Hussey v. Whitely.

swears that this apparatus was put into a machine for trial during that year, and that Hussey then informed the witness that he had devised the open slotted finger to prevent the cutter from choking. Without intimating any opinion on this question of the priority of invention, I merely refer to it now as showing that the defendants' evidence as to the Leland machine is by no means conclusive to prove that it was of an earlier date than Hussey's invention.

From the evidence, it seems that Moore & Hascall's harvester was first used in the harvest of 1836. It was first made with a straight sickle or cutter; but a scalloped cutter was introduced in 1839. It is insisted by the defendants' counsel that the fingers of this machine had the open slot, substantially as claimed by Hussey.

The defendants have introduced the affidavits of several witnesses to prove the structure and the mode of operation of the cutting apparatus of the Moore & Hascall machine, to show that it had substantially the open slotted finger claimed by Hussey in his patent of 1847. And a finger of one of the machines constructed by Moore & Hascall is in evidence to impeach the novelty of Hussey's invention. I do not propose to give any opinion at this time on the point, nor to examine critically the evidence which bears on it. If there is even a reasonable doubt as to the identity of the fingers of the Moore & Hascall machine, and those claimed by Hussey, it would furnish a sufficient reason for refusing to dissolve this injunction, and for referring the decision of the question to the final hearing.

The harvester, which was the name by which the Moore & Hascall machine was known in Michigan during the time it was in use, was a cumbrous machine, requiring some fourteen or sixteen horses to move it in the field, intended to cut off the heads of the grain, and thresh and clean it by one operation. The fingers of the cutting apparatus were constructed of wood, not less than two and a half feet in length, and framed into the cutter-bar, and plates of thin hoop iron were attached to the upper part of

Hussey v. Whitely.

the finger, and so arranged as to form a slot, open in the rear, in which the sickle vibrated. The experts, whose evidence has been taken as to the identity of these fingers with the short, iron, open slotted fingers claimed by Hussey, differ widely in their conclusions.

It is not necessary now to decide as to the preponderance of this testimony. It is not improper, however, to advert to the fact that there is not only a palpable difference in the construction of the fingers of the two machines, but also in the mode of their operation. The Hussey machine, in its practical effects, is a reaper and a mower, and cuts the grain or grass near the surface of the earth, while, as already noticed, the Moore & Hascall machine was designed to cut off the heads of the grain.

In the deposition of Moore, one of the inventors of this machine, taken in the case of Seymour v. McCormick, as appears from the record of the case, he states that the design of the machine was "to cut off the grain just below the heads," and again, "it was not adapted to a mere reaping machine." And he testified, also, that "grain cut with my machine would not be in a state that it could be bound up." The very intelligent experts for the complainant swear, that, from the structure of the fingers in the Moore & Hascall machine, they are not adapted to perform the office of a reaper and a mower. And it is not unworthy of remark that, in the judgment of the Commissioner of Patents, the prior patent to Moore & Hascall was not regarded as in conflict with the invention of Hussey, patented to him in 1847. But, without going more fully into the consideration of this question of identity, it is clear the evidence does not so conclusively impeach the novelty of Hussey's invention as to require this court to release the defendants from the operation of this injunction, and I have no hesitation in holding that the defendants are not entitled to the order for which they now ask.

It is stated by their counsel that they are suffering serious injury from the stoppage of their manufactory, under the

Hussey v. Whitely.

operation of the injunction granted in this case. If this is so, it furnishes no reason for a departure from the wellsettled rules of chancery practice in patent cases. Nor, under the circumstances of this case, will the injury of which they complain excite much sympathy in their behalf. It appears they have been making reapers and mowers, with the scalloped vibrating cutter, and the open slotted fingers, since the year 1858, and that they commenced the manufacture with the knowledge that they were infringing Hussey's patent. There is no pretense that they proceeded in ignorance of his patented invention. It appears, from the correspondence of two of the defendants, proved and in evidence, that they were apprehensive they would be held to an account for the infringement, and have been exceedingly vigilant in getting up evidence to impeach the novelty of Hussey's improvements.

The correspondence shows that long before the commencement of this suit they had avowed a purpose of setting Hussey at defiance, and had used the most strenuous efforts to defeat his rights. Among other things, it appears that they had proposed to organize a combination of all those interested in the manufacture of mowers and reapers in the United States who had not taken licenses from Hussey, for the purpose of contesting his claim. They seem to have entertained the hope that a combination of sufficient means and influence could be formed to secure a triumph before any court or jury I forbear to speak in such terms as the facts might well justify of the spirit and motives which seem to have impelled these defendants in their course in this transaction. I advert to it now to show they were not taken by surprise in the institution of this suit, and in the order for the injunction which has issued. It was precisely what they had long before anticipated, and what they seemed determined to bring about. They have not, therefore, any very well-grounded cause of complaint if arrested for a time in their manufacturing operations.

Crane v. McCoy.

The court will see to it that there is no unreasonable delay in bringing the case to final hearing. Motion to dissolve injunction overruled.

(CIRCUIT COURT.)

DAVID CRANE v. W. G. McCOY ET AL.

It is not enough to defeat jurisdiction in equity that there was a remedy at law; the remedy must be complete, prompt, and efficient.

A chancellor in the exercise of a just discretion, upon an application for an injunction, may properly take into consideration the existence of an actual conflict or imminent danger of a violent collision between two authorities, in determining the expediency of awarding this preventive process.

If the rights of a party can only be enforced at law by long continued, strenuous, and expensive litigation, and those rights can be more promptly and efficiently asserted in equity, a stringent reason is offered for the application of its power.

The sheriff of a county has no right to disturb or in any way interfere with the possession of property legally in the possession of an United States marshal.

The return of an United States marshal is conclusive of the facts which it sets forth, and its truth can not be collaterally impeached.

Property which has been replevied, does not pass into the possession of the plaintiff after he has given a bond which has been accepted by the officer, until there is a formal delivery of the property by the officer. Where there is concurrent jurisdiction in courts, the tribunal first obtaining jurisdiction of the subject or person shall retain it.

The application for the appointment of a receiver is always addressed to the sound discretion of the court to which it is made. As a general rule, such appointment will be made in all cases where the interests of parties seem to require it.

Lee & Fisher, for complainants.

Mr. Probasco, for defendants.

Crane v. McCoy.

OPINION OF THE COURT:

The questions before the court arise on a motion to dissolve the injunction, which has been granted in this case, and to rescind the order for the appointment of a receiver. For obvious reasons it will be improper, in the decision of this motion, to pass on any questions of law or fact directly involving the title to the property in controversy, and which will necessarily come under the consideration of the court on the final hearing.

The bill in chancery in this case was filed on the 4th of January, instant, by David Crane, a citizen of the State of Tennessee. It states, in effect, that on the 1st inst. he 'purchased twelve hundred and twenty-four barrels of apples, and three hundred and thirty-two barrels of onions of D. Harper & Son, commission and produce merchants of Cincinnati, for the sum of $2,429.31, for which he gave his two negotiable promissory notes for equal amounts, payable in thirty and sixty days; that he was in possession of said articles, and had shipped a part of the apples to Nashville, his place of business, and had sold a few barrels in Cincinnati; that on the 2d of January, W. G. McCoy and Roswell Gould sued out of the Superior Court of Cincinnati a writ of replevin against D. Harper & Son, upon which the sheriff of Hamilton county took one thousand one hundred and seventy barrels of said apples and delivered them to said McCoy and Gould; that said Crane thereupon sued out of this court a writ of replevin for said apples against said McCoy and Gould, and they were taken by the marshal and were in his possession when Libbeus L. Harding obtained a writ of replevin from said Superior Court of Cincinnati against said Crane and Lewis W. Sifford, the marshal, and that by the aid of a posse, and by forcible means, the sheriff of Hamilton county intervened to prevent the delivery of said property by the marshal to the said Crane; that a collision had already occurred between the marshal and the sheriff, and that bloodshed was anticipated in the attempt by the marshal to retain possession,