stated. No exception was taken to the charge | stances, we are not inclined to hear and decide as given upon the material points in litigation what may prove to be only a moot case. between the parties.

The attention of the court below was not called to the particular objection now taken to the recovery of one half the amount shown to be due upon the account headed, "G. M. W. Chic. and N. W. account," to wit: that it was a joint account of the defendant and one of the bankrupts, and that the defendant could not be sued upon it alone. This being the case, it is too late to make it now. The exception, as it appears in the record, is "To the ruling that the plaintiff was entitled to recover $26,458.90." If it was desired to exclude the item of $6,125.62 because of the non-joinder of another party originally interested in that part of the account, the point should have been distinctly and specifically made, and an appropriate exception taken upon the record. The evidence to prove this item in the account was not objected to. The question put to the witness Comstock, which was objected to, was not answered.

We see nothing in the exceptions to the rulings of the court upon the admissibility of tes- THE SELMA AND MERIDIAN RAILROAD timony which requires particular mention, as we are satisfied of their correctness.

Cited-102 U. S., 576.

his draft." 5 Pet., 724. [See Rule of 1884, | premises, they would have at once received the XX, 903, this ed.] This last order was con- necessary information. tinued in force substantially as originally pro- The motion is denied. mulgated until May 8, 1876, during the last term, when it was amended so as to read as follows: "In all cases the plaintiff in error or appellant (on docketing a cause and filing the record) shall enter into an undertaking to the clerk, with security to his satisfaction, for the payment of his fees, or otherwise satisfy him in that behalf." 91 U. S., vii. [See XX., 903, this ed.]

In Owings v. Tiernan, 10 Pet., 447, a transcript of the record was lodged with the clerk, October 24, 1835; but he refused to file it or docket the cause until the fee bond was given, as required by the rule of 1831. At the January Term, 1836, the defendant in error moved to docket and dismiss the cause, and the plaintiff in error, that the transcript might be filed and the cause docketed without the bond. This motion of the plaintiff in error was overruled, but leave was given him to docket the cause upon giving the bond; and it was ordered that if this was not done by March 1, the motion of the defendant in error to docket and dismiss be granted. Afterwards, in Van Rensselaer v. Watts, 7 How., 784, a record was lodged with the clerk early in 1848, but no fee bond given. At the January Term, 1849, the counsel for the appellant, having then filed the necessary bond, moved the court to direct the clerk to docket the cause as of the day the record was received by him; but this was refused, Chief Justice Taney saying: "This court consider the practice established by the decision in Owings v. Tiernan, 10 Pet., and do not wish to disturb it."

M. J. DAYTON ET AL., Appts.,

V.

ISRAEL G. LASH.

(See S. C., 4 Otto, 112, 113.)

Delay in serving citation.

allowance of an appeal, the omission to serve it be-
Where a citation was actually issued upon the
fore the first day of the Term does not avoid the
appeal, and a new citation may be ordered to be is-
sued and served.
Submitted Nov. 20, 1876. Decided Nov. 27, 1876.
[No. 876.]

APPEAL from the Circuit Court of the United

States for the District of Minnesota.

On motion to dismiss for want of service of citation.

The case is sufficiently stated by the court. Messrs. Lorenzo Allis and T. J. Durant, for appellee.

Mr. W. P. Clough, for appellants.

Mr. Chief Justice Waite delivered the opinion of the court.

This record shows that an appeal was allowed, a supersedeas bond approved, and a citation signed February 26, 1876; but it does not show a service of the citation, and the affidavits presented upon this motion fail to satisfy us that proper service was ever in fact made. The ap peal was, however, duly obtained; and the record has been filed and the cause docketed here. We have, therefore, the record; but a service of

fore us, as the appeal was taken out of term. We cannot proceed to hear and determine the cause until the parties are here, either constructively by service, or in fact by their appearance.

The transcript in this case was lodged with the clerk, October 5, 1875, but no fee bond was given and no appearance of counsel entered. An attempt has been made to show that neithe citation is necessary to bring the parties bether the appellant nor its counsel knew that the security was required; but it does appear that as early as November 25, 1875, both counsel and appellant did understand that $200 was required by the clerk for some purpose, and the agents of the appellant who had the appeal in charge were advised that "they would do well to attend to it without delay.' No heed was given to this suggestion; and three months afterwards, February 24,1876, a motion to docket and dismiss was made and granted. The court continued in session until May 8, and no attention was given to the case by the appellants previous to the adjournment.

Without undertaking to determine what we might do in a case where an appeal had been dismissed through our own mistake, we have no hesitation in deciding that the failure of this appellant to perfect its appeal has been because of its failure to comply with a rule of practice which has been rigidly enforced for more than forty years. In addition to this, we are not satisfied from the showing made, that at least one of the counsel for the appellant did not have actual knowledge of the existence of the rule; and it is very clear that if, after the agents of the appellant were advised of the demand for security of some sort, they had exercised any diligence whatever in ascertaining what was actually required of them in the See 4 OTTO U. S., Book 24.

Perhaps the language of Chief Justice Taney. in Villabolos v. U. S., 6 How., 90, and in U. S. v. Curry, 6 How., 112, as well as of Mr. Justice Nelson, in C. of Washington v. Dennison, 6 Wall., 496 [73 U. S., XIX., 863], if read literally and without reference to the facts then under consideration, may be broad enough to justify a dismissal of this appeal, because the citation was not served before the first day of the Term. But in the case of Villabolos, the real question was as to the validity of the citation, and not as to its service, if valid; in Curry's case, the citation was not issued until after the Term at which the appeal was returnable; and in C. of Washington v. Dennison, the effort was to obtain a supersedeas in a case where the writ was not sealed until eleven days after the rendition of the judgment. None of the cases made it nec essary to decide that a citation actually issued upon the allowance of an appeal must be served, before the first day of the Term, in order to preserve our jurisdiction; and we think that such an omission does not avoid the appeal, but rather furnishes a case where, under the rule in Martin v. Hunter, 1 Wheat., 361, and followed in Davidson v. Lanier, 4 Wall., 454 [71 U. S., 3

33

XVIII., 379], we “may grant summary relief" "by imposing such terms upon the appellants as under the circumstances may be legal and proper."

As this appeal was returnable to the present term, and some attempt was made to serve the citation, which the appellants may have supposed was actually completed, we order that unless the appellants cause a new citation, returnable on the first Monday in February next, to be issued and served upon the appellee fore that date, the appeal be dismissed.

Cited-96 U. S., 726; 99 U. S., 609; 100 U. S., 662.

MILO X. HOADLEY, Appt.,

v.

*

* *

either party may remove said suit to the Circuit Court of the United States for the proper district.”

After the passage of this Act, Hoadley removed his suit to the Circuit Court of the United States for the District of California, alleging that it was one arising under the Constitution and laws of the United States. In the Circuit Court he amended his bill, setting forth in detail the particulars of his claim to the benbe-efit of the Act of Congress through the city ordinances. To this amended bill the City demurred assigning for cause, among others, that it did not show that the Circuit Court had jurisdiction. Upon the hearing of this demurrer, the court entered an order remanding the cause to the State Court, and from that order the present appeal has been taken.

The case is fully stated by the court.

Mr. S. W. Holladay, for appellant.

By section 5 of the Act of March 3, 1875, 18 Stat. at L., 471, it is provided "That the order of the Circuit Court dismissing or remanding the cause shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be." This is a modification of the previous legislation upon this subject, under which we held, in Ins. Co. v. Comstock, 16 Wall., 270 [83 U. S., XXI., 498], and R. R. Co. v. Wiswall, 23 Wall., 508 [90 U. S., XXIII., 103],

That the remedy in such a case was by man. damus to compel action, and not by writ of error to review what has been done."

We have, therefore, jurisdiction of this appeal, but we are clearly of the opinion that the Circuit Court did not err in remanding the cause. The questions involved did not arise under the laws of the United States, but under the ordinances of the City as ratified by the Act of the Legislature. The Act of Congress oper

Messrs. Delos Lake and W. C. Burnett, for ated as a release to the City of all the interest appellee.

Mr. Chief Justice Waite delivered the opinion of the court:

This action was commenced by Hoadley, the appellant, a citizen of California, January 5, 1870, in the District Court for the 12th Judicial District of that State, to quiet his title to certain of the pueblo lands of the City of San Francisco, granted to that City by the Act of Congress passed July 1, 1864, 13 Stat. at L., 333, sec. 5, of which, so far as it is material for the determination of this cause, is as follows:

He claimed as one of the beneficiaries under this grant by the operation of the city ordinances referred to. The question to be determined is whether he was so in fact. Section 2 of the Act of March 3, 1875, 18 Stat. at L., 470, is as follows:

“Any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State Court, where the matter in dispute exceeds, exclusive of costs, the sum or value of $500, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority

of the United States in the land. The title
of the United States was vested in the City.
Whether the City took the beneficial interest in
the property as well as the legal title depended
upon the effect to be given to the Act of the
Legislature and the ordinances, and not upon
the Act of Congress. The case is precisely the
same in principle as it would have been if the
City had, previous to the Act of Congress, con-
veyed the land to Hoadley by deed, with cov-
enants of warranty. If in such a case a con-
troversy should arise between Hoadley and the
City as to whether or not the title granted to
the City inured to his benefit under the war-
ranty, the question would not be as to the ef
fect of the grant from the United States, but as
to that of the conveyance from the City. The
case would not arise under the laws of the
United States, but under the deed and its cov-
nants.

The decree of the Circuit Court is affirmed.
Cited-111 U. S., 769; 4 Sawy., 181.

Disclaimer in patent cases-patentable improve- | is of no utility or value. (2) That the patent

ment-infringement.

ees are not the original and first inventors of 1. A disclaimer when recorded, becomes a part the alleged improvement. (3) That the alleged of the original specification, and must be taken into improvement was well known and had been in account in construing the patent, and in ascer- public use long prior to the supposed invention taining the rights of the parties to a suit for infringement. by the patentees. (4) That knowledge of such 2. An applicant for a patent is not entitled to prior public use was possessed by the several one unless the supposed improvement involves act-persons whose names and places of residence ual invention or discovery. 3. Where the respondent, in constructing his ma- are set forth in the answer. (5) That the patchine, omits one of the ingredients of the complain-ented improvement, years before the applicaant's combination, he does not infringe the com- tion for the patent was executed, was fully deplainant's patent. scribed in the respective printed publications mentioned in the answer filed by the respondents.

[No. 123.] Argued Dec. 7, 1876. Decided Dec. 18, 1876.

APPEAL from the Southern District of New

PPEAL from the Circuit Court of the United

York.

The bill in this case was filed in the court below, by the appellees, for an injunction and other relief against the alleged infringement of a certain patent. A decree having been entered in favor of the complainants, the respondents took an appeal to this court.

The case is fully stated by the court.
Messrs. Charles F. Blake and Samuel J.
Glassey, for appellants.

Mr. Frederic H. Betts, for appellees.

Minute and accurate description of the patented machine is given in the drawings, and

the specification divides the invention into four

separate features, as follows: (1) That it consists in the employment or use of deflecting plates-one or two-placed at the sides of a circular saw, for the purpose of enlarging or expanding the saw kerf to prevent the sawed stuff from coming in contact with the sides of the saw and binding the edge of the same near the teeth. Deflecting plates of the kind also allow the saw to be stiffened by a proper plate, so that a thin veneer saw may be employed, which will cause but a small waste of stuff in sawing. (2) That the invention consists in the employment or use of elastic clamps attached to the ordinary adjustable and elastic beds, beInventions, in order that the inventors may tween which the stuff is fed to the saw. Clamps be entitled to patents for the same, must be of the kind have an elasticity independent of the new and useful; and the better opinion is, that beds, and compensate for the varying thickness the improvement must be of such a character of the different pieces of stuff to be sawed, by that it involved invention to make it, as the holding firmly the extreme end of the stuff, and Patent Act confers no right to obtain a patent keeping it in proper position to the saw, howexcept to a person who has invented or dis-ever much the elastic bed may be expanded by covered some new and useful art, machine, manufacture or composition of matter, or some new and useful improvement in one or the other of those described subject-matters.

Mr. Justice Clifford delivered the opinion of the court:

Sufficient appears, to show that a patent in due form was granted to John Meyers and Rob ert G. Eunson, on the 23d of May, 1854, for an alleged invention, described in the specification as relating to certain new and useful improvements in machines for sawing lumber into thin stuff for the backs of mirrors and picture frames, and other purposes for which thin stuff is used. Due application was subsequently made for an extension; and the record shows that the patent was regularly extended for the further term of seven years from the expiration of the first term. Subsequent to the extension of the patent, one of the patentees, to wit: Robert G. Eunson, sold and assigned all his right, title and inter est in the same, and the extension thereof, to Eugene S. Eunson, one of the complainants, who instituted the present suit in the court below. Pending the suit, the other complainant departed this life; and Margaret Meyers, his sole executrix, was duly admitted in his stead to prosecute the suit as co-complainant with the assignee of the other half interest in the extended patent. Infringement is charged, and that the respondents have made large gains and profits by the unlawful use of the patented in vention; and the complainants pray for an ac count and for an injunction.

Process having been issued and service made, the respondents appeared and filed an answer, in which they set up in substance and effect the following defenses: (1) That the invention

a succeeding piece of stuff of greater thickness. (3) That the invention also consists in the employment or use of knives or cutters secured to the adjustable beds, and so arranged as to cut or smooth off the rough and projecting sides of the stuff at the ends, making it of uniform thickness. (4) That it also consists in the combination of an adjustable bed and circular saw, arranged as shown in the specification.

Such a machine necessarily requires a frame, and the patentees state that the frame of the machine described in the specification may be constructed in any proper manner, and that the circular saw is placed on a shaft which runs transversely across the front of the frame.

They employ a circular saw, made of thin steel plate, such as is used for sawing veneers, on one side of which is a circular plate secured by rivets or screws, the plate being less in diameter than the saw, which has the effect to stiffen the plate of the saw, and to enable the operator to use a thinner saw than he would otherwise be able to do.

Two deflecting plates are also employed by the patentees, one on each side of the saw; the one on the same side of the saw with the stiffening plate covers the upper part of that plate, the outer end of which projects further from the saw than the inner end, the deflecting plate on the other side of the saw being of the same description, except that it is rather smaller in diameter, and that it projects from the saw at about an equal distance at both ends. They are arranged one on each side of the saw, and are attached to the frame by means of bolts, rivets, or screws.

There are two of these rubber springs at the top of the clamps, one to each clamp, and it appears that they are placed between the clamps and the set screws, passing transversely through the top pieces of the beds. Hence it follows that the clamps may be made to vibrate laterally; but it also appears that two stops are provided, which pass through the top pieces of the beds, one through each top piece, for the purpose of limiting and regulating the extent of such lateral vibration.

Knives or cutters are also provided, which are placed vertically, one in each bed; but it is unnecessary to enter into those details, as it is not pretended that the respondents have infringed the third claim of the patent.

Motion is given to the feed-rollers by gearing, which is shown in the drawings at the lower part of the rollers.

Means are also provided for adjusting the beds relatively to the saw, so that the boards or other lumber may be sawed into the desired thickness. Either side of the saw may be made the line side in the operation of sawing by the adjustment of the proper roller-bed, so as to prevent expansion

Stuff to be sawed, whatever it may be, is placed between the feed-rollers in the beds and, motion being communicated to the saw and roll ers, the stuff is fed forward towards the saw and is cut by it, the two pieces being prevented from bearing against the sides of the saw by means of the deflecting plates. When the outer end of the material to be sawed has passed the inner feed-roller, the clamps bear against the board and hold it in a proper relative position to the saw, so that if another board to be sawed is placed between the feed-rollers it will advance and press forward the board first placed between the rollers, and if the last board is thicker than the preceding one the only effect is that it acts upon the beds and forces the elastic one farther from the permanent one without affecting the clamps, which, owing to the springs, have an independent elasticity.