so that the rake at its end next the base of the rake support may be brought close enough to the platform to do its work. Hence, the inclined post of No. 35315, described as so inclined and thus claimed in claim 2 of that patent. But, in the specification of the re-issue, though the drawings show the same sort of inclined post or standard, it is said: "From the platform or finger beam, the support may extend in an inclined position as high as the top of the draft frame, and then take a turn over toward the center of said frame, as represented, so as to form a support for the rake and reel which shall be somewhat higher than the frame and between the two drive or supporting wheels. The particular shape and height of this support is not very material, so long as the base of it is affixed at some point between the center of the main frame, A, and the outer shoe or divider, G." The special kind of support described and shown in the patents, original and re-issued, is essential to the operation of the special kind of raking apparatus there described. But, the appellees' machine has a raking apparatus differently organized. In it, each arm moves independently of every other arm; the arms are not coupled in pairs and each does its work without reference to the movement of any other. Therefore, it is unnecessary to raise the supporting point of the rake arms to any considerable height or to carry it over to a location between the drive-wheels; and in the appellees' machine the pivot on which the rakes revolve is at a considerable distance toward the outer shoe and is not all between the drive-wheels. The appellees' sweep rake is not substantially such a sweep rake as is referred to in claim 1 of the re-issue, nor is it mounted in such a manner as to perform the functions of the appellant's rake. The rake post in the appellees' machine is vertical and not inclined and is mounted on the shoe or inner end of the finger beam.

vertical post on the finger beam. They do this; and for that purpose they have a bridge over the inner shoe of the finger beam for the foot of the rake post to rest on, while at the same time the cutters can vibrate under the bridge. The post is hollow and supports the cam guideway, and the vertical shaft which revolves the rakes passes up in and through the hollow post. The appellees have not borrowed from the appellant. They devised a new arrangement of rake which made it possible for them to mount their rake support on the heel of the finger beam proper, where the appellant can never mount his and where that of the appellees is mounted. The theory of the re-issue appears to be that, as the original patent shows a special device for supporting a special arrangement of rakes, such device being located on a particular part of the platform other than, and not possible to be, a part of the finger beam, he can claim in a reissue any device for supporting a revolving rake, even one located on the finger beam. To carry out this view, the word "finger beam" is interpolated in the specification, in this connection, as an addition to the word "platform," and the rake post is described as being attached to the finger beam or the platform. But there is an entire absence in the original specification, and in the re-issued specification of any description of any means by which the rake support can be attached to or mounted on the finger beam, or by which the rakes can be made to work with the rake support in that location, or by which the connecting rod of the cutters can be free to work with the support so placed. The law of reissues never, at any time or under any construction, allowed that to be done which has been thus attempted in this case.

The foregoing views apply also to claims 8, 9, 11, 12, 14, 16 and 19, being all the other claims alleged to have been infringed, and each of which has, as an element, either a rake or a rake and reel mounted on or attached to the cutting apparatus or the finger beam.

In analyzing the two machines, in view of the state of the art, it appears that the appellant adapted a continuously revolving gathering and In the re-issue, claim 2 is substantially the discharging raketo a two wheeled loosely jointed same as claim 1 of the original; claim 5, with finger bar machine. To do this he employed a the interpolation of the finger beam, is intended peculiar rake and a peculiar rake support. The to take the place of claim 2 of the original, and appellees employ an entirely different rake. claim 18 corresponds with claim 3 of the origThey have a series of radial arms, pivoted, each inal. Yet the appellees' machine is not alleged independently of every other, in a head which to infringe either claim 2, claim 5 or claim 18 of has a double cam guideway for each arm, and the re-issue, nor does it embrace what was covthe arms are thereby elevated vertically so as not ered by any one of the three claims of the origto strike the frame in passing up. This makes inal. As to the yielding belt tightener of the it possible for the appellees to place the support appellant, which is the subject of claim 3 of the for their rake on the finger beam by the side of original patent and is an element in claim 16 of the frame and in the line of the cutters instead the re-issue, the appellees' machine does not of behind the frame. No such organization is employ any device which performs the function possible with the appellant's arrangement of of tightening a belt. It uses, to communicate rakes. The center of movement of his rakes motion from the main axle to the raking appamust be brought in line with the cutters by hav-ratus, an old form of chain belt, composed of ing an inclined rake post, the base of which is not in a vertical line with the line of the cutters. He shows no mode of placing the base of the post on the finger beam. If it were placed there, with his arrangement of rake arms, and his inclined post, the center of motion of the arms would be so far out of its proper position that the arms would not do their work. Having independent radial arms, the appellees can have a vertical and not an inclined rake post, and can bring the center of motion of the arms in a line with the cutters by mounting the

square open links, connected by loops of metal between the links, and the links arranged to run over sprocket wheels, which have teeth on them corresponding to openings in the links of the chain and which prevent the chain from slipping on the wheels. As the links of the chain engage positively with the teeth on the sprocket wheels, there is no need of a belt tightener, as no slackness in the chain can interfere with the driving action. The only function of the appellees' device which holds up, by a yielding pressure, the under part of the chain belt, is to

so guide that part, when slack, that the teeth on the sprocket wheels may readily enter the links of the chain. The appellant's belt could not, in the same position, drive the raking apparatus so as to make it work properly. The appellees, by the use of sprocket pulleys and a chain, dispense with a tight friction band, and with a pulley around which the platform vibrates, and with a tightening pulley. Their arrangement is not an equivalent, in mechanism or functions, for that of the appellant.

a device arranged on the grain side of the inner drive-wheel or inner side of the draft frame. 7. Making a direct driving connection between a revolving rake, or a combined rake and reel, which move about a vertical or nearly vertical axis, and the inner end of the main frame axle of the draft frame." "9. The combination of a quadrant platform, hinged finger beam, revolving rake and a driver's seat supported by the main frame."

The original patent, No. 40481, says that the It is made an element of claim 11 of the re- improvements covered by it consist : 1, în a peissue, that the point of suspension of the plat- culiar construction and combination of frame, form to the main frame is carried beyond the gearing and double driving-wheels; 2, in a derake support toward the center of the draft vice for affording protection to the main crank frame, by means described in the specification, shaft and strengthening the main frame; 3, in so as to prevent a too sudden or abrupt deflec- the use of a movable tongue; 4, in a device for tion of the rake and reel. The specification of permitting the finger beam to turn freely on its the re-issue says, that "It is important that the own axis. There were only four claims in No. great weight of the rake, finger beam and plat- 40481, one covering each of said four features, form shall not cause the draft frame to tilt over as follows: "1. The main frame and gear on its right hand drive-wheels by sudden and frame AA, constructed as described, open at abrupt motions, but shall tend to insure a square each end, when used in combination with run of the draft frame upon the ground during shafts, gearing and double driving-wheels ar the pitching or rising and falling motions of the ranged and operating substantially as and for finger beam, platform and rake, and thus an the purposes specified. 2. The flange, a, cast or even and easy draft for the beam be secured." formed upon the gear frame for the combined But the re-issue shows the point of suspension purposes of strengthening the latter and proof the platform to the main frame as being tecting the crank shaft, E, as herein before exnearly under the axis on which the rake arms plained. 3. The movable tongues, K, adapted revolve, and said point is near the vertical plane to be attached to the frame on either side of the of the middle of the width of the tread of the wheel, B, and employed to support or raise the drive-wheel which is next to the cutters, so that inner end of the beam. 4. Attaching the shoe the inner end of the platform is subject to all the to the drag bar by a transverse swivel joint, to vertical motions of such drive-wheel. The point permit the finger beam to turn its axis to elevate of suspension being in the pathway of the or depress the joints of the fingers, or to fold wheel, the rising or falling motion of the wheel the beam against the frame for transportation, must be communicated to that end of the cut-when combined with bracing guides, h', subters which is next to such wheel. In the appel- stantially as herein described." lees' machine, the suspension of the platform is made by an arm extending out from the finger bar or inner shoe to a point about opposite the center of the main frame, and which arm is there suspended by a chain to a hook on the frame, so that the weight of the cutting apparatus and rake and inner part of the platform is transferred to nearly a centre point between the drive-wheels. The appellant's structure shows no such organization, and does not involve what the appellees have done.

Every one of the four claims of No. 40481: the iron frame cast in one piece, the flange, the movable tongue and the transverse swivel joint is omitted from the re-issue and there are no corresponding claims. The rake support is of the same form and in the same location as in No.35315, inclined and mounted on the platform, and not on the finger beam, and the inner end of the platform is suspended on the main frame in the same way as in No. 35315. The specification of No. 40481 says: "On the inner side of the grain For the foregoing reasons, without consider-platform, near the heel of the finger beam, is firming the many other questions raised in the case, it must be held that the appellant has not established any cause of action against the appellees on re-issue No. 2224.

Îy mounted a post, R, which may incline over toward the main frame, as shown in Figure 1." This passage negatives the idea of mounting the post on the finger beam, and draws a distincIn No. 2490 the claims in question are these: tion between the platform and the finger beam "1. The combination, in a two wheeled hinged- as a location for the attachment of the post. joint machine, of a driver's seat mounted upon The only mention of a driver's seat in No. 40481 the main frame, with a raking mechanism is this: "W, represents the driver's seat." In mounted upon the finger beam, and rotating the specification of the re-issue the following around a vertical axis or one nearly so, substan-language is found: "My first improvement contially in the manner described, for the purpose sists in the combination, in a two wheeled of enabling the driver to ride on the machine while the rake is in operation. 2. The combination, in a two wheeled hinged-joint machine, of a shoe with a hinged joint in it, with a rake and platform having an extension, J2, and with a draft frame which sustains the weight of the cutting apparatus and raking apparatus with platform attached, at a point between the two drive-wheels." "6. Driving a revolving rake or a combined revolving rake and reel, which move about a vertical or nearly vertical axis, by

hinged-joint machine, of a driver's seat mounted upon the main frame, with a raking mechanism mounted upon the finger beam and rotating on a vertical axis or one nearly so, substantially as hereinafter described, for the purpose of enabling the driver to ride upon the machine while the rake is in operation." Again, after describing the construction and arrangement of the rake or reel arms, which are the same as in No. 35315: "By this means, the rake and reel arms will stand high enough above the draft frame

and the platform. No such organization of rak- SUN MUTUAL INSURANCE COMPANY,

in the nature of a special verdict, this court can go
neither behind nor beyond them.
2. A determination of the questions of law arising
upon the record may be predicated of facts which
appear in any part of it, whether admitted by the
parties in the pleadings, or by stipulation, or found
by the court.
3. In respect to the duty of disclosing all material
facts, the case of re-insurance does not differ from
that of an original insurance.

or Portland; it being, however, expressly under stood and agreed that no risk would be taken under it unless The Ocean Company take or have an amount on same risk equal to one half the amount covered by The Sun Company. On the 9th February, 1864, it was agreed in writing, noted upon the policy, that the policy should "cover such other risks as this (The Sun) Company may approve and indorse thereon. Under this new arrangement, the clause limiting the risks to such as The Ocean Company retained an interest in to the extent named, to wit: an amount equal to one half that of The Sun, was kept in force; but February 24, 1864, the facts, that they were actually known to the under-president of The Sun Company wrote to The writers, unless it appears that their knowledge was Ocean Company as follows: We are willing as partícular and full as his own information. that you be not obliged to retain a half of risk when you do not wish to do so, but we reserve

4. The exaction of information may be greater in a case of re-insurance than of an original insurance. In the former, the party seeking to shift the risk he has taken should communicate his knowledge of the character of the original insured, where such information would be likely to influence the judgment of

an underwriter.

5. The assured will not be permitted to urge, as an excuse for his omission to communicate material

[No. 119.]

66

Argued Dec. 6, 7, 1882. Decided Jan. 22, 1883. the right to object to amounts returned, which

Statement of the case by Mr. Justice Matthews:

This was a libel in admiralty, filed in the District Court of the United States for the Southern District of New York by the appellee, upon a policy of marine insurance. A decree, dismissing the libel, was rendered in that court, which, on appeal, was reversed by the circuit court, and a decree entered in favor of the libelant. From that decree the present appeal has been prosecuted.

The findings of fact made by the circuit court as the basis of its conclusions of law are as follows:

Facts found by the court.

1. At the several times hereinafter mentioned, the libelant and the defendant were Insurance Companies engaged in the business of insuring against losses by perils of the sea. The libelant, to be referred to herein as The Ocean Company, was incorporated under the laws of the State of Maine, and had its principal place of business at Portland in that State. The defendant, to be referred to as The Sun Company, was incorporated under the laws of the State of New York, and had its principal place of business in the City of New York.

2. On or about January 19, 1864, The Sun Company issued its open policy, No. 51564, to The Ocean Company in the usual form for the insurance of cargoes at and from Cuba to Boston

it is not probable will be too great very often." A copy of the policy issued, with the indorsements thereon, is printed in the apostles in this case as Exhibit No. 1.

3. This policy was issued with the expectation that it would be used by The Ocean Company for the purposes of re-insurance, an ar rangement for such a business on the part of the Company having been made.

4. December 24, 1863, Charles S. Pennell, as an owner and agent of the ship C. S. Pennell, of 975 tons burden, and then lying in the harbor of Portland, Maine, chartered the whole of the vessel, including the state-rooms in cabin not used by the officers, and deck rooms not used for the crew or for sails and stores, to Sutton & Co., for a voyage from New York to San Francisco. No cargo was to be received on board except with the written consent of the charterers, and they were to pay for the charter or freight on the good and proper discharge of the cargo in San Francisco, $26,500, less two and one half per cent commission. George M. Melcher was at the time master of the ship, and his primage on the freight money, if earned, would have been $1,325. This charter will be referred to as the San Francisco charter.

5. After the making of this charter, the vessel sailed from Portland to New York, and was there put up and advertised by Sutton & Co. as a general ship for San Francisco. That firm at that time represented what was known as the Dispatch Line of San Francisco packets.

6. January 30, while the ship was in New York, loading under her San Francisco charter and advertised for that voyage, her master chartered her again to the Peruvian Government. By the terms of this charter she was to sail from New York on or before June 1, 1864, to San

Provision as to other insurance in policy of reinsurance, means other re-insurance. Mut. Safety Ins. Co. v. Hone, 2 N. Y., 235.

The original insured is not a party to the re-insur

paid or intends to pay the insured. 3 Kent, Com., 279; Fame Ins. Co.'s Appeal, 83 Pa. St., 396; Hone v. Mut. Safety Ins. Co., 1 Sandf., 137; Blackstone v. Allemania Ins. Co., 56 N. Y., 104; 4 Daly, 299. If the insurer is not bound the re-insurance is voidance. If the insurer is not solvent, while the re-infor want of interest in the loss. Carpenter v. Prov. Ins. Co., 41 U. S. (16 Pet.), 495.

The re-insurer may defend on ground that the original insurance was void. Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind., 443; N. Y. Ins. Co. v. Prot. Ins. Co., 1 Story, 458.

Where the loss was payable in the original insurance pro rata and the re-insurance in the same way, the re-insurer is only liable for sums actually paid by the re-insured. Ill. Ins. Co. v. Andes Ins. Co., 67 I., 362; 8. C., 16 Am. Rep., 620.

surer is, and pays the loss, it does the insured no good. Hone v. Mut. S. Ins. Co., 1 Sandf., 137; Blackstone v. Allemania Ins. Co., 56 N. Y., 104: 4 Daly, 299. If the insurer resists the claim in good faith, the re-insurer is liable after notice of the suit for the insurer's costs and expenses. Hastie v. De Peyster, 3 Caines, 190; N. Y. Ins. Co. v. Prot. Ins. Co., 1 Story, 458.

The insurer must communicate to the re-insurer all material facts known to him. Bowery Ins. Co. v. N. Y. Ins. Co., 17 Wend., 359.

co only."

The returns inclosed in this letter were as fellows:

Francisco, and thence proceed, with all conven- | property per ship C. S. Pennell to San Francisient dispatch, to Callao, Peru; and from thence, if on inspection she should be found to be well conditioned for the voyage, to the Chincha Islands for a cargo of guano to be taken to Hamburg or Rotterdam. The freight to be paid was at the rate of £4 per ton of 20 cwt. British net weight of guano, subject, however, to a deduction of five shillings per ton, if the vessel was not ready in Callao to proceed to Chinchas by December 15. This charter will be referred to as the Rotterdam charter.

7. On the 5th February, 1864, while the ship was in New York loading, Charles S. Pennell, a part owner, took from The Ocean Company a policy insuring his interest in the ship for $8,000 against war risks, and his interest in the Rotterdam charter for $8,000 against marine risks on the voyage between New York and the Chinchas. In this policy the duration and locality of the risk was described as "At and from New York to at and from San Francisco, Callao and the Chinchas."

8. George M. Melcher was at the time owner of one eighth of the ship, and master. On the 20th March, he wrote one Sawyer, his agent at Portland, advising that the ship was about ready to sail, and directing that insurance be effected on his interest as follows: War risk to San Francisco, ship. Charter to San Francisco, $26,500

$5,000

3,300

Primage on same..

1,325

Homeward charter from Chinchas, in

“To the Sun Mutual Insurance Company:
Enter on open policy of this company No.
51564, $5,000, on charter of ship Charles S.
Pennell, at from New York to, at and from
San Francisco and Callao to Chinchas.
Rate three per cent on board.
New York, March 23d, 1864.

J. W., V. P. Ocean Ins. Co.
Per G. A. W., Sec'y."

"To the Sun Mutual Insurance Company:
Enter on open policy of this company No.
51564, war risk only. $5,000 on ship Chas. S.
Pennell, at and from New York, to, at and
from San Francisco to Callao to Chinchas.
Rate, three per cent on board.
New York, March, 23d, 1864.

J. W., V. P. Ocean Ins. Co.
Per G. A. W., Sec'y."
"To the Sun Mutual Insurance Company:
Enter on open policy of this company No..
51564, $6,550 ̊ on charter, $2,650 on primage,
and $1,500 on property on board ship Chas. S.
Pennell, at and from New York to San Fran-
cisco, including war risk.

Rate, six per cent on board.
New York; March 23d, 1864.

J. W. V. P. Ocean Ins. Co.
Per G. A. W., Sec'y."

The first and second of these returns were for re-insurance on the risks taken for Charles S. Pennell, and the last on account of the risks. taken in favor of the master on the Rotterdam charter and personal property on board, from New York to San Francisco. The risk on the vessel, taken in favor of the master at the same time, was not reported to The Sun Company. 12. Upon the receipt of this letter, with its inclosures, the president of The Sun Company wrote The Ocean Company, under date of March 24, as follows:

on

9. Upon the receipt of this letter, Sawyer ap- Your favor of the 23d inst. is received plied to The Ocean Company for a policy upon *** and returns as stated. Those * * * the Rotterdam_charter, primage and personal charter per Chas. S. Pennell, $10,700, in coneffects to San Francisco. In doing so, he ex-formity thereto. For the marine risk per Chas. hibited his letter of instructions and explained S. Pennell to San Francisco, thence to Callao fully all the circumstances. The risk was ac- & Chinchas, our regular tariff rate is four and cepted and the policy issued March 23, in which one half per cent; the war risk is worth the the risk was described as follows: " $6,550 on same but we propose to enter for both marine charter; $2,650 on primage; and also $1,500 on and war on $5,000 for four per cent." property on board ship Charles S. Pennell, at and from New York to San Francisco."

10. On the same day The Ocean Company insured the master for $3,000 on his interest in the ship during the whole of her voyage, describing the duration and locality of the risk as "At and from New York to, at and from San Francisco and Chinchas, with usual liberties at Callao, to her port of advice and discharge in Europe."

11. On the same 23d of March, the president of The Ocean Company wrote the vice-president of The Sun as follows:

"*** I also inclose returns for registry as follows: *** $5,000, ship C. S. Pennell, to San Francisco and Chinchas, war; $5,000 fr. of do. * * * P. S.-I also enclose an additional return for insurance on charter, primage and

13. To this the president of The Ocean Company replied, under date March 26, as follows:

"Your favor of the 24th inst. is received. I think, really, considering that you have the risk on charter, primage and property to San Francisco at full rates, you should take the. war and marine to San Francisco and Chinchas on C. S. Pennell at six per cent, as there is or will be but little risk in the Pacific after leaving San Francisco. I can have both risks taken at less than these rates." * * *

14. In response to this, the vice-president of The Sun wrote, under date of March 28, as follows:

*

"Your favor of the 26th inst. is received with a return * * which is entered in conformity thereto, as have also been the returns of the 23d inst., per ship C. S. Pennell."