a charterer, owner pro hac vice, is but in degree. A right to present possession is as good as an absolute title as against the owner or anybody else who wrongfully disturbs it. A charter is a maritime contract, and when it has been executed by delivery of the vessel no equitable powers are needed by the court for the enforcement of the charterer's right to possession. A possessory suit is in the nature of a common-law action of replevin.

We do not pass upon the merits, and in order that the court below may do so the decree is reversed.

(Circuit Court of Appeals, Ninth Circuit. August 7, 1916.)

No. 2689.

COLLISION 83-MOTOR BOATS MEETING IN FOG-MUTUAL FAULTS.

A collision between two gasoline motor boats, which met nearly head on in a heavy fog, held due to faults on the part of each; one being in fault for failure to keep an efficient lookout, and the other for not sounding fog signals.

[Ed. Note. For other cases, see Collision, Cent. Dig. §§ 156, 167, 175; Dec. Dig. 83.]

Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge.

Suit in admiralty for collision by M. Costa and others, owners of the gasoline boat L'Etruria, against the gasoline boat Noe G.; Onerato Chappi, claimant. Decree dividing damages, and claimant appeals. Affirmed.

Charles C. Crouch and Claude L. Chambers, both of San Diego, Cal., for appellant.

C. G. Selleck and Marks P. Mossholder, both of San Diego, Cal., for respondents.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS, Circuit Judge. This case arose out of a collision between two gasoline power boats, one named Noe G. and the other L'Etruria. At the time of the collision and for some time prior thereto there was a heavy fog prevailing, and the two boats were approaching each other practically dead ahead.

The court below found as facts that the lookout on L'Etruria sighted the Noe G. when the two boats were from 40 to 50 feet apart, whereupon the helm of L'Etruria was at once ported and she went to starboard; that the Noe G. did not sight L'Etruria until 10 to 15 feet from her, and that, had the lookout on the Noe G. been properly placed and attending to his duties, he could have seen L'Etruria when she was at least from 40 to 50 feet distant; that, after sighting L'Etru

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ria, the Noe G. held her course and struck L'Etruria on her port bow just forward of the chain plates, breaking a large hole in that boat, through which the sea entered so rapidly that within a few minutes she sank, with a consequent loss of $2,500-no damage resulting to the Noe G.

The court having further found that L'Etruria, although running in a heavy fog, had not prior to the collision been blowing her fog horn, accordingly found both boats equally in fault, and divided the damages. Manifestly the court was right in so doing, unless, as contended on the part of the appellant, owner of the Noe G., the finding of fact in respect to her lookout was not sustained by the evidence; but, after a careful reading of the testimony of the witnesses, we are of the contrary opinion, and accordingly affirm the judgment. The judgment is affirmed.

(235 Fed. 120)

ECONOMY FUSE & MFG. CO. v. KILLARK ELECTRIC MFG. CO.*

(Circuit Court of Appeals Eighth Circuit. July 29, 1916.)

No. 4679.

APPEAL AND Error 70(3)—APPEALABLE Orders-PERMITTING DISMISSAL OF COUNTERCLAIM.

An order permitting a defendant to amend the answer, by dismissing without prejudice a counterclaim pleaded therein, is interlocutory, and not appealable.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 370, 411; Dec. Dig. ~70(3).]

Appeal from the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.

Suit in equity by the Economy Fuse & Manufacturing Company against the Killark Electric Manufacturing Company. From an interlocutory order, complainant appeals. Dismissed.

Henry M. Huxley, of Chicago, Ill., for appellant.

Before SMITH and CARLAND, Circuit Judges, and AMIDON, District Judge.

CARLAND, Circuit Judge. Appellant filed its complaint for patent infringement. Appellee answered, and set up a counterclaim alleging infringement by appellant. Appellant replied, and filed certain interrogatories. Appellee answered the same. Appellant then moved the court to dismiss the counterclaim for want of equity. Subsequently appellee moved for leave to amend its answer, by striking therefrom its counterclaim without prejudice. The court heard appellee's motion, and granted it January 31, 1916. March 1, 1916, the court denied appellant's motion, and refused to vacate the order of January 31, 1916. On the last date mentioned appellant appealed from the orders of January 31 and March 1, 1916. The case is still pending in the United States District Court at St. Louis, Mo., on the complaint

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied November 6, 1916.

of appellant and answer of appellee. There has been no appearance by appellee, but this court must notice a want of jurisdiction, if any exist, as all its acts depend for their validity on its having jurisdiction.

Our power to review the proceedings of the District Courts is limited to the final decisions thereof, except interlocutory orders in relation to injunctions and receivers. The order of January 31, 1916, manifestly is not a final decision within the meaning of the law, as it decided no issue in the case arising either on the counterclaim or the complaint, and therefore the appeal from that order must be dismissed. If the order of March 1, 1916, denying the motion to dismiss the counterclaim for want of equity, is appealable, we can do nothing but affirm the order, for the reason that it was the only order that the court could make, having already allowed appellee to amend its answer by striking the counterclaim therefrom. The court could not grant both motions, and the first order not being reviewable here forecloses all further proceedings.

The appeal from the order of January 31, 1916, is dismissed, and the order of March 1, 1916, affirmed, for the reason that at the time. it was made the counterclaim had already passed from the case; and it is so ordered.

(235 Fed. 121)

PAGE MACH. CO. v. DOW, JONES & CO.

(Circuit Court of Appeals, Second Circuit. April 11, 1916.)

No. 238.

PATENTS

328-INFRINGEMENT-PRINTING TELEGRAPH RECEIVER.

The Joy patent, No. 780,664, for a printing telegraph receiver, claim 12, which is for one feature only of a complicated machine, construed, and held not infringed.

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

Suit in equity by the Page Machine Company against Dow, Jones & Co. Decree for complainant (230 Fed. 164), and defendant appeals. Reversed.

See, also, 200 Fed. 72, 74.

This is an appeal from a decree of the District Court, entered on December 21, 1915, awarding an injunction for the infringement of letters patent 780,664, issued to John M. Joy on January 24, 1905. The invention relates to a printing telegraph receiver of the class known as "Page printers," and the chief object of the invention was to increase the rate of speed at which such receiver might be worked with a minimum of power; but it had as subsidiary objects to improve the machine in various details of operation and organization, one of which is in question here. The patent was not the first in the art, which goes back to 1878, G. L. Anders, 210,895. Other machines of the same general character are shown in the two Wright patents, 460,328 (1891) and 466,858 (1892).

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The first efforts of this patentee were in conjunction with one B. F. Merritt and are shown in Merritt & Joy, 558,506 (1896), which contains a device for the feeding of the paper to make successive lines, which is relevant here. The printing is done by a wheel containing all the letters and numbers, which revolves along with a shaft on which it is fixed, until the proper letter is opposite the paper. After the printing of one letter the type wheel carriage must move to the right to make a letter space, when in its new position it is turned on its own axis to the next letter, and so proceeds to the end of the line at the right. After it reaches the end of the line it must be retracted to the extreme left again, and at or after its retraction the paper must be fed one line. In Merritt & Joy's patent the feeding of the line, which is the feature here in question, was accomplished by the impact of the type wheel carriage as it moved from right to left under the influence of a retracting spring, the energy in which was stored up by the motion of the type wheel carriage itself. The paper feed in this patent did not directly obtain any energy from the shaft which moved the carriage to the right and rotated the wheel to the proper point for printing, but in the patent in suit the paper feed was energized directly by the same shaft which drove the type wheel to the right and rotated it. This was the source of the claim in question, which was No. 12 of the patent, and read as follows: "In a printing telegraph receiver the combination of a type wheel, paper feeding mechanism, a constantly acting source of power, and means for continuously feeding the paper without feeding the type wheel as long as said source is supplying power, for substantially the purposes set forth." This claim had once been in suit between the parties, and was held invalid by the Circuit Court. 166 Fed. 479. Thereupon the plaintiff filed a disclaimer of claim 12 as follows: "As to claim 12 for a constantly acting source of power in the combination of element therein contained excepting a constantly rotating drive shaft." Thereupon the plaintiff in the suit mentioned filed a supplemental bill, and the court held that claim 12, as modified by the disclaimer, was valid and infringed. (C. C.) 200 Fed. 72. Thereafter the defendant changed its machine, and on contempt proceedings the second machine was held to violate claim 12. (D. C.) 200 Fed. 74. Finally, the defendant changed its machine a second time, and this suit was brought in the District Court, which held the machine so changed for a second time to be also within claim 12. It is this decree which is now here upon appeal.

The defendant's machine is of the same general character as the plaintiff's. It will be necessary only to consider the machine now in question and that known in the case as the "contempt" machine. In the "contempt" machine, through the interposition of a relay battery, it was possible to feed the paper space while the type carriage remained stationary at the extreme left of the line. This was accomplished by repeatedly making and breaking the electric current which actuated a magnet the armature of which in turn operated the feed mechanism. The Circuit Court held that this constituted a means for continuously feeding the paper without feeding the type wheel as long as said source is supplying power. In the present machine the paper feed is operated by a battery, but the current is made and broken only by the movement of the type wheel carriage.

The defendant claims that it has adopted the earlier disclosure of the Merritt & Joy patent, combining therewith the relay battery shown in the patent of Essick, 531,677, in which when the type wheel carriage is retracted to the extreme left it closes a contact which operates the paper feed for one line. The carriage must then be moved one space to the right to open the contact and prepare the paper feed for another space, and finally it must be retracted a second time to the left again to close the contact. In Essick, therefore, it is necessary that the wheel carriage shall continuously oscillate through small distances to the right and then to the left in order to feed the paper successive lines, but the energy which actuates the paper feed is not the source of power which actuates the type wheel carriage unless within the term "actuates" is included the mere opening and closing of the circuit. The details of the structure are not necessary to state more fully.

Gifford & Bull, of New York City (J. Edgar Bull and Charles S. Jones, both of New York City, of counsel), for appellee.

Newell & Neal, of New York City (Frederick P. Fish and Emerson R. Newell, both of New York City, of counsel), for appellant. Before COXE and WARD, Circuit Judges, and LEARNED HAND, District Judge.

LEARNED HAND, District Judge (after stating the facts as above). In this case we do not think it necessary to take up the question of validity at all, since we are satisfied that the claim should not receive a broad interpretation, because it is for only one feature of a highly complicated and detailed machine coming into a closely settled art, and the invention must be therefore confined to the disclosure. The issue of infringement turns on the interpretation of the words, "for continuously feeding the paper without feeding the type wheel." We pass the validity of the disclaimer, assuming for argument's sake, that the phrase, "constantly acting source of power," is to be read, "a constantly rotating drive shaft." The words in question ought to be interpreted by the specifications as far as these throw any light, and they not only throw light, but absolutely define and control these words as used in the claim. On page 3, lines 81-100, the patentee speaks of a mechanism for shifting the operating clutch, which is lettered C on the drawings, and to understand which perhaps the best figure for practical purposes is Figure 2, although the section drawing in Figure 9 also illustrates it. He then says that, before describing the present mechanism for shifting this operating clutch and its operation, he "will state generally that according to my invention. means are provided for continuously feeding the paper without feeding the type wheel, and to be more particular the means for accomplishing this end are connected with the mechanism for shifting the operating clutch C." This mechanism is clearly that referred to in claim 12. The description of the operation of the line-spacing mechanism begins at page 5, line 130, and ends at page 6, line 88. It describes how the lever, 113, rocks idly so long as the pins, 121 and 126, are not in abutment. It is during this period that the carriage of the type wheel is being advanced to the right with every oscillation of the escapement lever, 93, actuated by the magnet, 99, through its proper key, a device clearly shown in Figure 1. The description of how the type wheel is retracted and a single line of paper is fed begins on page 6, line 18, and ends on the same page at line 74. The important part of this specification for our present purposes is lines 74-88 on page 6, which are as follows:

"It will now be seen that after the operating clutch C has been shifted in such manner that the type wheel mover shaft 8 retracts the type wheel 7 against the buffer 72 by continuing to successively actuate the armature 97, causing the rotation of the escapement wheel, 70 tooth by tooth, the paper may be fed line by line without feeding the type wheel, 7, forward, for with the type wheel mover resting against buffer 72, as long as the stop 126 on shaft 6 is maintained in such position that finger 121 will hit against it whenever the lever 113 is actuated, rotation of the type wheel mover shaft in either direction cannot take place."