Gaddis, one as plaintiff and the other as intervener, brought this suit to recover the difference between $1,752 and $8,096.50. They obtained judgment in the district court, which judgment was affirmed by the supreme court. 9 Mont. 126, 22 Pac. Rep. 386. From that judgment the sheriff and his sureties have brought the case here by both writ of error and appeal.

cation of any unauthorized proceedings by which he obtained that sum. This argument rests upon the assumption that a different rule obtains where the deposit by the proposed buyer is money, from that which would obtain if it were some other personal property. But can the question of ratification depend on the character of the deposits? If Kier had deposited a gold watch as security for the completion of his purchase, and the

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

On the trial of this case all the testimony offered by the defendants to show the circumstances of the sale was on motion of the plaintiffs stricken out by the court. For the purpose of this hearing, therefore, it must be assumed that the facts were as this testimony tended to show that they were. The owners of these notes and mortgage were not present at the sale, but were represented by their agent and attorney, and by his direction the sheriff received the bids of Kier up to $8,000 and upwards, and, as security for the completion of those purchases, retained all the property bid for, and in addition received $1,752. The contention of the mortgagees is that an attorney has, in the absence of special authority, no power to make a sale on credit, or to receive anything other than money on a claim placed in his hands for collection. Without questioning the truth of that proposition, it seems to us that it is inapplicable. No competent sale was made; no title passed; and, while these horses were struck off to Kier, the transaction was evidently merely a conditional sale, to be perfected if, and only if, within five days the balance of the purchase money was paid.

But it is unnecessary to pursue any inquiry In this direction, for upon a very clear rule of law the mortgagees are estopped from maintaining this suit. The arrangement, whether within or without the power of the attorney, was made and carried into effect by his directions, and it was an arrangement by which the proposed buyer deposited $1,752 with the sheriff, as well as left with him the horses which he had attempted to purchase. If that transaction was beyond the power of the attorney, and the mortgagees were intending to repudiate it, they were bound to repudiate it in toto. They could not accept that which was beneficial, and avoid that which was burdensome. Pars. Cont. (7th Ed.) 49-52, and cases cited in notes. It is urged, however, that it was the sheriff's duty to pay over the entire amount of the notes, and that the mere receiving from him of a part of that which it was his duty to pay did not work a ratifi

1

there would be no doubt that they had rati tied the act of their attorney. Suppose that the deposit was a package whose contents were unknown, and that deposit was accepted by the plaintiffs, would it prove a ratification if, when opened, the contents turned out to be watches, and not a ratification if only money? It may be that this case turns somewhat on whether the sheriff and plaintiffs understood and intended that the payment of this money was in fact a transfer by him to them of the deposit, or merely a payment on account; but, even if this be so, the question was one of fact to be settled by the jury, and should not have been disposed of by striking out all the testimony, and withdrawing the case from the jury. Kier parted with his property on the faith of this agreement between Smith and himself; and if it was unauthorized, and gave him no rights, he was entitled to a return of his deposit, whether that was a watch or money; and if the plaintiffs have taken from the sheriff this deposit, they have deprived him of the power to return it. It unnecessary to hold that the horses became the property of plaintiffs. It is enough that; they, by receiving this deposit, have ratified the arrangement made by their attorney as to the sale which the sheriff was making, and if they desired a resale of the property they should have directed it. They cannot repudiate the action of their agent and attorney, and treat the sheriff as having made a completed sale, when in fact he had not. When the money and horses were tendered to their attorney, he declined both. But they took the money, while declining to receive the horses, and failed to give any instructions to the sheriff as to further sale or otherwise. They assume to treat this as a completed sale to Kier, when in fact it was not, and when they have ratified what the sheriff did in respect thereto in obedience to the instructions of their agent and attorney by taking the deposit made by Kier.

The judgment must be reversed, and the case remanded for a new trial. As since it was brought to this court the territory of Montana has been admitted as a state, and as no question of a federal nature is presented, the case will be remanded to the supreme court of the state.

The CHIEF JUSTICE did not hear the argument or take part in the decision of this

case

(150 U. S. 111)

BALL & SOCKET FASTENER CO. v.

KRAETZER.

(November 6, 1893.) No. 58.

PATENTS FOR INVENTIONS-INFRINGEMENT-Equiv

ALENTS-APPEAL-COSTS.

1. Where the operation of two devices is essentially different, infringement will not be declared because of the accidental adoption of a feature of doubtful value, which was never contemplated by the patentee, or alluded to in his specifications.

2. A glove-fastener socket, depending for its elasticity upon inwardly projecting wings forming part of the walls thereof, is not the equivalent of a socket holding loosely within its cavity an elastic ring, which clasps the ball when inserted.

3. A claim covering the button-hole member of a glove fastener, and expressly including the "button head, F," which is shown by the specifications to be imperforate, is not infringed by a fastener having a perforated button-hole member.

4. Claims 4, 6, and 7 of letters patent No. 325,688, issued September 8, 1885, to Albert G. Mead, for a metallic button or fastener, are not infringed by fasteners made in accordance with letters patent Nos. 359,614 and 359,615, issued March 22, 1887, to Edwin J. Kraetzer. 33 Fed. Rep. 700, affirmed.

5. An appellee who incumbers the record with some 50 immaterial patents will be charged with half the costs of printing the same, under rule 10, par. 9, of the supreme court, (7 Sup. Ct. Rep. iii.)

Appeal from the circuit court of the United States for the district of Massachusetts. Affirmed.

N Statement by Mr. Justice BROWN:

"This was a bill in equity originally filed for the infringement of six letters patent for improvements in glove fasteners, five of which patents were issued to William S. Richardson, and one to Albert G. Mead.

A plea having been filed upon the ground of multifariousness, two of the patents were stricken from the bill upon the application of the plaintiff.

The only patent relied upon at the hearing or covered by the assignments of error was that to Albert G. Mead, No. 325,688, issued September 8, 1885, for a "button." In his specification, patentee states: "This invention relates to metallic fastenings employed in securing the separate flaps of any article, such as gloves or other similar articles of wear, in lieu of the ordinary button and buttonhole, and pertains especially to that class entitled 'ball and socket fastenings,' in which a ball is adapted to be inclosed by, and retained within, the hollow or socket member, when the fastening is actively employed. I consider my present invention embraces: First, the method of centrally secur ing the socket portion of the fastening to the article, whereby the open part or socket of said member is disposed upon the underside of the flap, and secured by a rivet extending through the fabric. Thus, in permanently securing it to the latter, a suitable button head or cap is employed upon the upper sur

face of the flap, and can be so formed and constructed as to form a button finish,-a result much desired, since it gives the article an appearance exactly similar to an ordinary button, which is the most neat and tasty finish that can be employed in the class of articles of apparel to which such fastenings are usually attached; but, further, the whole device is thereby concealed, and prevented from becoming caught and broken. Secondly, in the peculiar method of forming the ball member of said fastening, as likewise, that of the rivet by which the ball is secured to the fabric, the two parts forming a unit, and readily used in connectica with the socket member, forming an article very easily manufactured, cheap, and inexpensive, and one which presents an unusually ornamental finish."

Defendant was manufacturing under letters patent Nos. 359,614 and 359,615, granted to him March 22, 1887, for improvements in glove fasteners.

The case was heard upon pleadings and proofs, and the bill dismissed upon the ground that the defendant had not infringed. 39 Fed. Rep. 700.

No appeal was taken from the decree of the circuit court dismissing the bill as to the three Richardson patents remaining, and the appeal only involved the consideration of the 4th, 6th, and 7th claims of the Mead patent. These claims were as follows:

"(4) In a fastening device of the nature described, the inclosing portion composed of a hollow socket centrally secured to the fabric by a button head, F, and with the inclosing portion disposed upon the underside of the flap, substantially as stated."

"(6) A member of a fastening device consisting of a hollow socket, in combination with a rivet and button head, whereby it is centrally attached to the fabric, substantially as set forth.

"(7) A member of a fastening device composed of a hollow socket, D, centrally attached by an eyelet, 1, the latter resting upon and within an annular depression, q, formed in a concaved collet or disk, E, substantially for the purpose herein set forth."

Thos. Wm. Clarke, for appellant. John R. Bennett and Wm. B. H. Dowse, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

The invention of Mead consists of a glove, fastener having on the button side a knobwith a shank to it, which passes through two washers, one of which washers is above, and the other below, the glove fabric, and the shank is upset on the lower side of the lower washer. The swell of the knob is sufficient to allow of an engagement with the clasp or spring sides of the button-hole member of the fastener. This button-hole member, which is the one alleged to be infringed, consists of an imperforate cap or button

head, F, and an elastic socket, D. The button head, F, consists of three parts, a solid cap, F, an interior disk, E, perforated at the center, and the attaching eyelet, 1, descending from it. A modification of this portion of the device is shown in Fig. 12, wherein the imperforated cap or button head, F, is omitted, the button head consisting simply of a dished washer, E. In this form, which is as efficient and much cheaper, the eyelet is made flush with the exterior surface of the disk, E. In order to present a more perfect finish, and at the same time to prevent the edges thereof from catching, the patentee forms an annular depression in the top of disk, E, to a depth equal to the thickness of the metal forming the eyelet. Thus a smooth exterior surface is secured.

In both forms of his device, illustrations of which are here given, the dished washer is necessarily present, because it is the thing which, by being riveted to the spring-mouth socket, serves to fasten the structure to the glove flap, the leather of which is squeezed by the exterior of the socket against the interior of the button head or dished washer, E.

ed that he did invent the application of a curved or cup-shaped cap in the place where the flat washer had previously been.

In the Kraetzer patent, the button-hole member, of which an illustration is given below, consists of a perforated top shell or cap, A, with a central opening, B, which is surrounded by an annular depression or countersunk cavity. The opening, B, is adapted to receive the upper end of a spring shell, which has an annular shoulder, E, at its base, and a contracted neck at its top. The spring which engages the button-hole member of the Kraetzer fastener is a coiled-wire ring, split on one side, so as to expand as the button passes through it. This spring: ring is loosely held in its chamber. The spring chamber is composed of two pieces of metal united around their edges, one of which has a tubular extension which passes through the fabric, and is engaged with a cap or button head on the other side of the fabric.

The socket, D, consists of a cup-shaped washer with spheroidally curved wings. The cup-shaped washer, with its wings curved slightly inward at their lower edges, and thus presenting a contracted but outwardly yielding mouth, constitutes the spring socket for receiving and holding the knob. The upper part of this socket is perforated at its center to receive the rivet or eyelet projecting downward from the upper portion of the cap. In the application of this fastener to a glove fabric, a hole is pierced in the fabric large enough for the passage of the eyelet, and the two hemispheroidal metallic surfaces, one of which surfaces is the outside of the upper part of the socket, and the other of which is the inside of the cap or exterior piece, are for some considerable distance parallel to each other, and thus the fabric of the glove is stretched into a dome shape, by being compressed or nipped between the back of the socket and the inside of the cap, and is firmly held by this engagement.

It is admitted that Mead did not invent this spring socket, nor the perforation at its center; and while he did not invent the attachment of that socket to the fabric by a flat washer, the surface of which lay in a line parallel to the tangent line of the upper surface of the dome of the socket, it is claimv.14s.c.-4

Kraetzer Fastener.

In the Mead socket the resiliency of the button-hole member is in the socket itself, which is directly attached to the fabric. In the Kraetzer fastener the part which engages the button head or stud serves no other purpose whatever, but rests loosely in the chamber of its holder. This holder or shell is clamped permanently and firmly to the fabric, and is never expanded or contracted, as in the Mead socket. In engaging and disengaging the fastener, the wire ring alone expands and contracts.

From this statement of the construction of the two devices, which can be made more apparent by a comparison of the drawings, it is very evident that they are constructed upon different principles, and operated in a wholly different manner.

But it is claimed that an elastic mouth, combined with and firmly united to a dome, the mouth and dome being situated wholly on the under side of the flap, and secured by a button head wholly upon the upper side of the flap, was not known in the art prior to the Mead patent, and that the effect of this is, taken in connection with the fact that the hole in the flap need not be any larger than the diameter of the rivet, as stated by the plaintiff's expert, "that the spring socket presses the glove leather upward into the button head, and squeezes the leather against the inner surface of the button head." If this feature be an advantage, as now claimed, it is strange that no allusion is made to it in the specifications; and in his testimouy the patentee stated directly

that in describing his invention as set forth in his patent, in the attachment of the fastener to the fabric, he did not contemplate any stretching of the leather, or that the hole in the fabric should be of any particular size, or any other effect than is produced when two parts are fastened together by an eyelet. On the contrary, it would appear that this squeezing of the leather could only take place where the dished washer or cap was used; and in his specifications the patentee states that "the disk, E, may be a flat plate, but in the present instance I have shown its outer edge or circumference bent in order to approximate to the general shape of the button head when the latter is pressed into its finished form," and thus it strengthens said cap. This would indicate that the advantage now claimed, of a tighter compression of the leather, was not originally within the contemplation of the patentee, but is an afterthought, suggested by his inability to make out a case against the defendant of an infringement of the spring portion of the socket.

Applying these considerations to the different claims of the patent, it is quite evident that there is no infringement of the fourth claim, which includes as an element the imperforated button head, F, which is not found in the Kraetzer patent.

It is equally clear that there is no infringement of the seventh claim, since the Kraetzer device has not "the hollow socket, D," but a socket of a wholly different construction, operating in a different manner, and depending for its elasticity, not upon the peculiar inwardly projecting wings of the Mead socket, but upon a ring concealed within its walls. Neither has it the eyelet, 1, unless the tapering upper end of the spring shell of the Kraetzer patent can be regarded as an equivalent.

The charge of infringement must rest, then, upon the sixth claim, which is for "a member of a fastening device consisting of a hollow socket in combination with a rivet and button head, whereby it is centrally attached to the fabric, substantially as set forth." While, by construing the "hollow socket" broadly, as including every kind of a hollow socket appropriate for that purpose, and by construing the upper part of such socket as equivalent to the rivet, 1, of the Mead patent, it would be possible to make out a literal infringement, yet we do not think the patentee is entitled to such a broad construction of his claim, in view of the fact that the only function obtained by the defendant in the use of his combination is that of squeezing the leather upward into the button head,-a function of very doubtful advantage, and apparently of no value to the Kraetzer device, and one never contemplated by Mead or alluded to in his specification. We think it too frail a support to hang a charge of infringement upon. When the essential operation of the two devices is so different, there is no

equity in charging infringement upon the defendant by an apparently accidental adoption of an immaterial feature of the plaintiff's patent.

We are therefore of opinion that the court below committed no error in its disposition of the case; but, in view of the fact that the appellee has seen fit to incumber the record with copies of some 50 immaterial patents, we think it a proper case for the application of the tenth rule, which authorizes us (paragraph 9) to impose costs upon an appellee guilty of requiring unnecessary parts of the record to be printed, and that he should be charged with half the cost of printing the record in this case. "Care should be taken that costs are not unnecessarily increased by incorporating useless papers, and that the case is presented fairly and intelligently." Railway Co. v. Stewart, 95 U. S. 279, 284. With this qualification the decree is affirmed.

In re PARSONS.

In re NININGER. (November 6, 1893.)

(150 U. S. 150)

SUPREME COURT-JURISDICTION-MANDAMUS TO LOWER COURT.

1. Mandamus will not lie to compel a lower court to decide a matter before it in a particular way, or to review any action taken by it in the exercise of a legitimate jurisdiction.

2. Mandamus will not lie from the United States supreme court to a circuit court to compel the vacation of orders by which the latter court, in a summary proceeding and after hearing, but without undertaking to determine the title, recognizes, as the proper incumbents, a district attorney and marshal who have been commissioned by the president during a vacation of the senate, and requiring the former incumbents, who refuse to surrender their offices, to turn over the property and prisoners under their control, respectively.

Application by Lewis E. Parsons, Jr., and Alexander R. Nininger for leave to file petitions for writs of mandamus. Denied.

Statement by Mr. Chief Justice FULLER: These were applications for leave to file petitions for writs of mandamus against the judge of the district court of the United States for the middle and northern districts of Alabama, commanding him to vacate certain orders made and entered by him June 20, 1893, while holding the circuit court for the southern division of the northern district of Alabama, as to each of said petitioners, and hereinafter set forth, and to reinstate petitioners in the offices of United States attorney and United States marshal for the northern district of Alabama, respectively. As the petitions, proceedings, and orders complained of are the same, mutatis mutandis, the particulars of but one application need be stated.

It appears from the petition of Lewis E. Parsons, Jr., and the accompanying record, that on June 20, 1893, at a regular term of the circuit court for the southern division

of the northern district of Alabama, Emmet O'Neal presented and filed his application or motion as attorney of the United States for the northern district of Alabama, stating that he had theretofore been recognized by the court as such attorney, duly commissioned and qualified, and representing that he had, as United States attorney, demanded of Parsons, "the former incumbent of said office, the possession and custody of the books, papers, and property belonging to the said office, and that the said Lewis E. Parsons, Jr., has refused and declined to surrender or deliver up the same, but, by his counsel, has in open court announced he would decline and refuse to surrender the same without being ordered so to do by the court;" wherefore he moved the court for an order requiring the said Parsons forthwith to turn over and deliver to him, as the attorney for the United States, the books, papers, and property pertaining to or belonging to that office, taking his receipt as such attorney therefor.

Notice of this application was given and accepted on the same day, and thereupon Parsons demurred to the motion upon the grounds that the constitution or laws of the United States did not confer on the president the authority to remove Parsons from the office of United States district attorney, and to appoint O'Neal; that the constitution did not confer the power of appointment or removal during a recess of the senate; that the court had no jurisdiction to make the order prayed for; that "there are no pleadings, or papers, or suit, or due process of law to authorize the order prayed for in the motion;" "that the said court had no jurisdiction or authority to recognize the said Emmet O'Neal as stated in said motion, and that there were no pleadings, suit, or due process of law to authorize the said court to recognize the said Emmet O'Neal as United States attorney in said motion." The de murrer was overruled, and Parsons excepted, and thereupon filed his answer to the motion, averring that he was duly appointed and commissioned by the president of the United States on the 4th of February, 1890, United States attorney for the northern district of Alabama, his commission authorizing and empowering him to perform the duties of that office for the term of four years from its date, which term was fixed by law; that shortly after he qualified and entered upon the discharge of the duties of the office, and had performed them up to the present time; that he had never resigned said office; that he now resided, and had continued to reside since the date of his commission, within the northern district of Alabama, and had given his personal attention to the duties of the office, and no cause of vacancy now existed, er had existed since his appointment; that he had faithfully performed the duties of the office in strict accordance with law; that on May 29, 1893, he received a communication from the president of the United States,

dated May 26th, purporting to remove him from office, which communication is set out; that he had had no notice of any charge whatever having been preferred against him prior to May 29, 1893, and had not yet had notice of any charge; that he replied June 5, 1893, to the president, (which reply is set out,) stating that he was advised by counsel, and that it was his own opinion, that the president had no power to remove him, and that he respectfully declined to surrender the office; and that he had notified the attorney general of the United States, and Emmet O'Neal, who was named by the president as his successor, and whose appointment bore date May 26, 1893, that he declined to surrender the office.

Respondent further answered that he had continued in the possession of the office from the time he had entered on the duties thereof, and now here in open court he claimed the right to, and that his duty required of him that he should, represent the United States in all civil and criminal cases pending, and perform all other duties required of him by law as United States attorney, and requested the court so to permit him to represent the United States and discharge the duties of the office; "that the said O'Neal was never recognized as United States attorney by this court until yesterday, and such recognition was without any suit for such purpose, and in view of the facts herein set out, the said respondent appearing at the time, asking to be allowed to perform his duties as such United States attorney; that this court has no jurisdiction to adjudicate the right to said office in any proceeding in court, and the mere fact that this court has heretofore recognized the said Emmet O'Neal as the United States attorney does not constitute him such attorney."

The respondent also assigned as causes of objection and demurrer that the court had no jurisdiction to make the order; that the respondent claimed to have a vested right to the office for the full term covered by his commission, and the court had no jurisdic tion to deprive him thereof "in the*manner* wherein it is claimed he recognized the said O'Neal as United States attorney," etc. In support of this answer the respondent introduced his commission as attorney of the United States bearing date February 4, 1890, in the usual form, the letter from the president of May 26, 1893, and his reply thereto. He was then examined in his own behalf, and testified that on the opening of the court, June 19, 1893, he was present in court, and objected and protested against the recognition of O'Neal as United States attorney, and also on that day offered himself to perform the duties of that office; that he was appointed United States attorney in June, 1889, and soon thereafter entered upon the discharge of his duties, and on the 4th of February, 1890, was confirmed by the senate, and since then had given his personal at