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The inference is that counsel had been given full opportunity to present whatever he could offer in support of the motion.

Assuming the facts to be as set forth above, we are not satisfied that the commissioner erred in denying the motion,

The judgment is affirmed.

A. B. DICK CO. v. HENRY et al.

(Circuit Court of Appeals, Second Circuit. May 9, 1912. On Rehearing,

May 20, 1912.)

No. 155.

COURTS (§ 384*)-CIRCUIT COURT OF APPEALS DETERMINATION OF CAUSE.

Where facts have been stated by the Circuit Court of Appeals to the Supreme Court as a basis for a question of law certified for decision, it is to be implied that the court has found such facts, and, after the instruction of the Supreme Court has been received, they will not be re examined on the same record.

[Ed. Note.-For other cases, see Courts, Cent. Dig. § 1021; Dec. Dig. $384.*]

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

Suit in equity by the A. B. Dick Company against Sidney Henry and Margaret Henry. On motion by defendant, appellant, for rehearing. Denied.

See, also, 224 U. S. 1, 32 Sup. Ct. 364, 56 L. Ed. 645.
Hans v. Briesen, for Margaret Henry.

Before COXE, WARD and NOYES, Circuit Judges.

PER CURIAM. The mandate from the Supreme Court has not yel been received by the clerk of this court. Until it is filed in this court, we cannot make any order affecting the merits of the case.

A motion for an additional hearing has been submitted informally but without stating with sufficient definiteness what the new points are upon which a hearing is desired.

If the surviving defendant desires to do so, in advance of receiving the mandate, she may submit a printed brief stating definitely what the new points are upon which she desires to be heard further and a short statement of the argument thereon; the brief to be filed with the clerk of this court on or before May 15, 1912.

On Rehearing.

COXE, Circuit Judge. We have carefully considered the brief presented May 15th in support of the motion for a rehearing and have re-examined the record and the briefs filed at the original hearing. If the court had any doubt as to the other questions involved in the suit, it would not have certified the question of infringement to the Supreme Court. This would be implied in any case, but the certificate sent to the Supreme Court expressly states that after hearing the arguments, "this court agreed as to all the questions except one only, upon which it desires the instruction of the Supreme Court for the proper decision."

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexe

The question being answered to the effect that the selling of the ink to Miss Skon constituted an infringement, there is nothing for this court to do but to affirm the decree in favor of the complainant. The death of the defendant, Sidney Henry, does not in any way affect the question now before the court. There is no doubt as to the liability of the defendant, Margaret Henry. The bill alleges that the "defendants, Sidney Henry and Margaret Henry, individually and as co-partners, trading as the Lineograph Company," sold ink in violation of the complainant's rights. The allegation that they were in partnership is not denied in the answer. Indeed, the defendant, Sidney Henry, testified as follows:

"X-Q. Who is associated with you in the business which you are doing now, and have been doing for some years past? A. My wife.

"X-Q. Any one else have any interest in that business? A. No one. "X-Q. Are you and your wife in partnership? A. I am her manager. "X-Q. You mean that she is the proprietor of the business and that you work for her? A. She owns it."

There was no doubt in the mind of the court at the time of the certification, and there is no doubt to-day, that the defendants were acting together as partners, and that the selling of ink was in the line of their business. The defendants have had the advantage, not usually accorded to litigants in patent causes, of a hearing upon the principal question involved, not only in the Circuit Court and in this court, but also in the Supreme Court of the United States.

In the case of The Folmina, 173 Fed. 615, 97 С. С. А. 557, this court said:

"That which we do now hold is that where facts have been found and stated to the Supreme Court as the basis for asking its instructions, this court will not, after those instructions have been obtained, re-examine upon the identical evidence already considered, controverted questions of fact which have been advisedly determined and, applying this rule to the present case, this court must decline to accede to the contention of the appellee that it reconsider the question."

We see no reason for subjecting the parties to the expense of a rehearing when, in our opinion, every question involved has been fully presented and decided in favor of the complainant.

The motion for a rehearing is denied.

SHELLEY v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. June 21, 1912.)

No. 246.

INTERNAL REVENUE (§ 11*)-"MANUFACTURE OF SMOKING OPIUM."

The mere mixing of smoking opium with the residue of opium that has been smoked, and heating the same, is not a "manufacture of opium for smoking purposes" within the meaning of Internal Revenue Act Oct.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

1

1, 1890, с. 1244, §§ 36, 37, 26 Stat. 620 (U. S. Comp. St. 1901, p. 2226), imposing a tax on smoking opium and regulating the business of its manufacture.

[Ed. Note.-For other cases, see Internal Revenue, Cent. Dig. §§ 29, 86-38; Dec. Dig. § 11.

For other definitions, see Words and Phrases, vol. 5, pp. 4344-4346; vol. 8, p. 7716.]

Noyes, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Southern District of New York.

Criminal prosecution by the United States against Alfred Shelley. From a judgment of conviction, defendant brings error. Reversed.

This cause comes here upon appeal from a judgment of conviction of plaintiff in error upon two indictments (which were consolidated) charging him with unlawfully manufacturing opium for smoking purposes, contrary to the provisions of sections 36 and 37 of the Act of October 1, 1890, с. 1244, 26 Stat. 620 (U. S. Comp. St. 1901, p. 2226).

R. M. Moore, for plaintiff in error.

Henry A. Wise, U. S. Atty. (John Neville Boyle, Asst. U. S. Atty., on the brief), for the United States.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

LACOMBE, Circuit Judge. Smoking opium is produced from crude opium by a process which we held in Marks v. United States, 196 Fed. 476 (decided April 8, 1912), constituted a manufacture within the meaning of the statute. It appears that, when smoking opium has been produced, it may be smoked more than once. That is to say, the residuum left after a first smoking may be simply heated and smoked again. If to this residuum (known as yen shee) some additional smoking opium is added, each time it is reheated the process of resmoking may be continued longer. We are of the opinion that the mere mixing of smoking opium with the residue of opium that has been smoked and heating the same is not a "manufacture of opium for smoking purposes" within the meaning of the statute. The manufacture which the statute contemplates is complete when from the crude opium there has been produced the smoking opium, with which alone, as defendant contended, he operated, in its unsmoked and smoked condition.

From an examination of the record it would seem that defendant was correct in contending that he used no crude opium, although occasionally a witness in answering some question uses the word "opium," without qualifying it as "crude" or "smoking." But if there was so much doubt on this point that it should have been sent to the jury to decide the question, then we think there was error in the refusal to charge that, if the jury found that defendant only mixed smoking opium with the residue which remains after smoking, his act was not a manufacture of opium for smoking purposes within the meaning of the statute.

The judgment is reversed.

NOYES, Circuit Judge, dissents.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

MOORE CARVING MACH. CO. ▼. CLEMONS MACH. CO.
(Circuit Court of Appeals, Second Circuit. July 2, 1912.)

No. 247.

1. PATENTS (§ 328*) - VALIDITY AND INFRINGEMENT-POLISHING MACHINE.

The Gale patent, No. 685,328, for a rubbing and polishing machine having a polishing belt and a reciprocating head pressing the belt to its work, was not anticipated and discloses patentable invention. Claims 1 and 3 also held infringed by a machine differing only in the means used for reciprocating the head.

2. PATENTS (§ 328*)--VALIDITY AND INFRINGEMENT-POLISHING MACHINE.

The Yarnell patent, No. 743,608, for a polishing machine, held not anticipated, valid, and infringed.

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

Suit in equity by the Moore Carving Machine Company against the Clemons Machine Company for infringement of two patents. Decree for complainant on one patent and for defendant on the other, and both parties appeal. Reversed on complainant's appeal, and affirmed on defendant's.

For opinion below, see 192 Fed. 122.

This cause comes here upon cross-appeals from a decree of the District Court, Western District of New York. Complainant filed the usual bill in equity for infringement, declaring upon two patents. The first is No. 685,328 for a rubbing and polishing machine, issued October 29, 1901, to H. P. Gale and subsequently assigned to complainant. 'The second is No. 743,608 for a rubbing and polishing machine, issued November 10, 1903, to C. T. Yarnell, assignor to complainant. The district judge held the first patent valid, but found that defendants did not infringe the claims declared upon (1 and 3). He further found that the second patent was valid and that defendant's device infringed its seventh claim, which is the only one in controversy. Each side appealed from so much of the decree as was adverse.

Paul & Paul (A. C. Paul, of counsel), for complainant.
J. William Ellis, for defendant.

Before LACOMBE, COXE, and WARD, Circuit Judges.

LACOMBE, Circuit Judge (after stating the facts as above). [1] The Gale patent relates to polishing machines in which the work is done by a polishing belt, whereby the belt can be readily adapted to work on the surface of the material which it is desired to polish or abrade. Some of the objects of the improvement are stated to be to provide a head to press a running polishing belt upon the surface to be polished; to balance the head on the machine so that its pressure can be instantly controlled by lever; to provide means whereby the head may be given a reciprocating motion lengthwise of the belt. Other stated objects of improvement are unimportant in the case at bar and need not be enumerated. The complainant's machine is arranged as follows: Wheels are arranged at opposite ends of the frame over which runs the polishing belt, usually a strong web carry

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ing the polishing or abrading material on its outer surface. One of these wheels is power driven, so that the lower stretch of the polishing belt is carried continuously in the same direction, and the wheels are so far apart that the upper and lower stretches of the belt would normally run horizontally. The article to be polished is placed upon a carriage which is adjustable so as to bring the surface to be polished into contact with the polishing belt; when once the surface is brought to a proper position, the carriage ceases to move, and the article remains where it has been placed until it is moved laterally by hand so as to bring another segment of its surface into contact with the belt. In order to press the belt into contact with the article to be polished, a so-called "head" is located within the space between the upper and lower stretches of the belt. It is connected to a guide bar on which it slides, so as to have a reciprocating motion, in the direction of the running belt or reverse thereto. The patentee states that, by having a curved guide bar, a curved reciprocating motion may be imparted to the head if desired. This head is also (through the guide bar) connected with a rod, which is so arranged that by means of a lever the rod, bar, and head may be depressed thus forcing so much of the belt as the head contacts with below its normal running line. This increases the friction between the surface and the belt; the amount of pressure may be regulated by the operating lever. Apparently this is a desirable feature which is accomplished by the extent to which the belt is pinched between the top of the work piece supported on the carriage and the reciprocating head on the other side of the belt. The claims in controversy are:

"1. In a rubbing and polishing machine, a rubbing or abrading belt suitably mounted for running the same, a reciprocative head having means for pressing said belt to its work."

"3. In a rubbing and sandpapering machine, an abrading or polishing belt having suitably-mounted pulleys for running the same, a head reciprocatively mounted within said belt to work from the center out each way pressing said belt to its work."

As thus stated the combination of old parts is seen to be a simple one, but it is novel, so far as the record discloses. A careful examination of the prior art shows that complainant's counsel is justified in making the statement, found in his brief, that:

"The Gale patent is absolutely the first in the art to provide a sanding and polishing machine having a rubbing or abrading belt with a reciprocating head arranged within the belt, and means pressing the head against the back side of the belt and thereby pressing the belt to the work."

Reciprocation of the head seems to be a desirable feature; irrespective of the expert's comments upon it, the Patent Office found in it sufficient to induce the issue of the patent, and defendant employs this feature, although the use of a nonreciprocating head would at once put his device outside of the scope of the claims.

In defendant's machine we find the polishing belt running over pulleys one power driven, always in the same direction; the pulleys are so far apart that normally the lower stretch of the belt would run on a horizontal plane. Located within the belt is a head, which

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