of a crowd of 200 or 300, and then proposed to go to the roundhouse and blow up the

scabs.

The testimony of F. P. Smith is to the effect that on July 4th cars were upset and burned between Forty-Ninth and Fiftieth streets in the presence of a crowd of 300 or 400 people.

W. Kramer testifies that he saw a crowd of some 200 people at Forty-Seventh street July 5th, 20 or 30 of whom pushed some cars onto the track in front of his wrecking train and told him to pick up his tools and go home.

T. B. Hunt testifies that on July 6th he saw a large crowd at Fortieth street, where a milk train was stopped. The crowd holloed when raided by policemen, and shots were fired. Fire at Fifty-First street breaking out about that time.

Mr. Clapp saw a crowd surge back and forth along the track and upset cars near Fifty-First street; that the crowd said they were going to smash and upset the cars, and stop the road from running, and lay out the railroad men.

Thomas Griffin testifies that from the 1st to the 8th of July 300 cars were stored between Forty-Seventh and Fifty-Fifth streets; that crowds began gathering on the 29th of June, and the 3d of July cars were upset at Fortieth street; that July 4th a great crowd of people attacked the cars at Forty-Seventh street, and set fire to them, and tried to stop the firemen from putting the fire out. Pushed cars from the side tracks onto the main track; that the air was ringing with "Scabs!" that a great crowd at Fortieth street stoned a milk train, bruising it pretty bad and injuring the engineer; stoned and shot at the witness.

L. H. Pender testifies he saw persons gather along the tracks July 3d to 7th. Saw cars lying on the track, Forty-Seventh to Fifty-First street, and helped to pick them up with the wrecking train; was struck with a stone at Forty-Seventh street, and shot at near Forty-Fifth street, in the presence of about 500 people.

A. Cheffer testifies to seeing a crowd of from 100 to 300 persons at Fifty-First street in the afternoon of July 5th tipping over cars; that the same crowd raided a car of merchandise; that one of the crowd named "Shorty" called on others to go to the yards and kill

some one.

Conductor E. Longhenry testifies as to how on the 5th of July he was assaulted and his train taken away from him at Forty-First street in the presence of a crowd of some 5,000 persons.

Engineer F. Stucker, of the same train, testifies as to how the mob stopped the train, got on his engine, and told him to go home, which he did.

Charles Fair, fireman on the same train, testifies as to how the crowd swarmed on and along the track, causing the train to stop, mounted the engine, and, seizing him, threw him bodily into the crowd, who caught him and carried him half a block away and told him to "git"; that the crowd overturned two cars on the track behind the train and put a rail through the spokes of the two driving wheels, so that the engine could not move; that from the 1st to the 5th of July they were frequently stoned.

Many other witnesses testified in a similar manner. There seemed to be no lack of evidence as to the fact of the property of the company being destroyed in consequence of the mob. It seems quite. clear that the verdict of a jury upon such evidence as this must be conclusive that the destruction of the plaintiff's property was in consequence of the riot. The Chicago riots of July, 1894, are a matter of public history, and if the courts cannot take judicial notice of their existence it is only because the court is not presumed to know what every one else knows. The vital question in the case was, not whether there was a riot, but whether and to what extent the property of the Pennsylvania Company, which had many miles of track running through the south side of the city, was injured in consequence of it.

Exception was also taken to the introduction of the proclamation of the mayor calling for troops to suppress the riot, but such evidence was clearly admissible as a public act which had become a part of the history of those perilous and disturbing days, when danger to life and property throughout the city was imminent. The argument of counsel on this question that Hopkins had no authority to send the telegrams as mayor of the city, and that the sending of the state militia by the governor could not be lawfully in response thereto, but was only upon his own volition and responsibility, seems quite unfounded and irrelevant. What else could the mayor do, having the law to execute and the lives of millions under his charge, but call for military aid? It was a part of his official duty, and in the faithful discharge of it he should be upheld by all good citizens of the commonwealth.

It is also objected that the notice of claim served on the city was insufficient. It is only necessary to state what that notice was to show the triviality of such exception. This is the notice of claim for damages served upon the city, which is clearly sufficient, in connection with the attached schedule of property alleged to be destroyed, which is quite specific and lengthy:

"State of Illinois, County of Cook-ss.

"To the City of Chicago: You are hereby notified that, in consequence of a mob or riot, composed of twelve or more persons, the property of Pennsylvania Company, operating the Pittsburg, Ft. Wayne & Chicago Ry., was, within the city of Chicago, Cook county, Ill., while not in transit, destroyed or injured; that the dates and places of destruction or injury, and the damage to and description of said property, are stated in the schedule hereto attached, as accurately as can now be ascertained; that such destruction or injury was not occasioned, or in any way aided, sanctioned, or permitted, by the carelessness, neglect, or wrongful act of said company; that said company used all reasonable diligence to prevent such injury, damage, and destruction; and that claim against you for three-fourths of such injury, damages, and values is made, and payment thereof demanded, pursuant to the provisions of an act of the legislature of the state of Illinois, entitled 'An act to indemnify the owners of property for damages occasioned by mobs and riots,' approved June 15th, A. D. 1887. Pennsylvania Company,

"Operating the Pittsburg, Ft. Wayne & Chicago Railway,
"By J. T. Brooks, 2nd Vice Prest."

One of the principal exceptions relied upon is that the title of the Pennsylvania Company to the property was not sufficient to war

rant a recovery. The plaintiff's interest and title to the property was that of lessee and bailee,-to some as lessee of the Pittsburg, Ft. Wayne & Chicago Railway Company's track and equipment, and bailee of the certain cars marked with the initials of several other railroads, which were the general owners. As would naturally be expected, some of the cars destroyed belonged to other roads, and were in the possession and use of the plaintiff as bailee and common carrier for the time being. This gave the company a special interest in them, and it was responsible for the safe-keeping and return of the cars. The company was the owner in a sense, though not having the general title, and it is clear that the recovery cannot be limited to the property to which the company had the full title. Possession with a special interest as bailee is enough. It was not necessary that all persons having an interest in the property should be made plaintiffs. It could not have been contemplated that under the statute all persons having any interest in the property should be required to come to Chicago and bring separate actions, or join in one action for the recovery of damages. The statute did not change the general rule at common law that a common carrier may sue in his own name and recover for the value of the property which has been injured or destroyed by another while in his possession, and that bailees of property may sue in their own name and recover for wrongful injury to property in their possession. Schouler, Bailm. 531; Ang. Carr. § 348; Story, Bailm. § 93; Hil. Torts, p. 491, c. 18. Schouler lays down the rule thus:

"In conformity with the general doctrines of mutual benefit bailments, every common carrier is invested with a special property in the goods and chattels which a customer confides to him, so that he may maintain an action against any and all persons who disturb his possession thereof and injuriously interfere with the performance of his lawful duties. It is the general rule, applicable alike to real and personal property, that possession is both sufficient and necessary to maintain an action for a tort or wrong; more especially that 'bare possession gives a right against a wrongdoer for the invasion whereof an action of trespass will lie.'"

In The Beaconsfield, 158 U. S. 307, 15 Sup. Ct. 860, 39 L. Ed. 993, it was held that a carrier is so far the representative of the owner that he may sue in his own name, either at common law or in admiralty, for a trespass upon or injury to the property carried. And it was held in Hardman v. Brett (C. C.) 37 Fed. 803, 2 L. R. A. 173, that:

"Every bailee has a temporary qualified property in the thing of which possession is delivered to him by the bailor, which entitles him to maintain an action against any stranger who injures it; and the reason is because he is answerable over to the bailor and ought not to be responsible for the loss without being able to resort to the person who was the original cause of the injury."

See, also, Railroad Co. v. McIntire, 39 Ill. 298; Railroad Co. v. Schultz, 55 Ill. 421; Benjamin v. Stremple, 13 Ill. 466; Hutton v. Arnett, 51 Ill. 198.

Then it is objected that some of these cars destroyed were in transit and for which no recovery could be had under the statute. But the evidence shows that the cars were not in transit, but were stored in plaintiff's yards until wanted for actual use. The finding of the

jury upon this, as upon the other issues of fact, is final and cannot be questioned.

Various exceptions were made to the introduction of evidence and the refusal of the court to strike from the record, but we think no one of these exceptions maintainable, and if we do not notice them all in detail it is not because they have not been considered and passed upon. The trial lasted many days and many witnesses were sworn and examined. The case was well and carefully tried. An unusual number of exceptions were taken by defendant's counsel, but we find the record unusually free from error, and the plaintiff in error has little to complain of. "All hoods make not monks," and it is not every exception, or any number of exceptions poorly grounded, that can avail to reverse a judgment so well bottomed upon testimony and the verdict of a jury as is this.

The judgment of the court below is affirmed.

GEORGE FROST CO. et al. v. COHN et al.

(Circuit Court of Appeals, Second Circuit. December 15, 1902.)

No. 34.

1. PATENTS-PATENTABLE NOVELTY-SUBSTITUTION OF MATERIALS.

Whether the substitution of one known material for another in the construction of an article is patentable depends upon whether what was done involved the exercise of inventive faculty as distinguished from the ordinary skill of the calling, and when the substitution has accomplished a result which those skilled in the art had long and vainly sought to effect the evidence that it involved something beyond the skill of the calling is so persuasive that it generally resolves the inquiry in favor of patentable novelty.

2. SAME-HOSE SUPPORTER.

The Gorton patent, No. 552,470, for a hose supporter, claim 1, the essential feature of which is the substitution in the clasp of a well-known form of supporter of a button made of rubber or similar material having a fibrous, yielding, or elastic surface for the metal button of the prior art, was not anticipated, and discloses patentable novelty, in view of the marked superiority of the article as so constructed.

Appeal from the Circuit Court of the United States for the Southern District of New York..

For opinion below, see 112 Fed. 1009.

J. Edgar Bull and Edmund Wetmore, ior appellants.

A. D. Salinger and Frederick P. Fish, for appellees.

Before WALLACE and TOWNSEND, Circuit Judges.

WALLACE, Circuit Judge. The assignments of error challenge the patentable novelty of the hose supporter which is the subject of the patent to Gorton, No. 552,470, granted December 31, 1895.

The feature of novelty resides only in the material of which the button is composed, as supporters substantially similar to the one. patented by Gorton were old, except that instead of having a button with a rubber shank or wholly of rubber the button and shank were of metal. The substitution of the rubber button was an improve

ment of decided value. Supporters like that shown and described in the patent consist of two members,-one a plate with a button attached thereto, and the other a pear-shaped loop. Each member is attached to a strip of webbing, the loop member being usually mounted on a strip of elastic webbing. In using the device the fabric of the stocking is placed over the button, and with the button is then inserted through the large end of the pear-shaped slot, and the button is then drawn or forced into the contracted portion of the slot, so that the side walls of this contracted portion operate to hold the stocking firmly against the shank. With the metal button of the old device the fabric is gripped or clamped between two metal surfaces, the outer surface of the stud shank and the inner surface of the surrounding portion of the loop. If these metal surfaces are made smooth and round the fabric will slip between them, and even under a moderate strain will soon work its way free from the supporter. If, in order to overcome this objection, the metallic surfaces are roughened or sharpened to take a better hold of the fabric, they are likely to cut or wear the fabric away so that it will tear out or break away from the fastening, and may be badly damaged. Furthermore, the old fastener would not accommodate itself to different thicknesses of fabric, so that if the loop were fitted close to the shank of the stud to work well with thin fabrics it would not work properly with thick fabrics and was liable to injure them; and, on the other hand, if sufficient space were left to work better with thick fabrics, thinner fabrics would scarcely be held at all. Numerous patents had been obtained for modifications in the several devices composing the supporter intended to afford a clasp that would hold the fabric firmly without slipping and would not abrade under strain, and would be adapted for fabrics of different thicknesses. Beginning with the patent to Walker granted in 1878, and ending with the patents to Smith of 1893 and 1894, is found a long series of attempts. Some of these are for "garment supporters" in which the devices in combination are employed for the analogous use of holding up skirts or dresses as well as stockings. The patent of 1887 to Cattile is for a clasp in which the loop member is of flexible wire, and of a form which when the button is inserted will by its yielding and recession hold the fabric firmly. Smith, the latest inventor, endeavored in his patent of 1894 to remedy the defect by employing a button of which the shank was made of springing uprights. The difficulty was not satisfactorily remedied until the substitution of the rubber button of the patent accomplished the desired result; and notwithstanding hose supporters, having all the essential features of the patented clasp except the rubber button, were open to public use, the patented supporter at once met with great commercial success, and users and dealers promptly recognized its merits.

It is necessary that the button or stud be provided with a firm shank, which may be proportioned to the lower narrow end of the loop member, so that the fabric of the hose, interposed between the two, may be gripped or clamped between the shank of the stud and the portion of the loop surrounding it. The button of the patent is provided with such a shank, and the first claim, which is the