Opinion of the Court.

find the issue for the plaintiff, and assess his damages at fourteen thousand dollars;"" and then follows judgment, on March 27, 1880, in usual form, on the verdict, for $14,000, and costs.

On the 8th of October, 1885, plaintiff in error filed in the court below his bond for the prosecution of a writ of error to reverse said judgment, and the same was duly ap proved by the Circuit Judge. The mittimus under the sentence above referred to, the certificate of the warden of the penetentiary, and the affidavit of plaintiff in error, were all filed in the case and made part of the record; and they show that plaintiff in error was imprisoned in the Joliet Penitentiary from January 2, 1880, to October 4, 1884; and another affidavit of the plaintiff in error, also filed in the case and made part of the record, shows that on his discharge from the penitentiary, October, 1884, he was at once arrested on a capias ad satisfaciendum, issued upon the judgment above mentioned, and from that time until the issue of the writ he had been imprisoned in the county jail of Cook County, Illinois, upon such capias. His case is thus brought within the provisions of § 1008 Rev. Stat., which provides that, in case a party entitled to a writ of error is imprisoned he may prosecute such writ within two years after judgment, exclusive of the term of such imprisonment.

The assignments of error relied upon are three in number, and are substantially as follows:

(1) The court erred in permitting a new sole plaintiff to be substituted for, and in the place of, the sole original plaintiff. (2) The court erred in submitting to the jury the cause as it stood after the amendments aforesaid, as upon issue joined between said parties, in entering the verdict of the jury in said. cause, and in rendering judgment thereon in favor of the defendant in error, when there was no issue joined between said parties.

(3) The court erred in proceeding to trial and entering a verdict and rendering judgment against plaintiff in error when he had no notice of the order giving leave to amend, or of such amendment, and had had no time or opportunity to plead to the amended declaration, nor any day in court to answer to, or defend against, the suit of the new plaintiff.

Opinion of the Court.

We do not think the first assignment of error well taken. Amendments are discretionary with the court below, and not reviewable by this court. Mandeville v. Wilson, 5 Cranch, 15; Sheehy v. Mandeville, 6 Cranch, 253; Walden v. Craig, 9 Wheat. 576; Chirac v. Reinicker, 11 Wheat. 280; Wright v. Hollingsworth, 1 Pet. 165; United States v. Buford, 3 Pet. 12; Matheson v. Grant, 2 How. 263; Ex parte Bradstreet 7 Pet. 634.

We think the second point for plaintiff in error is well taken. Where there has been an appearance and no plea, or where, on account of amendments and changes of pleadings, the declaration remains without an answer, the plaintiff may move for a judgment for the want of a plea, as upon nil dicit. But no such motion was made. Certainly a jury should not be called, and verdict entered where no issue is joined, unless for assessment of damages, merely. The court erred in rendering judgment thereon. In addition to the authorities cited by counsel for plaintiff in error, see Hogan v. Ross, 13 How. 173. We also think the third point well taken. The plaintiff was not entitled to judgment without conforming to the conditions imposed by the court in the very order giving leave to amend the declaration; and, under such circumstances, the court erred in rendering judgment against defendant.

But aside from all this, we are confronted with the question of jurisdiction, which, although not raised by either party in the court below or in this court, is presented by the record, and under repeated decisions of this court must be considered. Sullivan v. Fulton Steamboat Co., 6 Wheat. 450; Jackson v. Ashton, 8 Pet. 148; Grace v. American Central Ins. Co., 109 U. S. 278; Continental Ins. Co. v. Rhoads, 119 U. S. 237; Cameron v. Hodges, 127 U. S. 322, and authorities there cited. The ground upon which the jurisdiction of the Federal court is invoked is that of diverse citizenship of the parties. Robertson v. Cease, 97 U. S. 646, 649, it was said that "where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively, and with equal distinct

In

Opinion of the Court.

ness, in other parts of the record," citing Railway Co. v. Ramsey, 22 Wall. 322; Briges v. Sperry, 95 U., S. 401; and Brown v. Keene, 8 Pet. 112. See also Menard v. Goggan, 121 U. S. 253; Halsted v. Buster, 119 U. S. 341; Everhart v. Huntsville College, 120 U. S. 223.

On looking into the record we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is, that the United States Express Company is a joint stock company organized under a law of the State of New York, and is a citizen of that State. But the express company cannot be a citizen of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allegation that the company was organized under the laws of New York is not an allegation that it is a corporation. In fact, the allegation is, that the company is not a corporation, but a joint-stock company that is, a mere partnership. And, although it may be authorized by the laws of the State of New York to bring suit in the name of its president, that fact cannot give the company power, by that name, to sue in a Federal court.

The company may have been organized under the laws of the State of New York, and may be doing business in that State, and yet all the members of it may not be citizens of that State. The record does not show the citizenship of Barney or of any of the members of the company. They are not shown to be citizens of some State other than Illinois. Grace v. American Central Ins., Co. supra, and authorities there cited.

For these reasons we are of the opinion that the record does not show a case of which the Circuit Court could take jurisdiction. The judgment of that court, must therefore be reversed at the costs, in this court, of the defendant in error. Hancock v. Holbrook, 112 U. S. 229; Halsted v. Buster, supra ; Menqrd v. Goggan, supra.

The judgment is reversed and the cause remanded, with direc tions to set aside the judgment, and for such further proceedings as may not be inconsistent with this opinion.

Opinion of the Court.

BÉNÉ v. JEANTET.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 167. Argued January 18, 1889.- Decided March 5, 1889.

The reissued letters patent No. 8637, granted to John Béné March 25, 1879, for an improvement in the process of refining and bleaching hair, is limited to the second claim and is to be construed as a patent for a process of refining hair by treating it in a bath composed of a solution of chlorine salt dissolved in an excess of muriatic acid; but within that limit it is a pioneer invention and is entitled to receive a liberal construction.

The testimony of two experts in a patent suit being conflicting, and the evidence of one being to facts within his knowledge which tended to show that there was no infringement, while that of the other, who was called to establish an infringement, was largely the assertion of a theory, and the presentation of arguments to show that facts testified to by the other could not exist; Held, that no case of infringement was made out.

IN EQUITY, to restrain an alleged infringement of letters patent. Decree dismissing the bill without prejudice to the right of complainant to bring an action at law. Complainants appealed. The case is stated in the opinion.

Mr. Samuel T. Smith for appellants.

Mr. William P. S. Melvin for appellee.

MR. JUSTICE LAMAR delivered the opinion of the court.

This is a suit in equity, brought in the Circuit Court of the United States for the Southern District of New York, by John Béné and Adolph Grünberg against Emile Jeantet, praying an injunction, accounting, and damages for an alleged infringement of reissued letters patent No. 8637, granted to Béné, March 25. 1879, on an application filed March 4, 1879, for an improvement in the process of refining and bleaching hair.

Counsel for complainant stated in the record that no claim

Opinion of the Court.

is made in this suit for the bleaching of hair except so far as the bleaching may result incidentally from the process of refining; and the only issue presented by the pleadings, therefore, relates to the question of infringement so far as the process of refining hair is concerned, there being no issue raised as to the validity of the patent in any respect.

The nature and object of the invention are set forth in the specification as follows:

"This invention relates to the treatment of all kinds of coarse hair, which, in its natural state, has little commercial value, and is entirely unfit for toilet uses and purposes. The said treatment serves, mainly, to refine the hair or reduce the diameter of the hairs and to render them more pliable and glossy; but it also serves to partially bleach the hair or lighten its color or tint and fit it to pass through any of the ordinary dyeing processes, whereby it may be given any shade or color desired or possible. In carrying out my invention, for the purpose of producing from the coarse, harsh hair above mentioned, a soft, pliable hair of fine texture, I treat the said coarse hair to a bath composed of such chemicals or chemical substances as will dissolve away à portion of the surface of each hair, and thus reduce its diameter. I find that a solution of a chlorine salt dissolved in an excess of muriatic acid serves my purpose as a bath for this refining treatment. I claim as my invention:

"(1) The method of refining all grades of coarse hair, which consists in subjecting it to the action of chemicals, whereby the surface of each hair is corroded or dissolved away and its diameter reduced, substantially as set forth.

"(2) The method of refining coarse hair, which consists in subjecting it to the action of a bath composed of muriatic acid, in which is dissolved a chlorine salt, substantially as set forth. "(3) The method of refining and bleaching all kinds and grades of coarse hair, which consists, first, in bathing and manipulating the same in a chemical bath, composed of acid and a chlorine salt, and then in a bleaching bath, composed of acids and bichromate of potash, substantially as and for the purpose set forth.