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A loan made with a view of obtaining money to carry on the the boud. The substance of the transaction relates to

government of a nation, and which contains a provision a loan of money to the goverument and the provision by which the amount can be increased as to a portion of made for its payment. This is the main object and it upon a contingency named therein, does not constitute purpose for which authority was given to issue the a lottery scheme, and is not in violation of the Constitu- bonds, and they were disposed of evidently haring tion and laws of this State prohibiting lotteries.

this in view. The provision by which, upon a certain HE opinion states the

contingency, the holder of the bond might receive 20 case.

additional sum, was no doubt an inducement held out

for the purpose of obtaining money on the same, but it Benno Loewy, for appellant.

did not constitute the main feature and the substance

of the transaction between the government and the Leo Goldmark, for respondent.

purchaser of the bond. It was a mere appendage sad MILLER, J. The plaintiff claims to recover in this an incident to its main purpose, by means of which the action double the amount paid by him for a bond, is- holder might by chance receive a larger sum than the sued by the authority of the government of Austria,

principal, interest and premium which the bond itself which he purchased of the defendant, and which it is

provided for. In loaning money upon these bonds the alleged purported on its face to be a share or interest

holder thereof ran no risk of loss, and he took the in and to a certain illegal lottery, and a certificate of

chance, which might arise in case it should be deterthe said share or interest therein, describing the same. mined by lot that his bond was entitled to a larger The complaint alleges that the action accrued against sum than the principal, interest and premium which the defendant under and by virtue of a violation of the

he was sure to get in any event. While this latter provisions of section 32 of article 4 of title 8 of part 1, privilege depended upon chance it cannot, we think, chapter 20 of the R. S. (2 R. S., 6 ed., 923), which de

be held, upon any sound theory, that it converted the clares as follows: “Any person who shall purchase bonds into lottery tickets and imparted to the loan, any share, interest, ticket, certificate of any share or which was made thereon, the character, object and interest, or part of a ticket, or any paper or instru

accompaniments of a mere lottery scheme. The purment purporting to be a ticket, or share, or interest in chase and sale of bonds, stocks and other securities auy ticket, or purporting to be a certificate of any are often matters of chance as to the value of the secushare or interest in any ticket, or in any portion of rities. Prices in these fluctuate; sometimes they may any illegal lottery, may sue for and recover double the

be bought at par, and sometimes they command a presum of money, and double the value of any goods or

mium. A purchaser at par takes the chances of a rise things in action which he may have paid or delivered in the value or of a reduced valuation if he purchases in consideration of such purchase, with double costs of

at any price. Here the purchaser ran the risk of a detesuit."

rioration beyond the price named, and took the chance The bond in question provides for the payment of of a rise, if by lot the bond which he held became en: the sum of one hundred gulden by the Austrian gov- titled to it. In both cases the value is a matter of erument, in accordance with the conditions indorsed

chance, and in neither can it be said, because it de. on the back of the same, together with one-fifth part pends upon chance, that this chance constitutes a lot. of any such sum as may be allotted to the prize num- tery. ber of the bond, which sum must amount to at least The same remarks will apply to other securities one hundred and twenty gulden, with interest as pro- which have a valuation which depends upon constant vided.

changes in the market. In may instances the value of Under the rules and regulations indorsed on the securities of corporations may depend upon some bond relating to the drawing and redemption of the chance which is annexed to the terms provided for the bonds of which the one in question constituted a part, issue of the same. A proposition is made for the sale provision is made for the drawing of the bonds by a of bonds by some corporate body, and subscriptions division into series, and the drawing of a certain num- made therein. The series of bonds and the times wben ber of series tickets to be deposited in a wheel to await

payable are to be determined by chance, and their the drawing of the prize numbers. At a time named, a value may depend upon the time they have to run. It drawing is to be had from the series numbers, and pro- cannot well be said that a subscriber who takes the vision is also made for the drawing of the prize num chance of drawing by lot a bond for a long term, wbich bers deposited in another and separate wheel, and the commands a higher price than one for a shorter pelast named drawing desiguates the numbers which are riod, purchases a lottery ticket, and that the corporaentitled to prizes, which prizes vary from six hundred tion that issued it is engaged iu a lottery enterprise. gulden to three hundred thousand gulden. Under the This rule might well apply to the drawing of a series of terms of the loan for which the bonds were issued, the bonds from a wheel, and to the drawiug of an additional holder is entitled to receive his principal and interest amount by lot by any of the holders of that series. It and a premium of twenty per cent, and what is termed

caunot, we think, be said that a loan made with a view a prize, if by the drawing provided for he becomes en

of obtaining money to carry on the government of a titled to the same. The bonds referred to, were issued

nation, and which contains a provision by which the by the Austrian government for the purpose of ob- amount can be increased as to a portion of it upon a taining a loan of money, and the holders or owners

contingency named therein constitutes a lottery receive the same upon payment of the amount of prin.

scheme, and is in violation of the Constitution and cipal therein named. The evident object and purpose laws of this State prohibiting lotteries, and of the of the government in issuing the bonds was to obtain

statutes cited. money for its own use and benefit.

In Hull v. Ruggles, 56 N. Y. 427, a lottery is defined According to the true interpretation of the instru- as follows: “Where a pecuniary consideration is paid, ment the government, upon receiving the money, and it is determined by lot or chance, according to promises to pay the principal, interest and premium

some scheme held out to the public, what and how named, and in addition any sum which may be drawn much he who pays the money is to have for it, that is by the holder of the bond, in accordance with the rules

a lottery." A similar definition is given of a lottery in and regulations indorsed upon the same. This addi- section 323 of the Penal Code. tional sum depends upon a contingency which is to be Lotteries which are the subject of condemnation undecided by lot or chance. Independent of this the der the Constitution and laws of this State are schemes amount and the terms are fixed by the conditions of where money is paid for the chance of receiving money

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in return. As a general rule the money thus paid in On January 23, 1878, the plaintiff, as party of the case a prize is not drawn is lost, and no return had for first part, made an agreement in writing with James the same. The purchaser may draw a prize or may Gibson, John Wirtz, and Peter Fox, as parties of the draw a blank, and he thus hazards what he has paid second part, by which the latter were appointed agents upon the chances incident to a drawing by lot. The for the former to sell, within certain designated tererils attending a system of lotteries, and against which ritory, during the season of 1877, the reapers and mowthe laws of this State are aimed, consist in the risk ers manufactured by the plaintiff. In consideration which people are willing to take in hazarding their of such appointment, the parties of the second part money with a chance of losing the same without any agreed to sell the reapers and mowers within the debenefit or advantage whatsoever, and with but a re- signated territory, and to account for the proceeds of mote prospect of gain. This was a species of gambling the sales to the plaintiff. The contract bore date which inflicted serious injury upon certain classes of January 11, 1878. After the signatures of Gibson, the community, which prompted the prohibition of Wirtz and Fox, the following contract of guarantee lotteries in the Constitution of this State and the en- was appended : actment of severe laws against their operation. A gov- · For value received we hereby guarantee the fulernment bond of the character of the one which is the fillment of the contract on the part of James Gibson, subject of this action does not come within the mis- John Wirtz, and Peter Fox, and hereby join them chief intended to be remedied or within the scope and in each and every obligation therein contained.” purpose of the enactments against lotteries. Such an This guarantee also bore date January 11, 1878, and instrument is not named, nor is it within the purview was signed by Pirmin Kopfer, Jacob Steffes and Peter of the statute or the intention of the law-makers. Brucker. The contract and guarantee were negotiaThese bonds have been issued by several of the gov- ted by one Matteson, a special agent of the plaintiff for ernments of other countries, and in no sense can they that purpose, but who had no power to close or conbe regarded as being within the inhibition of the stat- clude the same. After the execution and delivery of utes of this State which were intended to suppress lot- the contract and guarantee, and between that time teries and to prevent citizens from indulging in this and September 1, 1878, the plaintiff delivered to Gibspecies of gambling.

son, Wirtz and Fox reapers, mowers, etc., of the value The bond in question was an evidence of debt, and a of $7,379.10, and of that sum they failed to account for public security of a foreign government exposed for or pay over to the plaintiff $4,664.49 although desale, the same as other securities upon which money is manded of them by the plaintiff, and on September 15, loaned, and its sale did not violate the provisions of 1878, the plaintiff gave notice thereof to Kopfer and the statute already cited. It was not raffled for or dis- Brucker, Steffes having previously died, and detributed by lot or chance, and it cannot be said that mauded payment from them of the sum so due the purchase of the same by the plaintiff was within the plaintiff, which they refused to pay. The demand the provisions of section 22 of 1 R. S. 665. Nor was of the complaint was for judgment against Kopfer and the issue of the bond or its sale a gift enterprise with- Brucker for $4,664.49, with interest from December 4, in the provisions of the Penal Code already cited. 1879.

We think that the General Term erred in reversing Kopfer made no defense. Brucker filed an answer, the judgment entered upon the referee's report, and in which he alleged, by way of defense, that he signed its order should be reversed, and the judgment entered the guarantee, and so far as he was connected thereupon the referee's report.

with, delivered the same upon the day of the week

Affirmed. commonly called Sunday. Upon the issue raised All concur, except Finch, J., dissenting.

on this answer, the case was tried by the court, which made special findings of fact substantially as follows:

The plaintiff was a manufacturing corporation of the SUNDAY-SIGNING CONTRACT ON, DOES NOT State of Pennsylvania, with its home office in that

State, and having a branch or general agency in the AVOID.

city of Chicago, in the State of Ilinois. During and

after the month of January, 1878, Messrs. Hoag & SUPREME COURT OF THE UNITED STATES,

Conklin, of Waterloo, in the State of Wisconsin, were MAY 5, 1884.

the agents of the plaintiff for that State for the

purpose of making sales of the manufactures GIBBS AND STERRETT MANF. Co. v. BRUCKER.

of the plaintiff therein, through sub-agents, When a contract is signed on Sunday, but not delivered till to be appointed in the following manner: Hoag &

another day, it does not take effect on Sunday, and is Conklin were to canvass the State of Wisconsin for not void.

the purpose of selecting good and responsible men to One who has participated in a violation of law cannot be per- become agents, and were to fill out in duplicate the

mitted to assert, in a court of justice, any right founded plaintiff's printed form of contract, and cause the upon the illegal transaction.

same to be signed by the agents selected, and by their

sureties, and immediately thereafter to forward such error to the Circuit Court of the United States

duplicates to the plaintiff at its western branch, at for the Eastern District of Wiscousin. Opinion Chicago, for its approval and signature. Hoag & Cookstates the case.

lin had no power or authority to sign or close any such W. P. Lynde, for plaintiff in error.

contract on behalf of the plaintiff.

From January 10th until January 25, 1878, and thereEd. S. Bragg, for defendant in error.

after, one M. V. Matteson was an employee and agent

of Hoag & Conklin, for the purpose of carrying out the Woods, J. This was an action at law brought by said contract on their part, and had and exercised no the Gibbs and Sterrett Manufacturing Company, the other or greater or different powers in that regard than plaintiff in error, against Peter Brucker, the defend - Hoag & Conklin. ant in error, and Pirmin Kæpfer, upon a cause of Hoag & Conklin were to be paid by the plaintiff, by action which was stated in the complaint substanti- certain commissions upon the amount of machinery ally as follows:

sold, and Matteson was to be paid by Hoag & Conklin,


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by commissions upon the amount of machinery sold illegal transaction, he may recover, the law simply rethrough agencies established by him.

fusing its aid to either party in giving effect to an illeOn January 11, 1878, which was Friday, the agency gal transaction in which he has taken part. Tucker. contract, referred to in the complaint, was at the in- man v. Hinckley, 9 Allen, 452; Stackpole v. Symonds, 3 stance of Matteson, signed by Gibson, Wirtz and Fox, Foster (N. H.); Bloxsome v. Williams, 3 B. & C. W: and the guarantee contract on which the suit was Roys v. Johnson, 7 Gray, 162. brought was on the same day signed by Kopfer. On Applying these principle, it is clear there was no obSunday, January 13th, the guarantee contract was stacle to a recovery by the plaintiff in this case. The sigued by Steffes and Brucker, and on the same day plaintiff itself took no part in any violation of the law delivered to Matteson.

of Wisconsin forbidding the doing of labor, business At this time Wirtz, Gibson and Fox knew, but or work on Sunday, unless it was bound by the acts Brucker did not, that Matteson had no authority to and knowledge of Matteson in regard to the signing of sign or close the contract on behalf of the plaintiff, but the contract by Brucker, the defendant, but it was not that it must be sent to the plaintiff at Chicago to be so bound. accepted and signed by it. Brucker had no knowledge The complaint alleged that Matteson was the special of the powers of Matteson, and made no inquiry con- agent of the plaintiff to negotiate the agreement set cerning them.

out therein, but that he had no power to close or conOn Monday, January 14th, Matteson sent duplicates clude the same. This averment is fully sustained by of the contract and guarautee so signed by mail to the the findings, by which it appears that neither Hong & plaintiff at Chicago for acceptance and signature, and Conklin nor Matteson had power to sign, accept or close the same were accepted and signed by the plaintiff on any such contract on behalf of the plaintiff. The Wednesday, January 23d, and or the same day one of knowledge therefore of Matteson that the defendant the duplicates was returned by mail to Gibson, Wirtz Brucker signed the contract on Sunday, and his 30and Fox, but no communication took place between ceptance of the manual delivery of the contract on the the plaintiff and Brucker in reference thereto.

same day, was not within his agency, and was pot the During the spring and summer of 1878, the plaintiff act of, and was not binding on the plaintiff. So far delivered to Wirtz, Gibson and Fox, upon the contract therefore as there was any violation of the law of Wis. reapers and mowers, on which there remained due to consin forbidding the transaction of business on Sunplaiutiff the sum of $3,336.25, with interest thereon day, it was the act of Brucker alone, in which the from March 14, 1881, for which defendant Brucker was plaintiff took no part, and of which it had no knowlliable, provided the guarantee contract was valid as edge. The fact therefore that the contract was signed against him.

by the defendant and handed to Matteson on Sunday Neither the plaintiff, nor any officer or agent thereof, is, upon the authorities cited, no obstacle to a recorexcepting Matteson, ever had notice or knowledge, ery until after the signing of contracts in Chicago, and There is another ground on which the case of plaintuntil after the delivery of all of the reapers and mow- iff may be placed. ers to Gibson, Wirtz and Fox, that the instrument of In order to make good the defense set up in the anguarantee was signed and delivered by defendant swer, it is necessary to prove not only that the defeudBrucker on Sunday.

ant signed his name to the contract on Sunday, but Upon these facts the judges of the court were did that he delivered it on Sunday. The mere signing of vided in opinion upon the question whether the con- a contract on Sunday, which is not delivered on that tract of guarantee and suretyship, upon which this day does not avoid the contract. Adams v. Gay, 19 Vt. suit was brought, was void and invalid under the stat- 358; Goss v. Whitney, 24 id. 187; Saltmarsh v. Tuthill, utes of Wisconsin, because the same was so signed and 13 Ala. 406; Flanagan v. Meyer, 41 id. 132; Commondelivered by the defendant Brucker upon Sunday; wealth v. Kendig, 2 Penn. St. 448; Hill v. Dunham, 71 and the presiding judge being of opinion that the con. Gray, 543; Hall v. Tucker, 37 Mich. 593; Hilton v. tract was invalid, for the reason stated, judgment in Houghton, 35 Me. 143. favor of the defendant was rendered in accordance The question therefore arises, was the contract which with his opinion, and thereupon the plaintiff sued out was sigued by Brucker on Sunday delivered by bim on this writ of error.

Sunday? The delivery on Sunday relied on by defend. The law of Wisconsin referred to in the certificate of ant to avoid the contract was the alleged delivery to division of opinion is as follows:

Matteson. But we have seen, that according to the “Any person who shall keep open his shop, ware- findings of the Circuit Court, Matteson was not the house or workhouse, or shall do any manner of labor, agent of the plaintiff for that purpose, and could not business or work, except ouly works of necessity and accept a delivery of the contract so as to bind the parcharity, or be present at any dancing or public diver-ties. In other words, the handing to him by the desion, show or entertainment, or take part in any sport, fendant of the contract was not a delivery in the legal game or play, on the first day of the week, shall be sense, and was no inore effectual to bind the plaintiff punished by fine, not exceeding ten dollars; and such or the defendant than if the contract had been handed day shall be understood to include the time between to an indifferent third person. The fact was that the the midnight preceding and the midnight following delivery to Matteson was virtually the delivery to a ing the said day, and no civil process shall be served messenger to transmit the contract to the other party or executed ou said day." Rev. Stat. of Wis. of 1878, for its approval or disapproval. Until the contract was $ 4595.

approved and executed by the plaintiff, the defendant The ground upon which courts have refused to main had his locus penitentice, and could have withdrawn his tain actions on contracts made in contravention of assent to the contract. In a word, there was no constatutes for the observance of the Lord's day is the tract until the agreement had been assented to by both elementary principle that one who has himself partici- parties, and this, according to the findings, was on pated in a violation of law cannot be permitted to as- Wednesday, January 23, when the contract was apsert in a court of justice any right founded upon or proved and sigued by the plaintiff. growing out of the illegal transaction. Cranson v. The fact that the defendant did not know, when be Goss, 107 Mass. 439; Holmes v. Johnson, Cowp. 341. handed the contract to Matteson, what the powers of

If therefore the evidence shows a good cause of ac- Matteson were, or that the contract would have to be tion without any participation of the plaintiff in an sent to the plaintiff for its acceptance and signature,

can have no influence on the result. Even if it was the this court was peuding could not be counted against purpose of the defendant to bind himself by a delivery the plaintiff'; Ensminger y. Powers, 108 U. S. 292; (5) of the contract to Matteson, such delivery being to an as the bill showed hostile control of the corporate afunauthorized person, who could not bind the plaintiff, fairs of the plaintiff by its directors during the period and if the plaintiff was not bound neither was the de- covered by the K. suit, mere knowledge by or notice fendant.

to the plaintiff, or its directors, or officers, or stockThe defense therefore resolves itself into this, that holders, of the facts alleged in the bill, during that the defendant, without the concurrence or knowledge period, was unimportant, a case of acquiescence, asof the plaintiff, signed on Sunday a paper writing, sent, or ratification, or of the intervention of the which bore date of a week day, and which, to become rights of innocent purchasers, not being shown by the a contract between the parties, required the assent and bill, and the corporation having acted promptly when siguature of the plaintiff, which was given on a week freed from the control of such directors; (6) it did not day. This, according to the authorities, does not avoid follow that parties who became interested in the the contract.

plaintiff's corporation, with knowledge of the matters We have examined all the cases decided by the Su- set forth in the bill, were entitled to the same standpreme Court of Wisconsin which have been cited by ing as to relief with those who were interested in the counsel, and find nothing in them contrary to the corporation when the transactions complained of 00views we have expressed. Moore v. Kendall, 2 Pin. 99; curred. Upon the question of jurisdiction, there can Hill v. Sherwood, 3 Wis. 309; Melchoir v. McCarthy, 31 be no doubt that the Circuit Court, as the court which id. 22; Knox v. Clifford, 38 id. 651; Troewert v. Decker, made the K. decree, and had jurisdiction of the K. 51 id. 3:20; De Forthe v. Wis. & Min. R. Co., 52 id. 320. suit, as this court, in Pacific R. R. v. Ketchum, 101 U. The case of Knox v. Clifford, ubi supru, sustains the S. 289, held it had, has jurisdiction to entertain the conclusion we have reached, though on a different present suit to set aside that decree on the grounds alground. In that case it was held that he who makes leged in the bill, if they shall be established as facts, and puts in circulation a promissory note bearing date and if there shall be no valid defense to the suit, on a week day, is estopped as against an innocent although the plaintiff and some of the defendants are holder from showing that it was executed on Sun- citizens of Missouri. The bill falls within recognized day.

cases which have been adjudged by this court, and We base our decision however on the grounds that have been recently reviewed and reaffirmed in Kripwe have indicated-first, because it does not appear peudorf v. Hyde, 110 U. S. 276. Ou the question of that the plaintiff bad any part in executing the con- jurisdiction the suit may be regarded as ancillary to tract in violation of the law of Wisconsin forbidding the K. suit, so that the relief asked may be granted by the transaction of business of Sunday; and second, be- the court which made the decree in that suit, without cause the contract, though signed by the defendant on regard to the citizenship of the present parties, though Sunday, was not delivered by him, and did not take partaking so far of the nature of an original suit as to effect on that day.

be subject to the rules in regard to the service of proWe are of opinion that the Circuit Court erred in cess which are laid down by Mr. Justice Miller in Parendering judgment for the defendant upon the find- cific R. R. v. Missouri Pacific R. Co., 1 McCrary, 647. ings of fact. Its judgment is therefore reversed, and The bill, though au original bill in the chancery sense the cause remanded, with directions to grant a new of the word, is a continuation of the former suit, on trial.

the question of the jurisdiction of the Circuit Court. Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633. Pacific R. Co. v. Missouri Pacific, etc., R. Co. Opinion by


[Decided May 5, 1884.) STRACT.


SHIPPING-ENROLMENT MORTGAGE - FORECLOSURE - RECORD EVIDENCE -. NECESSITY-OWNER'S RIGHT TO.—Every vessel of the FORMER SUIT--JURISDICTION.--In 1876, K. brought a United States, which is afloat, is bound to have with suit in a Circuit Court of the United States in Mis- her from the officers of her home port, either a regissouri, to foreclose a mortgage on a railroad, making ter or an enrolment. The former is used when she is the railroad corporation (a citizen of Missouri) and engaged in a foreign voyage or trade, and the latter others defendants. There was a decree of sale, and a when she is engaged in domestio commerce, usually sale, and it was confirmed in October, 1876. In Feb. called the coasting trade. If found afloat, whether by ruary, 1877, the corporation appealed to this court. steam or sail, without one or the other of these The case was affirmed here in April, 1880. In June, and without the right

with reference to 1880, the corporation filed a bill in the same court the trade she is engaged in, or the place where she is against another Missouri corporation (a citizen of Mis- found, she is entitled to no protection under the laws souri), and other citizens of Missouri, alleging fraud in of the United States, and is liable to seizure for such fact in the foreclosure suit, in the conduct of the so- violation of the law, and in a foreign jurisdiction or on licitor and directors of the corporation defendant in the high seas, can claim no rights as an American vesthat suit, and praying that the decree in the K. suit be sel. To seize and detain these papers therefore is to set aside. Ou demurrer to the bill, held, (1) the record expose her to numerous evils, and in fact to prevent in the K. suit, not being made a part of the bill or the her use by her owners, and as the mildest evil, to tie record in this suit, could not be referred to; (2) the her up so long as the detention of her papers lasts. It charges of fraud, in the bill, were sufficient to warrant is to be observed, that when he procured the enrolthe discovery and relief based on those charges; (3) ment and license at Shieldsborough, owner gave the case set forth in the bill, being one showing that up his register, so that when the license and enrolno real defense was made in the K. suit, because of ment were taken from him, his vessel was left withthe unfaithful conduct of the solicitor and directors out any legal evidence whatever of her right to pursue of the defendant in that suit, was one of which a court either domestic or foreign trade. It is also to be menof equity would take cognizance; United States v. tioned, that it is the right of the owner to exchange a Trockmorton, 98 U. S. 61: (4) there was no laches in register for au enrolment, and where this is done, tho filing the bill, as the time during which the appeal to register is necessarily delivered to the officer who is





sues the enrolment. If this enrolment was for any reason improperly issued, there must be methods by which the act may be set aside or cancelled, or a penalty enforced for its improper use. In such case, the owner would undoubtedly be entitled to a proper issue of another enrolment, or to a return of his register. In no event, that we can conceive of, had the defendant a right to keep from him both his register and enrolment, and leave his vessel destitute of these indispensable evidences of her national character and right to pursue her vocation. He is liable in tort, although the secretary of the treasury justifies the proceedings. Badger v. Gutierex. Opinion by Miller, J. [Decided May 5, 1884.]

arts, aud that it was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. In How v. Abbott, 2 Story, 190, it was held that the application of a process to palm leaf to curl it for mattresses, the same process having been used to curl hair for mattresses was not patentable. In the case of Kay v. Marshall,8 Cl.& Fin. 245, it was said to be no invention to use for spinning flax, which had been so macerated that its fibres were shortened, an arrangement of rol. lers borrowed from cotton spinning machinery. See also Stimpson v. Hardman, 20 Wall. 117; Rubber Tip Pencil Co. v. Howard, id. 498; Slawson v. Graud Street R. Co., 107 U. S. 649; King v. Gallon, 109 id. 99. The cases cited are conclusive of this. We are of opinion that taking into consideration the state of the art, no invention was required for the construction of the pavement described in the patent, and that it demanded only ordinary mechanical skill and judgment and but a small degree of either. Phillips v. City of Detroit, Opinion by Woods, J. [Decided May 5, 1884.]



PATENT-NOVELTY-WHEN LACKING, NO INVENTION -IMPROVEMENTS.-In passing upon the novelty of the alleged improvement covered by this patent, we are permitted to consider matters of commou kvowledge or things in common use. Brown v. Piper, 91 U.S. 37; Terhune v. Phillips, 99 id. 592; King v. Galbrin, 109 id. 99; Ah Kow v. Nunan, 5 Saw. 552. The im. provement described in the appellant's patent consists therefore in simply taking a material well known and long used in the making of pavements, to wit, wooden blocks set vertically, aud with them constructing a pavement in a method well known and long used. It is plain therefore that the improvement described in the patent was within the mental reach oi any one skilled in the art to which the patent relates, and did not require invention to devise it, but only the use of ordinary judgment and mechanical skill. It involves merely the skill of the workman and not the genius of the inventor. The following cases illustrate the subject: In Hotchkiss v. Greenwood, l1 How. 248, the substitution of a well-known procelain door-knob for a clay knob, in combination with a particular shank, was held to be no invention. So where the patentee bad taken a fire-pot from one stove, a fiue from another, and a coal reservoir from the third, and had put them into a new stove, where each fulfilled the office it bad fulfilled in its old situation and nothing more, the patent was held void for want of invention. Hailes v. Von Wormer, 20 Wall. 353. In Smith v. Nichols, 21 Wall. 212, it was held that “a mere carrying forward a new or more extended application of the original thought, a change only in form, proportions, or degree, the substitution of equivalents doing substantially the same thing in the same way by substantially the same means with better results, is not such invention as will sustain a patent." The case of Reckendorfer v. Faber, 92 U. S. 347, is much in point. The patent was for an improvement which was described in the specification as follows: “I make a lead peucil in the usual manner, reserving about oue-fourth the length, in which I make a groove of suitable size, A, and insert in this groove a piece of prepared India rubber, secured to said pencil by being glued at one edge. The pencil is then finished in the usual manner, so that on cutting one end thereof you have the lead B, and on cutting the other end you expose a small piece of India rubber C ready for use." This device was held not to be patentable, and it was declared that “the law requires more than a change of form or juxtaposition of parts,or of the external arrangement of things,or of the order in which they are used to give patentability." In Atlantic Works v. Brady, 107 U S. 193, is found one of the most recent and emphatic declarations of this court upon the subject. It was there said, that the design of the patent laws was to reward those who make some substantial discovery or invention which adds to our knowledge or makes a step in advauce in the useful

PRACTICE-REHEARING-MOTION-LACHES.-An application for a rehearing, based on alleged newly-discovered evidence, must be denied when it appears that the existence of such evidence was known to the appli. cant or his counsel at the time of the former trial, and that the evidence was not then produced. Ruggles v. Eddy, 11 Blatchf. 524, 529; India Rubber Co. v. Phelps, 8 id. 85; Hitchcock v. Tremaine, 9 id. 550; Paige v. Holmes Burglar Alarm Co., 18 id. 118; 8. C., 2 Fed. Rep. 330. The law of laches, as applied to motions for new trials or rehearings, is founded ou a salutary policy. It is for the interest of the public, as well as for litigants, that there should be an end of litigation, and that efforts to reopen controversies by unsuccessful parties, after they have had a full opportunity to be heard, and a careful bearing and consideration, should be discouraged. Cir. Ct., S. D. N. Y. April 4, 1884 Colgute v. Western Union Tel. Co. Opinion by Wallace, J.



DAMAGES - ROYALTY. -In an account before a master evidence of payments for past infringement, for the purpose of ascertaining the amount which should be paid by the defendant, is incompetent. To admit it is contrary to the maxim, Inter alios ucta, etc. It involves an attempt to resolve oue doubt or diffioulty by another. Litem lite soleit. There are doubtless reported cases in which it appears that such evidence was received and considered, but generally this bas been done without objection, and uniformly (so far as I know) without a judicial declaration or decision that it was proper. In the opinion of the Supreme Court, in Packet Co. v. Sickles, 19 Wall

. 611, the rule, reaffirmed, is laid down in Seymour MoCormick, 16 How. in suits at law for infringement of patents, when the sale of licenses by the patentee had been sufficient to establish a price for such licenses, that price should be taken as the measure of his damages against the infringer." “The rule thus declared," it is added, " has remained the established criteriou ol

* Appearing in 19 Federal Reporter.



480, “that

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