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Opinion of the Court.

breech-loading cannon and a breech-block capable of being withdrawn in a rearward direction from the gun. 2. A breech-block carrier hinged to the breech. 3. A breech-block retractor hinged to the breech separate from its carrier. 4. That the retractor shall move independently of the carrier, to withdraw the breech-block thereinto and push it therefrom. 5. And that it shall be capable of moving with the carrier, while the breech-block is therein.

It may be doubtful whether, in view of the Nordenfeldt patent, there is any novelty even in the exact combination described in this claim, since in both cases there is a vertical axial bolt or pivot hinged to the breech of the gun; a crank arm secured to this bolt and operating the rack; a retractor arm permanently secured to the breech-block and hinged to the breech separate from the carrier, and moved independently of it; a carrier hinged to the breech-block, the carrier and retractor being capable of moving together, while the breech-block is on the carrier; the movement being transmitted from the retractor to the carrier through the breechblock. But whether the Nordenfeldt device be an exact anticipation or not, the Dashiell device differs from the Seabury patent much more than the latter differs from the Nordenfeldt machine, since the retractor of the Dashiell device is not hinged to the breech at all, but is hinged to the carrier; and is not separate from the carrier, but is a part of it, and when the carrier moves, the retractor also moves. In the Seabury device the carrier and retractor move independently of each other; but as the claim says, they are separate from each other, whereas in the Dashiell device they are so intimately connected that when the carrier moves, the retractor moves with it. It is true that the retractor, though hinged to the carrier when turning on its pivot, acts as it would if it were hinged to the breech; yet, Seabury having restricted himself to a retractor hinged to the breech separate from the carrier, in view of the state of the art, which appears to have been much more advanced than the plaintiffs are willing to concede, we think such difference is material. As before observed, in the Dashiell device the retractor is not hinged to


Opinion of the Court.

the breech, but to the carrier, and it is not worked independently of it, but in connection with it.

The truth is that, at the time the Seabury patent was taken out, the scope for invention was much more limited than Seabury apparently supposed. The mutilated form of screwblock, apparently a French device, had been in use for many years. Of course the use of this block implied some method of withdrawing it from the gun, swinging it to one side and returning it to the bore. To accomplish this several devices were invented, most of them employing a swinging lever, a carrier and a retractor. In some cases, as in the Canet patent, a toothed rack was used to rotate the breech-block, and in others a cam, and in two or three of these patents these movements were accomplished by the continued operation of a lever. Nothing, in fact, was left to the ingenuity of the inventor but to devise new variations upon this combination, and, in our opinion, Dashiell's device is as great a departure from Seabury's as the latter is from the devices which preceded it.

We are, therefore, of opinion, that, under the construction we are compelled to give the first claim of the Seabury patent, the Dashiell device is not an infringement.

This conclusion also renders it unneoessary for us to consider the questions discussed by the Court of Appeals in its opinion, in respect to one of which see Belknap v. Schild, 161 U. S. 10; but for the reasons stated, its decree, dismissing the

bill, is


Statement of the Case.




No. 779. Submitted February 4, 1896. — Decided April 13, 1896.

A Circuit Court of Appeals has no power under the Judiciary Act of 1891

to certify the whole case to this court; but can only certify distinct points or propositions of law, unmixed with questions of fact or of

mixed law and fact. The question propounded in this case amounts to no more than an in

quiry whether, in the opinion of this court, there is an irreconcilable conflict between two of its previous judgments, and a request, if that is held to be so, that an end be put to that conflict; and this is not a question or a proposition of law in a particular case, on which this court is required to give instructions.

This case coming on to be heard on appeal from the Circuit Court of the United States for the Northern District of Illinois, in the United States Circuit Court of Appeals for the Seventh Circuit, that court ordered that a statement of facts and a question be certified to this court for its opinion and instruction.

It appears from the statement of facts that William Graver filed a bill in the Superior Court of the county of Cook in the State of Illinois to impeach for fraud a decree in equity rendered by that court, July 6, 1889, in a certain suit therein depending, wherein William Graver was complainant and Benjamin C. Faurot and A. O. Bailey were defendants, by which decree complainant's bill was dismissed for want of equity; and that the suit was duly and properly removed into the Circuit Court of the United States for the Northern District of Illinois.

The bill thus filed was set forth in haec verba, together with a demurrer thereto; the decree of the Circuit Court sustaining the demurrer and dismissing the bill; and the opinion rendered by the Circuit Court on entering that decree.

The certificate then proceeded thus: “In view of the deci

Opinion of the Court.

sions of the Supreme Court of the United States in the cases of The United States v. Throckmorton, 98 U.S. 61, and Marshall v. Holmes, 141 U. S. 589, this court is in doubt touching the case in hand, and desires advice and instruction upon the following question: Whether (assuming the bill of complaint to be in other respects sufficient) the alleged false swearing and perjury in the respective answers of defendants in the original suit in the Superior Court of the county of Cook, State of Illinois, are, in the law, available in this suit as ground for a decree setting aside and declaring void the decree so rendered in the Superior Court of the county of Cook ?”

Mr. Robert Rae and Mr. Ilenry S. Monroe for appellant.

Mr. Frank L. Wean and Mr. Frank 0. Lowden for appellee.

Mr. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

It appears from the opinion of the Circuit Court, sent up as part of the certificate and reported in 64 Fed. Rep. 241, that that court was impressed with the conviction that the complainant had been defrauded, but that the court could see no way to accord relief under the decision in United States v. Throckmorton, 98 U. S. 61, although the result might be different if the decision in Marshall v. Holmes, 141 U. S. 589, were followed. In other words, the Circuit Court indicated that it could have proceeded without difficulty on the principles expounded in either case if the other were out of the way. Finding it impossible to reconcile these cases, or to make a definitive choice between them, because United States v. Throckmorton was cited without disapproval in Marshall v. Ilolmes, the Circuit Court sustained the demurrer pro forma, and the case was transferred to the Circuit Court of Appeals. But when this had been accomplished the Court of Appeals apparently found itself in a similar quandary, and this resulted in the certificate under consideration.

Doubtless the determination of contested questions in cases properly brought before us involves the resolution of doubts,

Opinion of the Court.

if any are entertained, in respect of the scope of particular decisions, but we cannot approve of the mode adopted in this case of ascertaining the precise bearing of former judgments.

In civil cases the intention of Congress as to the certification provided for in sections five and six of the act of March 3, 1891, 26 Stat. 826, c. 517, is to be arrived at in the light of the rules prevailing prior to that date in relation to certificates of division of opinion under sections 650, 652 and 693 of the Revised Statutes. Maynard v. Hecht, 151 U. S. 324. It was well settled as to them that each question had to be a distinct point or proposition of law, clearly stated, so that it could be definitely answered without regard to other issues of law in the case; that each question must be a question of law only and not of fact, or of mixed law and fact, and hence could not involve or imply a conclusion or judgment on the weight or effect of testimony or facts adduced in the cause; and could not embrace the whole case, even where its decision turned upon matter of law only, and even though it were split up in the form of questions. Jewell v. Knight, 123 U. S. 426, 432; Fire Ins. Association v. Wickham, 128 U. S. 426.

By the sixth section of the Judiciary Act, the Circuit Court of Appeals is not permitted to certify the whole case to us, though we may require that to be done when questions are certified, or may bring up by certiorari any case in which the decision of that court would otherwise be final. But hero the entire record is transmitted as part of the certificate, and the answer to the question propounded contemplates an examination of the whole case. It is true that the Court of Appeals asks us to assume the bill of complaint to be “in other respects sufficient,” that is, sufficient to entitle complainant to relief, if the fraud alleged were available. But if we should find that the bill was insufficient when tested by principles accepted in both the cases referred to, we should be indisposed to return an answer not required for the disposition of the case. In any view we should be compelled, in answering, to analyze the facts charged, in order to determine whether in legal effect they raise the question involved in Marshall v. Holmes or that involved in United States v. Throckmorton, assuming that the

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