It is believed that this system affords the government a very effectual protection against the perpetration of frauds in connection with the [72] collection of the tax on distilled spirits."

when the stamp proper is separated therefrom and displays a serial number; 2d, a constituent part of the stamp proper which is designed for permanent attachment to the barrel; 3d, a constituent part of the stamp proper displaying the Such an increased utility, beyond what had same identifying serial number as the stub, been attained by devices previously in use, in which part, after the stamp proper has been cases of doubt, is usually regarded as determinaffixed to the barrel, bears such relation to the ing the question of invention. But in the prespermanent part, that it can be so removed there-ent case we are not able to give it such effect. from as to retain its own integrity, but mutilates and thereby cancels the stamp by its removal."

In this combination it will not be questioned that the first and second elements were well known, and that the third, so far as its contents are identical with those on the stub, is not new. The question turns on that feature of the third element whereby a removable part of the stamp proper, the contents of which identify the stamp with the stub after the stamp has been attached, can be so removed as to retain its own integrity, but mutilates and thereby cancels the stamp by its removal.

This is what we ascertain to be the precise [71] idea embodied in the invention described and claimed in the patent, and which, although we find to be new in the sense that it had not been anticipated by any previous invention, of which it could therefore be declared to be an infringement, yet is not such an improvement as is entitled to be regarded in the sense of the pa

tent laws as an invention.

No change, it will be observed, was made in the character of the stamp, so far as the relation between the stamp proper and the stub is concerned, nor in the identifying marks which constituted the written and printed matter upon both; and the expedient of using a paper backing which prevented the adhesion to the package of the part intended to be detached and removed, it is manifest, would be adopted by any skilled person having that end in view.

The idea of detaching that portion of the stamp, with the double effect of destroying the stamp by mutilation and preserving the evidence of the identity of the package on which it had been first placed in use, which is all that remains, to constitute the invention, seems to us not to spring from that intuitive faculty of the mind put forth in the search for new results or new methods, creating what had not before existed, or bringing to light what lay hidden from vision; but, on the other hand, to be the suggestion of that common experience which arose spontaneously and by a necessity In reaching this conclusion we have allowed of human reasoning, in the minds of those who its due weight to the presumption in favor of had become acquainted with the circumstances the validity of the patent arising from the ac- with which they had to deal. Cutting out a tion of the Patent Office in granting it; and we portion of the stamp, as a means of defacing have not been unmindful of the fact, abund- and mutilating it, so as to prevent a secord use, antly proven and indeed not denied, that the was matter of common knowledge and practice, adoption of the present tax paid stamp in lieu before the date of this patent; and cutting out of that previously in use by the Internal Rev- a particular portion, on which the identifying enue Bureau, has proven its superior utility in marks had been previously written or printed, the prevention of frauds upon the revenue. was simply cutting a stub from the stamp, inThe testimony on that point of the Commis- stead of cutting the stamp from the stub, as besioner of Internal Revenue from his official re- fore. So that, when the frequency and magniports is quite conclusive. In his report for tude of the frauds upon the revenue, committed 1875 he mentions the adoption of "new regu- by the removal of tax paid stamps from packlations in regard to the use of tax paid stamps, ages on which they had been originally placed by which a portion of the stamp is cut out at by the officer to others surreptitiously substithe time of dumping and returned with the tuted for them, or by emptying the packages of gauger's report," and says: "This effectually their original contents and fraudulently refilldestroys the stamp and prevents its re-use, ing them with spirits on which no tax had been while, at the same time, a sufficient amount of paid, attracted the general attention of the revthe engraving is shown upon the slip to deter-enue department, the answer to the problem of mine whether the stamp is genuine;" and, in prevention was found by immediate inference 1876, that official reported that the plan of re- from the existing regulations, in the adoption quiring the return of a portion of the tax paid of the expedient now in question. As soon as stamps, whenever a package to which it is at- the mischief became apparent, and the remedy tached is dumped for rectification, has been was seriously and systematically studied by found to be such a valuable prevention of fraud those competent to deal with the subject, the that it has been extended to include all stamps present regulation was promptly suggested and for rectified spirits and wholesale liquor deal- adopted, just as a skilled mechanic, witnessing ers' stamps. the performance of a machine, inadequate, by "These three varieties of stamps for dis- reason of some defect, to accomplish the object tilled spirits are now prepared at a trifling ad- for which it had been designed, by the applicaditional cost, with a paper back affixed to each tion of his common knowledge and experience, in such a way that the portion of the stamp con- perceives the reason of the failure, and suptaining all the important data can be cut there- plies what is obviously wanting. It is but the from and filed with the commissioner or col- display of the expected skill of the calling, and lector, thus furnishing conclusive evidence of involves only the exercise of the ordinary facthe destruction of the stamp (rendering its re-ulties of reasoning upon the materials supplied use impossible) and furnishing also evidence as by a special knowledge, and the facility of to the contents of the package bearing the manipulation which results from its habitual and intelligent practice; and is in no sense the

stamp.

[73]

creative work of that inventive faculty which it
is the purpose of the Constitution and the pa-
tent laws to encourage and reward.

On this ground the decree of the Circuit Court
is reversed and the cause remanded, with direc-
tions to enter a decree dismissing the bill; and it
is so ordered.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.
Cited-114 U. S., 12.

Fig.1

B

EDMUND J. LINDSAY AND WILLIAM
LINDSAY.

(See S. C., Reporter's ed., 97-104.)

Patent for combination when infringed-me-
chanical equivalent—must perform same func-
tion-one element not used.

1. Where a patent is for a combination only, none
of the separate elements of which the combination
is composed are included in the monopoly of the
2. Where a patent is for a combination, there can
be no infringement unless the combination is in-

patent.

fringed.

3. A combination may be infringed when some of
the elements are employed, and for the others me-
chanical equivalents are used which were known to
be such at the time when the patent was granted.
4. Where one patented combination is asserted to
be an infringement of another, a device in one, to
be the equivalent of a device in the other, must
perform the same functions.

5. Where there is one element of the plaintiff's
patented combination which the defendant does not
use and for which he does not employ an equiv-
alent, he does not infringe the plaintiff's patent.
[No. 132.]

Argued Dec. 15, 16, 1884. Decided Jan. 5, 1885.

Fig. 2.

Figure 1 is a side elevation of the tooth, in a beam shown in longitudinal section. Figure 2 is a top view of the beam, with the tooth in position.

This invention consists in applying to the shank of the tooth a curved brace bar, the upper end of which passes through a slot or mortise in the beam and is held in position by a clamping bolt, which passes transversely through the slot or mortise near the brace bar and forces the sides of the beam together against the brace bar, so as [99] adjust the tooth in any inclination, at the same to clamp it in any required position, and thereby time allowing it to yield to immovable obstacles without breaking.

In the drawings, A represents one of the beams of a cultivator; B, the shank, pivoted at tending in the arc of a circle outward and upb; B', the tooth; C, a curved brace bar, exward from the rear side of the shank B, and its upper end passing vertically through a longia bolt, passing transversely through the slot or tudinal slot or mortise, a, in the beam A; and D mortise and having a bead, d, on one end, and

APPEAL from the Circuit Court of the United a nut, d', on the other, by which the side walls

sin.

States for the Eastern District of Wiscon

The bill in this case was filed in the court below, by the appellants, to recover damages, alleged to have resulted from the infringement of certain letters patent, and for an injunction. The court below having entered a decree dismissing the bill, 10 Biss.; 19 Off. Gaz., 1565; 6 Fed. Rep., 290, the complainant appealed to this court.

The case is stated by the court.

Mr. James J. Dick, for appellants. Messrs. E. E. Wood and E. Boyd, for pellees.

of the slot or mortise can be clamped against the
ing the latter in position when operating in the
brace bar with any required force, thereby hold-
field.

and operating, the brace bar C can be so
It is evident that in a device thus constructed
clamped that the tooth will retain its position
when working in arable soil, but will yield when
coming in contact with an immovable obstacle,
and pass over it without breaking, the shank
turning back upon its pivot, b, and the brace bar
ap-rangement also allows the shank to be adjusted
being forced up through the slot. The same ar-
in any position for deep or shallow cultivating.
we claim as new and desire to secure by letters
Having thus described our invention, what
patent, is:

Mr. Justice Woods delivered the opinion of the court:

shank B, brace bar C, and bolt D, when the
The combination of the slotted beam A,
parts are constructed and arranged to operate as
and for the purposes herein specified.

The appellants, John S. Rowell and Ira Rowell, were the plaintiffs in the Circuit Court. They brought their bill in equity against Edmund J. Lindsay and William Lindsay, the appellees, to restrain the infringement of re-issued letters patent No. 2909, dated March 31, 1868, defenses, denied infringement of the letters paThe answer of the defendants, among other [98] granted to the plaintiffs for "a new and im- tent. proved cultivator." The invention was illus-ment of their letters patent was made out by The plaintiffs contended that infringetrated by the annexed drawings and was de- the evidence, which tended to show that the scribed in the specification as follows: defendants constructed and sold seeding ma

906

others mechanical equivalents are used which
were known to be such at the time when the
patent was granted. Seymour v. Osborne, ubi
supra; Gould v. Rees, 15 Wall., 187 [82 U. S.,
XXI., 39]; Imhaeuser v. Buerk, 101 U. S., 647
[XXV., 945].

WM. J. BRYAN ET AL., Piffs. in Err.,

v.

FERDINAND B. KENNETT ET AL.

(See S. C., Reporter's ed., 179-199.)

Construction of treaty-Spanish title in Missouri -Act to confirm titles in Missouri-former adjudication.

In the light of these principles we are to inquire whether the defendants use the combination described in the patent of the plaintiffs. The contention of the defendants is that the brace bar, which is one of the elements of the the United States acquired Louisiana, compre*1. The term "property," in the Treaty by which [103] combination covered by the patent of the plaint-hends every species of title, inchoate or complete,

iffs, is not nor is its equivalent found in the
machines made and sold by them. It is plain,
upon an inspection of the drawings, that the
defendants do not use a brace bar similar in
shape or position to that described in the plaint-
iff's patent.

But the plaintiffs insist that the top of the
shank, curved as shown in the Thomas patent,
is the equivalent of the brace bar forming one of
the elements of their invention; and as the con-
trivance of the defendants embodies this equiv-
alent device in combination with all the other
elements covered by the plaintiffs' patent, that
the infringement is established. Whether the
irst mentioned device is the equivalent of the
latter is the question for solution. We think
the contention of the defendants that it is not
is well grounded. The specification and draw-
ings of the plaintiffs' patent, and the testimony
of the plaintiffs' witnesses, show that one pur-
pose of the brace bar, used in the plaintiffs'
combination, was to strengthen and support
the shank between the tooth and the beam.
The use of the brace bar enabled the plaintiff's
to make the shank with less material and, at
the same time, to increase its strength. This
function is not performed by the curved por-
tion of the shank used by the defendants, which
has not the slightest tendency to support and
strengthen the shank between the tooth and
the beam, where the greatest strain comes. On
the contrary, the defendants, by reason of the
absence of the brace bar, are forced to make
their shank of larger diameter than that used
by the plaintiffs in order to give it the requisite
strength to prevent bending. Instead of stiffen-
ing the shank between the tooth and the beam,
it rather brings an increased strain upon that
part of the shank. We find, therefore, that the
curved upper part of the shank used by defend-
ants does not perform one of the material func-
tions of the brace bar of the plaintiffs' combi-
nation. It cannot, therefore, be the equivalent
of the latter. For where one patented combi-
nation is asserted to be an infringement of an-
other, a device in one to be the equivalent of
a device in the other must perform the same
functicus.

As, therefore, there is one element of the plaintiffs' patented combination which the de[104] fendants do not use and for which they do not employ an equivalent, it follows that they do not infringe the plaintiffs' patent. The decree of the Circuit Court, which dismissed the plaintiffs' bill, must therefore be affirmed; and it is 80 ordered.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.
Cited--113 U. S., 215, 681.

908

legal or equitable, and embraces rights which lie in contract, executory as well as executed. Government, prior to the Treaty of St. Ildefonso 2. The incomplete title acquired from the Spanish between Spain and France, to lands in the territory now embraced within the State of Missouri, was such a property interest as could be transferred by mortgage or reached by judicial process.

3. Congress intended by the Act of February 14, 1874, 18 Stat. at L., 16, entitled" An Act to Confirm the claim of Austin arising from the Spanish conCertain Titles in the State of Missouri," to recognize cession, survey and grant recited in its preamble, and to assure those who were in possession, by contract or by operation of law, and, therefore, asby any assertion of claim upon the part of the United signees of Austin, that they would not be disturbed States.

suit in equity are not open to re-examination, in
4. Questions involved in the determination of a
any collateral proceeding between the same parties
or their privies, if the court rendering the decree
had jurisdiction of the subject-matter and of the
parties.
[No. 7.]

Argued Dec. 12, 1884.

Decided Jan. 5, 1885.

IN ERROR to the Circuit Court of the United

States for the Eastern District of Missouri.
in the opinion of the court.
The history and facts of the case fully appear

Jewett, for plaintiffs in error:
Messrs. Henry H. Denison and D. T.

Moses Austin had no title in the league square, known as the Mine à Breton Survey, which could be subjected to levy and execution.

first of October, 1800, Spain ceded Louisiana to By the Treaty of St. Ildefonso, made on the France; and France, by the Treaty of Paris, signed April 30, 1803, ceded the same territory to the United States.

of Congress of March 26, 1804, which annulled It has been held by this court that the Act all grants of lands included in the above Treaties, made subsequent to the Treaty of St. Ildefonso, "Annuls all grants for lands in the ceded territories, the title whereof was at the Treaty of St. Ildefonso in the Crown of Spain."

12 Pet., 511; U. S. v. Reynes, 9 How., 127; Same Foster v. Neilson, 2 Pet., 253; Garcia v. Lee, O., 11 How., 609; Montault v. U. S., 12 How., v. D'Auterive, 10 How.,609; Same v. Phila. & N. 47; U.S. v. Lynde, 11 Wall., 633 (78 U. S., XX., 230).

Those who come in under the holder of a void grant can acquire nothing.

v. Arredondo, 6 Pet., 731; Sampeyreac v. U. S., Polk's Lessee v. Wendell, 5 Wheat., 293; U. S. 7 Pet., 241.

by its terms embrace the void Morales graut, If it so be that the Act of April 12, 1814, did

*Head notes by Mr. Justice HARLAN.

NOTE. Conclusiveness of judgments. See, note to Bk. of U. S. v. Beverly, 42 U. S. (1 How.), 134. Estoppel by judgment. See, note to Aspden v. Nixon, 45 U. S. (4 How.), 487.

then it could only confirm to Moses Austin the | passed the title of the Bryans, including by equitable title to the lands. The legal title re- name the plaintiffs in error, to Deane, the anmained in the government until the Act of Feb-cestor and grantor of the defendants. ruary 14, 1874.

Papin v. Hines, 23 Mo., 274.

Gitt v. Watson, 18 Mo., 274.

It cannot be attacked collaterally, even for

The claim of Moses Austin was not confirmed error. by_the Act of April 12, 1814.

That claim was presented to the old board of commissioners, and was rejected because it was not a grant made and completed before the Treaty of St. Ildefonso.

Burgess v. Gray, 16 How., 48.

The executions issued from the Superior Court, under which the sheriff made sale of the Mine à Breton Survey under judgments against Moses Austin, were without seals and therefore, void, for the statute creating these statutory courts, required executions to issue under seal. Territorial Laws of Mo., Vol. 1., 346, 448, 616. Burgess v. Gray, 15 Mo., 220; Ins. Co. v. Hallock, 6 Wall., 556 (78 U. S., XVIII., 948).

The sale was void as an attempt, by means of a suit at law and sale therein, to deprive a mortgagor of his equity of redemption and of his rights under the mortgage contract.

McNair v. O'Fallon, 8 Mo., 188; Rorer, Jud. Sales, sec. 880, p. 341.

A judgment, void on its face, may be attacked collaterally.

Webster v. Reid, 11 How., 437; Harshey v. Blackmarr,20Iowa, 161; Albee v. Ward, 8 Mass., 79; Miller v. Handy, 40 Ill., 448; Hollingsworth v. Bagley, 35 Tex., 345; Herm. Exns., sec. 141, p. 190, and cases there cited.

The sheriff's deed, having no seal, is void. Territorial Laws of Mo., Vol. 1., sec. 45, 120; Moreau v. Detchemendy, 18 Mo., 522; Moreau v. Detchemendy, 41 Mo., 431; Grimsley v. Riley, 5 Mo., 280; Walker v. Keile, 8 Mo., 301; Harley v. Ramsey, 49 Mo., 309.

The deed of the sheriff is also void, because there is no seal to the clerk's certificate.

Territorial Laws of Mo., Vol. 1, sec. 47, 121; Allen v. Moss, 27 Mo., 354; Allen v. King, 35 Mo., 217; Adams v. Buchanan, 49 Mo., 64; Hammond v. Coleman, 4 Mo. App., 307.

The deed of Risdon H. Price to Charles R. Ross is inoperative and void.

The deed of the agent only will neither pass the title of the principal, nor bind him as a covenantor.

Townsend v. Corning, 23 Wend., 435; Wood v. Goodridge, 6 Cush., 117; Thurman v. eron, 24 Wend., 87.

The addition to his name of the words "Attorney of Henry L. Sheldon " was a mere descriptio persona.

Hare & Wallace, Notes, 1 Smith, L. C., part 2; p. 1001, *826; Grignon's Lessee v. Astor, 2 How., 319; Florentine v. Barton, 2 Wall., 210 (69 U. S., XVII., 783).

Nor does the fact that plaintiffs in error were infants when that decree was rendered make any difference.

1 Dan. Ch. Pr., 659, ch. 15, sec. 2.

To impeach it, the infant must proceed by bill of review or by original writ.

1 Dan. Ch. Pr., 164; Ruby v. Strother, 11 Mo., 422.

Either the deeds or the decree constitute the defendants the legal representatives and assigns of Moses Austin, within the meaning of the Act of Congress of February 14, 1874. 18 Stat. at L., 16.

Landes v. Perkins, 12 Mo., 238; Landes v. Brant, 10 How., 348; Hogan v. Page, 2 Wall., 605 (69 U. S., XVII., 854).

An open, notorious, adverse and exclusive possession since 1821, is a complete bar to this suit; the facts are not disputed.

Hogan v. Kurtz, 94 U. S., 773 (XXII., 317).

Mr. Justice Harlan delivered the opinion of the court:

This action, in form ejectment, involves the title to an undivided half of a tract of land in the County of Washington, State of Missouri, containing six hundred and forty acres, part of a larger tract, containing seven thousand one hundred and fifty-three arpents, or six thousand and eighty-five acres, known as the Mine à Breton Survey, or as United States Survey, numbered 430, made in the name of Moses Austin, and dated August 14 and 15, 1817. In conformity with the instructions of the court, the jury returned a verdict for the defendants.

The plaintiffs in error, who were plaintiffs below, introduced in evidence a certified copy of the foregoing survey; also a certified copy of a recorded deed of February 15, 1820, by Moses Austin and wife, whereby the grantors bargained, sold and conveyed to James Bryan, Levi Pettibone and Rufus Pettibone, as tenants Cam-in common (one undivided half to Bryan and an undivided fourth each to the other grantees) 'the whole of that certain tract of land heretofore granted to the said Moses Austin by the Spanish Government, and confirmed to him by the Government of the United States, containing seven thousand one hundred and sixty arpents, and being one league square, situated at and near the Mine à Breton, in the County of Washington and Territory aforesaid (Missouri), being the only concession from the Spanish Government to the said Moses Austin," etc.; excepting from such conveyance, several parcels, aggregating about two thousand five hundred [181] arpents, and which the grantor had previously conveyed to other persons.

Echols v. Cheney, 28 Cal., 157; Harper v. Hampton, 1 Harr. & J., 709; Elwell v. Shaw, 16 Mass., 42; Barger v. Miller, 4 Wash. (C. C.), 280; Bobb v. Barnum, 59 Mo., 395; 3 Am. Jurist, 71-85, and cases cited.

The deed not being under the corporate seal of the Bank of St. Louis, is void.

Perry v. Price, 1 Mo. 646.

Price then acquired nothing by the deed of Ross, for Ross' foundation of title was a void deed, and he could convey no title to these defendants.

Polk's Lessee v. Wendell, 5 Wheat., 293. Messrs. Geo. D. Reynolds, Frank J. Donooan and Lucien Eaton, for defendants in error: The decree in the case of Deane v. Bryan, 113 U. S. U. S., Book 28.

The deed also provided that the grantor would not warrant and defend the premises against a judgment for about $14,000, which the Bank of St. Louis had obtained in the Superior Court of the Territory against him, for which 57

909