of other patentable improvements; by which is meant that a patentee in such a case may substitute another ingredient for any one of the ingredients of his invention if the ingredient substituted performs the same function as the one omitted and was well known at the date of his patent as a proper substitute for the one omitted in the patented combination. Apply that rule, and it is clear that an alteration in a patented combination which merely substitutes another old ingredient for one of the ingredients in the patented combination is an infringement of the patent, if the substitute performs the same function and was well known at the date of the patent as a proper substitute for the omitted ingredient, but the rule is otherwise if the ingredient substituted was a new one, or performs a substantially different function, or was not known at the date of the plaintiff's patent as a proper substitute for the one omitted from his patented combination. Where the defendant in constructing his ma

a combination is as much entitled to suppress every other combination of the same ingredients to produce the same result, not substantially different from what he has invented and caused to be patented, as the inventor of any other patented improvement. Such inventors may claim equivalents as well as any other class of inventors, and they have the same right to suppress every other subsequent improvement, not substantially different from what they have invented and secured by letters patent, but they cannot suppress subsequent improvements which are substantially different from their inventions, whether the new improvement consists in a new combination of 193*] the same *ingredients or of some newly discovered ingredient, or even of some old ingredient performing some new function, not known at the date of the letters patent, as a proper substitute for the ingredient withdrawn. Seymour v. Osborne, 11 Wall. 555, 20 L. ed. 42. Unquestionably the withdrawal of one ingredient in a patented combination, and the sub-chine omits entirely one of the ingredients of stitution of another which was well known at the date of the patent as a proper substitute for the one withdrawn, is a mere formal alteration of the combination; and if the ingredient substituted performs substantially the same functions as the one withdrawn, it would be correct to instruct the jury that such a substitution of one ingredient for another would not avoid the charge of infringement.

Grant all that, and still it is clear that the concession will not support the charge of the court, as it is equally clear that if the combination constituting the invention claimed in the subsequent patent was new, or if the ingredient substituted for the one withdrawn was a newly discovered one, or even an old one performing some new function, and was not known at the date of the plaintiff's patent, as a proper substitute for the ingredient withdrawn, it would avoid the infringement, as a new combination or a newly discovered ingredient substituted for the one omitted, or even an old one performing a new function not known at the date of the plaintiff's patent as a proper substitute for the one withdrawn, would not be an equivalent for the ingredient omitted within the meaning of the patent law; nor could it be successfully claimed as such by the plaintiff in order to support the charge of infringement. Such an alteration is not a mere formal alteration, as the difference between the two improvements is such that the new combination would be the proper subject of a patent and, consequently, would avoid the charge of infringement in a case like the one supposed by the

court.

the plaintiff's combination without substituting any other, he does not infringe, and if he substitutes another in the place of the one omitted, which is new or which performs a substantially different function, or if it is old, but was not known at the date of the plaintiff's invention as a proper substitute for the omitted ingredient, then he does not infringe. Carver v. Hyde, 16 Pet. 514; Vance v. Campbell, 1 Black, 427, 17 L. ed. 168; Roberts v. Harnden, 2 Cliff. 504; Mabie v. Haskell, 2 Cliff. 511; Brooks v. Fiske, 14 How. 219; Stimpson v. Railroad Co. 10 How. 329; Prouty v. Ruggles, 16 Pet. 341; Barrett v. Hall, 1 Mass. 477; Howe v. Abbott, 2 Story, 194.

Tested by these principles, as the instruction in question must be, it is plainly erroneous, as it warranted the jury in finding for the plaintiff, whether the ingredient substituted for the one omitted was new or old, or whether the one substituted was or was not well known at the date of the plaintiff's patent as a proper substitute for the omitted ingredient.

Judgment reversed and a new venire ordered.

บ.

MARY M. KEARNEY et al., Plffs. in Err., JOHN DENN, Lessee of Thomas O. Sansbury et al.

(See S. C. 15 Wall. 51-57.)

Jurisdiction error is never presumed-bill of exceptions-state record, when not evidence.

1. Where, upon the defendant's death, his representatives were made parties, and a motion was made in the court below to dismiss the case because of their citizenship, and the court denied the motion, but upon what ground it does not appear, and the plaintiff reserved his exception, this court will not review such decision.

Unexplained, the theory assumed by the court warranted the jury in finding for the 194*] plaintiff, though the defendant in constructing his machine omitted one of the ingredients of the plaintiff's combination and substituted another in its place to perform the same function whether the ingredient substituted for the one omitted was or was not newly discov-exception any more than it could of an exception ered, or was or was not well known at the date of the plaintiff's patent as a proper substitute for the one omitted from the combination constituting the plaintiff's invention.

Bona fide inventors of a combination are as much entitled to equivalents as the inventors

2. Error must be shown; it is never presumed. 3. This court cannot take cognizance of such an noted in like manner to the admission of improper testimony or misdirection by the judge to the jury. 4. In order to bring the facts properly before this court, a bill of exceptions setting forth what

NOTE. What particularity in exceptions is nec essary in order to a review in the appellate courtsee note to Moore v. Bank, 10 L. ed. U. S. 172.

have been taken.

5. A record from a state court finding the illegitimacy of a son is not evidence in another suit to show the nonmarriage of the mother, or the illegitimacy of her other children. Blackburn V. Crawford, 3 Wall. 175, 18 L. ed. 186.

[No. 152 of December Term, 1871.]

Argued November 12, 1872. Decided November 25, 1872.

IN ERROR to the Circuit Court of the United

States for the District of Maryland. This was an action of ejectment instituted in the circuit court of Prince George's county, Md., by the original lessors of the plaintiff, now defendant in error; to which Richard S. Blackburn in his lifetime appeared as the only defendant, on making the usual confession of lease, entry and ouster.

was proved and the decision of the court should | tiffs in error appeared by their counsel and filed a motion in writing to dismiss the case, for the reason that Mary Kearney was, at the time of the commencement of the suit, and had been ever since, a resident and citizen of the District of Columbia, and that J. L. Henry, and Kate Kearney Henry, his wife, had been during the same period, citizens and residents of the state of Maryland, and that the court had, therefore, no jurisdiction to hear and decide the cause. The court overruled the motion, but upon what ground does not appear. It is noted on the record that the plaintiffs in error "reserve their exception to the decision of the court." This is all that the record contains touching the motion. For aught that appears to the contrary, the court may have overruled it, because the facts of the residence of the defendants as stated in the motion were not proved, or because it was proved that they resided in a state or states other than Maryland. Error must be shown. It is never presumed. We cannot take cognizance of the exception reserved upon the record, any more than we could of an exception noted in like manner to the admission of improper testimony or misdirection by the judge to the jury, in the trial of a cause. In order to bring the facts properly before us a bill of exception, setting forth what was proved and the decision of the court, should As the record stands, we have been taken. cannot examine the subject. We have, therefore, not had occasion to consider the learned arguments submitted by the counsel of the respective parties upon the merits of the motion.

Mr. Blackburn was a citizen of the state of Virginia, and on his motion the cause was removed to the circuit court of the United States for the district of Maryland. A trial was had in said last-mentioned court, which resulted in a verdict in favor of the plaintiffs. The cause was brought to this court by writ of error, and the judgment of the court below was reversed. Blackburn v. Crawford, 3 Wall. 175, 18 L.

ed. 186.

The cause was remanded to the court below, with directions to award a venire facias de

novo.

The subsequent history of the case is given in the opinion.

Messrs. William Schley and Thomas J. Durant for plaintiffs in error.

Messrs. T. T. Crittenden and Daniel Clarke for defendant in error.

Mr. Justice Swayne delivered the opinion of the court:

In this case our attention has been called to two alleged errors:

1. That the court below overruled the motion of the plaintiffs in error to dismiss the suit.

After the case was remanded from this court to the circuit court, the plaintiffs' lessors appeared in that court and suggested the death of Richard S. Blackburn, the original defendant, and prayed leave to make new defendants. Leave was given accordingly. This was done on the first Monday of April, 1868, and the cause was thereupon continued to the first Monday of November following. On the latter day a written agreement, signed by William Schley, Esq., as the counsel for the plaintiffs in error, and by R. J. Brent, Esq., as the counsel for the lessors of the plaintiffs, was filed in court. It was to the effect that the death of the defendant, Blackburn, having been suggested, and the plaintiffs in error (naming them) being interested on the part of the defendant, Blackburn, in the property mentioned in the declaration, the clerk was requested to enter their ap pearance by Mr. Schley, as their attorney, 56] "they being alone interested *as defendants in said property." A further agreement was signed and filed by the same counsel "that the original pleadings shall stand mutatis mutandis." The case was thereupon further continued to the first Monday of April, 1869, when it was again continued to the first Monday of November following. On that day the plain

We are all of the opinion that the introduction of the new defendants was an elongation of the original action, and not the institution of a new suit.

II. The second alleged error relates to the transcript of the record in the orphans' court of Prince George's county.

*It appeared by the transcript that [*57 Blackburn, as the next of kin to Thomas B. Crawford, deceased, applied to the court for letters of administration upon the estate of the decedent. George T. Crawford, claiming to be the son of the deceased, made a like application. The court ordered to be tried an issue involving the question whether Thomas B. Crawford and Elizabeth Taylor, the mother of George T. Crawford, were ever lawfully married. The jury found in the negative, and judgment was entered accordingly. The case was removed to the court of appeals of the state, and that court affirmed the judgment. When this case, as it is now before us, was tried in the court below, George T. Crawford had died, and his children were not made parties to the suit. Upon the trial the plaintiff's in error offered the transcript in evidence as bearing upon the question of the marriage of Elizabeth Taylor and the legitimacy of her other children. The court excluded it from going to the jury, and the plaintiffs in error excepted.

The effect of the verdict and judgment here in question were fully considered when this case was formerly before us. We then held that they were an estoppel as to George T. Crawford and barred his right of action, but that they did not in anywise affect the rights of the other children, because they were not parties to the proceeding. Blackburn v. Craw

We have no | 28th, 1855. The bank thereafter transferred one tenth of the certificates, less the amount due to Wetmore, to General James Hamilton. Hamilton subsequently became indebted to Wetmore and gave Wetmore a lien upon his share of the fund to secure the payment of the debt and interest. He gave like liens to Corcoran & Riggs, to James Robb & Co., and to H. R. W. Hill. Robb & Co. transferred their claim to

HENRY OELRICHS and John Frederick May, Hill. The trustees of the bank also claimed a