Opinion of the Court.

to the court to re-examine the case and to render a judgment nunc pro tunc for the additional sum of $14,016.29. Upon this application, the court, on due consideration, found that the original judgment was given for a different sum than was intended, and that, "in order to correct such error and adjudge to said Albert Grant such additional sum, in this cause as the evidence justifies, he should receive a further sum of $14,016.29," and on the 11th of June, 1883, a judgment for that amount was rendered. From this judgment the United States took an appeal, which Grant now moves to dismiss on the ground that no appeal lies from an order or judgment entered in such a proceeding.

In our opinion, this motion should be granted. The act of Congress, in its legal effect, is nothing more than a direction to the Court of Claims to entertain an application to correct an error in the entry of one of its former judgments. The readjudication ordered is to be upon the old evidence, and, if an error is found, the correction is to be made, not by rendering a new judgment, but by amending the old one. The language is, "and the amount by readjudication in favor of the said Albert Grant shall be a part of the original judgment." As, when the act was passed, an appeal from the original judgment was barred by lapse of time, we are satisfied it was the intention of Congress to make the action of the Court of Claims upon this readjudication final. Certainly the old judgment is not opened to an appeal by the readjudication, and there is nothing to indicate that the new part of the judgment can be separated from the old for the purposes of review here. By the correction the new judgment was merged in the old.

The motion to dismiss is granted.

Opinion of the Court.

PEUGH v. DAVIS.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA,

Submitted January 7th, 1884.-Decided January 21st, 1884.

Appeal-Supersedeas.

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 Rev. Stat., but this is not to be construed as affecting appeals other than such as are allowed by the court acting judicially and in term time.

Mr. M. F. Morris and Mr. J. T. Crittenden for appellant.

Mr. A. G. Riddle for appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This is an appeal from a decree of the Supreme Court of the District of Columbia, rendered on the 30th of October, 1882. At the foot of the decree as entered is the following:

"And from this decree the complainant, Samuel A.. Peugh, prays an appeal to the Supreme Court of the United States, which is allowed."

No bond of any kind was executed under this allowance until the 10th of May, 1883, when Mr. Justice Miller granted a supersedeas and took the necessary security for that purpose. He at the same time signed a citation. On the same day another citation was signed by the Chief Justice of the Supreme Court of the District. Davis, the appellee, now moves to vacate the supersedeas because no appeal was perfected within sixty days after the rendition of the decree appealed from, and also to dismiss the appeal.

In Kitchen v. Randolph, 93 U. S., at 92, it was held that—

"The service of a writ of error or the perfection of an appeal within sixty days, Sundays exclusive, after the rendering of the judgment or the passing of the decree complained of, is an

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 v. 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 substantially 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 fol lowing 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 thereof. 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