the parties are only tenants in common. Clark piece, of which the McBurney portion fur v. Sidway, PATENTS. I. RULES GOVERNING PATENTABILITY. II. COMBINATIONS. III. REISSUES. IV. CONSTRUCTION; INFRINGEMENT. 1157 nishes a wearing surface always the same and not altered by wear, and the pure rubber backing by its elasticity always keeps such wearing surface in close contact with the piston rod, making a tight joint,-involves a patentable invention. Magowan v. New York Belting & P. Co. 781 2. Something more is required to support a patent than a slight advance over what has preceded it, or mere superiority in workmanship or finish. International Tooth Crown Co. v. Gaylord, 347 3. It is no invention, within the meaning of the law, to perform with increased speed a series of surgical operations in dentistry, old in themselves and in the order in which they have been before performed. Id. 4. Cutting in two a double-roll spring used to attach a sweat-pad to a horse-collar, and using only one roll of it for clasping only the fore-wale or small roll of the collar, does not involve a patentable invention. McClain v. Ortmayer, 800 Co. 849 14. Where there is no invention, the extent of the use of the patented article is not a mat5. A patent for an improvement in panta- ter of moment upon the question of its patentloons, which consists in re-enforcing or bridg-able character. Adams v. Bellaire Stamping ing with a continuous strip of cloth as an inelastic bridge or check piece the junction of the button and button-hole strips in the fly, or by turning the end of one of such strips and running it up along the side of the other and fastening it to it,-is invalid for lack of patentable invention, as substantially the same idea has been illustrated whenever a tear has been mended by placing a patch underneath, and also in case of gloves by the use of an overlapping piece to re-enforce a seam. Patent Clothing Co. v. Glover, 858 6. The application, to an ordinary lantern, of a lid secured by a hinge on one side and by any kind of locking device on the opposite side, is not patentable. Adam v. Bellaire Stamping 849 Co. 7. Patent 156,880, granted Nov. 17, 1874, to Robert Cluett for an improvement in shirts, which consists simply of a shirt bosom bound at its edges and stitched through its binding to the body of the shirt, is invalid for want of patentable novelty. Cluett v. Claflin, 385 8. The Gately patent, 86,296, for an improvement in vulcanized india-rubber packing, to secure a greater elasticity than is found in the McBurney packing, which is made of bias piles of cloth coated with rubber and vulcanized by placing upon it a backing of pure rubber gum vulcanized to it so as to form but a single tented article has gone into general use is evi15. In a doubtful case the fact that a pa dence of its utility, but it is not conclusive even of that, much less of its patentable novelty. McClain v. Ortmayer, 800 16 Where an inventor taught his invention to a large number throughout the country, with no suggestion that it was an experiment, and received pay for such instruction, this constituted such an abandonment of his claim as International Tooth Crown Co. v. Gaylord, 347 to preclude his obtaining a valid patent for it. 17. A patentee may claim the whole or only a part of his invention; and if he describe and claim only a part, he is presumed to have abandoned the residue to the public. McClain v. Ortmayer, 800 II. COMBINATIONS. 18. The bringing together of old devices, without securing some new and useful result as the joint product of the combination-something more than a mere aggregation of old results-does not constitute a patentable invention. Adams v. Bellaire Stamping Co. 849 19. A mere aggregation of old elements in a new relation is not the subject of a patent. Union Edge Setter Co. v. Keith, 261 20. Patent 173,284, issued Feb. 8, 1876, to| 32. The Hoff patent, 279,891, for an im Charles H. Helms, for an improvement in sole-provement in the manufacture of coal hods by edge burnishing machines, claiming the com- folding a sheet of metal in the form of a cone, bination of a burnishing tool with a flange at and then crimping the small end to form the the lower edge against which the operator may bottom, can be supported, if at all, to cover rest the sole, and a finger rest, is not for a pa- the formation of the entire bottom from the tentable combination, as it is a mere aggrega- crimped material, with the resultant increase tion of old elements. Union Edge Setter Co. in thickness, in view of the fact that it was old v. Keith, 261 to crimp in and fold the ends of cylindrical 21. Although torsional springs were well cartridges and boxes of pasteboard or other known, and so were telegraph keys and sound-stiff material, and also to turn the edge of ers without such springs, the combination in metallic cylindrical vessels or packages to hold a telegraph key of the lever fulcrumed upon separate bottoms or heads, and is not infringed the torsional spring, with adjusting screws for by a hod of which the lower end is completed tegulating the amplitude of the lever move-by a cap, although partially formed by crimpment and the retractile resistance of the tor- ing. Hoff v. Iron Clad Mfg. Co. sional spring,-is not void for lack of invention or utility. Western Electric Co. v. La Rue, 294 III. REISSUES. 22. The claims of a reissued patent must be held to be limited to the specific mechanism claimed in the original patent. Electric Gas lighting Co. v. Boston Electric Co. 250 23. Unexplained delay for nearly nine years in applying for the reissue of a patent is fatal to the claims of the reissue. Id. 24. Where no inadvertence, accident, or mistake, is shown, a reissue with new claims cannot be sustained. Id. IV. CONSTRUCTION; INFRINGEMENT. 25. The new application of a patented device to another use, which does not involve the exercise of the inventive faculty, is an infringement as much as though the new machine were an exact copy of the old. Western Electric Co. v. La Rue, 294 26. The claim is the measure of a patentee's right to relief; and while the specification may be referred to, to limit the claim, it can never be made available to expand it. McClain v. Ortmayer, 800 179 33. Reissued patent 9,743, for "an apparatus for lighting gas by electricity, in combination with a circuit-breaker located at the gas-burner, a lever adapted and arranged to open and close the stopcock or valve of the burner and carry cribed," which operates in lighting street lamps the circuit-breaker substantially as herein deby successively throwing the current into the magnet at each burner one after another,-is not infringed by an apparatus for the same purpose, but which cannot be used for a series of burners, in which two armatures operate separately, one to open and one to close, the gas-valve, but which has no separate lever opening and closing the valve and carrying the circuit-breaker. Electric Gaslighting Co. v. Boston Electric Co. 250 V. LICENSE, ASSIGNMENT, ETC. 34. A contract by a patentee granting the right to make and sell the patented article in a specified territory, by which the grantee binds itself to make and sell the article and to pay a certain royalty for each one sold, is not revocable by the grantee without the consent or fault of the patentee, but continues until the expiration of the patent. St. Paul Plow Works v. Starling, 404 35. A licensee of the right to make and sell a patented plow, who has agreed to pay a royalty on each sale, and who after renouncing the license makes and sells a plow substantially like the patented plow, is liable for the royalty thereon. PAYMENT. ld. 27. The courts have no right to enlarge a patent beyond the scope of its claim as allowed by the patent office or the appellate tribunal to which contested applications are referred. Id. 28. There the claim is fairly susceptible of two constructions, that one will be adopted which will preserve to the patentee his actual invention; but nothing can be held to be an infringement of a patent which does not fall within the terms the patentee has himself chosen to express his invention. 1. A sum paid into court in a suit against a Id. corporation for unpaid taxes should be applied 29. Although one conceived the idea of his on the principal and interest admitted to be patent from examination of a prior patent, he due, if more than the interest admitted to be is still entitled, in a suit for infringement, to due, instead of applying it all on a larger claim that the prior patent was anticipated by amount of interest actually due, where this prior devices, especially when such prior de- would leave the whole principal subject to a vices show a complete anticipation of his own.higher rate of interest as a penalty. AttorneyHoff v. Iron Clad Mfg. Co. General v. Western U. Teleg. Co. See also INTEREST, 6. 179 30. The fact that a patent has been infringed by defendant is sufficient to establish its utility, as against him. Western Electric Co. v. La Rue, 294 31. A curved hook to attach a sweat-pad to a horse-collar is not an infringement of a double-roll spring made to clasp both the large and the small rolls of the collar. McClain v. Ortmayer, 800 1212 628 2. Where a city owes a drainage fund a debt, and puts into that fund more than the amount of the debt, it cannot be charged as debtor to that fund, because when it put its moneys into the fund it did not declare that they were put in to discharge its indebtedness. Peake v. New Orleans, 131 3. A city has no general powers of donation; Unreported practice cases. appendix, III. PRINCIPAL AND AGENT. See also 1. Kan Code, § 108, requiring allegations 1. When the whole compensation of an agent in a pleading duly verified to be taken as true, of a company engaged in loaning money is by unless the denial of the same be verified, does special agreement to be paid from the fees paid not require the allegations of a verified answer him by the borrowers and mortgagors, he canto be taken as true where the reply is not veri- not recover from the company pay for his ser fied, if no reply be necessary. Harper County vices. Hughes v. Dundee Mortg. & T. Invest. v. Rose, 344 Co. 354 revoke the authority given to his agent, at his 2. The principal has a right to determine or 2. The jurisdictional allegation that the plaintiffs are without adequate remedy at law is a mere inference or conclusion, which must be made out by facts averred or proved. Shel-own mere pleasure, where not otherwise agreed between them. Willcox & G. Sewing-Mach. Co. v. Ewing, ton v. Platt, 273 3. The allegation of fraudulent proceedings respecting the acquisition of the title to land does not convert an action at law into a suit in equity. Smyth v. New Orleans Canal & Bkg. 891 4. The allegation, in a bill in equity, that plaintiff is seised in fee, is a sufficient allegation of a possession of land. Simmons Creek Coal Co. v. Doran, 1063 5. One who impugns the good faith of a transaction must state the essential, ultimate facts upon which his cause of action rests, and not content himself with general charges that what was done was "colorable," a "fraud," a "breach of trust," and a "scheme" by which the contractors were to get the stock without paying for it. These are allegations of legal conclusions merely, which a demurrer does not admit. Fogg v. Blair, 104 6. If a plea, upon argument, is ruled to be -sufficient in law to bar the recovery of the plaintiff, the court will allow him to take issue upon it by replication and to disprove the facts upon which it is endeavored to support it. United States v. Dalles Military Road Co. 560 7. A demurrer admits facts well pleaded, but does not admit that the construction of a written instrument set forth in the complaint is the true one. Interstate Land Co. v. Max well Land Grant Co. 278 POSTOFFICE. See also CLAIMS, 8. A railroad built partly by a land grant made by Congress is entitled, under the Act of July 12, 1876, § 13, for transportation of the mail to full rates for such portion of the road as was not aided by such land grant. United States 7. Alabama G. S. R. Co. 1134 882 PRINCIPAL AND SURETY. See also BILLS AND NOTES, 2-4; EQUITY, 8; FRAUD AND FRAUDULENT CONVEYANCES, 1; HUSBAND AND WIFE, 4; INJUNCTION, 9, 10; LIMITATION OF ACTIONS, 11; NOTES, INDEX TO. 1. The release from a mortgage of certain portions of the mortgaged premises on the receipt and application, to the mortgage, of the proceeds of a sale thereof at a fair price, does not release the surety. Cross v. Allen, 843 which makes the surety liable for any amount 2. Taking a bond for discharge upon ne exeat adjudged to be due in the action, but which he executes in the belief that it is only to secure defendant's appearance, under e agreement with defendant that it is to secure the amount adjudged due, of which agreement the surety is ignorant, is a fraud upon the surety. Griswold v. Hazard, 678 where that was not done by him no rights of lands, a person subsequently acquiring any property were acquired. Interstate Land Co. part of such right of way takes it subject to v. Maxwell Land Grant Co. 278 the prior right of the company. Bybee v. Ore 3. Private rights of property in a ceded ter-gon & C. R. Co. ritory are nowise affected by a treaty cession. Id. PROHIBITION. 1. A writ of prohibition is not intended to take the place of exceptions to a libel for insufficiency, and will issue only in case of a want of jurisdiction, either of the parties or the subJect matter of the proceeding. Ex parte Fassett. 1087 2. Where a pleasure yacht purchased in England is brought into the port of New York, and is there seized by the collector to enforce payment of duties on her, and the owner files a libel in the United States district court against the yacht and the collector to obtain the return of the yacht and damages for the seizure, a writ of prohibition will not be issued to the district court to prevent further proceedings in Id. 305 4. The claims of the city of San Francisco to its pueblo lands are superior to any subsequently acquired rights of California over the tidelands. Knight v. United Land Asso. 974 5. A grant of land by the governor in pursuance of the Virginia Act of June 2, 1788, including in its general courses a prior claim which is reserved from the grant, passes no title to the lands thus reserved to the grantee; and if they become forfeited for nonpayment of taxes, he acquires no title or claim thereto under the Virginia Act of March 22, 1842, vesting title to lands so forfeited in any personshaving legal or equitable claim thereto under a grant from the State. Falstead v. Buster, 484 6. A mere breach of condition does not of itself work a forfeiture of a grant. Some other proceeding must be taken by the grantor to indicate his intention to revoke the grant on account of such breach, and to take possession PROXIMATE CAUSE. See CARRIERS, 6. of the property in consequence thereof. St. Paul, M. & M. R. Co. v. Greenalgh, the matter. PUBLIC IMPROVEMENTS. 1. The mere fact of noncollection of assess ments does not prove dereliction of duty, where they were charged upon property not worth the assessment and therefore were not collectible. Peake v. New Orleans, 131 2. The objection that a legal notice as to a public improvement and assessments therefor is published on some of the days in a supplement of the newspaper, and not in the body of the paper, is of no force. Lent v. Tillson, 419 PUBLIC LANDS. I. PRIOR RIGHTS; FORFEITURES. 71 8. The Act of Congress of 1864 granting land to aid in the construction of the Northern Pacific Railroad being a grant in præsenti when the route was determined and the land identified, the title attached as of the date of the grant; the patent to be issued under § 4 was simply in confirmation of the grant. St. Paul II. GRANTS IN AID OF RAILROADS, OR OTH- & P. R. Co. v. Northern P. R. Co. III. FOR SCHOOL PURPOSES. V. DISPOSAL THROUGH LAND DEPARTMENT. 77 9. The Northern Pacific Railroad Company could not dispose of the lands granted to it by the Act of Congress of 1864, except as each 25mile section was completed and accepted, so as to deprive the United States of the right to compel their application to the purposes of the See also BOUNDARIES, 3-5; JUDGMENT, 2; grant, or so as to prevent their forfeiture if the MINES, 1-3: WATERS. 3. I. PRIOR RIGHTS; FORFEITURES. 1. The Act of Congress of March 3, 1865, being expressly restrained from in any way interfering with lands previously reserved by Congress, no claim under that Act can be asserted which would interfere with the grant to the Northern Pacific Railroad Company under the Act of 1864. The exception in the latter Act, of subsequent grants prior to the definite location of the road, was not intended to cover other grants for the construction of roads of a similar character. St. Paul & P. R. Co. v. Northern P. R. Co. 77 2. Where different grants cover the same premises the earlier takes the title. Id. 3. When a railroad company has by grant from Congress a right of way over the public company failed to comply with its conditions. Id. 10. By the Joint Resolution of Congress of July 12, 1862, and its acceptance by the State of Minnesota and the St. Paul & Pacific Railroad Company, the land in Minnesota northwesterly of the intersection of the 10th standard parallel with the 4th guide meridian was disincumbered of the railroad grant under Act of Congress of March 3, 1857. ld. 11. The Acts of Congress of March 3, 1865, extending the time for the completion of certain land-grant railroads in Minnesota and Iowa, and March 3, 1871, authorizing a change in the lines of the St. Paul & Pacific Railroad Company, are not amendments to the Act of March, 1857, and are not to be given an operation as of the last date. ld. 12. The Act of Congress of July 1, 1862, granting land to the Union Pacific Railroad Company, transfers a present legal title. When the lands are identified by the location of the road, such title attaches as of the date of the grant. Deseret Salt Co. v. Tarper, 999 by authority of the United States, the premises were not subject to the grant to the State of California for the establishment of an agricultural college. Id.. IV. SWAMP LANDS. 13. The amendment of 1864, directing the withholding of patents until the cost of surveying, etc., be paid, did not alter the effect of the grant by the Act of Congress of 1862. Patents issued for lands granted were further of swamp land only intended to declare void 22. The Oregon Act of 1878 as to purchaseassurances or evidences of title. ld. those applications where the nonpayment of 14. Title to indemnity lands does not vest in the 20 per cent had been a violation of the a railroad company until they are actually se- condition contained in the Act of Oct. 26, 1870. lected and the selection approved by the secre- Pennoyer v. McConnaughy, 363. tary of the interior. United States v. Missouri, K. & T. R. Co. 766 23. The Oregon statute of 1887 which authorizes the cancellation of a certificate of sale 15. Under Act of Congress of June 22, 1874, where 20 per cent of the price of the land had extending the time for the completion of the not been paid before Jan. 17, 1879, impairs the St. Paul & Pacific Railroad, upon condition obligation of a contract with the State which that the rights of actual settlers upon the lands had been consummated by a compliance with granted to aid its construction shall be saved, the Act of 1870, and is therefore a violation of such a settler who subsequently receives a the United States Constitution. Id. patent, and his grantee, are entitled to the land as against the company. St. Paul, M. & M. R. Co. v. Greenalgh, 71; St. Paul, M. & M. R. Co. v. Wenzel, 73 16. The withdrawal made by the secretary of the interior Aug. 13. 1870, of the odd sections of land within 40 miles in width on both sides of the Northern Pacific Railroad, in accordance with the Northern Pacific Act, preserved the lands, for its benefit, from the operation of any subsequent grants to other companies not specifically declared to cover the premises. St. Paul & P. R. Co. v. Northern P. R. Co. 77 18. There was no such trust created by the Act of Congress making the grant of July 2, 1862, and its acceptance by the State, as to prevent land which might otherwise have been selected for the establishment of a college, from being previously selected by other grantees of the United States of unlocated quantities of lands. McNee v. Donahue, 1122 19. By the Act of Congress of July 23, 1866, $ 1, as modified by § 2, the lieu lands selected in place of school sections, after the survey of the township, were confirmed and the title of the State thereto was perfected from the date of the Act. Id. 24. An application for land, under the Oregon Act of 1870, was not rendered void by the Act of 1878, where the first payment for the land was made within the time required by the former Act. By such payment the contract with the State became executed, so as to be protected by the United States Constitution against impairment by a state law. ld.. 29. Where lands included in a patent issued by the land department are not at the time public property, having been previously disposed of, the department has no jurisdiction to transfer the land, and its attempted conveyance by patent is inoperative and void. Davis v. Wiebbold, 238 30. In such cases as ejectment, where the question is, Who has the legal title?-the patent of the government is unassailable. Sanford v. Sanford, 290 20. No title to college lands under the grant to the State of California by the Act of Congress of July 12, 1862, vested in the State until their selection and listing to the State. 1d. 21. After the confirmation by the Act of 31. In equity, title under a patent from the Congress of July 23, 1866, § 1, of the lands in government is subject to control, to protect the controversy, selected in place of school sec-rights of parties against the mistake, accident, tions, the township in which the selected lands or fraud of agents or parties acting in a fiduare situated having been previously surveyed ciary capacity. ld. |