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ning of metal is an old process, and no invention is shown in applying it to a spring for a bed-bottom. It is a common right, possessed by every one, to galvanize, paint, or japan any metal that he may use." The specification was returned to the applicant. Eagleton died in February, 1870. On December 29, 1870, the application for the patent was renewed on the same specification, it being returned to the patent-office, and received there January 4, 1871, and a reconsideration requested, the letter being signed "J. J. Eagleton, per Munn & Co., Attorneys." Nothing further seems to have been done until, on October 19, 1871, the specification filed was amended by erasing the part above put in brackets, and substituting what is in brackets in the specification of the patent as issued, and by substituting the following as the claim: "Having thus described my invention, I claim as new, and desire to secure by letters patent, as an improved article of manufacture, a japanned steel furniture spring, made substantially as set forth." On the twentieth of October, 1871, the application was rejected, the examiner saying: "The above-named application has been examined on the amended specification, but no reason can be seen for changing the action of the office in rejecting the same, July 10, 1868. The applicant is referred to the commissioner's decision in the case of Osborn and Drayton, November 5, 1870. The application is again rejected." On the thirty-first of October, 1871, Munn & Co. wrote thus to the office: "In the matter of the application of J. J. Eagleton, for letters patent for furniture springs, filed July 6, 1868, we respectfully request a specific reference on which the rejection of the case may be based, as provided in rule 34 of office rules of practice." On November 3, 1871, this answer was returned: "The applicant's letter of the thirty-first of October has been duly considered. His application has been twice rejected for want of patentable invention, and not for want of novelty. Sufficient reasons, it was deemed, were given for its rejection, and that rule 34 of office rules of practice is not applicable in the case. The process of japanning is so old that it is not probable that any person ever before applied for a patent for it. Furniture springs have been painted, galvanized, varnished, and, probably, japanned, as they are found coated with material that would require a chemical analysis to determine of what it was composed. The former action is affirmed." On the seventh of November, 1871, by a letter to the office signed "J. J. Eagleton, per Munn & Co., Attorneys," the specification was amended by erasing the claim last presented and inserting in lieu thereof the two claims which are in the patent as issued. The application was again examined, and on November 17, 1871, the patent was ordered to issue. The specification annexed to the patent purports to be signed "J. J. Eagleton," and also to be signed by two witnesses who signed the specification originally filed.

The bill avers that Eagleton, having invented the improvement, died intestate, and Sarah N. Eagleton was appointed his administratrix, and the invention was assigned to the plaintiff, and afterwards the administratrix applied for a patent, and complied with all the nesessary conditions and requirements of the statute, and the patent was issued. The answer states that, as to whether or not the patent was applied for or issued in the manner and with the formalities set forth in the bill, the defendants leave the plaintiff to proof thereof. It denies that Eagleton was the first inventor of what is patented by the patent, and avers that, before the time of any invention thereof by Eagleton, it was known to and used by various persons named, at various places mentioned; that the description in the patent is obscure, and not sufficient to enable one acquainted with the art to use the alleged process therein attempted to be described, and for that reason the patent is void; that the description and specification of the patent are not in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it appertains to temper steel wire, but, if the description and specification be followed out, there will not be produced a tempered steel furniture spring; that, if the

desired effect be to temper or strengthen a steel furniture spring, then, for the purpose of deceiving the public, the description and specification filed by Eagleton were made to contain less than the whole truth relative to his invention or discovery, and the patent is, therefore, null and void; that any representation contained in the patent or the specification, that treating a spring as described therein tempers it, is false; and that treating a steel furniture spring as described in the patent does not temper it. Infringement, also, is denied.

The circuit court dismissed the bill, assigning its reasons in an opinion which is found in 18 Blatchf. C. C. 218; S. C. 2 Fed. Rep. 774. The court decided the following points: (1) The patent is for steel furniture springs protected by japan, and tempered by the heat used in baking on the japan. (2) Such springs, so protected and tempered, were known and used by various persons named in the answer, before the date of the patent. (3) The specification which accompanied the original application did not set forth the discovery that moderate heat, such as may be applied in japanning, will impart temper to the springs, but set forth merely the protection of the springs by japan. (4) Not only does the evidence fail to show that Eagleton in fact made and used, prior to such other persons, the invention covered by the patent as issued, but it shows that he did not, and that, probably, it never came to his knowledge while he lived. (5) Japanning, by itself,, was not patentable, and Eagleton, in the specification which he signed and swore to, did not describe any mode of japanning which would temper or strengthen the steel, and did not even mention that the japan was to be applied with heat, and it now appears that the temper and strength are produced by the heat altogether, and not at all by the japan. (6) The only invention to which the application and oath of Eagleton were referable was that of merely japanning steel furniture springs; the authority given to his attorneys was only to amend that application and ended it at his death; the amendments made were not mere amplifications of what had been in the application before; the patent was granted upon them without any new oath by the administratrix; and this defense is not required by statute to be specifically set forth in the answer, and can be availed of under the issues raised by the pleadings, as showing that the plaintiff has no valid patent.

We are satisfied with the conclusions arrived at by the circuit court, and with the reasons assigned by it therefor. The copy of the file wrapper and its contents in the matter of the patent from the patent-office, giving the history of the application, was put in evidence by the plaintiff. It shows beyond doubt that there was no suggestion in the specification signed and sworn to by Eagleton, of the invention described in the amendment filed October 19, 1871. Prior to that time the process practiced by the defendants, which is the process described in letters patent No. 116,266, granted to Alanson Cary, June 27, 1871, for an “improvement in modes of tempering springs," was invented and put in use; and there is no sufficient evidence that Eagleton had any knowledge, prior to the invention by Cary of the Cary process, of either that process or of the process described in the patent in suit. The plaintiff's patent shows on its face that it was granted on the petition of Eagleton, and the allegation of the bill that the patent was granted on the application of his administratrix is not established. fication as to the invention described, the patent, to be valid, should have been In view of the entire change in the specigranted on an application made and sworn to by the administratrix. July 8, 1870, c. 230, § 34, (16 St. 202.) The specification, as issued, bears the signature of Eagleton and not of the administratrix, and it is sufficiently Act of shown that the patent was granted on the application and oath of Eagleton, and for an invention which he never made. cember 29, 1870, was made in the name of Eagleton, though he was dead. The renewed application of DeThe letter of Munn & Co. of October 31, 1871, treats the matter under con

sideration as the application of Eagleton, though the amendment of October 19, 1871, had been made. The amendment of November 7, 1871, was not only made in the name of Eagleton, but the letter of that date in his name to the office, states that what is amended is in the specification in his application. Although at some time before the issuing of the patent evidence was produced to the office of the appointment of the administratrix, and of her assignment to the Eagleton Company, yet it is very clearly shown that there was no application or oath by the administratrix.

The decree of the circuit court is affirmed.

(111 U. S. 523)

BARRETT v. FAILING and Wife.1

1. DOWER-DIVORCE-LEX REI SITE.

(May 5, 1884.)

A divorce from the bond of matrimony bars the wife's right of dower, unless preserved by the lex rei sitæ.

2. SAME OREGON CODE CIVIL PROC. 2 495.

Under section 495 of the Oregon Code of Civil Procedure, as amended by the statute of December 20, 1865, providing that, whenever a marriage shall be declared void or dissolved, the party at whose prayer the decree shall be made shall be entitled to an undivided third part in fee of the real property owned by the other party at the time of the decree, in addition to a decree for maintenance under section 497, and that it shall be the duty of the court to enter a decree accordingly, a wife obtaining a decree of divorce in a court of another state, having jurisdiction of the cause and of the parties, acquires no title in the husband's land in Oregon.

Appeal from the Circuit Court of the United States for the District of Oregon.

W. W. Chapman, for appellant.

J. N. Dolph, for appellees.

GRAY, J. This is a bill in equity filed in the circuit court of the United States for the district of Oregon by Mary E. Barrett, a citizen and resident of the state of California, against Charles D. Failing and Xarifa J. Failing, his wife, citizens and residents of the state of Oregon. The bill alleged that on September 25, 1866, the plaintiff was, and for more than two years theretofore had been, the wife of Charles Barrett, and was a citizen and resident of the state of California; that on that day she commenced a suit for divorce against him for his misconduct in a district court of the state of California for the Fifteenth judicial district, that court having jurisdiction thereof, and being authorized to grant divorces according to and by virtue of the laws of that state; that he was duly served with process, and appeared and made defense; and that on April 18, 1870, the plaintiff being still a citizen of that state, that court rendered a decree in her favor, dissolving the bond of matrimony between him and her. The bill further alleged that, at the time of the commencement of that suit, Charles Barrett was not the owner of any real estate in the state of California, but was the owner in fee-simple of certain land (particularly described) in Portland, in the state of Oregon; that on February 4, 1868, he fraudulently conveyed this land to his daughter, the female defendant, without consideration, and with intent to defraud the plaintiff of her just rights in it, and for the purpose of preventing her from asserting her claim thereto or interest therein; that, at the time of the commencement of the suit for divorce, the plaintiff did not know that he was the owner of this

1S. C. 3 Fed. Rep. 471.

land; that he died in Oregon in July, 1870; and that by the laws of the state of Oregon, and under and by virtue of the decree of divorce, the plaintiff became and was entitled to one-third of this land. The bill prayed for a decree that the plaintiff was the owner in fee-simple of one-third of this land, and that the defendants held it in trust for her, and for a conveyance, a partition, an account of rents and profits, and further relief. The defendants filed a general demurrer to the bill, which was sustained by the circuit court, and the bill dismissed. See 6 Sawy. 473; S. C. 3 Fed. Rep. 471. The plaintiff appealed to this court.

It is not doubted that the decree of divorce from the bond of matrimony, obtained by the plaintiff in California, in a court having jurisdiction to grant it, and after the husband had appeared and made defense, bound both parties and determined their status. The question considered by the court below and argued in this court is whether, by virtue of that decree, and under the law of Oregon, the wife is entitled to one-third of the husband's land in Oregon. Unless otherwise provided by local law, a decree of divorce by a court having jurisdiction of the cause and of the parties, dissolving the bond of matrimony, puts an end to all obligations of either party to the other, and to any right which either has acquired by the marriage in the other's property, except so far as the court granting the divorce, in the exercise of an authority vested in it by the legislature, orders property to be transferred, or alimony to be paid by one party to the other. In estimating and awarding the amount of alimony or property to be so paid or transferred, the court of divorce takes into consideration all the circumstances of the case, including the property and means of support of either party; and the order operates in personam, by compelling the defendant to pay the alimony or to convey the property accordingly, and does not of itself transfer any title in real estate, unless allowed that effect by the law of the place in which the real estate is situated.

Accordingly, it has been generally held that a valid divorce from the bond of matrimony, for the fault of either party, cuts off the wife's right of dower, and the husband's tenancy by the curtesy, unless expressly or impliedly preserved by statute. Barber v. Root, 10 Mass. 260; Hood v. Hood, 110 Mass. 463; Rice v. Lumley, 10 Ohio St. 596; Lamkin v. Knapp, 20 Ohio St. 454; Gould v. Crow, 57 Mo. 200; 4 Kent, Comm. 54; 2 Bish. Mar. & Div. (6th Ed.) §§ 706, 712, and cases cited. In each of the Massachusetts cases just referred to, the divorce was obtained in another state. The ground of the decision of the court of appeals of New York in Wait v. Wait, 4 N. Y. 95, by which a wife was held not to be deprived of her right of dower in her husband's real estate by a divorce from the bond of matrimony for his fault, was that the legislature of New York, by expressly enacting that "in case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed," had manifested an intention that she should retain her right of dower in case of a divorce for the misconduct of the husband. See, also, Reynolds v. Reynolds, 24 Wend. 193. The decisions of the supreme court of Pennsylvania in Colvin v. Reed, 55 Pa. St. 375, and in Reel v. Elder, 62 Pa. St. 308, holding that a wife was not barred of her dower in land in Pennsylvania by a divorce obtained by her husband in another state, proceeded upon the ground that, in the view of that court, the court which granted the divorce had no jurisdiction over the wife. And see Cheely v. Clayton, 110 U. S. 701; S. C. ante, 328.

Whether a statute of one state securing or denying the right of dower in case of divorce extends to a divorce in a court of another state, having jurisdiction of the cause and of the parties, depends very much upon the terms of the statute, and upon its interpretation by the courts of the state by the legislature of which it is passed, and in which the land is situated. In Mansfield v. McIntyre, 10 Ohio, 27, it was held that a statute of Ohio, which pro

vided that in case of divorce for the fault of the wife she should be barred of her dower, was inapplicable to a divorce obtained by the husband in another state; and the wife was allowed to recover dower upon grounds hardly to be reconciled with the later cases in Ohio and elsewhere, as shown by the authorities before referred to. In Harding v. Alden, 9 Greenl. 140, a wife who had obtained a divorce in another state recovered dower in Maine under a statute which, upon divorce for adultery of the husband, directed "her dower to be assigned to her in the lands of her husband in the same manner as if such husband was actually dead;" but the point was not argued, and in the case stated by the parties it was conceded that the demandant was entitled to judgment if she had been legally divorced. The statute of Missouri, which was said in Gould v. Crow, 57 Mo. 205, to extend to divorces obtained in another state, was expressed in very general terms: "If any woman be divorced from her husband for the fault or misconduct of such husband, she shall not thereby lose her dower; but if the husband be divorced from the wife, for her fault or misconduct, she shall not be endowed."

The Oregon Code of Civil Procedure of 1862 contained the following section: "Section 495. Whenever a marriage shall be declared void or dissolved, the real property of the husband or wife shall be discharged from any claim of the other to any estate therein, or right to the possession or profits thereof, except as in this section specially provided. If the marriage is declared dissolved on account of the adultery, or conviction of a felony, of either party, the adverse party shall be entitled as tenant in dower or by the curtesy, as the case may be, in the real property of the other, the same as if the party convicted of felony or committing the adultery were dead." But by the statute of Oregon of December 20, 1865, § 11, that section was repealed, and the following enacted in place thereof: "Section 495. Whenever a marriage shall be declared void or dissolved, the party at whose prayer such decree shall be made, shall in all cases be entitled to the one undivided one-third part in his or her individual right, in fee, of the whole of the real estate owned by the other at the time of such decree, in addition to the further decree for maintenance provided for in section 497 of this act; and it shall be the duty of the court in all such cases to enter a decree in accordance with this provision." By section 497, thus referred to, the court, upon declaring a marriage void or dissolved, has power to further decree "for the recovery of the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other;" and “for the delivery to the wife, when she is not the party in fault, of her personal property in the possession or control of the husband at the time of giving the decree;" as well as for the future care and custody, nurture, and education of the minor children of the marriage, and for the appointment of trustees to collect, receive, expend, manage, or invest any sum of money decreed for the maintenance of the wife, or for the nurture and education of minor children committed to her care and custody.

The changes in the provision of section 495 are significant. The section, in its amended form, substitutes for the former provision that the innocent party, in the case of a divorce for adultery, or for conviction of felony, should be entitled as tenant in dower, or by the curtesy, in the real property of the guilty party as if the latter were dead, a provision that the party at whose prayer the decree is made shall in all cases be entitled to an estate in fee in one-third of the real property owned by the other party at the time of the decree; it declares that this shall be "in addition to the further decree for maintenance provided for in section 497;" and it further provides that "it shall be the duty of the court in all such cases to enter a decree in accordance with this provision." Considering that this enactment is contained in a Code of Civil Procedure, and not in a statute regulating and defining titles in real estate; that the right conferred is a new title in fee, acquired only by virtue

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