that he had never seen the notice posted in the car, and that he had
been in the habit of alighting on the left side, without objection.
When plaintiff rested, the defendant asked the court to instruct the
jury to find a verdict for it on the ground that the contributory neg-
ligence of the plaintiff was established as matter of law. The court
declined, and the defendant introduced evidence, and did not renew
his request, but excepted to such parts of the charge as related to the
question of contributory negligence. Verdict and judgment being
had for plaintiff, the case was brought here by writ of error. Held,
(1) That there was no doubt of the gross negligence of the defendant;
(2) That there was no obligation on the part of the plaintiff to cross
the track by the underground public street; (3) That the plaintiff
was not, under the circumstances, guilty of negligence in law, in turn-
ing to the left on leaving the car; (4) That the charge was, as a
whole, sufficiently favorable to the defendant, and that the question
of negligence was properly left to the jury. Chicago, Milwaukee §
St. Paul Railway Co. v. Lowell, 209.
NEW TRIAL, MOTION FOR
See JURISDICTION, B, 15.
1. The invention patented to Henry A. Adams by letters patent No.
132,128, dated October 15, 1872, for a new and useful improvement in
corn-shellers, is a substantial and meritorious one, well worthy of a
patent, and is infringed by machines manufactured under sundry
letters patent granted to Harvey Packer. Keystone Manufacturing Co.
v. Adams, 139.
2. When, in a class of machines widely used, it is made to appear that,
after repeated and futile attempts, a machine has been contrived
which accomplishes the result desired, and a patent is granted to the
inventor, the courts will not adopt a narrow construction, fatal to the
grant.
3. While it is undoubtedly established law that complainants in patent
cases may give evidence tending to show the profits realized by de-
fendants from use of the patented devices, and thus enable the courts
to assess the amounts which the complainants are entitled to recover,
yet it is also true that great difficulty has always been found, in the
adjudicated cases, in applying the rule that the profits of the defend-
ant afford a standard whereby to estimate the amount which the
plaintiff is entitled to recover, and in defining the extent and limita-
tions to which this rule is admittedly subject. Ib.
4. Such a measure of damages is of comparatively easy application where
the entire machine used or sold is the result of the plaintiff's inven-
tion; but when, as in the present case, the patented invention is
but one feature in a machine embracing other devices that contribute
to the profits made by the defendant, serious difficulties arise. Ib.
5. The record shows that the complainant did not seek to recover a license
fee, nor did he offer any evidence from which his damages could be
computed. He relied entirely on the proposition that the amount
which he was entitled to recover could be based on the profits realized
by the defendant from the sale of the patented invention, and the
amount of such profits he claimed to have shown by evidence tending
to show what certain third companies were alleged to have made from
the sale of similar devices in similar corn-shelling machines. Held,
that he could recover only nominal damages. Ib.
6. No patent can issue for an invention actually covered by a former
patent, especially to the same patentee, although the terms of the
claims may differ. Miller v. Eagle Manufacturing Co., 186.
7. The second patent, in such case, although containing a claim broader
and more generical in its character than the specific claims contained
in the prior patent, is also void. Ib.
8. But where the second patent covers matter described in the prior
patent, essentially distinct and separable, and distinct from the inven-
tion covered thereby, and claims made thereunder, its validity may be
sustained.
9. A single invention may include both the machine and the manufacture
it creates, and in such case, if the inventions are separable, the inventor
may be entitled to a monopoly of each. Ib.
10. A second patent may be granted to an inventor for an improvement
on the invention protected by the first, but this can be done only
when the new invention is distinct from, and independent of, the
former one. Ib.
11. It is only when an invention is broad and primary in its character, and
the mechanical functions performed by the machine are, as a whole,
entirely new, that courts are disposed to make the range of equivalents
correspondingly broad. Ib.
12. The invention claimed and protected by the letters patent issued June
7, 1881, to Edgar A. Wright, for new and useful improvements in
wheeled cultivators, was anticipated by the claim in letters patent No.
222,767, granted to him December 16, 1879, for improvements in
wheeled cultivators.
13. The first claim in the said letters patent of June 7, 1881, was antici-
pated by letters patent No. 190,816, issued May 15, 1877, to W. P.
Brown for an improved coupling for cultivators. Ib.
14. The said letters patent of December 16, 1879, in view of the state of
the art at that time, are to be limited and restricted, if they have any
validity, to the specific spring therein described; and, as thus restricted,
they are not infringed by the sale of cultivators manufactured by
P. P. Mast & Co. in accordance with various letters patent owned by
them. Ib.
15. Reissued letters patent No. 9307, granted July 20, 1880, to John F.
Wollensak for new and useful improvements in transom lifters and
locks, on the surrender of the original letters patent No. 136,801,
dated March 11, 1873, are void for want of patentable novelty in the
invention described and claimed in them. Wollensak v. Sargent, 221.
16. Reissued letters patent No. 10,261, granted December 26, 1882, to
John F. Wollensak for a new and useful improvement in transom
lifters, on the surrender of the original letters patent, dated March 10,
1874, are void as to the claims sued on, by reason of laches in the
application for a reissue. Ib.
17. The fact that the patentee followed the advice of his solicitor in delay-
ing to apply for the reissue within due time does not justify the
delay. Ib.
18. Letters patent No. 379,644, granted March 20, 1888, to Michael
Haughey for an improvement in interfering devices for horses, in
view of the state of the art at that time as shown by the evidence, are
void for want of patentable novelty in the invention covered by them.
Haughey v. Lee, 282.
1. An objection that an action is brought in the wrong district cannot be
raised after the defendant has pleaded in bar. Texas & Pacific Rail-
way Co. v. Saunders, 105.
2. This court cannot take notice of a stipulation of counsel as to evidence
bearing on a finding of the court below in an action brought here by
writ of error. Fort Worth City Co. v. Smith Bridge Co., 294.
A receipt signed by a claimant against the United States for a sum less
than he had claimed, paid him by the disbursing agent of a depart-
ment, “in full for the above account," is, in the absence of allegation
and evidence that it was given in ignorance of its purport, or in cir-
cumstances constituting duress, an acquittance in bar of any further
demand. De Arnaud v. United States, 483.
A Circuit Court of the United States having appointed a receiver of a
railroad in 1885, and the receiver having, during his possession of the
property, used a very large amount of the net earnings in improving
it, whereby it had been made much more valuable, the court, on the
expiration of the receivership, ordered, on the 26th October, 1888, the
receiver to transfer the property with its improvements to the com-
pany, and that it should be received by the company, charged with
operation liabilities, and subject to judgments rendered or to be ren-
dered in favor of intervenors, and that all claims against the receiver
up to October 31, 1888, be presented and prosecuted by intervention
prior to February 1, 1889, or be barred and be no charge upon the
property. On the 14th of September, 1888, J. brought suit against
the receiver in a state court to recover for personal injuries suffered
by reason of defects in the road. On the 17th of December, 1888, the
complaint was amended by making the railway company a party
defendant. The receiver set up his receivership and discharge. The
company denied liability for any injury inflicted during the receiver-
ship; and among other grounds of defence set up that the plaintiff
below was subject to the order of October 26, and must resort to the
court which entered it for the collection of his claim; that he could
not recover a judgment in personam; and that the claim was barred
by the terms of the order. The case was dismissed in the trial court
as to the receiver, and judgment was given against the company, which
judgment was sustained by the highest court of the State on appeal.
The latter court held, in its opinion, that the company having received
the property under the circumstances described, was bound by the acts
of the receiver, and held the property charged with any claim which
he ought to have paid out of earnings; that the receiver having been
discharged, the property in the hands of the company was released
from the custody of the Circuit Court and subject to any claim that
might rest against it; that the order of the Circuit Court was not
binding on the plaintiff as affecting his right to enforce his claim by
suit; that the time in which such action should be commenced was
fixed by law and could not be altered by order of court; that, under
the act of March 3, 1888, 24 Stat. 552, c. 373, as amended by the act
of August 13, 1888, 25 Stat. 433, c. 866, the state court had jurisdiction
of the case, and the prosecution of the claim in that court could not
be prevented; and that under the circumstances the suit could be
maintained against the company. A writ of error was sued out to
this court. Held, (1) That the overruling of the defence set up by
the company amounted to a decision against the validity of the order
of the Circuit Court, or against a claim of right or immunity there-
under, which gave this court jurisdiction under the writ of error;
(2) That the state court had jurisdiction under the acts of Congress
above cited to proceed to final judgment in the case, and that it was
not necessary to submit that judgment to the Circuit Court; (3) That
after February 1, 1889, those who had not intervened in the suit in the
Circuit Court were remitted to such other remedies as were within
their reach; (4) That as the highest court of the State had held, on
other than Federal grounds, that the company was directly liable to
the plaintiff below, its judgment should be affirmed. Texas & Pacific
Railway Co. v. Johnson, 81.
REMITTITUR.
See JUDGMENT.
1. A township in Kansas delivered twenty-two of its bonds to a railroad
company to aid in the construction of the company's road. The com-
pany contracted with B. to construct the road, and to receive these
bonds in part payment. The bonds were delivered during the prog-
ress of the work to B., and to M., a non-resident of Missouri, as trustee,
jointly, and were by them deposited in a Missouri savings institution
in St. Louis to remain there until the completion of the work, and
then to be delivered to B. upon the demand of himself and M. B.,
claiming that he had performed all the work under his contract,
demanded the bonds. The association refused to deliver them except
upon the joint order of B. and M. B. brought suit in St. Louis to
recover them, making the association and the company defendants
and serving process upon them, and making M. a defendant and serv-
ing upon him by publication. The township on its own motion
intervened and was made party defendant. The savings association,
M., and the township each answered separately. The railroad com-
pany was not served with process and made no answer. M. and the
township then petitioned for the removal of the cause to the Circuit
Court of the United States, setting forth that they were citizens of
Kansas, that the plaintiff was a citizen of Missouri, and that the sav-
ings association had no interest in the result of the controversy. The
prayer of the petition was granted, the cause was removed, and it
proceeded to judgment in the Circuit Court. Held, (1) That the
savings association was a necessary and indispensable party to the
relief sought for, and as that defendant was a citizen of the same
State with the plaintiff, there was no right of removal on the ground
that it was a formal, unnecessary, or nominal party; (2) That the
removal could not be sustained on the ground that the controversy
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