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Opinion of the Court.

ton and linen, by subjecting them, while distended and kept separate, to the action of rotatory beaters or burnishers, by which they would be burnished or polished on all sides, was not the subject of a patent, because, as Lord Campbell said, in order to sustain a patent for the application of an old process to a new purpose, “there must be some invention in the manner in which the old process is applied ;” “here there is no novelty in the mode of application,” “but merely the application of a known process by a known means to another substance.” Brook v. Aston, 27 Law Journal (N. S.) Q. B. 145; S. C. 4 Jurist (N. S.) 279; S. C., with the opinion less fully reported, 8 E. & B. 478. The judgment was unanimously affirmed in the Exchequer Chamber. Of the opinions there delivered, it is sufficient to quote from that of Baron Martin, who, after expressing his concurrence in the statement of Mr. Justice Willes, in Patent Bottle Envelope Company v. Seymer, 28 Law Journal (N. S.) C. P. 22, 24; S. C. 5 C. B. (N. S.) 164, 173; that “the application of a well known tool to work previously untried materials, or to produce new forms, is not the subject of a patent,” added, “When a machine is well known, it becomes in fact a tool.” 28 Law Journal (N. S.) Q. B. 175, 176; 5 Jurist (N. S.) 1025, 1027.

But perhaps the most important English case is that of Harwood v. Great Northern Railway Company, 2 B. & S. 194, 222, and 11 H. L. Cas. 654.

In that case a patent was obtained for improvements in fishes and fish joints for connecting the rails of railways." In the specification, the patentee stated that in securing the joints of rails it had been found advantageous to attach to each side of the rails, by means of bolts and rivets, pieces of iron commonly called “fishes;” and described his invention as consisting in making the fishes with a groove or recess in their outer surfaces, so as to receive the square heads of the bolts or rivets, and to prevent them from turning round while the nuts on the other side were being screwed on or off, and also to avoid the danger of the flanges of the wheels of the carriages striking against the heads; and he claimed “the constructing fishes for connecting the rails of railways, with a groove adapted for reOpinion of the Court.

ceiving the heads of the bolts or rivets employed for securing such fishes, and the application of such fishes for connecting the rails of railways.”

In an action for the infringement of that patent, it appeared that fishes for connecting the rails of railways had never before been made with a groove or recess in their outer surfaces, so as to receive the square heads of the bolts. But it was proved that, in the construction of several railway bridges, beams of timber bad been laid horizontally one above the other, and fastened or bolted together with bolts and nuts; horizontal bars or plates of iron placed beneath, parallel to and in contact with the beams, and fastened or bolted by the same bolts and nuts; and each of these bars or plates of iron constructed with a groove in its under surface, which received the square heads of the bolts, and which served the double purpose of strength and of preventing the heads of the bolts from turning round. In those bridges there were no joints to be fished by the bars or plates of iron, nor were there corresponding bars or plates of iron above the horizontal beams of timber. But it was also proved that a bridge, known as the Hackney bridge, having too great a span to be conveniently crossed by a single beam, had been constructed with two horizontal longitudinal beams of timber on each side, the ends of which met and were joined together in the middle of the bridge by scarf-joints; that beneath those beams were transverse planks, constituting the flooring of the bridge, and beneath the planks were bars of grooved iron, like those used in the other bridges, carried under the scarf-joints and under the whole length of the horizontal beams; that above and immediately over each scarf joint, extending eighteen inches beyond each end of the joint, and resting immediately upon the longitudinal beam, was a horizontal flat plate of iron thirteen feet in length; and that the bolts passed upwards through the grooved iron bars, the transverse planking and the longitudinal beams, and also, at the middle of the bridge, through the plates of iron over the scarf-joints.

A verdict supporting the patent was obtained under the rulings of Lord Chief Justice Cockburn, and affirmed by the Court of Queen's Bench. But its judgment was unanimously

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Opinion of the Court.

reversed in the Exchequer Chamber in a considered judgment delivered by Mr. Justice Willes ; and the judgment of reversal was affirmed by the House of Lords, in accordance with the opinions of Lord Chancellor Westbury, Lord Cranworth and Lord Wensleydale, and of a majority of the judges who attended, upon the ground, as stated by the Lord Chancellor, that the application of the channelled iron horizontally under the timbers of a bridge being well known, “the channelled iron was applied in a manner which was notorious, and the application of it to a vertical fish would be no more than the application of a well known contrivance to a purpose exactly analogous or corresponding to the purpose to which it had been previously applied.” 11 H. L. Cas. 683. And all who gave opinions in the House of Lords concurred with the Court of Exchequer Chamber in the proposition of law that the mere application of an old contrivance in an old way to an analogous subject, without any novelty in the mode of applying such old contrivance to the new purpose, is not a valid subject-matter of a patent. 2 B. & S. 228; 11 H. L. Cas. 666, 672, 682, 684, 685.

In the case at bar, the old contrivance of a railroad truck, swivelling upon the king-bolt, with transverse slot, and pendent divergent links, already in use under railroad cars, is applied in the old way, without any novelty in the mode of applying it, to the analogous purpose of forming the forward truck of a locomotive engine. This application is not a new invention, and therefore not a valid subject of a patent.

The decree of the Circuit Court must therefore be reversed, and the case remanded with directions to Dismiss the bill. Statement of Facts.

IRWIN v. WILLIAR & Another.



Argued October 17th, 18th, 1883.—Decided March 3d, 1884.

ContractPartnership, Principal and AgentWagers. A contract of partnership for the buying of grain, both wheat and corn, and

its manufacture into flour and meal, and the sale of such grain as might accumulate in excess of that required for manufacturing, and the use,

with the knowledge of all the partners in the partnership business, of cards · and letter-heads describing the firm as millers and dealers in grain, do not necessarily imply as matter of law authority to deal in the partnership name in futures by means of contracts of sale or purchase for purposes of specu

lating upon the course of the market, and to bind the partnership thereby. Dealing in futures by means of contracts of sale or purchase for purposes of

speculating upon the course of the market, is not as matter of law an essential characteristic of every business to which the name of dealing in grain

may properly be assigned. If under guise of a contract to deliver goods at a future day the real intent be

to speculate in the rise or fall of prices, and the goods are not to be deliv. ered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, the whole transaction is nothing more than a wager, and is null

and void. When a broker is privy to such a wagering contract, and brings the parties to

gether for the very purpose of entering into the illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses in

curred by himself in forwarding the transaction. Generally, in this country, wagering contracts are held to be illegal and void

as against public policy. A custom among brokers in the settlement of differences which works a sub

stantial and material change in the principal's rights or obligations is not binding upon the principal without his assent; and that assent can be im. plied only from knowledge of the custom which it is claimed authorizes it.

The defendants in error were plaintiffs below, and brought this action against the plaintiff in error, as surviving partner of the firm of Irwin & Davis, to recover a balance alleged to be due, growing out of certain sales of wheat for future delivery, claimed to have been made by the defendants in error for the firm of Irwin & Davis upon their order. The liability of the plaintiff in error was denied on two grounds: 1. That the trans

Statement of Facts.

actions were made by Davis, the deceased partner, without the knowledge, assent or authority of the plaintiff in error, and were not within the scope of the partnership business; and 2. That the sales were wagering contracts and void.

The bill of exceptions showed that there was evidence on the trial tending to prove the following state of fact:

Irwin, the plaintiff in error, and Davis, who died in October, 1877, became partners in 1872 in the ownership and operation of a flouring-mill and appurtenances at Brazil, Clay County, Indiana. Their contract of partnership contemplated the buying of grain—both wheat and corn—and its manufacture into flour and meal, and the sale of such grain as might accumulate in excess of that required for manufacturing; and did not contemplate, as between themselves, the buying and selling of grain in large quantities for speculation. The capacity of the mill did not exceed sixty barrels of flour per day; its average manufacture was thirty. The working capital of the firm varied from $2,000 to $4,000. Irwin resided at Butler, in Pennsylvania, and visited Brazil rarely. Appurtenant to the mill was a warehouse, for the storage of grain, equipped with appliances for loading and unloading grain, in bulk, into and from railroad cars. Soon after the formation of the partnership, and as a part of its business, Davis, in its name, began and continued to ship corn and oats to Indianapolis, and corn and flour to Baltimore, for sale and immediate delivery, in consignments not exceeding $1,000 each in value; and in the year 1875 several such consignments had been made to the defendants in error at Baltimore for sale on account of the firm by Davis. In all their business correspondence, including that with the defendants in error, who were commission merchants and grain brokers in Baltimore, the cards and letter-heads were as follows: “ Brazil Flouring Mills, Irwin & Davis, millers and dealers in grain, Brazil, Ind.” This letter-head was used with the knowledge of Irwin, who, however, had no knowledge of any transactions by Davis, on account of the firm, in the purchase or sale of grain for future delivery. Prior to 1877, in point of fact, Davis had given no orders for the purchase of grain in Baltimore, or any Eastern market, and during that year, in the

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