made a declaration and entry for her baggage before it was examined; that such entry set forth the foreign cost of two articles which she had purchased abroad, and did not mention the cost price of any of the jewelry, nor did it contain anything to indicate that there was any jewelry in the baggage; that she did not, while the entry was being made nor before it was completed, make any disclosure to the customs officer sufficient to put him upon inquiry as to the dutiable character of any of the contents of the packages of baggage; and that subsequently, upon examination of her hand bag, the jewelry was found. Thereupon the judgment was reversed, and new trial ordered. The cause being remitted to the District Court was duly moved for trial at a stated term thereof April 14, 1903. The government thereupon moved for judgment upon the pleadings. Člaimant was allowed to make certain amendments to her answer, and on June 13, 1903, judgment in favor of the United States was so entered, which judgment is now brought up for review. The claimant contends:

1. That, since the mandate reversing the first judgment directed a new trial, entry of judgment upon the pleadings could not properly be directed. This proposition is wholly without merit. The taking of testimony is not essential to the "trial" of an action. If the pleadings present such a state of conceded facts as to entitle either party to relief, whether by dismissal or by judgment in favor of plaintiff, the action of the trial court making proper disposition of the cause after hearing argument is itself a trial.

2. That no notice of the motion was given, reference being had to section 537 of the New York Code of Civil Procedure. Such notice, however, is required only when some special application is to be made for judgment on the pleadings in advance of the trial. When the cause is regularly reached for trial, defendant is sufficiently advised that his pleadings, as well as the proofs he has provided, are before the court for consideration. He cannot properly complain of surprise if defects in his pleading are then brought to the court's attention. Moreover, in the cause at bar claimant was allowed to amend her answer, and it was not until after that privilege was availed of and argument heard that the judgment sought to be reviewed was entered.

3. That the case was not one in which judgment on the pleadings could properly be ordered. The information contained three counts, the third of which charged that the several articles of jewelry enumerated "were on June 24, 1899, found in the baggage of [the claimant] when she arrived in New York upon the steamship St. Paul, * * * which said goods, wares, and merchandise, as aforesaid, were not, at the time of making entry of such baggage, mentioned or declared to the said collector before whom such entry was made by the said [claimant] making the same; contrary to section 2802 of the Revised Statutes of the United States." As to the allegations contained in this third count, the amended answer denies that the articles were "found in her baggage," but admits that they were partly worn by her and partly "carried in an open hand bag, [which] upon inquiry as to whether she possessed any jewelry

was opened and shown to the customs official at the time that this claimant left said steamer." It avers that "the written declaration, and the only written declaration made and subscribed by her, was presented to her while the vessel was on its way through the harbor," and concedes that it was made before she left the steamer. Therefore the jewelry was found after the declaration was made. The contention that the hand bag in which it was found was not a part of her baggage is frivolous. It further avers that she declared certain linens which she had bought in Europe, but "did not declare any part of her jewelry, as she in good faith believed that such jewelry was not subject to any duty." Under our former ruling these are all the facts necessary to sustain judgment of forfeiture, the element of fraudulent intent not being an ingredient of the cause of forfeiture under section 2802.

*

4. It is contended that three of the rings and one scarf-ring were purchased abroad at a cost of $80; that they were within the proviso as to $100 in paragraph 697 of the tariff act of 1897 (Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 202 [U. S. Comp. St. 1901, p. 1689]); were not subject to duty, and could not, therefore, be forfeited under section 2802. We do not construe paragraph 697 as specifically exempting any particular articles from duty. The language is: "Provided * * no more than one hundred dollars in value of articles purchased abroad by such residents of the United States shall be admitted free of duty upon their return." Articles purchased abroad, which are within the dutiable schedules, are still dutiable although brought back by a returning resident; but, when entered and declared, $100 in value of such articles-whether that sum be made up by an aggregation of several articles, or of parts. of articles, or out of a single article-shall be allowed to such resident in making calculation as to what duty he shall pay. Section 2799, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1872], indicates quite clearly that it is the passenger's duty to enter all such purchases, although some of them may fall below $100 in cost.

5. That the judgment in this case is inconsistent with the decision of this court in One Pearl Chain (I. J. Dulles, Claimant) v. The U. S., 123 Fed. 371. There is a very essential difference between the two cases. Neither claimant made a proper entry of her jewelry; neither of them at the time of making entry mentioned orally to the customs officer that she had any jewelry with her, but one of them gave the officer a written declaration, which, in substance, advised him that she "had in her baggage and on her person wearing apparel [including jewelry] which she had purchased abroad." The other made no such declaration, oral or written.

The judgment is affirmed.

CLEVELAND FOUNDRY CO. et al. v. DETROIT VAPOR STOVE CO. (Circuit Court of Appeals, Sixth Circuit. May 14, 1904.)

No. 1,262.

1. PATENTS-VALIDITY-MISCONCEPTION OF PRINCIPLE BY PATENTEE.

If the construction of a patentee effects the desired results, and they are beneficial, he does not lose the benefit of his invention because he may not have correctly understood the principles of its operation. 2. SAME-AMENDMENT OF CLAIMS.

If an inventor comes to better understand the principles of his invention while his application for a patent is pending, an amendment of his claims to conform thereto does not introduce any original matter nor enlarge his invention, and is within his legal right.

3. SAME DOUBLE PATENTING-PRIOR ISSUANCE OF IMPROVEMENT Patent. Where a patent first granted is distinctly and only for an improvement on another and generic invention which is the subject of a prior application by the patentee, then pending, it does not invalidate the patent subsequently granted thereon, although there is no express disclaimer of the matter claimed in such prior application.

4. SAME-INFRINGEMENT-OIL BURNERS.

The Jeavons patent, No. 475,401, for an oil burner, claim 1, was not anticipated, and is valid; also held infringed.

Appeal from the Circuit Court of the United States for the Eastern District of Michigan.

The bill of complaint in this cause was filed in the Circuit Court by the appellants for the purpose of restraining the defendant from infringing four several letters patent, namely: No. 438,548, issued to William R. Jeavons, October 14, 1890; No. 467,466, issued to the same patentee January 19, 1892; No. 475,401, also issued to Jeavons, and dated May 24, 1892; and No. 461,219, issued to Jeavons and John A. Lannert October 13, 1891, for a joint invention of the persons last named-all of which patents the complainants claimed to These patents severally relate to oil or vapor burners. At the hearing upon pleadings and proofs, for reasons stated in the opinion of the court, the bill was dismissed. The complainant thereupon appealed. But the controversy here relates to the first claim of patent No. 475,401, that being the only claim of the several patents relied on in the argument and briefs of counsel.

own.

Thos. B. Hall, Thomas W. Bakewell, and John R. Bennett, for appellants.

Parker & Burton, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS, Circuit Judge, having made the preceding statement, delivered the opinion of the court.

The patent which is now in question is for the basic or generic invention of Jeavons, upon which he devised several improvements which were the subjects of other patents enumerated in the foregoing statement, and which have fallen out of the contest. His application for it was filed December 20, 1888. He stated therein that his invention related to hydrocarbon burners, and consisted in the method of construction described by him in his specifications. He recognizes the previous constructions, and their manner of use, in the language following,

which we copy, believing that it fairly states the existing conditions at the date of his application. He says:

"In the construction and operation of burners prior to my invention, different ways of obtaining a distribution of hydrocarbon oils or vapors or carbureted air have been known, among which may be mentioned: First, the distribution of oil by capillary attraction, as by a wick, in which the oil is drawn to the surface of a wick and consumed, as in an ordinary lamp. In this style of cases vaporization occurs directly at the point of combustion, and the oil itself is distributed. Secondly, by spraying the oil by means of a jet of air or steam under pressure. Thirdly, by generating the vapor in a suitable retort, in which the vapor is subjected to a head or, pressure, and depending on the artificial pressure in the retort to distribute or feed the vapor. This style of burner is exemplified in the well-known vapor burner which feeds through a jet orifice. Fourthly, by evaporating or vaporizing gasoline or other light hydrocarbon on an exposed surface by passing a current of air over the same and then feeding the carbureted air to the burner, the old and well-known carbureting devices being of this class."

He then proceeds to state that his own method, differing from those above described, involves, first, the conversion of the oil into vapor by exposing the oil to a heated surface, and then distributing or conveying the vapor by its gravity to the place or places where or about which the vapor is supplied to the burner and maintains combustion. His explanation of his method and the means devised by him to accomplish it are somewhat lengthy, and we epitomize so much of it as seems necessary to understand the claim. To do this we insert Fig. 1 of the drawings, which shows one, and probably the most generally used, form of his burners, in central vertical section.

C and D are two perforated concentric metallic cylinders resting on a base shown below them. Around the inner side of the base is a cir

cular trough, closed on the outside, but opening upward into the space between the cylinders. This trough is seen at the right and left hand in the base. The asbestos rope, L, lies in the bottom of it. The oil is admitted into the trough through the tube, H, and is controlled by the valve, the stem of which is K. In operation, when oil or gasoline is used, enough is let in to saturate the asbestos cord, L, which being lighted heats up the trough. The oil as it comes out of the tube, H, is immediately vaporized by the heat, and, the vapor being two or three times heavier than air, sinks and flows around in the trough and fills it. The oil expanding into vapor fills several hundred times its own space, and as the latter piles up, so to speak, it passes into the perforated combustion tubes, when, on receiving the air through the perforations and being lighted, it burns with a blue flame ascending through the top of the cylinders, where its combustion is ended. The trough is kept hot by the conductivity of the heated metal of the burner, and condensation of the vapor on the bottom is thereby prevented. If the asbestos is employed for the initial heating up, it is not longer used after the process is under way. The patentee lays stress upon the fact that as the vapor is formed it falls by gravity and flows around through the trough, whereby an even foundation or source of supply throughout the entire circuit or length of the trough is secured, and, by consequence, an even flame in all parts of the combustion chamber. This is the purpose of constructing the parts in such form as that the trough shall be on a level below the entrance of the oil where the vaporizing takes place. We are satisfied that this is substantially the manner in which the vapor is distributed and supplied to the combustion chamber. It is evidently so for a time, at least, after the beginning of the vaporizing, and is probably true in a modified degree after the trough is filled by the vapor. The claim is here set forth:

"A hydrocarbon vapor burner, consisting of a vapor holder constructed for the free and uniform distribution of the vapor therein by gravity, and having a free opening for the escape of vapor, in combination with perforated combustion walls having a flame space between them, in communication with the said holder, substantially as described."

The court below found difficulty in believing that the principle of gravity had anything to do with the operation of the burner, and was disposed to discard the theory of the patentee, on which his apparatus was constructed, as unfounded. But the fact is that, by constructing the burner in the manner prescribed by him, the vapor is produced and distributed to and in the combustion chamber in a very satisfactory and useful way. That it is a successful improvement on all former methods is shown by the general adoption of it by the public, no less than 122,000 burners of this kind having been sold within 21⁄2 years. It may be that the patentee did not fully understand the rationale of the manner in which his construction effected the results. And it may be that the expert witnesses have not in all respects correctly apprehended it. But if the fact be that his construction does effect the results, and they are beneficial, he is none the less entitled to the benefit of his invention though he may not have correctly understood the principles of its operation. Andrews v. Cross, 19 Blatchf. 294, 8 Fed. 269, per Judge (after