with having been guilty of disloyal practices in aid of the rebellion, and of affording aid and comfort to the rebels, to wit: with enticing soldiers in June previous to desert from the Army 513*] of *the United States; that the defend ants thereupon arrested the plaintiff on the charges aforesaid, and delivered him to the keeper of the state prison for safe custody until he could be brought before the civil tribunals of the United States upon those charges; that the plaintiff was there detained until May 1, 1865, when he was brought before the United States commissioner and held to bail for his appearance before the circuit court on the fourth Tuesday of July following, to answer those charges; and that from his arrest until this last date there was no session of the circuit court, nor any grand jury in attendance upon any court of the United States within the district. The pleas also aver that in making the arrest, imprisonment and detention, the defendant, Henry, acted in his military capacity of provost-marshal, and the defendant, Beckwith, acted as his aid; that the arrest, imprisonment and detention were made without unnecessary force and violence, "under the authority and by the order of the President of the United States, Abraham Lincoln, since deceased, whose orders as Commander-in-Chief of the Armies of the United States by the rules and regulations of the army the defendants were bound to obey;" and that the arrest, imprisonment and grievances in the declaration mentioned, are the same arrest, imprisonment and detention thus set forth; concluding with an absque hoc as to the violence and other circumstances of aggravation and cruelty with which the original imprisonment and subsequent confinement are charged to have been accompanied.

As will be observed, there is no averment in the pleas that at the time the plaintiff was arrested any rebellion existed in the state of Vermont, against the laws or government of the United States; or that any military operations were being carried on within its limits; or that the courts of justice were not open there, and in the full and undisturbed exercise of their regular jurisdiction; or that the plaintiff was in the military service of the United States, or in any way connected with that service. Nor is there any averment in the pleas as to the manner in which or the parties by whom the charges of disloyal practices were made. It is not alleged that they were stated in writing or supported by oath.

515* *Nor do the pleas, whilst asserting that the acts, which are the subject of complaint,

effect, without other statement, will answer. In other words, if a defendant has cause of justification for an alleged trespass, and undertakes to plead it, he must set it forth in its essential particular, so that the plaintiff may be apprised of its nature and take issue upon it if he desires, and so that the court may be able to judge of its sufficiency.

The defendants intended by their pleas to rest the justification of their conduct upon the provisions of the act of March 3, 1863, entitled "An Act Relating to Habeas Corpus, and Regulating Judicial Proceedings in Certain Cases," 12 Stat. at L. 756, § 4, and of the act of March 2, 1867, entitled "An Act to Declare Valid and Conclusive Certain Proclamations of the President, and Acts done in Pursuance Thereof, or of His Orders, in the Suppression of the Late Rebellion against the United States." 14 Stat. at L. 432.

These statutes were enacted, among other things, to protect parties from liability to prosecution for acts done in the arrest and imprisonment of persons during the existence of the rebellion, under orders or proclamations of the President, or by his authority or approval, who were charged with participation in the rebellion, or as aiders or abettors, or as being guilty of disloyal practices in aid thereof, or any violation of the usages or the laws of [*516 war. Assuming for this case that these statutes are not liable to any constitutional objection, they do not change the rules of pleading, when the defense is set up in a special plea, or dispense with the exhibition of the order or authority upon which a party relies. Nor do they cover all acts done by officers in the military service of the United States simply because they are acting under the general authority of the President as Commander-in-Chief of the Armies of the United States. They only cover acts done under orders or proclamations issued by him or under his authority; and there is no difficulty in the defendants setting forth such orders or proclamations, whether general or special, if any were made, which applied to their case.

The views thus expressed render it unnecessary to consider any other objections taken by the plaintiff to the pleas before us.

The questions certified must be answered in the negative, and the cause remanded for further proceedings.

v.

For this last omission all the judges are agreed, without expressing any opinion upon the other omissions, that the pleas are defective and insufficient. It is an old rule of pleading, which in the modern progress of simplifying pleadings, has not lost its virtue, that whenever one justifies in a special plea an act which in itself constitutes at common law a wrong, upon the process, order or authority of another, he must set forth substantially and in a traversable form the process, order or authority relied upon, and that no mere averment of its legal

UNITED STATES.

(See S. C. 18 Wall. 664-670.)

Government contract, when not violated-separate departments.

1. A contract made by the government to deliver quartermaster's department required transportato one for transportation, all the corn of which the tion, from Fort Leavenworth to Fort Union, is not violated by a purchase by the subsistence depart ment of the United States, made at Fort Leavenworth, of corn to be delivered by the seller of the same at Fort Union.

with linen twine; said corn must be free from dirt, cobs or other foreign matter, and must be either yellow or white, but not mixed in the sacks; to be delivered to the officer of the sub

[No. 162.]

The case is stated by the court. Messrs. C. F. Peck, Durant and Hornor, for appellant.

or before the 20th day of December, 1865.

The parties of the second part agree that said corn shall be subject to the inspection, acceptance or rejection of the officer receiving the same, and that if default shall be made by the

Mr. Justice Hunt delivered the opinion of the court:

The claimant and Colonel Potter, a quartermaster in the United States Army, on the 27th of March, 1865, entered into a written agreement, whereby it was agreed that the claimant "shall receive at any time in any of the months from May to September inclusive, during the year one thousand eight hundred and sixty-five, from the officers of the quartermaster's depart ments at Forts Leavenworth and Riley, in the state of Kansas, and the town of Kansas, in the state of Missouri, all such military stores and supplies as may be turned over to him for transportation in good order and condition by the officer or agent of the quartermaster's department, at any or all of the above named points or places, and transport the same to the officer or agent of the quartermaster's department on duty or designated to receive them at Fort Union in the territory of New Mexico, or any other depot that may be designated in that territory.'

It was agreed by the 11th article of that con tract, that claimant "shall transport all the military stores and supplies, for which the quartermaster's department may require transportation by contract on the route specified by 665*] this agreement, *during the year one thousand eight hundred and sixty-five; Provided, the weight of such military stores and supplies shall not exceed in the aggregate fifteen million pounds; yet nothing herein shall be so construed as to forbid or prevent the United States from using its own means of transportation for such service, whenever it may be deemed advisable to do so."

Under this agreement, stores were furnished to the claimant by the quartermaster's department to the amount of over fourteen million pounds, for the transportation of which he was paid. The claimant was prepared with the means of transportation, and ready to transport the remainder of the fifteen million pounds which, under the contract, he was bound to carry; but it was not furnished to him for transportation.

On the 29th of September, 1865, Colonel Morgan, commissary of subsistence at Fort Leavenworth, entered into a contract with Fuller & Tiernan, to deliver at Fort Union eighteen thousand bushels of corn, on or before the 20th of December, 1865.

The essential parts of that contract are in the words, following, viz.:

"That the said parties of the second part agree to deliver at Fort Union, in the territory of New Mexico, eighteen thousand (18,000) bushels of shelled corn of the best quality, well sacked in new gunny sacks, securely sewed

in the time of delivery or any of the terms of this contract, the party of the first part, or any person acting for him on behalf of the United States, shall have power to purchase the corn in open market, and the said parties of the second part and their sureties shall be charged with the difference between the cost thereof and the price hereinafter stipulated to be paid to the said parties of the second part. For and in consideration of the faithful performance of the stipulations of this contract, the said party of the first part *agrees [*666 to pay or cause to be paid to the parties of the second part at the office of the commissary of subsistence at Fort Leavenworth, Kansas, the sum of $8.54 for each and every bushel of corn delivered and accepted in accordance with the terms thereof, in such funds as may be provided by the government for that purpose, pay

ment to be made on vouchers issued and certified by the officer receiving said corn.

The claimant insists that the making of this contract by an officer of the United States in September, 1865, and its performance, constituted a breach of his contract made with Colonel Potter in March of the same year. He claims as damages, the profit on the transportation of about 800,000 pounds of corn, which he insists should have been furnished for transportation on his contract, instead of being purchased and delivered under the contract with Fuller & Tiernan.

The court of claims held adversely to the petitioner, and dismissed his claim. He now appeals to this court.

It can hardly be denied by the most zealous advocate that the two contracts before us differ essentially in their nature and form. The contract made with the claimant is a contract for the transportation of corn, at a price fixed, and in quantity not to exceed fifteen million pounds. The sole duty *of the claimant [*668 under this contract was to carry and deliver the corn. He did not purchase it nor own it; he had nothing to do with its value or quality, and could neither make nor lose by a fluctuation in the value of the corn.

The later contract with Fuller & Tiernan, on the other hand, is strictly a contract for the purchase of 18,000 bushels of corn, to be delivered at a place and within a time named, and at a price specified, to be paid on the delivery and acceptance of the corn. In this case the corn is the property of Fuller & Tiernan until delivered. They purchase it; they own it. If the price of corn in the market varies essentially they will make a profit or be losers, according as the direction of the variation shall be. Their contract is to furnish the corn at Fort Union, New Mexico, and they are at liberty to obtain it from any source they choose. They have no claim for payment until delivery,

and the United States have no ownership of the corn until delivery and payment.

The foundation, however, of the claimant's demand rests upon the identity of these dissimilar contracts. Having contracted to deliver to him for transportation all the corn of which the quartermaster's department required transportation from Leavenworth to Fort Union, he insists that this contract is violated by a purchase by the subsistence department of the United States, made at Fort Leavenworth, of corn to be delivered by the seller of the same at Fort Union. This view cannot be sustained. There is not only not an identity, but there is not a similarity between the contracts. The making of the latter contract, and its performance, was not a breach of the former.

It is suggested in the claimant's brief that the proceeding of the United States in making the contract with Fuller & Tiernan was a device unfairly to evade the performance of the claimant's contract. No such fact is found by

The duty of the commissary department, in general terms, is to feed the army, to provide supplies for its subsistence. Transportation is not understood to be among its *duties. [*670 That office belongs to the quartermaster's department. What the commissary provides to feed the army it is the duty of the quartermaster to transport to such points as may be needed. Hence, in the case before us, it was in the ordinary course of business, that the contract for transportation being already made, and further supplies being needed, that the purchase of the same should devolve on the commissary department.

The judgment of the Court of Claims should be affirmed.

PHILIP HICKS, Appt.,

บ.

GEORGE KELSEY.

(See S. C. 18 Wall. 670-674.)

patent.

1. Mere change of material, as making a curve

669*] *The claimant makes complaint that the quartermaster at Fort Leavenworth lent to Fuller & Tiernan a quantity of corn to be used by them in performance of their contract of sale with the commissary of subsistence; that the loan of corn was illegal, the title still remaining in the United States, and that this fact furnishes evidence that the second contract was a device and a pretense only. We have only to say on this branch of the case that the claimant is not invested with authority to supervise the transactions of the different departments of the government. Whether the commissary of subsistence had authority to make the contract with Fuller, whether there was an irregularity in the loan of corn to Fuller, and what was the motive of these dealings, are matters to be investigated by the War Department. They can not be challenged by the claimant. He rests his claim for damages upon the making and performance of Fuller's contract. That contract has not been repudiated or objected to, so far as we know, by the proper authority. The record contains no evidence that any of the transactions are the subject of censure by the government.

The supplies contracted to be transported by the claimant were those of the quartermaster's department, that is, the supplies to be used for and by the army. The corn purchased by the commissary of subsistence was sent to New Mexico, not for the army, but to feed the Mexicans or Indians. The duties of the quarter master's department, and of the department of subsistence, are separate and distinct. The departments are managed by different officers, whose authority is confined to the matters connected with their departments.

The contract to transport, in the case before us, relates to supplies for the quartermaster's department. The arrangement which is set forth as a violation of that contract related to supplies needed by the commissary of subsistence, a different subject entirely.

of iron instead of wood and iron, is not a sufficient change to constitute invention; the purpose, the means of accomplishing it, and the form and mode of operation being the same.

void for want of novelty in the alleged invention. 2. A patent for such mere change of material is [No. 138.]

Argued Dec. 9, 1873. APPEAL from the

Decided Jan. 5, 1874.

Circuit Court of the

United States for the Northern District of

Illinois.

The following is the description of the reach patented by the complainant and appellant:

Fig. 1

Fig. 3

R

Fig. 1 represents the side elevation, and Fig. 2, the plan of the reach. Fig. 3 represents a solid metallic splice.

"My invention consists in making the ordinary wooden reach of trucks and wagons of two separate parts; in connecting or splicing said parts with metallic plates or metallic castings, so arranged as to allow the front wheels of such trucks or wagons, at the sharp turns, to freely pass under said plates or castings." A

NOTE. Patentability of inventions; novelty; change of form, size or material-see note, 40 L ed. U. S. 1025.

is the hind part, and B the front part of the wooden reach, having their inner ends, a, b, tapered. PP are metallic plates, straight at the ends and curved about the middle, as represented on Fig. 1. They are bolted together at the curve C, forming there one mass of metal, and separating and inclosing the tapered ends, a, b, of the wooden parts of the reach, to which they are securely bolted. The plates extend back to the hind hounds, DD, and in front to the front bolster, E, thus forming, with wooden parts, A, B, one continuous reach. The above described metallic splice, instead of consisting of two separate continuous curved plates, as PP, can be cast in one solid piece of metal, K, as represented in Fig. 3, the ends a, b, of the wooden parts, A, B, being fitted to the casting. F is a rubbing iron, consisting of a block strapped to and under the plates by a metallic strap, C, near to or at the point where plates, PP, or casting, K, connect with the tapered end, b, of the wooden part, B, of the reach. The strap is bolted to the plates or castings, and the back part, F, of the block, F, is resting on and moving along the sway-bar, H, used in heavy truck and wagons.

The advantages of the above described curved metalic splicing are, that not only a new curved reach can be easily made, but an old straight reach can readily and cheaply be converted into a curved one.

I do not claim either wooden or metallic continuous curved reach, per se, as I am aware that such reaches have been and are used; but what I claim as my invention, and desire to secure by letters patent, is:

1. The reach made of two wooden parts, AB, connected by a metallic curved splice, consisting of separate plates, PP, or of a solid metallic piece, K, the whole arranged substantially as, and in the manner herein set forth and specified.

2. The metallic block, K, constructed and secured to the curved part of the reach or splice, substantially as and for the purpose set forth." The case further appears in the opinion. Messrs. Goodwin, Larned & Towle, for appellant:

This invention does not consist in the mere substitution of a particular material for other material which had been previously used for the same purpose and in the same way.

The invention consists in the production of a certain described article by a certain described mechanical process, which process, viewed as a whole, is new in itself.

That process is the making an ordinary wooden reach of two separate parts, in splicing those parts at the front and rear ends by a particular and new mechanical arrangement (shown in the drawings and in the models, No. 1 and No. 3), to a curved metallic intermediary splice, made substantially solid in two plates, or one casting, so that a new article is produced by a new mechanical arrangement or device, a new curved reach.

This article has added advantages and increased utility over the old wooden curved reach improved upon.

This new material in the crook or curve; with the new method of attachment at each end, the splice, to the two wooden parts; with the new construction of the reach as a whole;

with the new operation in consequence of the change; with the increased utility and bene. ficial results, thus incontestably proved, bring this patent within the principle of all the cases as a patentable invention under the act of July, 1836.

Curt. Pat. 3d ed., §§ 34-36, 73; McCormick v. Seymour, 2 Blatchf. 243—definition "patentable," subject by Nelson, J.; Roberts v. Dickey, Fish. 532; Web. Pat. 30; Curt. § 73; Seymour v. Osborne, 11 Wall. 516, 20 L. ed. 33; Crane v. Price Web. Pat. Cas. 409.

(Mr. A. C. Story, attorney of record, for appellee, did not appear.)

Mr. Justice Bradley delivered the opinion of the court:

Hicks, the appellant in this case, obtained a patent for an improved wagon-reach, and filed a bill against the defendant, charging infringement and praying the usual relief. The defendant answered, denying the novelty of the alleged invention, and also denying infringement.

The

The reach claimed as new had an upward bend or curve, to allow the forward wheels to turn under it in turning the wagon. It was admitted that reaches of this sort had long been used, made of wood, strengthened by straps of iron attached to each side of the reach. supposed improvement of the plaintiff consisted in leaving out the wood in the curve and bolting the iron straps together, whereby the curve became all iron and less bulky, but in all other respects having the same shape and performing the same office as before. Instead of being bolted together, the straps might be welded so as to make the curve consist of solid iron.

The question is: whether the mere change of material in making the curve of iron instead of wood and iron was a sufficient change to constitute invention; the purpose being the same (namely: to turn the wheel under the body of the wagon), the means of accomplishing it being the same (namely: by a curved reach) and the form of the reach and mode of operation being the same.

It is certainly difficult to bring the case within any recognized rule of novelty by which the patent can be sustained. The use of one material instead of another in constructing a known machine is, in most cases, so obviously a matter of mere mechanical judgment, and not of invention, that it cannot be called an invention, unless some new and useful result, an increase of efficiency, or a decided saving in the operation, is clearly attained. Some evidence was given to show that the wagon-reach of the plaintiff is a better reach, requiring less repair and having greater solidity than the wooden reach. But it is not sufficient to bring the case out of the category of more or less excellence of construction. The machine is the same. Axe-helves made of hickory may be more durable and more cheap in the end than those made of beech or pine, but the first application of hickory to the purpose would not be, therefore, patentable.

*Cases have frequently arisen in [*674 which substantially the question now presented has been discussed. Perhaps, however, non can be cited more directly in point than that of Hotchkiss v. Greenwood, 11 How. 248, in which it was held that the substitution of porcelain

In Crane v. Price, Web. Pat. Cas. 409, it is true, the use of anthracite instead of bituminous coal with the hot blast in smelting iron ore was held to be a good invention, inasmuch as it produced a better article of iron at a less expense. But that was a process of manufacture, and in such processes a different article replacing another article in the combination often produces different results. The latter case is more analogous to the cases of compositions of matter than it is to those of machinery; and in compositions of matter a different ingredient changes the identity of the compound, whereas an iron bar in the place of a wooden one, and subserving the same purpose, does not change the identity of a machine. Curtis, Pat. 3d ed. §§ 70-73.

But the plaintiff's counsel alleges that his invention does not consist of the mere substitution of a particular material for another material which had been previously used for the same purpose in the same way, but consists in the production of a certain described article by a certain described mechanical process, which process, viewed as a whole, is new and useful; and then he describes what he supposes to be such new mechanical process. This is his argument; but the facts do not bear out such a view of the case. They are precisely and only as we have before stated them.

In our judgment, the patent in this case is void for want of novelty in the alleged invention.

The decree, therefore, must be affirmed, and it is affirmed accordingly.

1*] *THOMAS H. ALLEN and James M. Allen, partners, as T. H. & J. M. Allen & Company, Piffs. in Err.,

v.

AUSTIN H. FERGUSON.

(See S. C. 18 Wall. 1-5.)

Maxim v. Morse, 8 Mass. 127; Shippey v. Henderson, 14 Johns. 178; Depuy v. Swart, 3 Wend. 135; Chit. Cont. 47, notes m and 3; 1 Pars. Cont. 381; 5 Eng. 10 Ark. 381; Apperson v. Stewart, 27 Árk. 619.

;

Light may be thrown upon this question by reference to adjudications as to new promises sufficient to revive a debt barred by limitation. All expressions of the debt shall be adjusted; the debt will be settled; the matter shall be arranged; all will be right, etc., are held sufficient to revive a debt barred by limitation.

Conway v. Reyburn, 22 Ark. 290; Armistead v. Brooke, 18 Ark. 522; Bell v. Morrison, 1 Pet. 357; 32 Miss. 257; Hale v. Hale, 4 Humph. 183; Ang. Lim. 3d ed. 230, 234; In the Matter of Harden, 1 Bk. Reg. 97; and if the expressions used by Ferguson are not stronger than any of these, then there is no meaning in his letter at all.

Messrs. Clark & Williams, for defendant in error:

We submit that the paper exhibited with the replication does not show a new promise. Such promise, to be valid, must be express, clear and unequivocal.

See Hill. Bankr. 265, ch. IX., § 53; Cambridge Inst. v. Littlefield, 6 Cush. 213.

The promise must show a deliberate intention on the part of the promisor to waive the protection of his discharge, and to rebind himself legally to pay the old debt.

See, Horner v. Speed, 2 P. & H. (Va.) 616; Evans v. Carey, 29 Ala. 99; Porter v. Porter, 31 Me. 169; Lynbuy v. Weightman, 5 Esp. 198; Fleming v. Hayne, 1 Stark. 370; Mucklow v. St. George, 4 Taunt. 613; Brook v. Wood, 13 Price, 667; Depuy v. Swart, 3 Wend. 139; Alsop v. Brown, 1 Doug. 192; Prewett v. Caruthers, 12 Sm. & M. 491; Brown v. Collier, 8 Humph. 510; Bk. v. Boykin, 9 Ala. 320.

Nor is the mere expression of an intention to pay the debt sufficient.

bankruptcy.

Submitted Dec. 24, 1873. Decided Jan. 12, 1874. IN ERROR to the Circuit Court of the United States for the Eastern District of Arkansas. The case is stated by the court.

Messrs. A. H. Garland and W. G. Weatherford, for plaintiffs in error:

The only inquiry presented here is: Is there

NOTE.-New promise after discharge in bankruptcy-see note, 53 L. R. A. 362.

v. Porter, 31 Me. 169.

Nor does any equivocal act or declaration revive the debt.

Stark v. Stinson, 3 Fost. (N. H.) 259. When we examine the letter of Ferguson, we find it falls very far short of these rules; it is not certain and unequivocal; contains nothing like a promise. The strongest expression in it is, "It will be all right," and an express desire to pay all his honest debts upon condition that hard labor will enable him to make the money. No absolute, unequivocal, unconditional promise to be found there. Nothing from which a jury would be allowed to torture a new promise.

Mr. Justice Hunt delivered the opinion of the court:

The plaintiffs declared upon a promissory