vears.

་

Opinion of the Court.

Is channelled iron commonly used in carriage-work; and if so, for what purpose? Ans. 13. Well, channelled iron has been used for years; dash-feet, dashes, tops, the bows on the tops, and for the tire on wheels. Q. 14. For how long a time have you known it to be used for these purposes? Ans. 14. Twenty Q. 15. What is the object in using channelled iron instead of solid bars? Ans. 15. Well, it's for the purpose of securing stiffness, lightness, and it is easy to work. It is easier to punch a hole through a light web than through a solid bar. It is economy to use it. Q. 16. Can you state any use to which channelled iron could be applied in mechanics where its use would be novel or would constitute an invention? Ans. 16. I don't know of any. Q: 17. Has or has not channelled iron been used in mechanics wherever it was desirable to combine lightness and strength? Ans. 17. Yes; we generally use it wherever we want to make that combination. Q. 18. For how long has its use in that way been common and familiar? Ans. 18. Ever since I have been in the business. Q. 19. State whether or not iron dealers keep in stock constantly various forms of channelled iron. Ans. 19. We never had any trouble to obtain channelled iron from most any of the stores. Q. 20. How many various forms is it kept in in stock? Ans. 20. Well, I could not say as to that. A great many forms—for bridge purposes, house-building, jail-work, safe-work, vehiclework; it is generally kept constantly on hand. Parties who generally use large lots of it for building, bridge purposes, and other purposes, make contracts for large lots of it and have it. rolled to order, and get it cheaper that way."

Mr. Brackett testifies as follows: "Q. 4. State whether or not channelled iron is a common form for mechanical uses; and, if so, some of the uses to which it is put. Ans. 4. It has been commonly used in all frame structures where stiffness and lightness is desired. I have known of its use since 1862, when I first took an active part in manufacturing. We use it in bridges, roof trusses, machine frames, floor beams, joists, tramways in fact, hardly a frame structure but what it is used more or less. Then other classes of manufactories use it in numerous places, such as fence pickets, bottom rail of fences,

Opinion of the Court.

in stove manufacturing, furniture manufacturing, sewing-machine manufacturing, and in fact I hardly think there is any class of iron structures where lightness is required but that it could be used to advantage. Q. 5. How long have you known of these uses you have referred to? Ans. 5. Fifteen years or more. Q. 6. Should it be desirable to combine lightness and strength in the construction of vehicles or any parts of them, would it require any invention or would it be novel to apply channelled iron for that purpose? Ans. 6. No, sir; I think not, as channelled iron is in almost as common use as bar iron, and hardly any framed work is made where stiffness and lightness is required but that it is used, because it is the stiffest form in which iron can be used in carrying a load between two points, either suspended or in the form of a, and wherever a compressible strain occurs, or cross-strain, or any other strain than a purely tension strain, it is the cheapest iron to use, and it is in common use under such circumstances. Q. 7. What other advantages or advantage, if any, is obtained by the use of channelled iron which is also old and familiar? Ans. 7. Wherever two members running either at an angle or in the same direction, its greatest convenience is in the easy manner and strength with which such attachments and connections can be made, on account of the thinness of its web, it being readily drilled or punched, requiring a great deal less labor and expense than flat bar iron, and on this account it is in general use throughout the United States for the last fifteen to twenty years, that I know of. Q. 8. Can you give any instances in which channelled iron has been used as supports that is, legs or feet - prior to 1875? Witness here asks whether counsel means channelled on one side or both. Q. Either. Ans. 8. Sewing-machine legs, stove legs, school-desk legs, steam-heater legs; that's all I think of just now. Q. 9. Do you know of any use of iron for feet or supports where these supports are not made channelled, as a rule? Ans. 9. No, sir; I do not, and as a question of economy of material, it should be done in every instance where practicable."

This testimony is uncontradicted, and in view of it the improvements covered by claims 1, 2, 3 and 11 of reissue 'No.

Statement of the Case

9891, amount only to applications of old devices to new uses, not involving invention.

The decree of the Circuit Court is affirmed.

CITY NATIONAL BANK OF FORT WORTH v.

HUNTER.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.

No. 116. Submitted December 10, 1888.- Decided March 5, 1889.

On the proofs which are reviewed at length in the case stated by the court, Held, that the agreements between the parties of March 20, 1880, were so far consummated that neither party to this suit can insist upon superiority of lien as between themselves; that no casc of misrepresentation of facts as distinguished from matters of opinion is made out to warrant declaring the agreements null and void; that the execution and delivery of his note by Dawson and the delivery of the cattle to him, and O'Neal's bill of sale consummated the written agreement so far as he was concerned; that the action of appellants in commencing suit against Dawson and O'Neal, and in taking possession of the cattle was unjustifiable, and that Dawson may recover his damages thereby suffered by way of reconvention in this suit; that the original bill for foreclosure having been amended so as to be in the alternative, sceking the ascertainment of the indebtedness of O'Neal to complainants and the payment of their share of the proceeds of the cattle, the bill should be retained and go to decree; that the pro rata proportions of indebtedness were incorrect; that the appellant is not so situated as to be entitled to set up an estoppel in this respect; that the proportions in which the fund should be divided between the parties should be determined as of the date that Dawson paid the money into the bank; that the laws of Illinois govern as to the rate of interest; and that, as the decree was severable in fact and in law, and as O'Neal's estate (he having deceased) had no concern with the matters complained of by the bank and by Dawson, they were entitled to prosecute their appeal without joining O'Neal's administratrix, who did not think proper to question the judgment.

IN EQUITY. The Fort Worth Bank and Dawson, respondents, took an appeal from the final decree. The case, as stated by the court in its opinion, was as follows:

Statement of the Case.

In February, 1879, Hunter, Evans & Co. engaged in the live-stock commission business at East St. Louis, Illinois, made an arrangement with John O'Neal, who resided in Van Zandt County, Texas, and was buying and shipping cattle from different points in that State, by which they were to furnish O'Neal money to buy cattle during the spring and summer of that year, to be consigned to them for sale. The dealings between them resulted in an indebtedness to Hunter, Evans & Co. to a considerable amount, and on the 20th day of August O'Neal executed two notes for $11,000 each, payable to Hunter, Evans & Co., and as security for their payment gave them a bill of sale on his O N brand of cattle, further described as being his home stock of cattle, and on the same day and as part of the same transaction, Hunter, Evans & Co. executed and delivered to O'Neal a defeasance providing for the cancel lation of the bill of sale when the notes were paid. It seems to be conceded that this chattel mortgage was never properly recorded in accordance with the statute of Texas, which provided that every chattel mortgage not accompanied by immediate delivery and followed by an actual and continued change of possession of the property mortgaged or pledged, should be absolutely void as against subsequent purchasers and mortgagees or lien holders in good faith, unless such instrument or a true copy thereof were forthwith filed in the office of the county clerk of the county where the property should then be situated. While O'Neal was conducting his business with Hunter, Evans & Co., he obtained money from the City National Bank of Fort Worth, which was repaid by drafts drawn on Hunter, Evans & Co. either by O'Neal or by Wm. Hunter, the agent of Hunter, Evans & Co., which were duly honored by the latter, cxcept one draft dated November 15, 1879, for $9354.03, payment of which was refused, whereupon, on the 10th day of December, 1879, O'Neal gave his note to the bank for $9810.11, the amount of said draft and interest, and executed a mortgage as security on his home stock of cattle branded O N, subject to the bill of sale to Hunter, Evans & Co., and also of his cattle branded H, and H I, and one hundred head of horses, mares and colts branded ON,

Statement of the Case.

which mortgage was recorded by the county clerk of Van Zandt County, December 16, 1879.

It is testified by the vice-president of the bank that the agent of Hunter, Evans & Co. agreed with the bank that if it would honor O'Neal's checks he would guarantee their payment, and settle O'Neal's accounts at any time by a draft on Hunter, Evans & Co., in case O'Neal was not in Fort Worth to give the draft himself, and that the credit was extended to O'Neal on the strength of said guaranty; that on the day the draft for $9354.03 was drawn he asked Hunter if it would be paid by Hunter, Evans & Co., and whether or not witness had better take a bill of lading, which would insure the payment of the draft, or hold the cattle, to which Hunter replied that Hunter, Evans & Co. were obliged to pay the draft, and would do it; and that, relying on that statement, witness did not take a bill of lading, but allowed the draft to take its course, and on that day left Fort Worth and was absent some weeks, and hence was not in Fort Worth when the draft was protested, nor present when the note and bill of sale were executed by O'Neal to the bank. William Hunter, the agent of Hunter, Evans & Co., denied that they bound themselves to pay O'Neal's indebtedness to the bank in any way whatever. Early in the year 1880, one John Dawson proposed to purchase a part of O'Neal's cattle and drive them to a place outside of Texas, to fill a contract of sale he had made with other parties to deliver cattle at the Ponca Agency in the Indian Territory, by the 20th day of June, 1880, and agreed with O'Neal upon the purchase; but before this trade could be consummated, it was necessary for Dawson to have the consent of the lien holders, and accordingly he consulted Hunter, Evans & Co. and the officers of the bank, who agreed that the sale might be made.

On the 20th of March, 1880, O'Neal and his attorney, William Hunter for Hunter, Evans & Co. and their attorney, the vice-president of the City National Bank and its attorney, and Dawson met at Fort Worth, Texas, and three different agreements in writing were executed between the parties. One was between John M. Dawson, Hunter, Evans & Co..