Cox v. Barney. directions of the Secretary of the Treasury, he shall not have any remedy against the property of the collector. It is manifest, that the Government re-instated the right of action against the collector, for the purpose of giving to the party from whom the illegal duties should be exacted, a standing in Court to sue the collector, while it took away from him the right to obtain the fruits of his judgment by execution. In acting upon this statute, either in granting a certificate or in restraining an execution, the Court cannot look into the question, whether the reasons for not paying the money out of the Treasury appear to be sufficient-as to whether there is a fund out of which it might be paid, or as to whether the Secretary of the Treasury ought to have paid it. It is said, that it is discretionary with the Court to give a certificate of probable cause. It seems to me, however, that, where the collector has exacted money in the performance of his official duty, under the directions of the Secretary of the Treasury, and has paid it into the Treasury, it is the duty of the Court to grant a certificate to that effect, leaving the consequences to take care of themselves. It is further said, that the judge who tried the case is the person to grant the certificate, and that no other judge can do so. But I think, that, although the judge before whom the verdict was rendered is not the judge to whom the application for the certificate is made, yet he can properly grant the certificate. The statute provides for the making of the certificate by "the Court," and not by any particular judge. The only point that is at all troublesome is the suggestion, that the application comes too late. It is clear, from the affidavits on the part of the defendant, on this motion, that the practice has grown up of not asking for a certificate of probable cause, until the time came around for the payment of the money out of the Treasury. I do not think that the plaintiff in this "charges and commissions" case is in a position to allege laches or delay, on the part of the Government or of the defendant, in applying for this certificate of probable cause. Cox v. Barney. It is unfortunate for the plaintiff, that he is unable to obtain his money, and it is to be regretted that it is so, but it is for the legislative department of the Government to provide for the payment of the money, and the Court must assume that there is no dereliction of duty on the part of the executive officers of the Government. It is not the province of this Court to pass upon any such question. The statute is perfectly plain, and the Court ought not to wrest it from its clear meaning, on the consideration that the effect of granting the certificate of probable cause will be to relieve the executive officers of the Government from a pressure which, otherwise, would be upon them, to assist the defendant in paying the judgment. The statute looks to the exemption of the property of the collector from execution, provided he has acted under the instructions of his superior officer, and has paid into the Treasury of the United States the money which he has exacted. The ultimate means of paying back the money another question. The statute says that it shall be provided for and paid out of the proper appropriation from the Treasury. is An execution having been issued, it seems to me that the good sense of the statute is, that no execution shall collect the debt, but that the money shall be paid out of the Treasury. Therefore, the certificate is to be granted not only to prevent the issuing of an execution against the collector, but to stay one already issued. Herring v. Nelson, JAMES W. HERRING AND OTHERS vs. WILLIS S. NELSON AND OTHERS. IN EQUITY. THE SAME VS. WILLIAM G. GAGE AND OTHERS. IN EQUITY. The first claim of reissued letters patent granted to John Deuchfield, January 16th, 1872, for an "improvement in cooling and drying meal," and extended, April 17th, 1872, for seven years from April 20th, 1872, (the original patent having been granted to said Deuchfield April 20th, 1858,) namely, “The arrangement and combination of the suction fan G, and the spout I, with the meal-chest D, receiving the meal from the grinding stones, and provided with a conveyor shaft F, and elevator F,' substantially as and for the purpose set forth," is not subject to the objection that it is for a different invention from that for which the original patent was issued, although the original patent claimed only a combination which embraced the elements composing the combination claimed in said first claim with other elements. The combination of machinery for cooling meal, in the process of converting grain into flour, with machinery for preventing the waste of meal, constitutes a patentable combination, and not a mere aggregation. A patent for a combination of old elements may be reissued for a combination of fewer elements than were contained in the combination originally claimed. The decision in Gill v. Wells, (22 Wall., 11,) explained. A patent, to be overthrown on the question of novelty, must be overthrown by clear and satisfactory proof. A rejected application for a patent is not evidence that the thing described was ever used, nor is such description a patent or a publication, within the statute. (Before JOHNSON, J., Northern District of New York, September, 10th, 1877.) JOHNSON, J. The bills, in these causes, were exhibited by the plaintiffs, as assignees, for the county of Oswego, of certain reissued and extended letters patent, originally granted to John Deuchfield, April 20th, 1858, and numbered 19,984, for the term of fourteen years. The letters patent were reissued to Deuchfield, January 16th, 1872, and were extended, April 17th, 1872, for a further term of seven years from the time of the expiration of the original and reissued patent, April 20th, Herring v. Nelson. 1872. The defendants are charged with infringing the first claim of the reissued patent. In defence, it is insisted that the reissued letters patent are not for the same invention as the original patent, and that new matter has been introduced into the specification, contrary to the provisions of section 53 of the Patent Act of July 8th, 1870, (16 U. S. Stat. at Large, 205.) In the second place, it is claimed that the patentee was not the first inventor of what, if anything, was new in the invention claimed under the first claim of the reissued patent. This position is sought to be sustained by proof, 1st, that some one else made the invention, if any; 2d, by proof of several patents which are claimed to anticipate the Deuchfield patent; and, 3d, by proof of what is alleged to have been the prior use, in various instances, of that which is claimed as the invention of Deuchfield. The reissued patent, number 4,712, dated January 16th, 1872, is for an alleged new and useful "improvement in cooling and drying meal," which Deuchfield claimed to have invented. The amended specification annexed thereto states that Deuchfield has "invented a new and improved arrangement of means for cooling and drying meal," and declares the invention to consist in "the peculiar arrangement of a suction fan, conveyor or conveyors, and elevators," as thereinafter de scribed, "whereby the meal, during its passage from the grind ing stones to the bolts, is thoroughly dried and cooled within a limited space, the whole forming a simple and economical device." The specification is accompanied by lettered drawings, which are referred to in the description: "A represents mill-stones, and A' are the curbs. The stones are arranged in the ordinary way. B represents the bed on which the stones are placed; C represents the spouts which convey the meal from the stones; and D is a chest which is placed horizontally on the flooring, E, and with which the blower ends of the spouts, C, communicate, as shown at a in both figures. Within the chest, D, a longitudinal shaft, F, is placed, said shaft having a spiral flanch, b, on it, as shown clearly in fig. 1. The chest, D, is equal in length to the bed, B, so that all the spouts, Herring v. Nelson. C, of the several stones, A, may communicate with it. Within the chest, D, there is also placed a zig-zag partition, E, provided with openings, c, having slides, d; and with one end of the chest, D, elevators, F', communicate, said elevators discharging their contents at e, as shown in fig. 2. G is a fan, which is placed within a suitable box, H. The box, H, communicates with a spout, I, the lower end of which communicates with one end of the chest, D, as shown at f. The upper end of the spout, I, communicates with one end of a chest, J, as shown at g. The chest, J, contains a longitudinal shaft, K, having a screw or spiral flanch, h, on it, as plainly shown in fig. 1, and, within the chest J, a series of vertical plates, i, is placed and arranged, as clearly shown in fig. 1, to form a zigzag passage, as indicated by arrows, 1. The end of the chest opposite to that where the spout, I, communicates, is provided with an opening, j. Both shafts, F, K, are rotated by any proper means, in the direction indicated by the arrows, 2." The operation is next described, as follows: "The meal passes from the stones, A, down the spouts, C, and into the lower part of the chest, D, and is conveyed by the spirally flanched shaft, F, into the elevator, F', the shaft, F, which is a conveyor, moving the meal in the direction indicated by the arrows, 3. The meal is carried up by the elevators and discharged, at e, directly into the bolts or into troughs, and may be conveyed by hopper-boys, or any suitable conveying device, into the bolts. While the meal is thus passed through the stones, A, spouts, C, and the chest, D, a suction blast is produced by the fan, G, said blast absorbing the moisture or vapor which the meal contains, and which is heated or warmed by the friction of the stones, A. The meal, therefore, is dried and cooled, and, in consequence of the time consumed during its passage through the spouts, C, and chest, D, will be perfectly acted upon by the blast, so that all free moisture will be absorbed. A portion of the finer and lighter particles of flour will follow the blast, and will be ejected up through the spout, I, and through the serpentine or winding-passage formed by the parts i, and will settle in the outer end of the chest, J, and be conveyed by the |