Reed v. Reed.

their linings as they desired to use them. They were made of oak, split out by hand, the form of the lining following the direction of the grain of the timber, and the width and thickness being more or less variable according to the degree of care used in cutting them, and the clearness of the grain of the timber. In using them, it was quite customary to soak or steam them, as then they were more readily bent to the curve of the barrel, and less frequently split when nails were driven into them. Subsequently, machine made linings were introduced, and became an article of trade, which were straight and of uniform width and thickness, and differed in no respect from those of which the complainant now claims to be the inventor, except that the latter are crimped. The effect of crimping them, as is alleged in the specification, is to corrugate the grain of the wood, thereby bending the head lining so as to conform proximately to. the curved head of the barrel, thus obviating partially the tendency of the timber to split when nails are driven into it, and dispensing measurably with the necessity of soaking or steaming the linings before using them. It is quite apparent, however, that soaking or steaming the complainant's linings would lessen their liability to split, and, even then, splitting could not be entirely prevented. It is also obvious, that the value of the complainant's linings, as of those previously in use, depends largely, if not mainly, on the quality of the timber used for their manufacture.

That the complainant's head linings are an improvement in the article which had been used prior to their introduction, and, as such, have secured the approval of the trade and become a valuable commodity of manufacture and sale, must be conceded; but I am unable to arrive at the conclusion that such improvement is the proper subject of a patent. The proofs establish, beyond controversy, that hoops had been made by machinery, as well as head linings, and were an article of trade, prior to the alleged invention of the complainant; and the specification of the complainant disclaims any discovery of the process of crimping such hoops. The complainant adapts the same appliances to the manufacture

Reed v. Reed.

of head linings, that were used in the manufacture of hoops, and he thereby produces an article which is, in all its essential features, a crimped machine-made hoop on a small scale, except that it is of uniform width and thickness, and has rectangular ends. It is a hoop adapted to fit inside, instead of outside, the staves of the barrel, and to support the chime instead of the body of the barrel. Ignoring, as must be done, the use of the machine for cutting and crimping the timber, the article is produced by cutting a block of timber into pieces of such size and shape as will constitute a hoop of reduced dimensions, uniform in thickness and with rectangular ends. The quality of invention is not called into exercise by adopting, to make head linings, the machine for making and crimping hoops; and what remains of the process is accomplished by the most simple mechanical skill.

66

Having arrived at the conclusion that the patent cannot be sustained so far as it rests upon the claim for head linings, as an article of manufacture, when prepared in the manner specified," it remains to consider whether it can be supported upon the additional claim, as "an article of manufacture, when bundled as shown and described." The portion of the ' specification relating to the bundling of the linings is as follows: "I accomplish another result, that is, that I can pack the linings in square bundles ready for the market, and that each lining will always retain its circular form, owing to the corrugated condition of the fibres, and, at the same time, I dispense with soaking." It will be observed, that the corrugation of the fibres dispenses with soaking the linings, and is accomplished by the process of crimping the timber; and, in this regard, the linings do not differ from the hoops. Nothing enables the linings to retain their circular form when bundled, aside from the crimping, except that they are of uniform size and thereby fit compactly together. The hoops could be bundled as well as the linings, and are usually transported in bundles, but not so tidily or compactly as the linings, owing to their bevel and greater length. The sole merit of this feature of the improvement is, that it renders the commodity

VOL. XII.-24

In re Hermann Thomas, on Habeas Corpus.

more attractive to purchasers, and more convenient for the purposes of sale. There is nothing in this result that is patentable. If the subject of the patent was a machine which accomplished the result of manufacturing a product more convenient for transportation and sale, as an article of trade, than that which had preceded it, such result might be important and controlling as determining the utility of the invention. But no such test is applicable when the product itself is the subject of the patent. (Langdon v. De Groot, 1 'Paine's C. C. R., 203.)

Upon the whole case, therefore, my conclusion is, that the complainant has only produced an article which is the result of more mechanical skill and care in its manufacture than that previously used and sold, and that this result did not involve the faculty of invention. The case is analogous to that of Union Paper Collar Co. v. Van Deusen, (10 Blatchf. C. C. R., 109,) and Rubber Tip Pencil Co. v. Howard, (9 Id., 490.) The bill must, therefore, be dismissed, with costs.

James A. Allen, for the plaintiff.

John Van Voorhis, for the defendants.

In re HERMANN THOMAS, ON HABEAS CORPUS.

In cases where a treaty of extradition with a foreign country for the surrender of fugitives from justice does not require the issuing of an Executive mandate, as a prerequisite to the entertaining of proceedings, and the issuing of a warrant of arrest, by a magistrate, such a prerequisite is not necessary. The convention for extradition between the United States and Bavaria, of September 12th, 1853, (10 U. S. Stat. at Large, 1022,) was not abrogated by the operation of the Constitution of the German Empire, adopted in 1871, as affecting the further independent existence of Bavaria.

The sufficiency of the complaint before the Commissioner, upheld.

It is not a necessary preliminary to an investigation here, under an extradition

In re Hermann Thomas, on Habeas Corpus.

treaty, that a warrant of arrest should have been issued, or proceedings had, against the accused, in the foreign jurisdiction.

(Before BLATCHFORD, J., Southern District of New York, November 5th, 1874.)

BLATCHFORD, J. On the 2d of September, 1874, a warrant was issued by a United States Commissioner, on the complaint of the vice-consul of the German Empire at the city of New York, for the arrest of Hermann Thomas, charged with having committed the crimes of forgery and the utterance of forged papers, within the jurisdiction of the kingdom of Bavaria and of the empire of Germany. The proceeding was one taken with a view to the extradition of Thomas, under the provisions of the convention of September 12th, 1853, between the United States and the kingdom of Bavaria, (10 U. S. Stat. at Large, 1022.) Thomas was arrested and brought before the Commissioner on the 3d of September, the charge was explained to him, and he demanded an examination, and the proceedings were adjourned by consent to the 17th of September, and he was committed in the meantime to the custody of the marshal.

The complaint on which the warrant was issued is made, subscribed and sworn to by August Feigel. It sets forth, that Mr. Feigel "is vice-consul of the German Empire at the city and port of New York, duly recognized as such by the President of the United States; that, as such, he is, also, ex officio, consul of each of the States composing said empire; that the kingdom of Bavaria is one of the States composing said empire;" and "that, as such vice-consul, he is at present in charge of the office of the consul general of the German Empire at the . city of New York, and authorized to discharge the functions of such consul general." The complaint alleges, that, as the complainant, "from official evidence in his possession is informed and believes," Thomas, on or about the 22d of June, 1874, at Nürnberg, in the kingdom of Bavaria, and within the jurisdiction of said kingdom, committed the crimes of forgery and of utterance of forged papers, in this, that he did then and there, feloniously and falsely, and within tent to defraud the Royal Bank at Nürnberg, make, forge and counterfeit a

In re Hermann Thomas, on Habeas Corpus.

certain receipt or acquittance of Carl Conrad Cnopf & Sohn, bearing date at Nürnberg, whereby it was stated that the said Carl Conrad Cnopf & Sohn had received of the Royal Bank at Nürnberg the sum of 15,000 guilders, Bavarian money, while, in truth and in fact, the said Carl Conrad Cnopf & Sohn had not executed, or authorized to be executed, the said paper writing, purporting to be a receipt or acquittance, as aforesaid, but the same was forged by the said Thomas, and that he did afterwards, within the jurisdiction of the kingdom of Bavaria, feloniously, falsely and fraudulently utter the said forged instrument in writing, knowing it to be forged, with intent to defraud the said Royal Bank at Nürnberg. The complaint then sets forth the information of the complainant concerning the commission of said crimes by Thomas. He received, August 29th, 1874, a cable telegram, of which a translation is given, signed "Ilgen, examining judge, Nürnberg," and reading thus: "The arrest of the clerk H. Thomas of this place is requested on account of forgery of documents and defrauding to the amount of 15,000 guilders. He travelled as Wolfing. Photograph in the possession of Schulz & Ruckgaber, Exchange Place, New York, where also dwelling ascertainable. Particulars follow upon answer." On the 31st of August the complainant sent a telegram to the said examining judge in these words: "Telegraph particulars of Thomas forgery; full names of injured parties; also, whether extradition demanded." On the 1st of September he received from said examining judge a telegram in these words: "Thomas obtained from the Royal Bank here 15,000 guilders on forged receipt of Cnopf & Sohn. Extradition." The complaint further sets forth, that the complainant knows said Ilgen, whose name is subscribed to said telegrams, to be royal examining judge at Nürnberg, and has seen in a newspaper printed at Berlin, in Germany, a copy of an order of arrest issued by the royal examining judge at Nürnberg, on the 2d of July, 1874, for the arrest of said Thomas on account of forgery of documents and frauds committed by him on the 22d of June, 1874; that Thomas, after the commission of said crimes, “fled from