2. The second claim in said reissue is for "the nut F, combined with the
wrench-bar, and interiorly recessed at d, for the purpose set forth.”
Some years later the patentee filed in the Patent Office a disclaimer
thereto "except when said recessed nut and wrench-bar are in combi-
nation with the handle G, the step or step-plate E, the screw-rod C,
and the movable jaw B, of the wrench, substantially as is shown and
described in said last mentioned reissued letters patent," being the
reissue in question; Held, that whether this qualified disclaimer was
or was not effectual, it was, in view of the fact that the screw-rod and
movable jaw of the patent had no different effect from the screw-sleeve
and movable jaw of the prior Dixie wrench upon the other parts of
the combination, an admission that the second claim of the patent is
void for want of novelty. lb.
3. The third claim of the patent is also void for want of novelty. Ib.
4. In view of the state of the art at the time of their issue, letters patent
No. 101,590, granted to Turner Cowing, April 5, 1870, for “a wood
pavement composed of blocks, each side having a single plain surface
and one or more of the sides being inclined, and the blocks being so
laid on their larger ends as to form wedge-shaped grooves or spaces to
receive concrete or other suitable filling, substantially as set forth," are
void for want of novelty. Brown v. District of Columbia, 87.
5. The substitution of blocks of wood of a given shape for blocks of stone
of the same shape in the construction of a pavement neither involves a
new mode of construction, nor develops anything substantially new in
the resulting pavement, and is therefore not patentable as an inven-
tion. Ib.
6. Letters patent No. 94,062 to William W. Ballard and Buren B. Wad-
dell, dated April 24, 1869, for improvements in street pavements, were
granted for novelty in the method of making the blocks, and not for
novelty in the blocks themselves, or in a wooden pavement constructed
of them; and it required no invention, but only mechanical skill to
produce this method, so far as it varies from other methods, for a like
purpose previously known. Ib.
7. Letters patent No. 94,063 to William W. Ballard and Buren B. Waddell
for "an improved mode of cutting blocks for street pavements," are
void because the thing patented required only mechanical skill, and
involved no invention, and was not patentable. Ib.
8. Letters patent No. 232,975, granted October 5, 1880, to Henry G.
Thompson, as assignee of the inventor, Moses C. Johnson, for an im-
provement in cutting-pliers, the claim of which is, "The body, com-
posed of the side-plates, a b, the independent fulcra 2 3 4 5 for the
jaw-levers and hand-levers, the jaw-levers provided with cutting edges
and lips e, and the hand-levers having short arms g' h', and a prong and
notch always in engagement as described, combined with the V-shaped
spring, held, as described, by the lips of the jaw-levers, all as and for
the purpose set forth," are invalid, because Johnson was not the first
inventor of the combination claimed in the patent. Thompson v. Hall,
117.
9. A general and full assignment by a patentee of the letters patent, and
all his interest therein, to the full end of the term, and of all reissues,
renewals, or extensions, accompanied by a clause that the net profits
from sales, royalties, settlements, or any source, are to be divided be-
tween the parties, the patentee to receive one fourth thereof, is a full
and absolute transfer of title; and the assignee does not hold the
property as trustee for the benefit of the patentee, but is trustee only
of one fourth of the profits which may be received. Rude v. Westcott,
152.
10. The payment of a sum in settlement of a claim for an alleged infringe-
ment of letters patent, cannot be taken as a standard to measure the
value of the improvements patented in determining the damages sus-
tained by the owner of the patent in other cases of infringement. Ib.
11. An agreement concerning compensation for the use of a patented in-
vention, where the charge may be fixed at the pleasure of the owner
of the patent, cannot be received as evidence of the value of the im-
provements patented so as to bind others who have no such agree-
ment. Ib.
12. In order to make the price received by a patentee from sales of licenses
a measure of damages against infringers, the sales must be common,
that is of frequent occurrence, so as to establish such a market-price
for the article that it may be assumed to express, with reference to all
similar articles, their salable value at the place designated. Ib.
13. Conjectural estimates of injury, founded upon no specific data, but
upon opinions formed upon guesses, without any knowledge of the
subject, furnish no legal ground for the recovery of specific damages
for the infringement of letters patent. lb.
14. Reissued letters patent No. 4364, granted to John J. Schillinger, May
2, 1871, for an "improvement in concrete pavements," on the surrender
of original letters patent No. 105,599, granted to said Schillinger,
July 19, 1870, were valid. Hulburt v. Schillinger, 456.
15. The proper construction of the claims of the reissue stated, in view of
a disclaimer filed March 1, 1875. Ib.
16. The questions of utility, novelty and infringement considered. Ib.
17. The entire profit made by the defendant from laying his pavement
was given to the plaintiff, because it appeared that it derived its
entire value from the use of the plaintiff's invention; that if it had
not been laid in that way it would not have been laid at all; and that
the profit made by the defendant was a single profit derived from the
construction of the pavement as an entirety. Ib.
18. Letters patent No. 281,558, granted to George M. Peters, July 17, 1883,
for an "improvement in dies for making dash-frames," are invalid, for
want of patentable invention. Peters v. Active Mƒ'g Co., 626.
1. Between the time when the Process Act of May 8, 1792, 1 Stat. 275,
went into effect, and the passage of the act of June 1, 1872, 17 Stat.
196, (Rev. Stat. § 914,) it was always in the power of the Federal
courts, by general rules, to adapt their practice to the exigencies and
conditions of the times; but since the passage of the latter act the
practice, pleadings and forms and modes of proceeding must conform
to the state law and to the practice of the state courts, except when
Congress has legislated upon a particular subject, and prescribed a
rule. Amy v. Watertown, (No. 1,) 301.
2. When a state statute prescribes a particular method of serving mesne
process, that method must be followed; and this rule is especially
exacting in reference to corporations.
3. Unless the fact upon which a reversal of a judgment is claimed appears
in the record sufficiently to be passed upon, the judgment will not be
reversed. N. Y. and Colorado Mining Syndicate v. Fraser, 611.
1. Where the certificate to the transcript of a record, on a writ of error,
did not comply with subdivision 1 of Rule 8, and the record was not
complete, not containing the pleadings, so that, under subdivision 3
of Rule 8, this court could not hear the case, it was not dismissed,
because it had been submitted on both sides, on the merits, and the
defendant in error had not moved to dismiss it for non-compliance
with the rules, although more than three years had elapsed since the
filing of the transcript, but leave was given to the plaintiff in error to
sue out a writ of certiorari, to bring up the omitted papers. Red-
field v. Parks, 623.
JURISDICTION, A, 10, 11, 13.
1. No portion of the public domain, unless it be in special cases, not affect-
ing the general rule, is open to sale until it has been surveyed, and an
approved plat of the township embracing the land has been returned
to the local land office. Buxton v. Traver, 232.
2. A settler upon public land, in advance of the public surveys, acquires
no estate in the land which he can devise by will, or which, in case
of his death intestate, will pass to his heirs at law, until, within the
specified time after the surveys and the return of the township plat,
he files a declaratory statement such as is required when the surveys
have preceded settlement, and performs the other acts prescribed by
law. Ib.
3. Section 2269 of the Revised Statutes has no application to the case of
a settler who dies before the time arrives when the papers necessary
to establish a preemption right can be filed. Ib.
4. No title to land in California, dependent upon Spanish or Mexican
grants, can be of any validity, which has not been submitted to, and
confirmed by, the board provided for that purpose under the act of
March 3, 1851, 9 Stat. 631; or, if rejected by that board, confirmed by
the District Court or by the Supreme Court of the United States.
Botiller v. Dominguez, 238.
5. The question, under Rev. Stat. § 2319, as to what customs and rules of
miners in a mining district not inconsistent with the laws of the United
States are in force in the district when an application is made for a
patent of mineral land, is one of fact determinable by the Commis-
sioner of the Land Office. Parley's Park Silver Mining Co. v. Kerr,
6. Rule 4 of the rules of the Blue Ledge mining district in Utah, adopted
May 17, 1870, limiting the width of a mining location to 200 feet, was
so modified May 4, 1872, that thereafter the surface width was to be
governed by the laws of the United States. Ib.
7. The United States holds the title to land acquired for purchase at a
sale under an execution, for public purposes and not for private pur-
poses, and holds in like manner the incidental right of redemption.
United States v. Insley, 263.
8. A corporation, created under the laws of one of the States of the Union,
all of whose members are citizens of the United States, is competent
to locate, or join in the location of, a mining claim upon the public
lands of the United States, in like manner as individual citizens.
McKinley v. Wheeler, 630.
9. Whether such a corporation will not be treated as one person, and as
entitled to locate only to the extent permitted to a single individual,
quære. lb.
10. A corporation interested in mining may be represented by its officer
or agent at any meeting of miners called together to frame rules and
regulations in their mining district. Ib.
1. The power to lease a railroad, its appurtenances and franchises is not
to be presumed from the usual grant of powers in a railroad charter;
and, unless authorized by legislative action so to do, one company can-
not transfer them to another company by lease, nor can the other com-
pany receive and operate them under such a lease. Oregon Railway
and Navigation Co. v. Oregonian Railway Co., 1.
2. A provision in a general act for organizing corporations for the purpose
of navigating streams, with power to construct railroads where portage
is necessary, that a corporation organized under it shall not lease
such a railroad, does not imply that without such a restraint the cor-
poration could make such a lease. Ib.
3. The operation of a railroad and payment of rent for three years by a
lessee under a lease of it for ninety-six years, which was executed in
violation of the corporate powers both of the lessor and of the lessee,
does not so far execute the contract of lease by part performance, as
to estop the lessee from setting up its illegality in an action at law to
recover after accruing rent. Ib.
4. In proceedings commenced under a state statute for condemnation of
land for a railroad, a published notice in compliance with the terms of
the statute, specifying the section, township and range, county and
State, in which it is proposed to locate the railroad, is sufficient notice
to a non-resident owner of land therein, and such publication is "due
process of law," as applied to such a case. Huling v. Kaw Valley Rail-
way and Improvement Co., 559.
5. When, after notice to the owner as required by law, land has been con-
demned for a railroad by commissioners regularly appointed and duly
sworn, who discharged their duties in the manner required by law, the
question whether one of the commissioners was or was not a free-
holder, as directed by the statute, is not open for consideration collat-
erally in an action of trespass by the owner against the railroad com-
pany for entering on the land after condemnation. Ib.
See BILL OF LADING;
CONTRIBUTORY NEGLIGENCE;
LOCAL LAW, 1, 2, 13, 14;
MECHANICS' LIEN;
RECEIVER'S CERTIFICATES;
TAX AND TAXATION, 3, 4, 5, 6.
It is immaterial whether the receiver's certificates, which are in controversy
in this suit were properly issued to the appellee, for the reason that:
(1) it is apparent that the order of the state court under which they
were issued was the result of an agreement between the parties to
this suit; and (2) if they should be held to be invalid the appellee
could not be restored to the rights under the decree of the state court
which he surrendered for them. Central Trust Co. v. Seasongood, 482.
A petition for removal which alleges the diverse citizenship of the parties
in the present tense is defective, and if it does not appear in the record
that such diversity also existed at the commencement of the action,
the cause will be remanded to the Circuit Court with directions to send
it back to the state court, with costs against the party at whose in-
stance the removal was made. Stevens v. Nichols, 230.
Under §§ 823 and 839 of the Revised Statutes, the clerk of a District Court
in the Territory of Utah is not entitled, for his personal compensation,
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