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Opinion of the Court.

pleadings, and the evidence and patents put in by the defend ant in it, on the question of novelty, forms part of the record in the present case.

An examination of the patents put in evidence by the defendant, in connection with the testimony in regard to them, shows that the Claridge pavement was not a concrete pavement, and was not formed in detachable blocks, but was a continuous asphalt pavement; that the D'Harcourt pavement was not a concrete pavement laid in detached blocks or sections, nor could one section be removed without disturbing adjacent sections; that the Russ patent shows a concrete foundation for a stone pavement, the pavement proper being constructed of granite or syenite placed on top of the concrete foundation, such concrete foundation not being formed in detachable blocks, but only being provided at certain places with removable panels, consisting of frames filled with concrete, to be lifted out to give access to water-pipes or for other purposes; that the Chesneau pavement was not a concrete pavement laid in detached sections or blocks, but was a continuous pavement, provided with panels to give access in certain places to gas and water-pipes, the panels being made of sections set in frames, which were removably inserted in the surrounding pavement, and there was no arrangement of tar-paper or its equivalent between adjoining blocks of concrete, for the purpose set forth in the Schillinger patent; that the Coignet patent did not show a concrete pavement, made in detachable blocks after the manner of Schillinger's, and built on the ground where it was to remain; that the De la Haichois pavement was not a concrete pavement laid in detachable blocks or sections, or having the arrangement of tar-paper or its equivalent between adjoining blocks of concrete, like that of Schillinger; and that the Van Camp patent showed only blocks formed in moulds, and removable from the moulds, or the pavement to be laid cemented in the moulds, and it not being stated that the blocks should be formed on the spot where they were to remain, nor that they should be formed of cement and gravel or sand. It further appears that, in the Van Camp patent, when the blocks are made in moulds, they are like

Opinion of the Court.

bricks, or artificial stones, or wooden blocks, which are prepared and then brought to the place where they are to be laid and put down in the usual manner; and that, when the blocks remain in the moulds and are thus laid, they do not present a uniform wearing surface of concrete, or constitute a concrete pavement formed in detachable blocks by joints.

Other testimony as to prior public use was introduced in this case, taken from the record in the case of Schillinger v. Phillip Best Brewing Co., in the Circuit Court for the Eastern District of Wisconsin, which testimony was also introduced in the case against the Greenway Brewing Company, having been taken in November, 1882. In the decision in the latter case, it was correctly said of that testimony: "So far as it refers to prior use in Germany, not shown in a patent or printed publication, it was duly objected to in this case and must be excluded. As to the cement malt floor which Row laid in Baltimore twenty-five years ago, he shows that it was not made in sections detachable by free joints. The testimony of Botzler as to a prior malt floor laid by him in Chicago is too indefinite to amount to sufficient evidence to defeat a patent." So far as that testimony related to a pavement used in Germany, it was objected to at the time it was introduced in this case, as incompetent. It was clearly inadmissible under § 4923 of the Revised Statutes, because it did not show anything that had been patented or described in a printed publication.

We do not think that the reissued patent, as it stood after the filing of the disclaimer, was open to the objection that it was not for the same invention as that of the original patent. Whatever there was of objectionable matter inserted in the specification or the first claim of the reissue, when it was granted, was removed by the disclaimer. The reissue was granted within ten months after the original. The single claim of the original patent was repeated in the reissue as the second claim of the latter, and the first claim of the reissue, as it stood after the disclaimer, did not expand beyond the claim of the original what was claimed in the reissue.

As to the amount of the decree, we think the court properly awarded the sum of four cents per square foot as the profits of

Citations for Appellant.

the defendant, and that it was right to give to the plaintiff the entire profits made by the defendant by the laying by him of his concrete flagging, in view of the testimony in the case. It clearly appears that the defendant's concrete flagging derived its entire value from the use of the plaintiff's invention, and that if it had not been laid in that way it would not have been laid at all.

In Elizabeth v. Nicholson Pavement Co., 97 U. S. 126, 139, it is said that "when the entire profit of a business or undertaking results from the use of the invention, the patentee will be entitled to recover the entire profits, if he elects that remedy." This language was quoted with approval in Root v. Railway Co., 105 U. S. 189, 203. As in the case of the Nicholson patent, so in the case of the Schillinger patent, the pavement was a complete combination in itself, differing from every other pavement, and the profit made by the defendant was a single profit derived from the construction of the pavement as an entirety. Callahan v. Myers, 128 U. S. 617, 665,

666.

Within the decision in Garretson v. Clark, 111 U. S. 120, the proof in this case is satisfactory, that the entire value of the defendant's pavement, as a marketable article, was properly and legally attributable to the invention of Schillinger. The decree of the Circuit Court is

Affirmed.

WILSON v. EDMONDS.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 245. Argued April 11, 12, 1889. Decided April 22, 1889.

On the facts of this case, it was held that the defendant was not a co-partner with another person, in his general business, and liable for his debts.

THE case is stated in the opinion of the court.

Mr. Enoch Totten and Mr. W. Willoughby, for appellant, cited: Waugh v. Carver, 2 H. Bl. 235; Pleasants v. Fant, 22

Citations for Appellee.

Wall. 116; Parker v. Canfield, 37 Connecticut, 250; Pratt v. Langdon, 12 Allen, 544; Richardson v. Hughitt, 76 N. Y. 55; Cox v. Hickman, 9 C. B. (N. S.) 747; S. C. 8 H. L. Cas. 268; Bond v. Pittard, 3 M. & W. 357; Bullen v. Sharp, L. R. 1 C. P. 86; Perley v. Driver, 5 Ch. D. 458; Kitsham v. Jukes, 1 B. & S. 868; Beauregard v. Carr, 91 U. S. 140; Smith v. Knight, 71 Illinois, 148; Linton v. Millikin, 47 Illinois, 178; Curry v. Fowler, 87 N. Y. 133; Mifflin v. Smith, 17 S. & R. 165; In re Estate of Davis, 5 Wharton, 530; S. C. 34 Am. Dec. 574; Brooks v. Washington, 8 Grattan, 268; S. C. 56 Am. Dec. 142; South Carolina Bank v. Case, 8 B. & C. 427; Barton v. Hanson, 2 Campb. 597; Bank of the United States v. Binney, 5 Mason, 176; Wood v. Olmer, 7 Ohio St. 172; Leggett v. Hyde, 58 N. Y. 272; Everett v. Coe, 5 Denio, 180; Berthold v. Goldsmith, 24 How. 536; Hargrave v. Conroy, 19 N. J. Eq. (4 C. E. Green) 281; Sheridan v. Medara, 10 N. J. Eq. (2 Stockton) 469; S. C. 64 Am. Dec. 464; In re Francis, 2 Sawyer, 286.

Mr. Nathaniel Wilson, for appellee, cited: Brown v. Swann, 10 Pet. 497; Russell v. Clarke, 7 Cranch, 69, 89; Gregory v. Morris, 96 U. S. 619, 623; Hauselt v. Harrison, 105 U. S. 401, 405; Casey v. Cavaroc, 96 U. S. 467, 480; Clark v. Iselin, 21 Wall. 360; Peugh v. Davis, 96 U. S. 332, 336, 337; Russell v. Southard, 12 How. 139, 147; Hughes v. Edwards, 9 Wheat. 489; Babcock v. Wyman, 19 How. 289; Shillaber v. Robinson, 97 U. S. 68; Villa v. Rodriguez, 12 Wall. 323; Cook v. Tullis, 18 Wall. 332; Stewart v. Platt, 101 U. S. 731, 738, 739; Donaldson v. Farwell, 93 U. S. 631; Jerome v. McCarter, 94 U. S. 734; Yeatman v. Savings Institution, 95 U. S. 764; Seymour v. Freer, 8 Wall. 202; Beckwith v. Talbot, 95 U. S. 289; Dale v. Pierce, 85 Penn. St. 474; Curry v. Fowler, 87 N. Y. 33; Harvey v. Childs, 28 Ohio St. 319; Luitner v. Milliken, 47 Illinois, 178; Adams v. Funk, 53 Illinois, 219; Smith v. Knight, 71 Illinois, 148; Boston & Colorado Smelting Co. v. Smith, 13 R. I. 27; Williams v. Soutter, 7 Iowa, 435, 445, 446; Ruddick v. Otis, 33 Iowa, 402; Hart v. Kelley, 83 Penn. St. 286, 290; Wells v. Babcock, 56 Mich. 276; Beecher v. Bush, 45 Mich. 188, 196; Buzard v. Bank of

Opinion of the Court.

Greenville, 67 Texas, 84; Rice v. Austin, 17 Mass. 197, 206; Meehan v. Valentine, 29 Fed. Rep. 276; Barter v. Rodman, 3 Pick. 434; Denny v. Cabot, 6 Met. 82; Bradley v. White, 10 Met. 303; S. C. 43 Am. Dec. 435; Monroe v. Greenhoe, 54 Mich. 9; Thayer v. Augustine, 55 Mich. 187; Colwell v. Britton, 59 Mich. 350; Vanderburg v. Hull, 20 Wend. 70; Boyce v. Bundy, 61 Indiana, 432; Eastman v. Clark, 53 N. H. 276; Clifton v. Howard, 89 Missouri, 192; Cully v. Edwards, 44 Arkansas, 423; Polk v. Buchanan, 5 Sneed, (37 Tennessee,) 721; Dwinell v. Stone, 30 Maine, 384; Millett v. Holt, 60 Maine, 169; Darrow v. St. George, 8 Colorado, 592; Nicholas v. Thielges, 50 Wisconsin, 491; Pond v. Cummins, 50 Connecticut, 372; Setzer v. Beale, 19 West Virginia, 274; Crawford v. Austin, 34 Maryland, 49; Sangston v. Hack, 52 Maryland, 173; Heran v. Hall, 1 B. Mon. 159; S. C. 35 Am. Dec. 178; Cox v. Hickman, 8 H. L. Cas. 268; Bullen v. Sharp, L. R. 1 C. P. 86; Mollwo v. Court of Wards, L. R. 4 P. C. 419; Kilshaw v. Jukes, 3 B. & S. 847; Easterbrook v. Barber, L. R. 6 C. P. 1; London Assurance Co. v. Drennen, 116 U. S. 461; Drennen v. London Assurance Co., 113 U. S. 51.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. On the 7th of June, 1884, Josiah H. Squier, of the city of Washington, doing business there as a banker and broker, under the name of J. H. Squier & Co., being indebted in a large amount, made an assignment of all his property to Jay B. Smith, for the benefit of his creditors. Afterwards, in the same month, Theron C. Crawford, a creditor of J. H. Squier & Co., brought a suit in equity, in the Supreme Court of the District of Columbia, against Squier and Smith, to remove Smith from his position as assignee, and to have the estate settled. An order was made in that suit removing Smith and appointing Jesse B. Wilson receiver of the estate, for the purpose of administering its assets under the direction of the court. Squier died in September, 1884.

After the assignment to Smith and before the appointment of Wilson as receiver, James B. Edmonds filed in the Crawford suit a petition claiming that he was the owner of certain securi

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