issue thereon accordingly." No execution can issue from the court of appeals, as their duty is fully performed when they have made their decision and certified the same down to the subordinate court.

Viewed in the light of the authorities cited and of these suggestions, it is quite clear in my judgment, that the writ of error in this case was properly directed to the subordinate court, as fully appears from the transcript which that court has sent up to this court, and which is in all respects complete. Suppose it be conceded, however, that the full record also exists in the court of appeals as well as in the corporation court, which is not admitted, still it is clear that the case should not be dismissed, as in that case the law of this court is well settled by repeated decisions, that the writ of error "may then be directed to either court in which the record and judgment on which it is to act may

be found."

Gelston v. Hoyt, supra; Webster v. Reid, supra; McGuire v. Com. supra; Green v. Van Buskirk, supra.

Nothing need be said in respect to the other grounds of the motion, as the order of this court is based entirely upon the ground that the writ of error is directed to the corporation court instead of the court of appeals. Such a motion, as it seems to me, is entitled to no favor, as the full record is here and has been printed, and is now in the hands of every justice of this court. All doubt upon that subject is foreclosed, as no one suggests any diminution. On the contrary, the principal argument in support of the motion is, that it will enable the defendant in error to get rid of the supersedeas, and to get his execution earlier than he will if he has to wait the decision upon the merits. Injury, in that behalf, will certainly result to the plaintiffs in error, if they will be obliged to pay the expense of another transcript, and the United States will be compelled to pay the public printer for furnishing the justices of this court with copies of the same though the full record is already in print and in our hands. Much difficulty, it is apprehended, will result from the rule established in the case, from the fact that the appellate courts of the state have no power to supersede their own judgments in such a case, after the judgment has been remitted to the court below for record and execution; and it is quite clear, that a writ of error from this court to an appellate court of the state will not operate to supersede a judgment recorded in a subordinate court of a state, whose duty it is to issue the final process.

Whether this court can issue a writ of supersedeas in such a case to such subordinate court, it is not necessary now to decide, as it is clear that it cannot be done in this case, more than sixty days having elapsed since the judgment was remitted to and recorded in the corporation court.

Doubtless the dismissal of the suit will be satisfactory to the present defendant, as he will be immediately entitled to a writ of habere facias possessionem, and the plaintiff will never be able, by any subsequent writ of error or other proceeding, to supersede the judgment pending the litigation.

For these reasons I am of the opinion that the motion to dismiss should be denied,

The following is the opinion of the court below in this case:

"In December, 1856, the plaintiff, Ethan Allen, sold to Mrs. Elizabeth McWaters, in the parish of St. Mary, two tracts of land and about twenty-eight slaves, the purchaser paying $10,000 cash, assuming certain mortgage notes of her vendor, and executing to him a series of promissory notes for the balance of the price; also executing a mortgage on the property, to secure the deferred payments.

A few months after her purchase, Mrs. McWaters sold the same property to John Tarlton, for $75,000, who paid $10,000 in cash, assumed his vendor's liabilities existing on the property, and for the balance executed his promissory note, securing the credit part of the price by special mortgage on the property bought, and also on a certain other property which he owned.

This action is based on the last note of the series executed by Mrs. McWaters to Ethan Allen, and assumed by John Tarlton.

In it the plaintiff seeks to recover a personal judgment against each of the defendants, and also to render executory the mortgage given by John Tarlton.

Mrs. McWaters pleaded in defense the slave consideration of the note, and Tarlton pleaded an exception of domicil, and, in the event it should be overruled, pleaded the general issue. The court gave judgment for the amount claimed against the defendants, except Tarlton, who did not reside in the parish, and rendered both mortgages executory. The defendants have appealed.

It appears from the evidence that the slaves embraced in the purchase of Mrs. McWaters from Ethan Allen were worth $28,300, and the other property was worth $21,700; that all the installments of that purchase have been paid except the note in suit, which has several credits indorsed thereon; that all these payments were made prior to emancipation.

By the law then in force, they must be regarded as discharging the debt, pro tanto; the debt then being severable neither by legal nor conventional imputation.

Upon the doctrine of Sandidge v. Sanderson, 21 Annual, 757, the debt must be apportioned, and judgment can only be had for that proportion thereof which was not for slaves.

The position taken by John Tarlton, to escape judgment in rem, is ingenious, but not sound. His exception of domicil was not passed on prior to trial on the merits.

sity of Federal question-see note, 37 L. ed. U. S.

NOTE. Jurisdiction over state judgment; neces

267,

He was present and gave evidence at the trial, and it would be strange if the judge could not render executory the mortgage granted by him on account of the exception of domicil, which saved him from the consequences of a personal judgment also.

We think the plaintiff was clearly entitled to have judgment against the property hypothecated by Tarlton, and that, as to him, there is no error in the judgment except as to amount. In the note before us, the several credits should be applied to the interests which they extinguish up to the 1st of January, eighteen hundred and sixty-three, at which date the interest will begin on that part of the debt ascertained to be not for slaves, which we estimate at four thousand two hundred dollars ($4,200). It is, therefore, ordered that the amount of the judgment be reduced to $4,200, bearing interest at eight per cent, from the 1st of January, 1863, and that, as thus amended, the judgment of the court below be affirmed.

It is further ordered that the plaintiff pay costs of appeal.

Extract from petition for writ of error: That your petitioner is advised that there is error to his prejudice in the said judgment. That the said supreme court is the highest court of law and equity in the state of Louisiana, in which a decision can be had in the said suit.

That in said suit is drawn in question the validity of an authority exercised under the state of Louisiana to declare null and void an operative contract, the consideration for which was the sale of persons, made under the authority of the laws of the state of Louisiana, in force prior to the year eighteen hundred and sixty, on the ground that it is repugnant to the Constitution of the United States, and the decision is in favor of the validity of such authority, and against the right claimed under such contract, and under the said Constitution of the United States.

Messrs. Durant & Hornor for defendants in error, in support of motion to dismiss. Messrs. Miles Taylor and P. Phillips, in opposition to motion.

Yet if there be no patent for the constituents they are open to the public for use in combinations provided all the elements of the patented combina tion be not employed. [No. 35.]

Argued Apr. 17, 1873. Decided Mar. 23, 1874.

IN ERROR to the Circuit Court of the United

States for the District of California.

This was an action brought in the court be low by the defendant in error, Seibert, against the plaintiffs in error, for the alleged infringe ment of certain letters patent granted to Seibert for an improvement in lubricators for steam-engine cylinders.

The following are the drawings accompanied by the specification and claims of complainant's patent:" Exhibit A.

This invention relates to an improvement in lubricators for steam-engine cylinders. It consists in the arrangement of parts as hereinafter described, and as particularly specified in the claims.

In the accompanying drawings, Fig. 1 represents a side view of the lubricator, as connected with the cylinder of the steam-engine; Fig? is a central section of the lubricator detached. Similar letters of reference indicate corresponding parts.

A is the cylinder.
B is the steam-pipe.
C is the steam-chest.

A is the condensing pipe, connecting the steam-pipe B and lubricator.

D is a reservoir which is supplied with water by reason of the steam condensing in the condensing-pipe A1.

E is the oil-pipe leading to the cylinder and valve chest.

F is the cup or reservoir which contains the oil or other lubricating material.

G is the stop-cock or valve in the oil-pipe E. H is a check-valve.

I represents a waste-cock at the bottom of the oil-reservoir.

J is a glass tube.

K is a sliding gauge which indicates the amount of oil used.

L is a regulating feed-valve, which is opened slightly.

The water in the reservoir D, being higher and heavier than the oil in the cup F, forces itself under the oil in the cup F and glass tube J, and forces it out through the check-valve H, and oil-pipe E, into the steam-pipe B, to lubricate the valves and cylinders.

M is a cock to regulate the admission of steam from the steam-chest into the oil-cup F, when tallow is used.

The cock I is used to draw the water off when the cup F is to be replenished.

N is a screw plug in the top of the oil-cup, or reservoir F, through which the oil or other lubricating material is introduced.

O is a vertical tube within the oil-cup F. P is another vertical tube within O, and Q is an annular space between the two tubes. The tube P is in communication with the steam in the steam-chest by means of the pas sages SS, so that the space Q is kept hot by the steam which enters it, as indicated.

RR are passages leading from the oil reservoir F to the glass tube J; the oil in the glass tube J will stand at the same height as in the reservoir, so that the quantity contained therein may be always visible to the eye.

The gauge K may be set at any time when the machinery is to be put in motion, to indicate the height at which the oil stands. When the movement of the machinery has ceased, the distance between the height of the oil and the gauge will indicate the precise quantity consumed (the cubical capacity of the reservoir F being known).

Whatever amount of steam may condense in the tubes O and P, will flow back into the steam-chest C by gravity.

The steam pressure in the tubes D and E is at all times equal, hence the gravity of the water in the former will determine the direction of the flow of oil.

Having thus described my invention, I claim as new and desire to secure by letters patent: 1. The arrangement of the cock M, passages SS, and tubes O and P, with the oil reservoir F, and gauge J K, as herein shown and described, for the purposes specified.

2. The improved lubricator consisting of the parts herein described, constructed and arranged substantially as specified.

The lubricator manufactured by the defendants, which was alleged to infringe complainant's invention, is shown in exhibit B. This lubricator operates as follows: The glass chamber A is filled with oil; the steam standing in the condensing pipe B is there condensed into water which passes through an open pipe (regulated by the valve C as to quantity) into the bottom of the oil chamber A. The water, being heavier than the oil, causes the latter to rise and flow off through the inverted siphon E, to the parts requiring to be lubricated. [See Exhibit B.] Evidence was also introduced, tending to show that the glass oil-chamber A performed the same office and was a substitute for both the reservoir F and the glass tube J, used in the plaintiff's lubricator, and that the defendant's inverted siphon E performed the same offices and was a substitute for the plaintiff's oil-pipe E, cock G, and check-valve H, and that the condensing pipes or water reservoirs regulating feed-valves and sliding-gauges in both lubricators were identically the same, and it was on account of the several foregoing similarities in the two lubricators that it was claimed that the defendant's lubricators were an infringement of the plaintiff's letters patent, exhibit A. It was admitted as a fact by both sides at the trial, that the defendants had not infringed the first claim in exhibit A.

The trial resulted in verdict and judgment for the plaintiff; and the defendants brought the case to this court, relying upon an alleged error in the instruction of the court regarding the last claim in plaintiff's patent.

The case further appears in the opinion. Messrs. M. A. Wheaton and Thomas T. Everett, for plaintiffs in error:

The second claim covered Seibert's whole lubricator, consisting of all its working parts and nothing less. The "improved lubricator," consisting of the parts "herein described," was the lubricator made up of all the parts which

were specifically set forth in the specification as material and important parts, and were "therein described," their uses and the offices which they perform specifically pointed out and described as important parts of the invention. The parts represented as the cock M, passages SS, pipes O and P, which the inventor considered important enough to make a specific basis for the first claim, could not be laid out of his claim for the whole lubricator consisting of the parts "herein described."

Prouty v. Ruggles, 16 Pet. 341; Parker v. Sears, 1 Fish. Pat. Cas. 99; Hall v. Stimpson, 2 Fish. Pat. Cas. 570; Vance v. Campbell, í Black, 427, 17 L. ed. 168; 1 Fish. Pat. Cas. 486.

Messrs. Edmond L. Goold, A. H. Evans, Chas. T. Botts and W. W. Boyce, for defendant in error.

Mr. Justice Strong delivered the opinion of the court:

If the true construction of the patent be, as the plaintiffs in error contend, that the patentee's second claim is for a combination of all the devices mentioned in the specification, there was error in the instruction given to the jury by the circuit court. It is undoubtedly the law that if the subject of a patent is a combination of several processes, parts or devices, the use of any portion of the combination less than the whole cannot be infringement. There may, indeed, be a patent for a combination of many parts, and at the same time for an arrangement of some of the parts constituting another combination, but still a part of the larger. Yet, if there be no patent for the constituents, they are open to the public for use in combination, provided all the elements of the patented combination be not employed. It is, therefore, needful to inquire: what are the elements of the combination which is protected by the patent?

The specification describes it as a new and useful improvement in lubricators for steamengine cylinders, and describes it largely, if not principally, by reference to the accompanying drawings. It consists in the arrangement of several constituents, no single one of which is claimed to be new. These parts are a condensing-pipe connecting the steam-pipe with the lubricator; a reservoir for water, the product of condensed steam; a cup or vessel for oil or other lubricating material, placed vertically and somewhat lower than the water reservoir, but connected with it by a pipe leading from near its lower extremity to the bottom of the reservoir, and having near its upper end a pipe leading to the cylinder and valve chests, with a check-valve at the oil vessel and a stop-cock between it and the cylinder; a waste cock at the bottom of the oil vessel; a screw plug at its top, supplied, and a regulating valve by which the through which the lubricating material may be flow of water from the water reservoir into the oil vessel can be controlled. To these is added a glass tube with a sliding gauge, arranged so as to stand vertically and parallel with the oil vessel, and connected with it at either extremity, its purpose being to indicate the amount of oil used. The operation of these devices thus arranged is described to be the following:

The condensed water in the water reservoir being higher and heavier than the oil in the oil vessel, forces itself under the oil in both that