Opinion of the Court.

tions, but beyond this nothing passed until all was done that was necessary to entitle the occupant to a grant of the land." In Vance v. Burbank, 101 U. S. 514, 521, the doctrine of the previous case was reaffirmed, and the court added: "The statutory grant was to the settler, but if he was married the donation, when perfected, inured to the benefit of himself and his wife in equal parts. The wife could not be a settler. She got nothing except through her husband."

When, therefore, the act was passed divorcing the husband and wife, he had no vested interest in the land, and she could have no interest greater than his. Nothing had then been acquired by his residence and cultivation which gave him anything more than a mere possessory right; a right to remain on the land so as to enable him to comply with the conditions upon which the title was to pass to him. After the divorce she had no such relation to him as to confer upon her any interest in the title subsequently acquired by him. A divorce ends all rights not previously vested. Interests which might vest in time, upon a continuance of the marriage relation, were gone. A wife divorced has no right of dower in his property; a husband divorced has no right by the curtesy in her lands, unless the statute authorizing the divorce specially confers such right.

It follows that the wife was not entitled to the east half of the donation claim. To entitle her to that half she must have continued his wife during his residence and cultivation of the land. The judgment of the Supreme Court of the Territory must therefore be affirmed; and it is so ordered.

MR. JUSTICE MATTHEWS and MR. JUSTICE GRAY dissented..

MR. JUSTICE BRADLEY was not present at the argument and took no part in the decision.

Statement of the Case.

HOSKIN v. FISHER.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.

No. 169. Argued February 7, 1888.- Decided March 19, 1888,

Claims 2 and 3 of reissued letters patent No. 8876, granted to Frank H. Fisher September 2, 1879, on an application filed March 29, 1879, for an "improvement in hydraulic mining apparatus," the original patent No. 110,222, having been granted to Fisher December 20, 1870, namely, "2. A ball-and-socket joint for connecting the discharge pipe of a hydraulic mining apparatus with the end of a swivel section, B, substantially as above described. 3. The discharge pipe, E, having a semi-cylindrical or ball-shaped enlargement at its base, in combination with a corresponding cup-shaped socket, D, on the end of the horizontally swivelling section, B, substantially as, and for the purpose described," are invalid. A copy of the original patent being found in the record under a proper certificate from the clerk of the court below, and there being a stipulation under which it might have been introduced in evidence from the proceedings in another case, it is to be considered, although there is no separate memorandum of its introduction in evidence.

There was a first reissue of the patent, granted as No. 5193, December 17, 1872, but no copy of it being found in the record, it cannot be presumed that claims 2 and 3 of the second reissue were found in the first reissue. The plaintiffs having stated in their bill that the first reissue or a copy of it was ready in court to be produced, it was for them to put it in evidence, if they desired to excuse the delay of more than eight years and three months in applying for the second reissue by showing that the first reissue, granted a little less than two years after the date of the original patent, contained claims 2 and 3 of the second reissue.

The question of such delay is to be considered as if there never had been any first reissue.

Claims 2 and 3 of the second reissue being claims to sub-combinations less than the whole combination covered by the single claim of the original patent, and the descriptive parts and drawings of the two specifications being alike, and it not being indicated in the original that the invention consisted in anything less than a combination of all the elements embraced in such single claim, and the delay not being explained, such claims were unlawful expansions of the original patent.

BILL IN EQUITY. Decree for complainants. Respondents appealed. The case is stated in the opinion of the court.

Opinion of the Court.

Mr. M. A. Wheaton for appellants.

Mr. John H. Miller for appellees. Mr. J. P. Langhorne

was with him on the brief.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a suit in equity, brought in the Circuit Court of the United States for the District of California, by Frank H. Fisher and Joshua Hendy against Richard Hoskin and others, for the infringement of reissued letters patent No. 8876, granted to Frank H. Fisher, September 2, 1879, on an application filed March 29, 1879, for an "improvement in hydraulic mining apparatus," the original patent, No. 110,222, having been granted to Fisher, December 20, 1870. This reissue was a second reissue, and it appears that there was a first reissue, No. 5193, dated December 17, 1872, granted on the surrender of the original patent, and that the second reissue was granted on the surrender of the first reissue.

The bill of complaint sets forth the fact of the surrender of the original patent and the granting of the first reissue, and that the first reissued patent is "ready in court to be produced" by the plaintiffs, "or a duly authenticated copy thereof." The bill also sets forth that the second reissue "was issued for the same invention as that described in the original letters patent."

There was only one claim in the original patent, as follows: "The swivel-jointed nozzle and pipes A B D E, combined, as described, with the lever F, working through slotted post f strap i, lever c, and pawl and racket j k, for the purpose specified."

The second reissue contains three claims, as follows: 1. The swivel-jointed sections A B and ball-and-socket-jointed section D E, combined, as described, with the lever F, working through slotted posts f, strap i, lever C, and pawl and ratchet j K, for the purpose set forth. 2. A ball-and-socket joint for connecting the discharge-pipe of a hydraulic mining apparatus with the end of a swivel section, B, substantially

Opinion of the Court.

as above described. 3. The discharge-pipe E, having a semicylindrical or ball-shaped enlargement at its base, in combination with a corresponding cup-shaped socket, D, on the end of the horizontally-swivelling section B, substantially as and for the purpose described."

The claim of the original patent and the first claim of the second reissue are substantially alike. It is not alleged that the defendants have infringed the first claim of the second reissue, or that their apparatus would have infringed the claim of the original patent. The contention is that they have infringed claims 2 and 3 of the second reissue.

The answer sets up that the second reissue contains new matter, which was not contained in the original patent, and which describes and claims that of which Fisher "was not the inventor;" that Fisher did not discover or invent or make any hydraulic machine which machine or combination included either a ball-and-socket joint, or ball-and-socket-jointed sections, or a discharge-pipe having a ball-shaped enlargement at its base; that his original patent did not contain any description of either of those devices, and did not claim them in any combination or otherwise; that all that is said in the second reissue about a ball-and-socket-jointed section, and ball-and-socket joints, and a discharge-pipe with a ball-shaped enlargement at its base, is new matter, which was not contained in the original patent, and was inserted in the second reissue by Fisher fraudulently and for the sake of deceiving and misleading the public, he well knowing that no part of it was his invention, and also knowing that it was not contained in the original patent; and that, by reason of such fraudulent insertion of such new matter, the second reissue is void.

Issue was joined and proofs were taken on both sides, and, on the 17th of March, 1882, the case having been heard by the Circuit Judge, an interlocutory decree was entered in favor of the plaintiffs, adjudging the second reissue to be valid, and that the defendants had infringed upon the 2d and 3d claims of it, and awarding a decree to the plaintiffs for profits and damages, and ordering a reference to a master to ascertain them, and a perpetual injunction in regard to the

Opinion of the Court.

second and third claims. Afterward, a rehearing was ordered by the Circuit Judge, to be had upon the same testimony. The rehearing was had before the Circuit Justice and the Circuit Judge, and, on the 4th of September, 1882, an interlocutory decree was entered in the same terms as the first interlocutory decree. On the report of the master, a final decree was entered, March 7, 1884, awarding to the plaintiffs a sum of money as profits derived by the defendants from the infringement.

It is to be gathered from the record that Fisher had at some time brought a suit against one or both of the present defendants named Craig, for the infringement of the first reissue, and at the commencement of the taking of evidence on the part of the plaintiffs in the present suit, the following stipulation is found entered on the record: "It is stipulated and agreed by and between the counsel for the respective parties herein, that the evidence taken and on file in this court in the case of Fisher v. Craig, number 1144, shall be considered in evidence in this case, reserving, however, to each party the right to introduce such additional evidence as they may desire. It is further agreed, that, in case any exhibits introduced in evidence in said case of Fisher v. Craig shall be missing from the files, the same may be supplied, each party supplying his own exhibits." It does not appear by the record, to what extent the evidence taken and on file in the same court in the case of Fisher v. Craig, thus referred to, was used on the hearing of the present case. There is found in the record a paper marked "Exhibit No. 5," being a certified copy from the Patent Office, certified March 8, 1873, of the original patent granted to Fisher, with its specification and drawings. There is no separate memorandum in the record of the introduction of this original patent in evidence; but, as it is found in the record, under a certificate of the clerk of the Circuit Court that it is a part of the record and of the proceedings in the cause, we must accept it as such, and, if necessary, assume it to have been a part of the evidence taken and on file in the case of Fisher v. Craig, and covered by the stipulation above referred to. That stipulation was to the effect that the evi