the right to administer and to sell for administration, in the state of Tennessee, its Keeley remedies, and that appellants are injuring that right and invading its business by asserting that it has the right to and is in fact administering such remedies at the Memphis Institute, and asks the court to protect its right and business from such injury and invasion by enjoining appellants from so claiming, canceling the contracts, and requiring a delivery up of the remedies held by appellant. But that business—the very thing which the court is asked to protect-is, as we have held, unclean in the particular stated. Hence it is a clear case within the rule that a court of equity will not aid one who comes before it with unclean hands.

It should be noted, however, though it is not relied on either by the lower court or by appellee's counsel here, that the fact in regard to appellee's fraudulent misrepresentations, as we have adjudged it, was not set up by appellants in their answer as a defense to the suit. This presents the question whether, in the absence of its having been so presented, any effect can be given to it. It seems to be well settled that such a matter need not be pleaded as a defense to the suit. If it appears from the record, it will be given effect notwithstanding it has not been pleaded. The theory upon which this is done is that in reality it is not a matter of defense. It is given effect to, not on defendant's account, but because of the public. As said by the Supreme Court of Tennessee in the case of Simmons Med. Co. v. Drug Co., 93 Tenn. 99, 23 S. W. 169:

"It is not strictly speaking a defense at all, but rather an interposition by the court to discourage fraud and wrong upon the public.”

The following decisions lend support to and uphold this doctrine: Fetridge v. Wells, 13 How. Prac. (N. Y.) 385; Cardoze v. Swift, 113 Mass. 250; Dunham v. Presby, 120 Mass. 285; Connell v. Reed, 128 Mass. 477, 35 Am. Rep. 397; Teoli v. Nordrill, 23 R. I. 87, 49 Atl. 489; Mass. Nat. Bank v. Shine, 163 N. Y. 360, 57 N. E. 611.

In view of the holding that we have made as to this matter, it is not necessary that we consider any other question raised and discussed on the appeal.

We feel constrained, therefore, to adjudge that the decree of the lower court be reversed, and the cause remanded thereto, with directions to dismiss the bill.

CENTRAL OF GEORGIA RY. CO. V. McLENDON et al.

(Circuit Court, N. D. Georgia. August 31, 1907.)

INJUNCTION-RESTRAINING ORDER—DISCRETION-NOTICE.

A temporary restraining order will not be granted ex parte to restrain the putting into effect of a railroad rate established by a state commission under authority given by the Constitution and laws of the state after due notice and a hearing, when the commission's order by its terms was not to take effect for nearly three months after its adoption, and no application for a restraining order was made until within two days of the expiration of such time.

In Equity. Bill for injunction.
T. M. Cunningham and Mr. Steiner, for complainants.

SHELBY, Circuit Judge. The maximum rate per mile for

passengers charged by the complainant company is three cents. The Georgia Railroad Commission reduced the rate to 212 cents as to intrastate passengers. This bill is filed to enjoin, vacate, and annul the order of the Commission on the ground that it violates the provisions of the fifth and fourteenth amendments of the Constitution relating to due process and the equal protection of the laws. The case is not now before me on its merits, nor is the motion for an injunction pendente lite now before me for decision. It is not intended to intimate any opinion on questions not yet reached. The bill is presented to me to obtain an order setting the motion and prayer for an injunction pendente lite down for hearing and directing notice to be given to the defendants. An order to that effect will be made.

I am also asked to grant a temporary restraining order enjoining the operation and enforcement of the rate established by the Georgia Railroad Commission till the hearing of the motion for the injunction pendente lite. The following is the statute authorizing such action:

"Temporary Restraining Orders.Whenever notice is given of a motion for an injunction out of a Circuit or District Court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge.” Rev. St. $ 718 [U. S. Comp. St. 1901, p. 580).

The granting of such temporary restraining order, like the granting of an injunction, is within the sound judicial discretion of the court. No universal rule can be announced to govern court or judge in all cases, but each case must be decided on its own facts. The Constitution and laws of Georgia confer on the Railroad Commission the authority to reduce intrastate passenger rates. It made the order in question June 7, 1907, after notice to the complainant railroad company and after hearing evidence. The order provided that it should not go into effect till September 2, 1907. This delay gave the complainant company 2 months and 26 days in which to apply for an injunction before the rate prescribed became effective. The bill was not presented till yesterday, August 30, 1907, only two days—and one of them Sunday, before the rate prescribed was to take effect. The defendants have had no notice that the application for the temporary restraining order would be made. If resort to the court had been made within a reasonable time after the fixing of the rate on June 7, 1907, there would have been no occasion for asking for an ex parte restraining order. The motion for an injunction pendente lite, if made within a reasonable time after the action of the Railroad Commission, could have been heard contradictorily after a timely notice to the defendants, before the Commission's order became effective. The Georgia Railroad Commissioners are officers charged with the performance of duties. The order or finding fixing the lower rate as reasonable recites that it was made "after a careful, tedious, and painstaking consideration of the evidence and argument of the complainant and respondents, and a laborious investigation of the subject.” There is at least a prima facie presumption that it acted in good faith in fixing the rate, and that it is not confiscatory. It is, of course, well settled that the action of the Commission is subject to judicial review, but there is no presumption to begin with that it is invalid. On this ex parte hearing, there is nothing before me on the question of fact as to whether the rate fixed by the Commission is confiscatory or not, except the action of the Commission in fixing the lower rate and the sworn bill of the complainant, which contains figures and estimates which sustain the complainant's contentions. The bill alone is pitted against the Commission's decision. The case is presented in this attitude on the eve of the rates taking effect, when it could have been presented to the court at a time when no injunctive order without notice and a hearing of both sides would have been necessary.

For the purpose of this motion, considering the time at which it is made and the circumstances I have mentioned, I cannot hold that the affidavits attached to the bill outweigh the prima facie presumption that the action of the Georgia Railroad Commission is valid.

I am of opinion that the motion for a temporary restraining order should be overruled; and it is so ordered.

of parts which is thus portrayed and described, without regard to possible equivalents. It may or it may not, according to circumstances. It is, after all, a matter of construction, in which, while a reference by letters to the drawings and specifications may be regarded, as a rule, as involving a greater particularity of description than without them, the real scope of the invention is nevertheless to be considered and given due weight. No doubt there are cases when, by reason of the limitations imposed by the prior art, it is necessary, in order to distinguish and save the invention, to confine it to a certain form or arrangement'of parts, which the use of reference letters may serve to do; but, where no such necessity exists, the patent is to be taken as a whole, and effect given to the invention as it is there disclosed and claimed, in which the reference to the drawings merely goes in with the rest.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, $ 243.] 5. SAME.

In a patent for a combination of elements in a hot-air furnace having vertical flues, with flanges on the upper end for supporting the crown sheet, the fact that, as shown in the drawings and referred to by letters in the claims, such flanges are on the outside of the flue, does not limit the inventor to such form, where it is not an essential feature of the invention, and their transfer to the interior of the flue, where they perform the same function, is a change of form merely, which does not avoid in. fringement.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, $ 243.] 6. SAME-HOT-AIR FURNACE.

The Kelsey patent, No. 476,230, for a hot-air furnace, while for a combination of old elements, and not of broad scope, was not anticipated and

discloses invention; also held infringed. In Equity. Suit for infringement of letters patent No. 476,230 for a hot-air furnace issued to W. W. Kelsey May 31, 1892. Also charging unfair competition. On final hearing.

Howard P. Denison, for complainants.
Charles H. Howson (Charles Howson, of counsel), for defendants.

ARCHBALD, District Judge. The patent in suit is for a hotair furnace; the claim relied on being as follows:

“5. The combustion-chamber, C, composed of the bottom plate, a, provided with the flanges, a', a', and apertures, the shell, e, and flues, f, f, seated on said bottom plate, said flues being formed with the shoulders, f', the crownsheet, g, resting on said shoulders, and the rods, I, extending through the aforesaid flues and tying thereto the aforesaid bottom plate and crown-sheet, substantially as described and shown."

The defendants challenge the validity of the invention on the ground of the want of both novelty and invention; or, if that is not sustained, they contend that it is so narrowed and limited by the prior art, as well as by the terms of the patent, that they do not infringe upon it.

According to the specifications, the invention is said to consist "in an improved construction of the combustion-chamber, having airflues extending vertically through it and tie-rods extending longitudinally through said flues and tying thereto the bottom plate and crown-sheet of the combustion-chamber, said arrangement protecting the tie-rods from soot and rust and obviating obstructions in cleaning the interior of the combustion-chamber."

Further explaining this by reference to the accompanying diagrams, it is said: