Sayles v. Oregon Central Railway Co. It can hardly be doubted that this attempt to amend said section 6 by simply repealing a certain portion of it, is in direct violation of section 22 of article IV. of the Constitution of the State, which provides, that "no act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length." Now, although section 8 may have been properly amended, yet, if section 6 was not, then subdivision 5 thereof is still in force; wherefore, the result is, that there are two periods of limitation in the statute for actions of this kind-one for six years, and the other for two. In such a case the plaintiff may avail himself of the longer period, and the shorter is practically a nullity. But I think there is no reasonable doubt that section 5,599 of the R. S. contains a saving clause by which the limitation in section 55 of the Act of 1870, supra, is continued in force for the purposes of this action. It reads: "All acts of limitation, whether applicable to civil causes and proceedings, or to the prosecution of offences, or for the recovery of penalties or forfeitures embraced in said revision and covered by said repeal, shall not be affected thereby, but ail suits, proceedings, or prosecutions, whether civil or criminal, for causes arising, or acts done or committed prior to said repeal, may be commenced and prosecuted within the same time as if said repeal had not been made." It is difficult to conceive of anything plainer or more comprehensive than this. Read simply with reference to this case, it provides that any act of limitation applicable to actions for the infringement of patents embraced in the R. S., or covered by the repealing clauses thereof, shall not be affected thereby, but all such causes of action arising prior to said repeal may be commenced and prosecuted as if said repeal had not been made, which would be at any time within six years from the expiration of the patent or the extension thereof. Counsel for the demurrer cites Sayles v. The Richmond, F. & P. Railroad Co., 11 Chi. Legal News, 281, in which it seems to have been assumed that the limitation clause in section 55 of the Act of 1870, supra, was unqualifiedly repealed by the R. S. and that, therefore, the limitation in actions and National School Furniture Co. v. Paton. suits for the infringements of a patent, since June 22d, 1874, under section 721 of the R. S., is to be found in the law of the State where the same is brought. But, as in that case the suit was not barred by either the national or the State statute, it was not material to inquire further; and, in fact, the attention of the Court does not appear to have been called to section 5,599, supra, which, as has been shown, expressly provides that actions and suits upon causes arising before the revision and repeal of June 22d, 1874, "may be commenced and prosecuted within the same time, as if said repeal had not been made." Where a defendant, in opposing a motion for a preliminary injunction to re- *16 Blatchf., C. C. R., 563. BLATCHFORD, J. National School Furniture Co. v. Paton. An injunction has been granted in this case, on patent No. 115,232. On a motion to punish the defendants for a contempt for violating that injunction, a certain form of desk, called by the defendants, a "normal desk," with a book-rest attachment, was held to be an infringement of said patent, and the defendants were held guilty of a contempt in violating said injunction, by making and selling said "normal desk" with said attachment. They now come in and move to dissolve the injunction for the future, as respects said "normal desk" with such attachment, on affidavits which they claim show that they actually made such form of "normal desk" with such attachment, as early as the year 1866, certainly as early as the year 1869, and before the invention covered by the plaintiff's patent was made, such patent having been issued in 1871. This form of desk, so alleged to have been made by the defendants in 1866 is claimed to have been made by them for Mr. Van Norman. Yet, neither in opposition to the motion for an injunction, nor in opposition to the motion to punish them for contempt in making such form of desk, did they, or either of them, or their foreman, or Mr. Van Norman, or any one else, testify that such form of desk had been made by them as early as the time now alleged. So far from this, in opposing the motion for an injunction, the defendants testified to, and produced, a form of desk which they had made for Mr. Van Norman prior to the plaintiff's invention, but which was not the form now in question-the "normal desk" with the book-rest attachment. They had their books, their recollection, that of their foreman, capacity to find Mr. Van Norman, and the testimony as to the desk would have been as useful to them then as now, and they must have so understood it. Still more, in opposition to the contempt motion, the defendant Robert Paton testified, that he had made the "normal desk," with the book-rest attachment, "for several years," but assigned no specific date earlier than July, 1875. Under such circumstances, the defendants ought not to be heard to allege matter claimed to have been then existing, which they thus neglected to present to the Court, and have the benefit of it now to dissolve an injunction propVOL. IV-28 erly granted. 143. one. Hicks v. Möller. Woodworth v. Rogers, 3 Woodb. & M., 135, If this rule ought to be relaxed in any case, this is not The excuses offered by the defendants for not sooner bringing in the evidence now offered, are not, on all the facts before the Court, satisfactory, and, under all the circumstances, the Court cannot but regard it as doubtful whether in fact the defendants made any normal desk" with the book-rest attachment, at an earlier date than that of the plaintiff's invention. The motion is, therefore, denied. 66 Frederic H. Betts, for the complainant, Francis Forbes, for the defendants. WILLIAM H. HICKS VS. CONSTANT A. MÖLLER. IN EQUITY. Upon the construction given by the Court to letters patent No. 48,300 granted to E. D. Moyer, on June 20th, 1865, for an improved bottle-stopper, the defendants held not to have infringed. (Before SHIPMAN, J., District of Connecticut, Angust, 1879.) SHIPMAN, J. This is a bill in equity to restrain the alleged infringement of letters patent which were granted to E. D. Moyer on June 20th, 1865, for an improved bottle-stopper. The plaintiff is the owner of the patent. The object of the invention was to provide a durable and cheap substitute for the ordinary bark corks used for stopping beer and mineral-water bottles. The patentee says in his specification: "The nature of my invention consists in providing a hollow metallic cap, with an elastic water-proof filling, and attaching to its outer side a swinging frame of Hicks v. Möller. stiff wire so bent and fitted that when the elastic end of the cap is placed over the open mouth of the bottle and pressed firmly down thereon by hand, the lower end of the said. swinging frame can be readily sprung under the lip of the bottle by one's finger, so that it will clasp it itself to the neck of the bottle, remain in that position without other fastening, and thus hold the cap firmly and tightly down on the mouth of the bottle against the pressure of the contained fermenting or expansive nature of beer, mineral water, or other similarly expansive beverage usually put up in bottles for sale, and also allow the quick removal of the said stopper when required, without breaking, deranging, or otherwise injuring any of its parts for suosequent use in like manner." I deem it important to describe only the construction of the swinging frame. The manner of its construction will be better understood from the following description by the plaintiff's expert than from the language of the specification: "Through the upper portion of the metallic cap-piece, and upon a line which is the diameter of the cylinder, a hole is bored from one side to the other of the cap-piece, and a wire, marked a2, is passed through the hole and made long enough to project on either side of the vertical outside walls of the cylinder, and in a horizontal direction when the cap is on the bottle, far enough to furnish bearings for a swinging frame to be pivoted to, and this wire, of course, stands vertically over the centre of the bottle mouth, and at right angles to the vertical axis of the cap-piece and rubber filling. The swinging frame, which is thus hinged to the ends of the projecting wire a2, is furnished with loops marked b', one on each side of the cap-piece, and the frame thus swings around the wire a2, as a centre, and around a line which is the diameter of the cap-piece. The swinging frame is made from one piece of wire, *** and is called the swinging spring frame B. It has two legs, b', which extend from the eyes b', nearly parallel to each other, to a circular bend marked b2 in the drawing, making also another bend or loop where the said legs join the curve 2 ** *. The curve b is made somewhat smaller in diameter than the diameter of the bottle under the projection, and the curve extends more than a half-circle |