intended to secure to the plaintiff an exclusive right to use this well-known figure in the manufacture of reels. The Act, although it does not require utility in order to secure the benefit of its provisions, does require that the shape produced shall be the result of industry, genius, efforts and expense, and must, also, I think, be held to require that the shape or configuration sought to be secured, shall, at least, be new and original, as applied to articles of manufacture. But here the shape is a common one in many articles of manufacture, and its application to a reel cannot be said to be the result of industry, genius, efforts and expense. No advantage whatever is pretended to be derived from the adoption of the form selected by the plaintiff, except the incidental one of using it as a trade-mark. Its selection can hardly be said to be the result even of effort. It was simply an

United States v. Donlan.

arbitrary, chance selection of many well-known shapes, all equally well adapted to the purpose. To hold that such an application of a common form can be secured by letters patent, would be giving to the Act of 1861 a construction broader than I am willing to give to it.

The decree must, therefore, be for the defendant.

THE UNITED STATES. vs. PHILIP DONLAN.

The Circuit Court of the United States for the Eastern District of New York has, by virtue of the Act of March 3d, 1825, (4 U. S. Stat. at Large, 115,) jurisdiction of an indictment for an assault with intent to kill, committed in the Navy Yard at Brooklyn.

(Before BENEDICT, J., Eastern District of New York, December, 1865.)

THIS was an indictment for an assault with intent to kill, committed in the Navy Yard at Brooklyn. The defendant now moved to quash the indictment, on the ground that the Act of March 3d, 1825, (4 U. S. Stat. at Large, 115,) on which it was founded, did not create the offence charged, and that there was no statute of the United States creating the offence.

THE COURT held, that the Act of March 3d, 1825, covered the case; that the question had been substantially decided by the Supreme Court, in the case of The United States v. Paul, (6 Peters, 141 ;) and that Mr. Justice Thompson, Mr. Justice Nelson, and Judge Betts, had held, in the United States Courts for the Southern District of New York, that the Act of 1825 applied to cases of the kind.

Motion denied.

Sheldon v. Houghton.

SMITH SHELDON AND OTHERS

vs.

HENRY O. HOUGHTON. IN EQUITY.

What the incorporeal right, called "good-will," considered as property capable of conveyance, does and does not carry with it.

"Good-will" may adhere to or spring out of corporeal property, but corporeal property cannot adhere, as an incident, to "good-will."

A "good-will" which rests only on the voluntary and unconstrained forbearance of those who are engaged in a particular trade, is not property, in any sense known to the law.

(Before SHIPMAN, J., Southern District of New York, December, 1865.)

THIS was an application for an injunction and a receiver, in a suit in Equity. The facts are sufficiently stated in the opinion of the Court.

George T. Curtis, for the plaintiffs.

William M. Evarts, for the defendant.

SHIPMAN, J. This is a case of novel impression. I am of the opinion that it cannot be sustained, either upon principle, or by the application of any of the authorities submitted on the argument, or of any which I have been able to discover, after a somewhat diligent search. A full discussion of the vital points in the case will not now be attempted; and I shall, therefore, confine myself to a brief notice of such features of it as will disclose the grounds on which this motion is denied.

The first material allegation of the bill is, "that, by the custom of the trade of booksellers and publishers in the United States, when any person or firm engaged in that business has undertaken the printing, publication and sale of a book not the subject of statute copyright, and has actually printed,

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