Opinion of the Court.

duty of construing and deciding, and gave them the power to reject, as Congress doubtless expected they would do, any subordinate provision in such State statutes which, in their judgment, would unwisely encumber the administration of the law, or tend to defeat the ends of justice, in their tribunals." Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291, 300, 301.

Under this act, the Circuit Courts of the United States follow the practice of the courts of the State in regard to the form and order of pleading, including the manner in which objections may be taken to the jurisdiction, and the question whether objections to the jurisdiction and defences on the merits shall be pleaded successively or together. Delaware County v. Diebold Safe Co., 133 U. S. 473, 488; Roberts v. Lewis, 144 U. S. 653. But the jurisdiction of the Circuit Courts of the United States has been defined and limited by the acts of Congress, and can be neither restricted nor enlarged by the statutes of a State. Toland v. Sprague, 12 Pet. 300, 328; Cowles v. Mercer County, 7 Wall. 118; Railway Co. v. Whitton, 13 Wall. 270, 286; Phelps v. Oaks, 117 U. S. 236, 239. And whenever Congress has legislated upon any matter of practice, and prescribed a definite rule for the government of its own courts, it is to that extent exclusive of the legislation of the State upon the same matter. Ex parte Fisk, 113 U. S. 713, 721; Whitford v. Clark County, 119 U. S. 522.

The acts of Congress, prescribing in what districts suits between citizens or corporations of different States shall be brought, manifest the intention of Congress that such suits shall be brought and tried in such a district only, and that no person or corporation shall be compelled to answer to such a suit in any other district. Congress cannot have intended that it should be within the power of a State by its statutes to prevent a defendant, sued in a Circuit Court of the United States in a district in which Congress has said that he shall not be compelled to answer, from obtaining a determination of that matter by that court in the first instance, and by this court on writ of error. To conform to such statutes of a State would "unwisely encumber the administration of the

VOL. CXLVI-14

Statement of the Case.

law," as well as "tend to defeat the ends of justice," in the national tribunals. The necessary conclusion is that the provisions referred to, in the practice act of the State of Texas, have no application to actions in the courts of the United States.

Judgment reversed, and case remanded with directions to render judgment for the defendant upon the demurrer to the petition.

ROOT v. THIRD AVENUE RAILROAD COMPANY.

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

No. 39. Argued November 7, 1892. - - Decided November 21, 1892.

An inventor applied, September 3d, 1881, for letters patent for an “improvement in the construction of cable railways," the invention consisting in the employment of a connecting tie for the rails, and supports for the slot irons, by which both are rigidly supported from the tie and united to each other, the ties or frames being embedded in concrete, and the rails, the slot irons and the tube being thus connected in the same structure. The invention was conceived in 1876, and used by the inventor in constructing a cable road, which was put into use in April, 1878, and of which he was superintendent until after he applied for the patent, which was granted in August, 1882; Held, on the facts, (1) The use of the invention was not experimental;

(2) The inventor reserved no future control over it;

(3) He had no expectation of making any material changes in it, and never suggested or made a change after the structure went into use, and never made an examination with a view of seeing whether it was defective, or could be improved;

(4) The use was such a public use as to defeat the patent;

(5) The case of Elizabeth v. Pavement Co., 97 U. S. 126, considered, and the present case held not to fall within its principles.

THIS was a suit in equity, brought July 12, 1886, in the Circuit Court of the United States for the Southern District of New York, by Henry Root against the Third Avenue Rail

Statement of the Case.

road Company, founded on the alleged infringement of letters patent No. 262,126, granted August 1, 1882, to the plaintiff, for an "improvement in the construction of cable railways," on an application filed September 3, 1881.

The specification of the patent said: "My invention relates to cable railways, and it consists in the employment of a connecting tie for the rails, and supports for the slot irons, by which both are rigidly supported from the tie and united to each other. In combination with this construction I employ a substratum of concrete or equivalent material, which will set or solidify and unite the whole into a continuous rigid structure, no part of which is liable to be displaced from its relation to the other, and also provide a support for the roadway. Previous to my invention all cable railways had been constructed of iron ribs of the form of the tube, set at suitable intervals, to which the slot iron or timber, as the case may be, was bolted and the spaces between these ribs filled with wood, to form a continuous tube. Outside and independent of this tube the rails were laid, supported on short ties or other foundations, and were connected horizontally with the iron ribs by short bolts or rods, but were liable to settle by the undermining of their foundation without regard to the tube or the other rail of the track. This would frequently occur by the renewal of the paving outside of the track, the introduction of house connections with the main sewer, or other disturbances of the street. This settling would cause great inconvenience, as the gripping apparatus, which is carried by the rail through the medium of the car or dummy, must travel in a fixed position in the tube, thus making a frequent adjustment of the rails to the tube necessary. The space between the rails and sides of the tube was filled with sand, which could not be securely confined, as the joints in the tube were liable to open by settling, so as to require a frequent relaying of the paving or planking and making the whole insecure and expensive to maintain. In my invention the whole forms a single rigid structure."

The following were the drawings of the patent, Figure 1 being a cross-section and Figure 2 a perspective view:

The specification said: "A is the main tie, bent so as to embrace the tube, and it has fastened to the ends suitably formed plates or chairs B, to which the rails G are fastened or, if stringers are used, they may be fastened directly to the

Statement of the Case.

ties. The ties may be of various shapes, but in this case I have used old T-rail turned bottom up, with but one curve or bend, as this requires but one heat and is thus cheaper. Care upright supports for the slot irons, having one end secured to the tie at points each side of the bend, sufficiently separated to form the necessary width for the tube. D are tie-rods, connecting said supports with the main ties or frames, through the chairs, rails or stringers, as the case may be. The rods D may be fixed or may be screw-bolts having two nuts at one end for the adjustment of the slot irons to or from each other during construction, or other equivalent means may be employed. E is the concrete, in which the ties or frames are embedded at suitable distances to support the rails and slot irons, which form the top of the tube. This concrete forms a support for the iron-work, the bottom and sides of the tube, and a foundation for the paving F, which fills the space between the rails and slot iron, thus forming an even and durable roadway, which cannot settle below the level of the rails or slot irons or cause a side pressure on the tube, as is the case where the roadway is supported on sand or other independent foundation. As nearly all the weight of the traffic is on the rails, the tendency of the rails to go down is resisted by a deep girder, of which the bent tie forms the top and this continuous mass of concrete forms the bottom. I am aware that concrete, as a material for foundations, underground sewers and conduits, has long been well known, and that concrete, brick-work or ironstone pipe might be used to form the tube between the iron ribs, of the well-known construction, without any particular invention, as these materials are as well known as wood, but it would be still subjected to all the danger of unequal settlement, and the short tie and stringer of wood require frequent renewal and adjustment to the level of the tube. It will be seen that a distinguishing feature of my invention is the connecting of the rails in the same structure as the slot irons and the tube, so that all the parts are maintained in their relative position, and whatever may occur to alter the place of one will have no effect unless the change is sufficient to affect the whole structure." There are seven claims in the patent.