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fecting apparatus to Emil Taussig, of which complainant company is the owner by assignment. The defenses are want of novelty, prior use, and anticipation. Assuming the validity of the patent infringement is not controverted. The specification states:

"The leading feature of my design consists in a casing for disinfecting apparatus, which comprises a cylindrical body portion, provided with rounded ends, the said body portion having an annular band of perforations therein."

The adaptation of any new, useful, and original shape, contour, or configuration of any manufactured article is entitled to protection under the provisions of section 4929, Rev. St. [U. S. Comp. St. 1901, p. 3398], and it is well settled that the originator of a design cannot claim the distinction of being an inventor unless he has produced a salable article, which is not only original, but which possesses the characteristic and essential element of beauty or ornamentation, or that which imparts to it a peculiar or distinctive appearance. Gorham Co. v. White, 14 Wall, 511, 20 L. Ed. 731; Smith v. Whitman Saddle Co., 148 U. S. 678, 13 Sup. Ct. 768, 37 L. Ed. 606. That invention may be involved in reproducing an old and well-known vendable article in such manner as to give it an ornate appearance, the origination, being useful and for display, is undeniable. But there must be originality and beauty in the subject of the design, as the mere adaptation of old forms to new purposes does not involve invention, notwithstanding any ornamentation or pleasing configuration which may render the article more convenient or salable. In Gorham Co. v. White, supra, the Supreme Court says:

“And the thing invented or produced for which a patent is given is that which gives a peculiar or distinctive appearance to the manufacture or article to which it may be applied, or to which it gives form. The law manifestly contemplates that giving certain new and original appearances to a manufactured article may enhance its salable value, may enlarge the demand for it, and may be a meritorious service to the public."

Hence the rule may be accepted as well settled that design patents are granted because of appearance, and not with reference to mechanical usefulness. Rowe v. Blodgett & Clapp (C. C.) 103 Fed. 874. It was held in Untermeyer v. Freund (C. Č.) 37 Fed. 342, that he who challenges the novelty of a patent must sustain the challenge by proof beyond reasonable doubt. Applying these rules to this case, complainant is without doubt equitably entitled to a decree sustaining its patent, for the evidence shows that the peculiar contour of its device, which renders it attractive in appearance, commends it to users. This fact, of course, is an excellent test of its attractiveness. Bradley v. Eccles, 126 Fed. 945, 61 C. C. A. 669. The prior art does not disclose a casing the elements of which present an appearance to the eye as pleasing as that of the Taussig patent. The invention is concededly a modest one, and does not possess any specially artistic embellishments, but it is neat in appearance, is well shaped, well proportioned, and, in short, it appeals pleasingly to the eye, and is quite different from the Lewis and Imperial Hotel exhibits. The latter design, which approaches nearest in appearance to the design in suit, is egg-shaped, with perforations in the cylindrical part of the casing. Complainant's design, which is also cylindrical, has rounded and nicely proportioned caps at the ends, and a collection of perforations, smaller and more closely set than those in the Imperial Hotel device, at the upper end of the casing, which extends downward about onethird of its length. The caps mentioned have a low oval curvature, which in combination with the perforated cylindrical case gives complainant's design a different and more pleasing and finished appearance, the general effect of which enables ready distinguishment from the other casings. In view of these remarks, it is manifestly unnecessary to examine the evidence in relation to prior use or the mechanical patents to which attention is directed by the defendants.

The prima facie evidence of invention to which the patent is entitled not being overcome, complainant is entitled to a decree as prayed for in the bill, with costs.


(District Court, D. Oregon. July 2, 1906.)



Where the judge of a federal court who presided at the trial of a criminal case dies after the rendition of a verdict and pending a motion for a new trial, his successor has authority to hear and determine the same on the merits, by virtue of Rev. St. § 953, as amended by Act June 5, 1900, c. 717, § 1, 31 Stat. 270 [U. S. Comp. St. 1901, p. 696], as well as by the law as it previously existed, where the evidence has been taken in stenographic notes, or he is otherwise satisfied that he can fairly pass upon the motion and allow a true bill of exceptions.

[Ed. Note.-For cases in point, see vol. 29, Cent. Dig. Judges, $ 161.] 2. SAME-SENTENCE.

The penalty for a criminal offense is a matter for legislative regulation, and where the statute vests the court with a discretion as to the punishment to be imposed, within stated limits, such discretion is to be exercised by the judge independently of the jury; and, in case of the death of the judge who presided at the trial of a defendant after conviction but before sentence, the sentence may be pronounced by his successor, where there is sufficient in the record to enable him to fairly and intel

ligently exercise such discretion. On Motion by Defendant to Set Aside the Verdict and Grant a New Trial.

W. C. Bristol, U. S. Atty., for the Government.
Richard W. Montague, for defendant.

WOLVERTON, District Judge. The defendant was, on November 17, 1904, found guilty by the verdict of a jury on 21 counts, 18 of which were for forging affidavits for the purpose of defrauding the government, and the remaining 3 for uttering and publishing as genuine 3 of such false and forged affidavits. On December 13, 1904, defendant filed a motion to set aside the verdict and for a new trial, assigning as grounds therefor the following: (1) That the verdict is not sustained by any evidence; (2) that it is contrary to law; (3) that error of law was committed by the judge at the trial; (4) that error of law was committed in overruling the objections of defendant to the introduction of any testimony in the cause, for the reason that the indictment fails to charge an offense. On June 14, 1906, defendant assigned an additional ground, namely:

"That after the rendition of the verdict herein, and while said motion for a new trial was pending, and before decision had been rendered thereon or sentence passed, the Honorable Charles B. Bellinger, District Judge of the United States, before whom this cause was tried, died."

In the presentation of the motion upon argument, defendant, through his counsel, explicitly waived all reliance upon the four grounds first named, and based his right to relief solely upon the one recently assigned. This procedure on the part of the clefendant is tantamount to a concession that none of the grounds waived was well assigned. With this concession it is nevertheless insisted that the judge now presiding ought not to assume to exercise the authority to sentence the defendant, and hence that the motion for a new trial should be sustained as of course. The principal ground for this position is that the statute has reposed in the judge a very wide range of discretion in prescribing the punishment that may be imposed, and that only the judge presiding at the trial will presume to exercise such discretion. The punishment may be imprisonment at hard labor for a period of not more than 10 years, or a fine of not more than $1,000, or both fine and imprisonment. Another reason advanced is that in theory the judge is a component or a constituent part of the jury, thus necessitating a concurrence in the verdict rendered by the judge sitting at the trial; otherwise, a new trial must be awarded. The discretion vested in the judge to grant a new trial is not an arbitrary volition, but a judicial or legal discretion (as it is generally, perhaps not in every sense accurately, termed), to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to defeat, the ends of substantial justice. Says Mr. Justice Foster in Bundy v. Hyde, 50 N. H. 116, 120:

“By discretion-judicial discretion—we mean the exercise of final judgment by the court in the decision of such questions of fact as from their nature and the circumstances of the case come peculiarly within the province of the presiding judge to determine, without the intervention and to the exclusion of the functions of a jury."

This was said relative to the authority of the judge to permit leading questions to be asked. In a later case from the same court (Darling v. Westmoreland, 52 N. H. 401, 408, 13 Am. Rep. 55) it is said: “Judicial discretion, in its technical legal sense, is the name of the decision of certain questions of fact by the court”citing Bundy v. Hyde, supra. The point involved was as to the latitude allowable in cross-examination. So in State v. Wood, 23 N. J. Law, 560, 564, speaking of the discretion of the judge to grant a writ of certiorari, the court says: “True it is a legal discretion--a discretion regulated by sound principle and just reason—but it is discretion still. It rests in the judgment of the court.' It "implies that in the absence of positive law or fixed rule the judge is to decide by his view of expediency, or of the demands of equity and justice.” Of such is the nature of the discretion reposed in the court under the Oregon statute to relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. Thompson v. Connell, 31 Or. 231, 48 Pac. 467, 65 Am. St. Kep. 818. Of like character, as instanced by the foregoing cases, is the discretion reposed in the court to set aside a verdict, or to award a new trial through considerations of fact. It is not arbitrary, vague, or fanciful, nor is it to be controlled by humor or caprice, but to be governed by principle and regular procedure for the accomplishment of the ends of right and justice. If errors of law are relied upon, then the judgment of the court is required as to the right rule of law to be applied, and the questions are strictly of legal cognizance. Says Hammond, Circuit Judge, in Wright v. Southern Ex. Co. (C. C.) 80 Fed. 85, 93:

"It must and should be performed in every case with such conscientious intelligence as belongs to the judge, and that is the best that can be done in any case where he is called upon to discharge that duty."

The principle is applied in a criminal case (People v. Knutte [Cal.] 44 Pac. 166), where the court says:

“While it is the exclusive province of the jury to find the facts, it is, nevertheless, one of the most important requirements of the trial judge to see to it that this function of the jury is intelligently and justly exercised. this respect, while he cannot competently interfere with or control the jury in passing upon the evidence, he nevertheless exercises a very salutary supervisory power over their verdict. In the exercise of that power, he should always satisfy himself that the evidence as a whole is sufficient to sustain the verdict found; and if, in his sound judgment, it does not, he should unhesitatingly say so, and set the verdict aside."

Speaking in general, Mr. Bishop has this to say: "It is a rule widely governing in these cases, and reconciling multitudes of seeming conflicts in them, that on whatever grounds the new trial is asked the court will look through the entire proceedings which led to the verdict, consider in connection with them the new facts and reasons, and order the reversal if it deems there was injustice which probably may be corrected, otherwise refuse.” Bishop's New Crim. Proc. $ 1277.

See, also Serles v. Serles, 35 Or. 289, 57 Pac. 634; Mt. Adams, etc., Railway Co. v. Lowery, 74 Fed. 463, 20 C. C. A. 596; Pringle v. Guild (C. C.) 119 Fed. 962.

Now, while in running through the authorities expressions are found that seem to indicate that the presiding judge could alone act the part, they are usually so employed because pertinent to the conditions of the particular case; not that it was intended by any of the cases to decide that particular question. Upon the contrary, I am convinced that it cannot be affirmed upon principle or authority that such discretion is personal to the presiding judge.

judge. An early case in the Supreme Court of the United States (Life & Fire Ins. Co. v. Wilson's Heirs, 8 Pet. 291, 8 L. Ed. 849) states the law so clearly that it seems to me a work of supererogation to look beyond it for other authority. The district judge refused to sign a judgment that had been entered by his predecessor; the latter having died in the meanwhile. A mandamus having issued requiring him to show cause why he should not sign the judgment, he answered, among other things, that as the judgment was not rendered by him he had no power to grant a new trial, because he was not acquainted with the facts and circumstances that should influence his discretion in making such an order. To this the Supreme Court, speaking through Mr. Justice McLean, answered:

“But the district judge is mistaken in supposing that no one but the judge who renders the judgment can grant a new trial. lIe, as the successor of his predecessor, can exercise the same powers, and has a right to act on every case that remains undecided upon the docket, as fully as his predecessor could have done. The court remains the same, and the change of the incumbents cannot and ought not in any respect to injure the rights of litigant parties."

The authority of the succeeding judge to exercise this discretion is expressly recognized by the amendatory act of Congress of June 5, 1900 (31 Stat. 270, c. 17, § 1 [U. S. Comp St. 1901, p. 696]). It is there enacted that in case the judge before whom the cause was tried is, by reason of death, sickness or other disability, unable to hear or pass upon the motion for a new trial, and allow and sign the bill of exceptions, then that the judge who succeeds said trial judge, or any other judge of the court in which the case was tried, if the evidence in such case has been taken in stenographic notes, or if said judge is satisfied by any other way that he can pass upon said motion and allow a true bill of exceptions, he shall then pass upon the motion and sign the bill of exceptions. The further provision is added that in case the succeeding judge is satisfied that, owing to the fact that he did not preside at the trial, or for any other cause, he cannot fairly pass upon the motion and allow and sign said bill of exceptions, then he may, in his discretion, grant a new trial to the party moving therefor. This statute is manifestly a recognition, and therefore declaratory, of the law as it existed prior to its enactment, touching the allowance or disallowance by the succeeding judge of a motion for a new trial. A motion to set aside a verdict proceeds upon identical grounds. It is logically impossible, by reason of the order in which the hearings must be had and determinations rendered, to settle a bill of exceptions without passing upon a motion to set aside a verdict or to grant a new trial. If such a motion were allowed, as counsel argues should be of course, where a succeeding judge is sitting, then there could be no further bother about the bill of exceptions, as the case could not be proceeded with further until another trial was had and another verdict rendered; so the Congress has authorized a succeeding judge to settle the bill of exceptions—a thing that was not clear, and perhaps not allowable, prior to the act. But in doing so it has recognized the rule as it previously obtained that a succeeding judge might regularly grant a new trial. See further authorities bearing upon the subject: Allen v. State (Ga.) 29 S. E. 470; People v. Mc

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