actual settlement under any existing law of the United States, be and the same are hereby confirmed, and shall be approved and patented to the States in conformity to the provisions of said Act.

If the paper signed by the Surveyor General of Louisiana, dated May 18, 1852, was on file in the General Land-Office at Washington, on the day that this Act was approved, namely:

March 3, 1857, we have no doubt that the Act completed and made perfect the title of the State of Louisiana to the land now in controversy. If this were so, the title of plaintiff below was superior to the patent issued to defendant in 1872; for the Land Department had no right after that Act to set aside the selection. The approval and patenting of those selections were mere ministerial acts, in regard to which they had no discretion, unless it was found that they were not vacant, or had been actually settled on adversely to the swamp land claim. The Act of 1850 was a present grant, subject to identification of the specific parcels of land coming within the description of it; and the selections confirmed by the Act of 1857 furnished this identification, and made the title perfect.

But, as we have said, there is in the record no conclusive evidence that this selection was on file in the General Land-Office at the passage of the Act. It had been filed with and approved by theSurveyor-General in Louisiana in 1852. It was found in the General Land-Office at Washington when a copy was applied for in 1875. If objection had been taken to this defect of proof on the trial, it would probably have been required of plaintiff to show when this list was filed in the latter office. But sitting here as an appellate court, two removes from that which tried the case originally, we hold: (1) That after verdict or the judgment of the court sitting as a jury, where no such objection was made at the trial we must hold that the court or jury had a right to presume that the Surveyor General did his duty, and forwarded this list from his office to that of the General Land-Office, some time between May, 1852, and March 3, 1857; and (2) That this question of evidence is not of that federal character which authorizes us to review the decision of the Supreme Court of Louisiana upon it.

The judgment of that court is, therefore, affirmed. I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the opinion of the court in the case of C. C. Martin et al., etc., Piffs. in Err., v. James Marks, No. 220, October Term, 1877, as the same remains upon the files and records of said Supreme Court.

In testimony whereof I hereunto subscribe my name and affix the seal of said [L. S.] Supreme Court, at the City of Washing

ton, this 20th day of March, A. D. 1885. JAMES H. MCKENNEY,

Clerk, Supreme Court, U. S.

1. Prima facie, the judgment against a defendant in an action for money is the measure of the jurisdiction of this court in his behalf.

2. It rests upon the plaintiff in error to establish the jurisdiction of this court affirmatively before it can proceed. [No. 826.]

Submitted Dec. 3, 1877. Decided Mar. 25, 1878.

IN

ERROR to the Circuit Court of the United

States for the Middle District of Alabama. On motion to dismiss.

The case is fully stated by the court.

Mr. H. A. Herbert, for defendants in error, cited: Shacker v. Ins. Co., 93 U. S., 241. (XXIII., 862); Tel. Co. v. Rogers, 93 U. S., 565 (XXIII., 977); Merrill v. Petty, 16 Wall., 338 (83 U. S., XXI., 499).

Messrs. Rice, Jones & Wiley, for plaintiffs in error, cited: Stinson v. Dousman, 20 How., 461 (61 U. S., XV., 966); Ryan v. Bindley, 1 Wall., 66 (68 U. S., XVII., 559); Bennett v. Butterworth, 8 How., 124.

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

The writ of error in this case was sued out by the defendants below, upon a judgment rendered May 27, 1875, for $3,928.96. If there were nothing more, it would be clear that we have no jurisdiction. The bonds sued upon, however, were payable in installments, and amounted in the aggregate to more than $5,000, while the installments due when the judgment was rendered were less. The plea upon which the case was tried put in issue only the ownership of the bonds and the right of the plaintiffs to bring the suit, the claim being that one Jones, a citizen of Alabama, was the real owner, and that the plaintiffs held them only as security for a debt which he owed, less in amount than the bonds. The amount of the debt nowhere appears in the pleadings, though it is admitted that the bonds were held as security only.

Conceding all that is claimed in the argument opposing this motion, to wit: that the judgment in this action will be conclusive in another by the present plaintiffs upon the same bonds as to the liability of the defendants upon the bonds to the extent of the debt of Jones, for which they are held, still our jurisdiction cannot be maintained, unless it also appears that this debt exceeds defendant in an action for money is the meas$5,000. Prima facie, the judgment against a ure of our jurisdiction in his behalf. This prima facie case continues until the contrary is shown; and, if jurisdiction is invoked because of the collateral effect a judgment may have in another action, it must appear that the judgment conclusively settles the rights of the parties in a matter actually in dispute, the sum or value of which exceeds the required amount. No issue was raised here as to how much was actually due the plaintiffs from Jones, and the testimony is by no means clear upon that subject. Cer

cludes the parties upon that question; and, as it rests upon the plaintiff in error to establish our

jurisdiction affirmatively before we can proceed, the worit is dismissed.

Cited-106 U. S., 579; 8 Wood, 490.

THE RUBBER COATED HARNESS TRIMMING COMPANY ET AL., Appts.,

V.

WILLIAM M. WELLING.

(See S. C., 7 Otto, 7-12.)

Patent, when void for want of novelty.

1. The fact that metallic rings covered with a composition such as lacquer or varnish, rubber, enamel or glass, had been in use for many years before plaintiff's invention, is clearly proved, and is conceded in the briefs on both sides. In most instances, these coverings were applied and then by machinery. and secured, first by the hand of the operator

States for the District of New Jersey. The case is stated by the court.

Messrs. J. C. Clayton and A. Q. Keasby, for appellants.

Mr. Frederic H. Betts, for appellee.

Mr. Justice Hunt delivered the opinion of the court:

Wm. M. Welling brought his action in the circuit court against the plaintiff in error, alleg. ing an infringement of patent, for an improvement in rings for martingales, and recovered his damages.

Welling's patent bears date of March 17, 1863, and recites that a previous patent to him described a particular mode of making factitious ivory, out of which billiard-balls and rings of various kinds were manufactured, and states that his present invention does not relate to that particular composition, but that "The nature of my said invention consists in the employment of a metallic ring within a ring formed of artificial ivory or similar materials, for giving strength to the same, thereby producing a new article of manufacture."

His method of proceeding is as follows:

In order to make my improved rings, I take a ring of metal, such as shown at a, or said ring may be formed by punching out a washer from a sheet of metal, or in any other suitable way. I take the amount of artificial ivory composition and by dies or by hand cause the said composition to completely envelop the said ring with as much uniformity as possible, as at b; and, to give the exterior finish to the same, press and solidify the mass of composition around the ring by means of dies, and in so doing any plain or more or less ornamental shape may be given to the said ring, or the surface thereof. My ring is thus made of the desired ornamental appearance, while great strength is attained at very little cost."

His claim is in these words:

"What I claim and desire to secure by letters patent is the ring for martingales, etc., manufactured as set forth, with a metal ring enveloped in composition, as and for the purposes speci fied."

In ascertaining the construction to be put upon this patent, the state of the art is a legitimate and necessary subject of consideration.

cores.

Mr. Hedrick says: "It was not new two years before the date of Welling's application to make a martingale ring by covering a metallic ring with a shell of plastic material which could be molded or pressed thereupon and afterwards hardened."

The English patent issued to Moses Poole, dated October 1, 1852, and of which the specification is dated March 30, 1853, was referred to by a witness, but was not given in evidence. We therefore pass it without comment.

The English patent of 1851, to Newton, referred to in the testimony, recites:

"When it is desired that the compound of caoutchouc or gutta-percha shall serve as a cov ering to the iron or other substance, a thin sheet of the compound, sometimes one thirty-second part of an inch in thickness, or less, is pressed with great care upon the iron or other substance, so as to expel all air from between the adjoining surface, and to cause the most perfect union and adhesion; the coated article is bound with strips or ribbons of cloth, or other suitable material, whereby the compound is kept in close contact with the article during the process of hardening. The combined materials thus treated will be found to possess the qualities desired, the iron or other substance giving strength, and the compound giving a hard and durable surface. In this way may be produced many artic les used in and about harness or carriages, such as saddle-trees, buckles, terrets, bits, stirrups, martingale rings, dasher irons, and articles intended to be used as furniture," etc.

"Another plan consists in so treating the compositions while in a plastic state that they will harden into any desired shape. * For this purpose, the compounds of caoutchouc or gutta percha, before described, are taken in the plastic state, and cut or pressed or otherwise formed into the exact shapes which it is desired they shall retain after vulcanization."

In the English patent to Edward Benton, of 1843, the rings, terrets and other parts are cov ered with an enamel or vitreous composition, of which the composition and the manner of applying to the ring is described; and in speak ing of these linings it is said, "The said linings are formed in molds by processes well understood," etc.

Similar language is used in the English patent to Barnwell & Rollauson, dated 1860: "We make toys, etc., by employing molds or dies of any suitable material for which our composition has no affinity, or to which it will not adhere." A die is a piece of metal on which is cut a device which, by pressure, is to be placed upon some softer body. A mold is a receptacle into which a softer material is injected, to take its shape when hardened. Both dies and molds are there spoken of; and it thus appears that not only were there well known and in extensive use, before Welling's patent, iron rings, tubes, pipes, toys and other articles of manufacture, enveloped in and surrounded by glass, enamel, rubber and other like substances, but these coverings had been applied and ornamented by means of molds or dies.

As we read Welling's patent of 1863, it is for a product, and not for a process.

In 1857, he obtained a patent for the manufacture of artificial ivory. He gives the proportions of white shellac, of impalpable white, of ivory dust and camphor, which are to be heated, thoroughly incorporated and brought into heated molds for the manufacture of various articles. His claim in that patent is for forming artificial ivory, by thoroughly mixing the articles specified, or others having equivalent properties, while under the operation of heat, substantially as specified. No. 17999. The patent was for a product resulting from the materials and proportions described, to wit: factitious ivory.

Having the advantages of his manufactured ivory strongly impressed upon his mind, he makes, in 1863, a more specific application of this invention of ivory to the production of mar tingale-rings.

He says in his description, "I have invented and applied to use a certain new and useful improvement in rings for martingales." He does not here claim to have invented a substance or material or composition; he claims no benefit of any process to reach his result, but claims a ring only. He claims a product; and all else is a description of the mode of obtaining that product, which would enable a skilled mechanic to make the article, and which the law requires him to set forth in his specification. Of this character is the statement that the composition envelops the ring by means of dies or the hand, and that an exterior finish and ornament is produced by solidifying by the means of dies.

Again, he says: "The nature of my invention consists in the employment of a metallic ring within a ring formed of artificial ivory, or similar materials for giving strength to the same, thereby producing a new article of manufacture," etc.

A metallic ring within a ring of factitious ivory is the article to be produced, and that is the nature of the invention.

merely illustrative of, or supplemental to the main idea.

What, then, is the product thus secured by his patent?

The plaintiff, Welling, gives this construction to his patent: "I claim (under my patent) all compositions for covering martingale rings or rings for harness." "Do you claim that all metallic harness rings covered with composition of any kind are subject to your patent? I do most certainly."

If this is the true construction of the patent, it cannot be sustained, under the evidence show ing the use of covering of harness rings by vari ous compositions, and patents providing for such use, prior to Welling's patent.

Another construction claims that the patent covers a ring having an iron core covered with a plastic composition, if and provided the article is finished by dies. This is the view of the appellee's expert witness, Mr. Elliot, who states expressly that, if made without the use of dies, he does not consider the article within the patent.

Nearly allied to this idea, if not identical with it, is that of the Judge who tried this case at the circuit. He says of Welling's patent: "His instrumentalities were all old: an iron ring, a plastic composition, and a die; but, so far as appears in the case, they were new in combination. If his patent had been simply for a metallic ring, covered with any compound capable of being molded, or with factitious ivory or similar materials, it would have been void for want of novelty. If it had been for the use of the die in pressing and solidifying plastic substances generally, it would have been probably anticipated in this regard by the English letters patent to Barnwell & Rollauson of 1860, in which such use of dies is plainly indicated. But the invention is for a combination; and the combination is a metal ring surrounded with some plastic composition, like artificial ivory, of such a nature that it is capable of being compressed, solidified and polished by the action of the dies, and which is in fact subjected to such action, whereby a martingale ring is produced with an exterior surface more durable and more highly polished than had before been obtained by dif ferent processes of manufacture, and at greater cost."

We think the evidence shows that this combination, if it is entitled to that rank in mechanics, as well as the ring and the compound, is old. There is, in truth, no combined action. The iron core is used as a basis; the covering is of a pliable composition, and it is pressed or stamped by dies or molds. All this is done separately, by no combined action. This is just as much, and nothing more, than is described by the witnesses, and by the patents prior to Welling's. It is simply the application and the action of old and well known modes and materials in an accustomed manner. It is a case of aggregation, not of combination.

Can the appellee recover in this action upon patent for this product, to wit: a metal ring enveloped in a composition of artificial ivory or

1. The Merchants' Bank of South Carolina, at Cheraw, suspended specie payments at the same time with the other banks in the State; was so suspended in November, 1860, and never after resumed specie payments.

2. The said bank ceased to pay out its bills as soon as the Confederate currency began to circulate. The last time at which any of its bills were paid out was on the 6th of August, 1861. 3. În his regular business as banker and broker, the complainant, Harvey Terry, bought the notes and bills of the said Merchants' Bank of South Carolina, as proved by him in this case, amounting to over $20,000, at prices ranging from twenty cents to five cents on the dollar of their face value. Most of these purchases were made in 1868 and 1869, at about fifteen cents on the dollar.

4. That the Circuit Court of the United States for the District of South Carolina was held in Charleston on the 12th day of June, A. D. 1866. D. T. CORBIN,

for D. H. CHAMBERLAIN, Solicitor for Piff."

The order, however, was binding on the master, and the date fixed by it controlled his action and all subsequent proceedings in the case. The master reported that there were sixty-four shareholders liable for various sums, taking the date of the failure mentioned in the order, and giving their names; that Harvey Terry, the plaintiff, was a creditor of the bank, on account of its circulating notes held by him, to the amount of $28,040.36, and Simonton and Barker to the amount of $26,760, and four other persons, whose claims in the aggregate were about $500.

defendants have a decree rendered against them personally, by reason of an obligation which the statute imposes upon him individually. The court clearly had no jurisdiction of the case.

But suppose it had jurisdiction of the case as to the defendants who were served with process or who appeared. There were only twenty out of the sixty-four individuals against whom the decree was rendered who were served with process, or who appeared in any stage of the proceeding. As to the other forty-four persons against whom this decree is rendered, they have had no day in court, and were served with no process.

The master seems to have called before him a cashier or clerk of the bank, and obtained from him a list of the stockholders, whose names and the number of shares held by each he reported to the court; and on this the court rendered a decree against them. It is impossible to sustain such a decree, if it was shown they were all citizens of the State of South Carolina. The liability of each one of these stockholders, if liable at all, is his several liability. It is a liability depending upon the statutory contract. It depends on the fact of the failure of the bank, and his holding shares in the bank when it failed, or within twelve months before its failure. His liability depends in every instance on facts peculiar to his own case; for, if the failure of the bank and the date of the failure may be common to all parties charged, it still remains that the ownership of shares, the number of shares and the time when they were owned, are facts to be established against each man charged, and with which no other defendant has any connection. And in regard to which, if a prima facie case is made, each man may have a distinct defense depending on different testimony. These remarks are not made with a view of showing that the stockholders must each be sued in a different action, but to show what is one of the most elementary principles of the law, that no judgment can be rendered against a man who is not brought within the jurisdiction of the court, because somebody else is on a similar liability.

This whole proceeding is a very extraordinary one. It is a case in which, if the Circuit Court of the United States had any jurisdiction at all, it must have been on the ground of the citizenship of the parties. But the only allega tion or evidence in the whole record on that subject is that plaintiff, Terry, is a citizen of the State of Virginia. What is the citizenship of five or six other parties, who by the decree are called complainants and bill holders, and who are awarded execution for their debts against sixty-four defendants, we are not informed. Nor is there a word said about the citizenship of any of the defendants. Upon what principle the court could entertain jurisdiction and proceed to decree in the case, we are utterly at a loss to understand. If the bank had been a party, its citizenship might possibly have been

The first relief granted by it is, that "It is ordered that the clerk of this court do enter up judgment for the complainants to the amounts of their respective bills proven in this cause, as hereinafter stated."

Was any such judgment ever entered up? If so, it is not found in the record. Was it intended that any judgment except this decree should be entered? No necessity for it is to be seen. Who are the complainants that are to have this judg ment? There is but one man named in the bill. or named anywhere else, as complainant.

But treating this as surplusage, the real relief granted is that in the close of the decree, in which it is ordered that the bill holders respectively have execution against the stockholders for the amounts found due them. Six executions, to be issued against the same parties on the same liability, in a chancery decree. How are they to be enforced?