88
nDERAL REl'ORTER,
vol. 51.
BARNES AUTOMATIC SPRINKLER CO.
tI.WALWORTH June
MANUF'G CO.
et aZ.
(Circuit Court. N. D. lUinois.
8, 1892.)
P,lTE,NTS POB INVENTIONS-NOVELTY-AUTOMATIO FIBE EXTINGUISHER·
. " ,. The third, fourth, and fifth claims of letters 'patent No. 233,893, issued October . 19, 18RO, to Charles Barnes for an autoniatic fire extinguisher, which claims are for a vQ\ve-releasing device, oonsisting of wires, a lever, and a fusibly jointed slide, and. the oombination ofa{lerforated distributer, a valve located in the distributer, having a stem which proJects through the shell of tQ.e distributer, and a lever to hold .the valve to its seat" are voil for want of novelty.
In Equity. Bill by the Barnes Automatic Sprinkler lJompany agaillst the Walworth Manufachiring Company and others for an injunction and an accounting. West &:- Bond, for complainant. James J.Myers, for defendants. BJ.pDGETT, District Judge. In this Qase the complainant seeks an injunction and accounting by reason of the alleged infringement of patent No. 233,393, granted October 19, 1880, to Charler Barnes for an llautomaticfire extingu.isher." The patent in question concerns that class of which are intended to extinguish incipient fires. by uutomatic means, whereby any unusual heat releases the water and puts the device in action. This is by no means a foundation patent. but is, and only purports to be, an improvement upon' prior devices ofthe same class. The inventor says in his specifications: "The object of this invention is to provide a supply valve, which will be more easily and securely forced and held to its seat, and more readily released therefrom. " . ".A further object is to relieve the valve-sustaining device from the strain consequent upon the expansion and contraction of the valve closing aDd releasing wires under varying temperatures. " ...Another object.is to relieve the fusible solder joints from strai n, so that they may be made more sensitive to heat without liability of parting except in case of .pre. " ..Its object is, finally, to provide a means to hold the valve seated within the distributer securely to its seat, without liability of fracturing the solder joint by. which it is held, by expanSion and contraction of the metal." The patent contains seven claims, but infringement is charged only as to the third, fourth, fifth, and sixth, which are: .. (3) A valve-releasing. 'device for automatic fire extinguishers, consisting of wires. C, lever, H, and fusibly jointed slide, I, combined to operate SUbstantiallyas set forth. (4) In an automatic fire extinguisher, the combination, substantially as set forth, of a perforated distributer, a valve located within said·(Iistributer, and having a stem which projects through the shell of the distributer, and a lever, as K I, to hold the valve to its seat within the llistributer until its fusible joint. K 8, is released by heat. (5) In an automath: fire extinguisher, the combination, substantially as specified, of a perforated distributer, provided with a valve, the stem of which projects through the distributer shell, with a jointed lever, K 1, and latch K2, said latch resting upon a projection on shell of the distributer, and securell thereto by
BARNES AUTOMATIC SPRINKI.ER CO. V. WALWORTH MANUF'a CO.
89
fusible solder to hold the valve to its seat. (6) In an automatic fire extin· guisher. the combination of a perforated distributer. and a valve to control the supply of water to said distributer. said valve provided with a stem. and an elastic cushion between the parts, to hold the valve to its seat with elastic pressure by fusible solder. substantially as specified."
The defenses interposed are: (1) That the patent is void for want of novelty; (2) that defendants do not infringe. I was considerably embarrassed on the hearing of this case by the assertion on the part of complainant that this patent had been, in a suit bl'ought by Barnes and another against Ruthenberg, after full hearing before the United States district court for the southern district of Ohio, sustained as a valid patent by the learned district judge then presiding, (Judge SAGE). 32 Fed. Rep. 159. But an examination of the allegations of the bill and proofs thereunder as to the matters of defense set up in that case shows that the proofs in this case upon the issue of novelty are much more full and exhaustive than they were in the case before Judge SAGE, and that the prior patents cited here, which seem to me most material to the defense, were not before that court. In other words, the proofs in this case differ so essentially from those in the former case that the decision in that case cannot be deemed controlling in this; the difference in the proof taking this case out of the rule of comity which should apply in this class of cases where the proofs are the same. The proof shows that in the year 1809 William Congreve, a celebrated English inventor, obtained a patent, one feature of which was an "ap. paratus for extinguishing fire, which shall be called into action by the fire itself, at its first breaking out, and which shall be brought to bear upon the part where the flames exist." Briefly described, the apparatus which was covered by his patent consists of distributing pipes, 10. cated around the upper part of the room or building to be protected, connected with a water tank or water supply of some kind, with valves so adjusted and held in place by a combustible detent that, on the breaking out of a fire, the cord or detent would be severed, the valves opened, and the water turned upon the fire. He also suggests that, in the place of a combustible cord, the same thing may also be effected by having the end of the cord or wire in the room fixed, by means of certain cements, which shall give way or release it, without the immediate contact of the flames, but merely by the effect of the heat, the atmosphere of which would soon acquire a temperature sufficiently high for the pur· pose. He then incorporates in his specifications a table giving the degrees of heat at which different cements melt, so a.s to call the device of three parts into action·.._. As, for illustration, a composition resin and one part shellac melts at 102 Fahrenheit; a composition of nine parts shellac and eight resin melts at 107; a composition of two parts resin and one shellac melts at 113; a composition of eight parts bismuth, five lead, and three tin, melts at 190; and adds,"these substances may be further varied, and other similar ones applied on the same principle. " The proof also shows that the device suggested by the Qongreve patent came into use, to some extent, in England, and that
I'EDERALREPORTER,
patents ",ere,uken,:outjfroDl'time:totime, both in England and in this: c;:ouirtry, up8n Cobgreve device,ltndthat the last prolific in patented in th.is 10 art In the AmoIlg, those who havetak;enou;t'patents III this field within the last few years are Henry S. Parmlee, C. W. Talcott, and Charles Bllirnes,the patentee now before the court. The distinctive features of the complainant's patent are: .Horst, a distributer j or rose head, with a valve ,seat at the point where the rose head is'(lonnected with the: flupply pipe, the stem of this valve extending thl'()ugh the shell of the distributer or rose· head,and a lever at one1side dftbe rose head, and so adjusted that it can be brought to bear uptmthe .end of the va.lve stem, and hold the valve stem firmly in its seat, so as to restrain the water; this lever being held in place by fusible solder, so that an increase of heat in the room in the vicinity of the rose hlmd .sufficient to· rneltthis solder w,iUrelease the valve, and allow the water to flow through the distributer or. rose head. Second. An elastic cushioD, or spring, inSerted in thisvaJvestem, so that the' pressure upon the:valve will be, tda ·certain extent,relieved by this elastic cushion, andtbereby prevent tile liability of the pressure of the water upon the \7alve!frombreakingthesolder which holds the water back. 4!d() not find in the proof any satisfactory evidence that the defendants infringe the third claim oithis patent. I find nothing in the defendants' pa.tentwhicb corresponds to the wires, G, lever, H, and fusible jointed slide,'I,which are elements of this claim. But, if I did, I find these features anticipated in nearly every patent upon devices of this character from that of Congreve to the date of the Barnes patent. .They are also 'shown in the drawings of the Barnes patent of February 18, 1879. I am therefore quite clear that the complainant has no right to· a. decree for the alleged infringement of the tHird claim. The ·fourth and fifth claims are for· the combination of a perforated distributer, n valve located within the said distributer, and having a stem .which'proJects through the sheH oithe di'stributer, and a lever to hold the valve to Hsseat within thedistri:buter, and only differ slightly in the description of the fuElible fastening. This device, so far as the valve within the distributer and stem eXitending through the distributer is concerned, is clearly anticipated by the Barnes patent of February 21,1879. While the Talcott patent granted January 31, 1882, but for which application was fileq in l>atent office April 8, 1879,-and the public notice of the device must be carried back to the date of filing the applica:tion,-clearly shows and describes a distributer provided with a valve, the stem of which projects through .the shell of the distributer, and which is held in. pla.ce for the purpose of closing the valve by a cupshaped le\Ter, hinged upon one side of the distributer, and which passes round so as to press upon the valve stem, and which is. fastened upon the other side of the distributer by Rsoider pin; solQcated as to be meltecl. by'asufficient increase of heat in the room, and thereby release the lever, open the valve, and set the water flowing through the distrib'1I.1er. . It is, true it is urged and insisted: on the part of the complain'-
TUE SERAI'IS.
91
ant· tbat tbisTalcott device does Dot 'show8S effective a lever as that shown by the complainant's device, but it shows the idea, and whatever difference thare is between the complainant's lever and the Talcottlever is simply due to a mere mechanical change of construction. It is true that the Talcott lever is in the shape of a cup, and is intended to· cover the shell of the distributer, but that does not change the principle upon which it acts, and by which it holds the valve in its seat. As has been already said, the fusible solder joint or fastening which holds the distributer closed in these two claiIDS seems to me to have no patentable novelty in view of the many forms of such joints shown in the proof. Talcott's fusible pin, and the solder joint holding the cap in place in Barnes' patent of February 18, 1879, are both suffioient illustrations of suoh joints. 1 am therefore very clear that the Talcott patent of January 31, 1882, which relates back to the time it was applied for in April, 1879, clearly anticipates the fou11;h and fifth claims of the plainant's patent. As to the sixth claim, which covers, in combination with the valve and the lever, an elastic cushion in the stem of the valve, it is sufficient to say that the defendants use no such elastic cushion, and therefore do not infringe. For these reasons the bill is dismissed for want of t:'luity.
'rnE SERAPIB. SMITH
v.
THE SERAPI!.
No.T.
L JlAllTlm
Wbere a workml\n is emploved to do certain work with a machine whfeb be fully nnderstands, though it may Dot be of tbe newest pattern, and may require more care than newer patterns, but. nevertheless is in perfect order of ita kind, he takes the risk of all accidents wbich may befall him in its use.
AND BBBVANT-NBGLIGENOB-MA.cmnBy-QLD PA.T'l'1liBW.
I.
8.t.llE-WINCH WITH UNCOVERED COGWHEEL.
Libelant, a stevedore, was a winch on the steamship Berapis. The cogwheels were uncovered, but libelant, while looking at tbe batch back of him, put his hand between tbe wheels, where it was crushed. The winch bad no covering over the cogwheels, with which winches are now customarily made but was iu good order of its kind. Libelant had worked at it for several hours before the accident, and knew all about it. 'l'he mate had warned him to be careful. Held, that libelant's negligence was the sole cause of the accident. GOFF, Circuit Judge, dissenting. 49 Fed. Rep. 893, reversed.
Appeal from a Decree of the District Court of the United States for the District of Maryland. In Admiralty. Libel for personal injuries. The court below awarded libelant one half his damages. 49 Fed. Rep. 393. Reversed.
92:
FEDERAL, REPORTER,
Oon.ver8 Kirlin;.W;Be1WYn OriJ!p, and J. Parker Kirlin, for appellant. I. Cookman BCY!Jd Herzog, for appellee. Before BUGata, Distl'ict Judge, and BOND and GOFF, Circuit Judges. BOND, Circuit Judge. It appears from the record in this ease that SQme time about the 1st of January, 1891, the steamship Serapis arrived at the port of Baltimore with a cargo of iron ore. Upon her arrival she made a contract with a head stevedore, who had a gang of other stevedorescin his employ, experienced in the business, to unload the ship. The Serapis ranked A 1 at Lloyd's, and was fitted :up with two winches in the usual position on the ship, which had been on her for six years, and had beenmade'by the first machinists in Liverpool. The record shows that these winches were in perfect order, and no objection was made to them by the head stevedore, with whom the contract to unload the vessel was made. The libelant, Smith, was set to work at first to manage the winch, while the cargo was taken out of a forward hatch. Of course his face was turned towards the hatch in front of him, and he could see from his position whether it was time to wind up the winch or let it go,-to hoist or lower the buckets, into which the are was placed. He worked the winch for four or five hours in the nighttime while the forward hold was being emptied of cargo. A fellow stevedore was placed in the proper position at the hatch to let him know when he was to lower or hoist. This he did vocally or by a wave of the hand. The next morning Smith was put to use the same winch, but the hatch out of which cargo was to be taken was behind him. A stevedore was placed there to give him notice what to do with the winch, but Smith, unmindful of this fact, turned his head behind him to see for himself when and he lost sight of the wheel by how to move the winch. By which steam was turned on or off, and placed his hand on the cogwheels instead of the wheel, and lost several ()f his fingers. If the libelant felt called upon to look behind him to watch the hatch. way where the stevedore was placed to give him notice what '.0 do, because the stevedore s() stationeddidnot do his duty, and call ',ut to him what to do,this was negligence on the part of a fellow employe, with whom the llhip had nothing to do, for he had been employfld by the head stevedore, as Smlth had been, and not by the ship. The libelant in turning his head contends that although he may have been to watch the hatch Qehindhim, yet, if the winch had had its cogwheels covered, he would not have been injured, notwithstanding his negligence. The winch at which libelant was wprking had, as the record shows, been on the Serapis for six years, and cargo after cargo had during that time been discharged by its use. There is no evidence whatever that it was not in perfect order for that style of machine. The libelant knew all about it, for he had worked at it the night before for four or five hours, and an hour and a half on the morning of the accident. It was not peculiarly dangerous in its construction, for the valve wheel was even further away from the cogwheels than usual, though the evidence here somewhat conflicts. The captain, however, states that he measured it, and its dis-
THE SERAPIS.
93
tance from the cogwheels was 12 inches. The libelant states that he told the mate that there ought to be something over the cogwheels, but he said: "You be a little careful, llnd it will be all right." Now, the question is whether the owners of the steamship Serapis can be called negligent because they had on board the steamer a winch which had been there for six years, in continual use, was in perfect order, but required more care on the part of the person who worked it than some more modern machines of the kind. And this, too, when the machine was well known to the employe, and that it required somewhat more attention on ,his part than other machines fitted for similar use. We are of opinion that where a workman is employed to do certain work with a machine which he fully understands, though it may not be of the newest pattern, but nevertheless is in perfect order of ita kind,and may require more care than newer patterns, he takes the risk of all accidents which may befall him in its use. And if, as is the fact in this case, he did not exercise the care required, he must suffer the conseqilence of his negligence. This libelant's misfortune has. our deepest sympathy, but to do injustice through sympathy for the injured is to do away with law, and make recovery for loss dependent on the tenderness or want of it in the feelings of the court. We think the decree of the district court in this case should be reversed; and it is so ordered. GOFF, Circuit Judge, (dissenting.) I think the decree of the district court should be affirmed. The libelant was one of the stevedores employed in unloading a cargo of iron ore from the steamship Serapis, in the port of Two winches were used the steamship in unloading its cargo,-one for hoisting the ore out ofthe hold of the vessel, and the other to draw the crane to and from the wharf. Libelant was by' the head stevedore to the duty of running the last-mentioned ;winch; alld while so employed his hand was caught between the cogs of t'he driving wheels, crushed, and permanently injured. He claims that 'the windh at which he worked was dangerously constructed, not properly guarded to protect those employed to work it; and that it was negligence on the part of the ship owners to keep it in that condition. I think the testimony shows that the winch was dangerously constructed,--unnec ssarily and unusually so. The valve stem is immediately in front of the cogs, and the wheelan the top of it, by which it is moved, is directly opposite the meeting place of the teeth of the cogs. While there is some conflict in the testimony on this point, the weight of the same is that the distance from the cogs to the wheel is not more than from five to seven inches. The stem is controlled by a valve near the deck at the feet of the winch man, from which the valve stem rises about three and one half feet, and on which is the wheel. There was no covering or guard over the cogs to protect the hands of the operative, as is usual in machines of this character; that could have been easily and at a trifling expense affixed. It is clear to my mind that it 'Was improper to provide such a winch for such work, and that the steamship in doing so was guilty of negligence. It is no answer to this
FEDERAL· :REPOi'tT1l1Rl
vol. 51. OOoi
does not show thatithi 1ibela1!lt .was ;inefficient but that he skiHful,workman, '33 veara·,of 8g&,< wbo,fully iunderstoodhisbusiriess. It is sliownthat he could used in hoisting the orewHhout turning his eyes from the .winch'rand that he was compelled to;do:so while atwork, and operate. the valve at the 'Sllme time. Whed" he was so engaged the accident happened., Nor is ita:n answer to say lthat the libelant sought the employment and assumed the 'risk,and,thll.t he was not compelled to continue using the 'machine,-thathe could quit work when he 'pleased. The risk he assumed was that common to such work when proper,machinery is furnished. Such men cannot always quit work when they please. On the Contrary, they are compelled to labor, and, as I understand the law. it . requires those using their labor and providing machinery for that purpose,dangerous in character,to use all reasonable,· means to guard agail'lstaccidents, and, to protect those employed by them. In considering the duty llnd the liability of the employer to the party employed, Mr. Justice HARLAN, in Hough v. Railroad 00., 100 U. S. 213, said: "One. and perhaps the most important. of these exceptioDs arises from the obligation of the master, whether a natural person or a corporate body, not to expOse the servant. We mastE;r's business. to perils or .l;tazardll against WhicQ .he may be by proper diligence IIpon the par$ of tht' master. Totbat end the master is bound to observe all the care which pJ:uclence andtbe exigencies of the sitilation reqUire in providing the ,servant with machinery or adequately safe for use by the latter." Without (}'l10ting further case on this point, I cite BuzzeU v. ,ManuJacturing(lo., 48 Me. 116; Railroad Co. v. SilJ.te, 44 Md. 283; Wheeler v. M(l,nuJacturing (lo., 135 MIlS8. 294; Fordv·. Railroad Co., 110 Mass. 24.1; .also Wharton on the Law of Negligence, (section 211,) where the author says: "The question is that of ,duty; and without making the unnect'Bsary and inadequate assumption of ,implilltl warranty, it is sufficient, for the purpose of justice, to Basert thaUt is. the dllty of an employer. inViting employes to U&e his structure and machinery. to use proper care and diligence to make such structure and machinery fit for use." But it is contended by the appellant that the libelant cannot recover, because he,in effect, .contracted to work the winch,and continued to use it with full knowledge of its defects. The libelant was not employed specially to work the winch, but to do. any work usually done by stevedores in unloading a cargo of iron o;re from a steamship. He naturally expected tonna the vessel provided· with· suchmllchinery as was usual and proper for that purpose, and, liS was reasonably safe. When his but he was surprised at its con,turn came to run the wincQ he did struction, and complained of it. He was told by the ,mate, so he testifies, "to be a little careful, and it will be all right." Another stevedore,
;olJl'liJAg; the wonder is thfl.<t onedid';not'happen .sooner. The.testimony
kai that
themnctl'was used .for'some· years witlloutanraccident
THESERAPIS.
95
who was operating the winch the night before the libelant was injured, testifies that the mitten o.n his hand was caught in the cogs, and taken off, and that when ,be mentioned the\fllct to the donkey engine man.in charge, and told him ought to have a cover on it, the man replied, "Be careful." It is true that libelant knew the lI!achinery was defective, unguarded, but I do not think it follows that, therefore, he lost his right of action against the steamship in case of o.n accidentQcoasioned thereby. The prevailing rule now on this subject is that the emplOYe need npt, when aware of the defect in machinery, abandon the service onthat account, but that he may run some risk, such as a prudent man would. take, without losing his right of action againsLthe mallter in case injury results. On thispojnt see Beach, ContriQiNeg.p.373, § 140j'aml authorities there cited. His stated as followsia'SlIear. & R. Neg,,(4th Ed,) §. 209: .. of a defect in machinery Is no to recovery as a matter of law. Such k,nowledge may operate in mitigation of damages. Even continuance in 8ervice after knowledge oia defect is not, as a matter of law, contributorY ' . The decisions upon this question have been oonflicting,still I do not think it.can be maintained from them-from those rendered since the general use of the generally dangerous and complicated machinery run by even at common law the employe is deemed to have assumedall the risk of all danger by continuing to use such machinery 'Bfter knowledge of its defects.'InadlIliralty the rule in such cases is now well established, and.is authoritatively given us by the supreme court of the United States in The Max Morris, reported in 137 U. S. 1, 11 Sup. Ct. Rep. 29. Mr. Justice BLATCHFORD, in the opinion in that case, says: "' "Contributory negligence in cases like the present should not wholly bar recovery. 'fhere would have been no injury to the libelant but for the fault of the vessel; and while, on the one hand, the court ought not to give him full compensation for his injury, where he himself was partly in faUlt, it ought not, on the other hand, to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages. As stated by the district judge in his opinion in the present CRse, the more equal distribution of justice, the dictates of humanity, the safety of life and limb, and the public good will be best promoted by holding vessels liable to bear some part of the actual pecuniary 108S sustained by a libelant in a case like the present, where their fault is clear, provided the libelant's fault. though evident, is neither willful nor gross nor inexcusable, and where other circumstances present a strong case for his relief." The Case of The Maharajah, 40 Fed. Rep. 784, and 1 U. S. App. 20, 49 Fed. Rep. 111, is relied upon by the claimant in this case. The libelant in that case, as in this, was injured while working a winch bethlnging to the machinery of a steamship. In that case the court found 'from the proof that the winch was in details of structure substantially like those in general use at the time it was built; that it had been in use for a dozen years or more, and that it was not materially out of repair; that such winches are still in common use upon vt:ssels, but that an improved
96
FEDERAl, REPORTER,
dtachine has been introduced, copstructed with a gilard over the cogs. In the present case the evidence shows that the winch was unusual; was notthe kind commonly in use, but of the class known asa "camel-back," but unlike them in not having a guard for the cogs. One witness states that,while he had seen such winches before, they had always been protected with guards. Another testifies that this one was differently constructed from the other" camel-backs II he had seen. .The libelant testified that he had worked at a hundred different winches, and that on the others the vaive wheel was further from the cogwheels. Still another witness says that he had worked on many winches, and' had seen" camelbacks," but they "all had casings." Another ran the winch after the libelant's hand was crushed, and on that account noticed it particularly. He saw the "flesh and blood on the cogs," and noticed that the valve was too close to the cogs for safety,-only from five to six inches off, he says. He had seen many winches like this one, butthey all had guards. In the Case of The Maharajah there was no notice given of the defect; in this case' there was. So while the cases in several particulars are similar, so far as the testimony on these material points is concerned, they are quite different. 1· infer from the opinion of the court, delivered by Judge WALLACE in the circuit court of appeals, that, had the proofs been different as to the dangerous character of the winch in use on the Maharajah, the decision of the court would have been in accordance with the equitable ruling of the supreme court of the United States in the 0a86 of The Max For the reasons mentioned I see no error in the decree appealed from, and think it should be affirmed·
.
DEMl"SEY t1. TOWNSHIP OP OSWEGO.
97
DEMPSEY t1_ TOWNSHIP OP USWEGO_ (mrcwtt Court Qf AppealB, E41hth Ol.rcuu.
May 80, 18llS.)
J(j.ND.lJItJS-:M:UNICIPAL CoRPORATIONS-DoRMANOJ' 011' JUDGJlEN'l'-LIMI'UftONI.
therefore that, under the state statutes relating to the life of judgments, (Gen. St. Kan. 554M2, 4537, 4522, 4525, 4530,) as construed by the state courts, a judgment against a municipality becomes dOl-'mant if more than five years elapse between the Issuance of two successive writs of m.antdamm, and abSOlutely dead If no application to revive is made or suit brought upon the judgment within one year after the expiration of the yeal'f. 1,' LIM1TAT10;NB-ToWNSBIPII-SBRVIOBOII' PROOESS ON 01l'1I'10BR8.
fnwndamm. Held, that for the purpose of keeping a judgment alive such a mandamm is equivalent to the issuance of exeoution against a private person. !Iond
The statute!! of, Kansal! provide that judgments against municipalities shall be paid by taxation, and that the levy and collection of taxes may be enforced 'by
Section 2,1} ,COde Kan.", provides that t,be time of the absence from the state or the concealmenli Ilf a person against whom a cause of action acorues shall ,not be computed as part of the pllriod within which the action must be brought. He'ld that, even if this section can be held to apply where the persons elected officers of a townBltw either fail to qualify or remove from the township, for the purpose of preventing the enforcement of against It, still the question is not presented where service of process or of notice to revive tile judgments could have been made, within the statutory period, upon a trustee of the township, such trustee having been duly appointed by the county commiBslonere, upon the ground that there were no townshipoftlcers.
.. TOWNSBIPS.....NoNRBS1DBNT OIl'll'1OBR-SERVIOB Olf PROCBSS.
The fact that a township officer removes from the township and thereafter resides in another township of the same county, does not necessarily prevent the service of mandam1U1 upon him. Salamainoa Tvl v. WUlon, 8 Sup. Ct. Rep. 844, 109 U. S. 627, followed.
"
MANDAMlrB-L1M1TATIONS-PENDENOJ' 011' PROOEBDINGS.
Where a writ of mandammwas issued and served, but no other steps were taken for more than six years, it cannot be said that the mandamm proceeding was pending during that time, within the rule that limitation does not ron against a party while he has a suit pending to enforce his claim.
In Error to the Circuit "Court of the United States for the District of Kansas. Affirmed. Statement by SANBORN, Circuit Judge: This was a writ of error to the United States circuit court for the district of Kansas. On the 13th day of November; 1886, plaintiff in error' bTought an action against the township Of Oswego upon two certain judgments against the defendant, which . had been assigned to him. Defendant admitted the rendition and assignment of the judgments, but pleaded that they were barred by the statute of limitations, and that this question was rea adjudicata. Plaintiff l'&plied that mandam'lUJ proceedings were commenced shortly after the judgments were rendered, and bad been pending ever since, and that the citizens of-the town and its officers elect had prevented any of those elected to office from qualifying since the judgments were rendered, and those elected in the year the judgments were rendered ceased to act, and left the state within a year thereafter. Ajury trial was had. Thejury returned special findings of fact and a general verdict for the defendant. Plaintiff and defendant each moved the court for judgment. The court denied plaintiff's motion, and entered judgment in fa"tor of defendant, to which ruling plaintiff excepted. v.51F.no.4--7