Opinion of the Court.

indispensable prerequisite to a supersedeas, and that it is not within the power of a justice or judge of the appellate court to grant a stay on the judgment or decree, if this has not been done."

In referring to this case at the same term, in Sage v. Central Railroad Company, id, 416, it was spoken of as holding that, unless the writ of error was sued out and served, or the appeal taken within the sixty days, no supersedeas could be allowed. It thus appears that the words "perfected" and "taken" were used interchangeably, and were evidently intended to mean the same thing as "allowed." The rule established by these cases, when accurately stated, is therefore no more than that to give a justice or judge of the appellate court authority to grant a supersedeas after the expiration of the sixty days, a writ of error must have been issued and served, or an appeal allowed within that time.

In Edmonson v. Bloomshire, 7 Wall. 306, it was decided that a prayer for an appeal made in open court, and an order allowing it, constituted a valid appeal. Under such circumstances the allowance becomes the judicial act of the court in session, and the bond is not essential to the taking of the appeal, though it may be to its prosecution. As was said in the case last cited:

"It could have been given here, and cases have been brought here where no bond was approved by the court below, and the court has permitted the appellant to give bond in this court."

Anson Bangs & Co. v. Blue Ridge Railroad, 23 How. 1; Brobst v. Brobst, 2 Wall. 96; Seymour y. Free, 5 Wall. 822, are cases of that character. And in The Dos Hermanos, 10 Wheat. 306, where an appeal was prayed within the five years' limitation, and was actually allowed by the court within that period although the bond was not given until afterwards, Chief Justice Marshall said:

"It is true the security required by law was not given until after the lapse of the five years; and under such circumstances the court might have disallowed the appeal and refused the

Syllabus.

security. But as the court accepted it, it must be considered as a sufficient compliance with the order of the court, and that it had relation back to the time of the allowance of the appeal."

We decided in Railroad v. Blair, 100 U. S. 661, that if an appeal was allowed by the court during the term at which the decree was entered, and the bond was not executed until after the term, a citation was necessary; but that related only to procedure under the appeal, and is not in conflict with the former decisions as to the effect of an allowance of an appeal by the judicial act of the court in session.

In view of these rulings we hold that if a court in session and acting judicially allows an appeal which is entered of record without taking a bond within sixty days after rendering a decree, a justice or judge of the appellate court may, in his discretion, grant a supersedeas after the expiration of that time, under the provisions of § 1007 of the Revised Statutes. Nothing here said is to be construed as affecting appeals other than such as are allowed by the court acting judicially and in term time.

The motion is denied.

LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY v. NATIONAL CAR-BRAKE SHOE COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

Argued January 9th, 10th, 1884.- Decided January 28th, 1884.

Patent.

In this case it was held, that, on the record herein, claim 2 of letters patent No. 40,156, granted to James Bing, October 6th, 1863, for an "improved shoe for car-brakes," namely, "The combination of shoe A, sole B, clevis D and bolt G, the whole being constructed and arranged substanti. lly as specified," does not embody any lateral rocking motion in the shoe, as an element of the combination.

Opinion of the Court.

On such a construction, there was, on the record herein, patentable novelty in said claim ; and a structure having the same four parts in combination, with merely formal and not substantial mechanical differences, infringes said claim.

Mr. George Payson for appellant.

Mr. Thomas A. Banning (Mr. Ephraim Banning was with him), for appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. This is a suit in equity, brought by the National Car-Brake Shoe Company, a corporation, against the Lake Shore and Michigan Southern Railway Company, in the Circuit Court of the United States for the Northern District of Illinois, for the infringement of letters patent No. 40,156, granted to James Bing as inventor, October 6th, 1863, for 17 years, for an "improved shoe for car-brakes." The bill was filed June 7th, 1880, less than 4 months before the expiration of the patent. The answer, which was filed October 4th, 1880, 2 days before the patent expired, denies infringement and alleges that the thing patented had been in public use or on sale, with the consent and allowance of Bing, for more than 2 years prior to his application for the patent, and that the invention had been abandoned by him to the public. There is no defence of want of novelty or patentability set up in the answer. The replication was filed on the same day with the answer. No proofs were taken, but 5 days after the filing of the replication, and 3 days after the patent expired, the parties entered into the following written stipulation :

"It is hereby stipulated by and between the parties to the above entitled suit, for the purposes of said suit and no other, as follows, to wit: 1. That the patent sued on, No. 40,156, issued to James Bing, October 6th, 1863, may be considered as formally offered in evidence, and that complainant is the exclusive owner 2. That the small brass model offered by complainant, and marked Complainant's Exhibit Bing's Brake-Shoe,' is a correct representation of the invention described in said patent, except that defendant claims that said model has not enough rock

Opinion of the Court.

ing motion. 3. That the small wooden model offered by defendant, and marked Defendant's Exhibit A, is also a correct representation of the said invention, except that complainant claims that said model has too much rocking motion. 4. That defendant has used two different kinds of brake-shoes, both of which are claimed by complainant to be infringements of the second claim of said patent, but as to both of which infringement is denied by defendant. 5. That the first of said brake-shoes is constructed in all respects like that described in said patent, except that the two parts, viz., the shoe and the sole, are fitted on each other so snugly as to have no rocking motion. 6. That the second of said shoes is correctly represented by the small wooden model marked Defendant's Exhibit B, and that it also has no rocking motion. 7. That brake-shoes having a detachable sole attached to the shoe by bolts passing through the shoe and sole at right angles to the face of the sole, one at the top and one at the bottom, and secured by nuts screwed on to the inner ends of said bolts, so that the sole could be taken off upon the removal of said bolts, had been known and used in the United States for some years prior to the said invention of said Bing, and that the small wooden model marked 'Defendant's Exhibit C' is a correct representation of said brake-shoes. 8. That said shoe last mentioned was suspended from the truck by a hanger or clevis attached to a bolt passing through a hole at the top of said shoe, as shown in said model. 9. That neither of said brake-shoes used by defendant has the lateral rocking motion described in said patent, or infringes the first claim of said patent. 10. That, if the court be of the opinion that said lateral rocking motion forms no part of the second claim of said patent, then the first of said defendant's brake-shoes above mentioned is admitted to be an infringement of said claim, and the decision as to that shoe shall be in favor of complainant, provided the court shall also be of the opinion that there is, on that construction, any patentable novelty in said claim. But, if the court be of the opinion that said lateral rocking motion does form a part of said second claim, or that there is no patentable novelty in said claim if. so construed as to exclude said rocking motion, then, in either of these cases, the decision shall be in favor of defendant as to said first shoe. 11. That, if the court shall be of the opinion that said lateral rocking motion forms no part of the second claim, and

Opinion of the Court.

that defendant's second brake-shoe, viz., that the Defendant's Exhibit B, is, in its mechanical construction, substantially the same as the combination described in said claim, then the decision as to that shoe also shall be in favor of complainant, provided the court shall also be of opinion that there is any patentable novelty in said claim when so construed. But, if the court shall be of opinion, either that said lateral rocking motion does not form a part of said second claim, or that the mechanical construction of said shoe-brake is not substantially the same as that shown in said claim, or that there is no patentable novelty in said claim if so construed as to exclude said rocking motion, then, in either of said cases, the decision as to that shoe shall be in favor of defendant. 12. That, in case the court finds the issues in favor of the complainant, both parties waive a reference to the master, and agree that complainant's damages may be assessed at the sum of two hundred dollars. 13. That all the evidence in this case is comprised in this stipulation, the models therein referred to, and the said letters patent."

On that stipulation, and the models referred to in it, and the patent, the case was heard in the Circuit Court. That court filed a written opinion on the 26th of October following, 9 Bissell, 503, upon which a decree was entered on the same day, as of the preceding 9th of October, declaring the patent to be good and valid in law, so far as regards the second claim thereof, and to be owned by the plaintiff; that the defendant had infringed the patent by using the invention secured by the second claim; and that the plaintiff recover $200 damages, in accordance with the stipulation, the same to be in full satisfaction of all claims of the plaintiff against the defendant on account of the defendant's infringement of the patent. The defendant has appealed.

The specification of the patent is in these words:

"My invention relates to the construction of shoes or rubbers for car-wheels, and consists: Firstly. In constructing the shoe of two parts, in the peculiar manner described hereafter, so that the part in contact with the wheel can accommodate itself to the same. Secondly. In the peculiar combination, described hereafter,