ing. The mere expansion of these parts where brought in contact does not involve invention. It gives them no new function and produces no new result. It was what any skilled mechanic would do if it was found, in practice, that the parts in contact were liable to twist. It is the same idea as is involved in the common and well-known device of what is called the fifth wheel to a wagon, that is, a larger bearing surface is given, in order to secure steadiness, and less liability to breakage of the parts. It is true that the form of the parts or elements of the appellant's device differs somewhat from that shown in the prior devices which I have cited, but the essential principle of the appellant's machine is found in the prior devices which have been referred to.

"A change of form of a machine, without a change of mode of operation or result, is not patentable." Winans v. Denmead, 15 How. 330. "A change of mechanical structure is not patentable unless it produces a new and entirely different result." Sargent v. Larned, 2 Curt. 340; Mabie v. Haskell, 2 Cliff. 510; Aiken v. Dolan, 3 Fish. Pat. Cas. 204.

The fifth claim of the Gardiner & Downey patent is a combination claim, the elements of the combination being the head, b, the forked plate, c, the pivot pin, d, and the screw, i. All these elements are presumed to be old, but a combination of old parts may make a valid patent, if a new result is produced by such combination. The efficient member of this combination is the screw, i, which is applied to hold the pivot, d, firmly in the head, b. It is, as the specifications say, "tapped into the rear side of the head," so that it may be made to bear upon and hold the pivot. It is merely what is known in mechanics as a "set screw." A "set screw" is defined to be "a screw, as in a cramp, screwed through one part tightly upon another to bring pieces of wood, metal, etc., in close contact." Imperial Dict. "Set screw. A screw employed to hold or move objects to their bearings, as the bits in a cutter head or brace." Knight, Mechanical Dict. The only function. or office of this set screw, i, is to hold the pin, d, in place,—the same result as is produced by a set screw in a cutter head, that of holding the bit or cutter in place; or, as the first definition quoted says, it brings the pieces of metal, that is, the pin and the head, in close contact. No new result is produced by this combination from that produced by the use of a set screw in a cutter head. This claim of the patent is therefore void for want of novelty.

The decree of the circuit court is affirmed.

ARMSTRONG et al. v. SAVANNAH SOAP WORKS et al.

(Circuit Court, S. D. Georgia, E. D. April 13, 1892.)

TRADE MARK-BILL FOR INFRINGEMENT-PARTIES.

The directors of a corporation may be included as parties defendant in a bill against the corporation for infringement of a trade-mark.

In Equity. Bill by Armstrong & Co. against the Savannah Soap Works and others to enjoin infringement of trade-mark. improper joinder of parties defendant. Overruled.

Demurrer for

William G. Henderson, for plaintiffs.

J. R. Saussy, for defendants.

SPEER, District Judge. The plaintiffs have brought their bill against the defendants named, and are met by a demurrer, first, upon the ground that the bill, as originally filed, did not state an amount of damages exceeding $2,000, exclusive of interest and costs. This has been cured by an amendment, and it will not be necessary to consider the able argument of the plaintiffs' attorney, in which he insists that the court has jurisdiction of a suit for the infringement of a registered trademark, irrespective of the amount involved. A further ground of demurrer is that the directors of the defendant corporation are joined as parties defendant, which, it is insisted, is a misjoinder. In support of this proposition the defendants rely upon Story, Eq. Pl. § 235; 1 Daniell, Ch. Pr. p. 145, note 2; 9 Ch. Div. p. 552, reporting the case of Wilson v. Church. In the case last mentioned it was held that, under the English judicature act, the defendants, being officers of the corporation, were improperly joined. It is to be observed, however, in the language of Jessel, master of the rolls:

"The legislature, in adopting this act, inaugurated a totally new system of pleading, and established a new court of justice, for that is what the high court is, and one system for all kinds of actions, whether common-law actions or equity actions. There is no other practice extant applicable to equity actions. The old practice has ceased to exist. There is only one kind of action and one kind of procedure."

It was there held that, as the officers of the corporation were joined merely for the purpose of discovery, and as the discovery could be had by interrogatories in a court of law, the joinder was improper. It is perhaps unnecessary to point out that this system has no standing in the courts of the United States, where the domain of law and equity procedure is entirely distinct. In his admirable work on Equity Pleading, quoted above, Judge Story declares that the officers of a corporation, although they may be witnesses, may be joined in a suit against a corporation, because discovery may be sought from them; and in the case of Glasscott v. Miners' Co., 11 Sim. 305, cited in 1 Daniell, Ch. Pr. p. 145, the plaintiff was sued at law by a body corporate, and filed his bill for discovery only, making the governor, deputy chairman, one of the directors, and secretary of the company codefendants with the company. It was objected, upon demurrer to the bill, that an officer of the corporation could not be made a codefendant to the bill which sought for discovery only, or at any rate that the individual members could not be. joined as defendants with the corporation at large; but the demurrer was overruled. These are the authorities for the decision. On the other hand, the current of authority in this country seems clearly to justify the plaintiffs' action in joining the directors. In the case of Poppenhusen v. Falke, 4 Blatchf. 493, it was held that, where persons were acting in concert in infringing a patent, although they act merely as employes of a corporation, they are liable to be sued therefor jointly in one suit. In Estes v. Worthington, 30 Fed. Rep. 465, it was held, Judge

Wallace delivering the opinion, that in torts of misfeasance, like the violation of a trade-mark, agents and servants are personally liable to the injured party; citing Bell v. Josselyn, 3 Gray, 309; Richardson v. Kimball, 28 Me. 463; Mitchell v. Harmony, 13 How. 115; Phelps v. Wait, 30 N. Y. 78. It is true that there is a class of agents-such as mere workmen in the employ of a manufacturer-against whom there can be no recovery, although they may have participated in the acts of infringement, (Id.,) but ordinarily the infringer cannot escape the responsibility by showing that he was acting for another. Maltby v. Bobo, 14 Blatchf. 53; Steiger v. Heidelberger, 4 Fed. Rep. 455. In view of the authorities cited, the demurrer must be overruled.

1. ADMIRALTY JURISDICTION-"WATERS OF ALASKA"-FORFEITURE-FUR FISHERIES.

Where a vessel is seized for violation of Rev. St. § 1956, forbidding the killing of fur-bearing animals within the limits of Alaska territory, or the waters thereof, such seizure being made within the entrance of Cook's inlet, as determined by a line drawn from Cape Douglas to Point Bede, by a United States vessel acting in pursuance of orders from the government, it must be presumed that such orders were given in the assertion of territorial jurisdiction over the waters of the inlet; and, as the right to such jurisdiction is a political question, the courts will not inquire into it, but will assume jurisdiction as thus determined by the political branch of the government.

2. ALASKAN FUR FISHERIES-FISHING BY NATIVES-TREASURY REGULATIONS. Rev. St. § 1956, forbids the killing of fur-bearing animals within the limits of Alaska territory, or the waters thereof, but empowers the secretary of the treasury to authorize the killing of such animals, except fur seal, under such regulations as he may prescribe. By an order of April 21, 1879, the secretary forbade the killing of such animals by any other persons than natives, prohibited the use of firearms by the natives during certain months, and declared that no vessel would be allowed to anchor in the well-known otter-killing grounds, except vessels carrying parties of natives to or from such killing grounds. Held, that this regulation was not violated by a fur company which, in pursuance of an agreement made with natives at the beginning of the season, took on board of its ship parties of such natives, and anchored with them in the killing grounds, furnishing them with clothing, provisions, and the necessary outfit, and allowing them to live on board and make hunting excursions therefrom in their canoes, and at the end of the season usually purchasing the skins from them, though each native was free to sell his skins elsewhere; no firearms being used, and no white men taking any part in the hunting or killing, and the natives not being in any way hired or engaged by the company.

In Admiralty. Libel filed in behalf of the United States for the forfeiture of the schooner Kodiak for a violation of Rev. St. § 1956, forbidding the killing of fur-bearing animals within the limits of Alaska territory, or the waters thereof. Libel dismissed.

C. S. Johnson, Dist. Atty.

A. C. Barry and John S. Bugbee, for claimant.

TRUITT, District Judge. The libel which was filed in this case on the 15th of June, 1892, alleges that the schooner Kodiak, on or about the 6th of June, 1892, was seized by Henry L. Johnson, commander of the United States steamer Mohican, in Cook's inlet, in the waters of Alaska, and within the jurisdiction of this court, and then sets out the cause of said seizure as follows:

"That said vessel, her captain, officers, and crew, assisted by a large number of natives of Alaska, were at said time unlawfully engaged in killing, and did kill, fur-bearing animals, known as 'otter,' within the limits of Alaska territory, and in the waters thereof, in violation of the provisions of section 1956 of the Revised Statutes of the United States in such cases made and provided."

This section is as follows:

"No person shall kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, within the limits of Alaska territory, or in the waters thereof, and every person guilty thereof shall, for each offense, be fined not less than two hundred nor more than one thousand dollars, or imprisoned not more than six months, or both; and all vessels, their tackle, apparel, furniture, and cargo, found engaged in violation of this section, shall be forfeited. But the secretary of the treasury shall have power to authorize the killing of any such mink, marten, sable, or other fur-bearing animal, except fur seal, under such regulations as he may prescribe; and it shall be the duty of the secretary to prevent the killing of any fur seal, and to provide for the execution of the provisions of this section, until it is otherwise provided by law. Nor shall he grant any special privileges under this section."

After the filing of the libel herein, on June 18, 1892, the master of the Kodiak, intervening for and in behalf of the vessel, her tackle, apparel, furniture, and cargo, appeared and alleged that at the time of the seizure of said property he was in possession thereof, and that it belonged to the Alaska Commercial Company, a corporation duly organized under the laws of California. This company in subsequent proceedings appeared as claimant, and on the 4th day of October, 1892, filed an answer to the libel. In this answer, by failing to deny, it admits, the allegations of the libel as to the time, place, manner, and authority of the seizure, but denies any violation of the provisions of section 1956, or any other statute whatever, or the commission of any act which it might not lawfully do under and in pursuance of the authority conferred by regulations of the secretary of the treasury of the United States, issued and prescribed on the 21st of April, 1879. The regulations referred to in this answer were issued by Hon. John Sherman, and are given in the following notice or circular:

"Treasury Department.

"Washington, D. C., April 21, 1879. "Section 1956 of the Revised Statutes of the United States provides that no person shall, without the consent of the secretary of the treasury, kill any otter, mink, marten, sable, or fur seal, or other fur-bearing animal, within the limits of Alaska territory, or in the waters thereof, and that any person convicted of a violation of that section shall, for each offense, be fined not less than two hundred nor more than one thousand dollars, or be imprisoned not more than six months, or both, and that all vessels, with their tackle, apparel, furniture, and cargo, found engaged in violation of that section, shall be forfeited. No fur-bearing animal will, therefore, be allowed to be killed, by persons other than the natives, within the limits of Alaska territory, or in the waters thereof, except fur seals taken by the Alaska Commercial Company in pursuance of their lease. The use of firearms by the natives in kill

ing otter during the months of May, June, July, August, and September is hereby prohibited. No vessel will be allowed to anchor in the well-known otter-killing grounds, except those which may carry parties of natives to or from Such killing grounds; and it will be the duty of the officers of the United States, who may be in that locality, to take all proper measures to enforce all the pains and penalties of the law against persons found guilty of a violation thereof. White men lawfully married to natives, and residing within the territory, are considered natives, within the meaning of this order. "John Sherman, Secretary of the Treasury."

Two principal questions arise in this case:

(1) Was the Kodiak, at the time of her seizure, within waters over which the United States had jurisdiction to make the same? and

(2) If so, were the acts proved by the evidence to have been committed a violation of section 1956, under the circular of the secretary of the treasury?

The evidence touching the first question is that the vessel on June 6, 1892, at the time of the seizure, was in latitude 59° 9′ N., longitude 152° 41′ W., well inside of Cook's inlet, lying in a calm, within sight of the shore, but about 20 miles distant from it, at the nearest point. Cook's inlet is on the eastern side of that portion of Alaska which borders on the Gulf of Alaska. It is about 47 miles wide at its entrance, and extends northward into the mainland a distance of, perhaps, 140 miles. The Kodiak, when seized, was, as shown from the map in evidence, at least three or four miles inside of a line drawn across the entrance to the inlet from Cape Douglas to Point Bede, the nearest headlands, and almost equally distant from them, but somewhat nearer to Cape Douglas. It was contended on behalf of the claimant that these facts show that this court has no jurisdiction to try the case, for the reason that the municipal laws of the United States have no force upon the sea beyond a marine league or three miles from the shore line, and that the statute prohibiting the killing of fur-bearing animals within the limits of Alaska territory, or "in the waters thereof," only means, so far as it applies to the sea, a distance of three miles from the mainland or islands. If this position is correct, congress did a vain and useless thing when it enacted the statute under which this prosecution is had; for, from the nature and habits of the sea otter, if hunters are allowed to come with their vessels and hover along the coast within a few miles of shore, though beyond a marine league therefrom, and kill them, without molestation, then the laws for their protection are futile, and might as well be repealed. But the position is not correct. The contention is not a valid one. In Church v. Hubbart, 2 Cranch, 187, the doctrine is announced that nations may prevent the violation of their laws by seizures on the high seas, in the neighborhood of their own coast, and that there is no fixed rule prescribing the distance from the coast within which such seizures may be made. However, it can hardly be claimed that any portion of Cook's inlet is "high sea," within the accepted meaning of the phrase, for it is well landlocked by islands extending from Kadiak island to Cape Elizabeth, on the east, and can only be entered by coming in near some of these islands, or by the way of Shelikoff straits. In Kent's Commentaries, (volume 1, p. 30,) it is stated that