The United States v. Schillinger. THE UNITED STATES, PLAINTIFFS IN ERROR vs. JOHN J. SCHILLINGER, DEFENDANT IN ERROR. Under § 6 of the Act of July 14th, 1870, (16 U. S. Stat. at Large, 257,) which imposes a tax on gains, profits and income for the year 1871, and no longer, the amount of a promissory note taken in 1871, on the sale, in that year, of a patent right, but not due until some time in 1872, and paid in that year, is not taxable as income for 1871. (Before JOHNSON, J., Southern District of New York, December 21st, 1876.) JOHNSON, J. The question on this writ of error is, whether the defendant was liable to an income tax for the year ending December 31st, 1871, upon the amount of certain promissory notes. These notes were received by him during the year 1871, upon a sale of certain patent rights, in part payment of the price thereof. They did not become due until some time in the year 1872, and then they were paid. In my opinion there is no ground for this action. The tax was imposed for the years 1870 and 1871, and no longer, upon the gains, profits and income of every person residing in the United States. (Act of July 14th, 1870, § 6, 16 U. S. Stat. at Large, 257.) In the absence of any special provision of law to the contrary, income must be taken to mean money, and not the expectation of receiving it, or the right to receive it, at a future time. In this case, the defendant changed his patent rights for promissory notes payable in the future. Their value was uncertain; they might or might not be paid; but, until they were paid, they were not income, but only the ground of expecting income. The notes were no more taxable as income than would have been other patent rights, if the defendant had received them in payment of those he sold. There are in the next section of the statute, sec. 7, provisions which confirm this construction. It makes interest received Seligman v. Day. or accrued upon all notes, bonds and mortgages, or other forms of indebtedness bearing interest, whether paid or not, if good and collectible, subject to the income tax. The purpose of this is evidently to prevent a man escaping the income tax, by abstaining from taking that which is due him. On the same principle, had these notes been due, and had the defendant allowed them to remain unpaid, there might have been room to contend that their amount should be regarded as income; but, not being due, when the income had become fixed for the year, they were no part of the defendant's income. The judgment was in accordance with the law and must be affirmed. Roger M. Sherman, (Assistant District Attorney,) for the plaintiffs in error. David L. Williams, for the defendant in error. AUGUST SELIGMAN vs. JOSEPH DAY AND NATHAN HYMAN. IN EQUITY. The claim of letters patent granted to Phillipp Lippmann, September 30th, 1873, for "a corset clasp and cloth attachment," namely," As a new article of manufacture, a covered corset clasp, the cloth of which forms a marginal flap or flaps along its length, suitable for, and adapted to, being sewn upon the corset, substantially as described, and for use in the place of broken, injured or worn out clasps or cloth, as herein set forth," claims merely the making and selling a part of an old and known manufacture as a new way of trade, and is not valid. (Before JOHNSON, J., Southern District of New York, December 21st, 1876.) Seligman v. Day. JOHNSON, J. This is a motion for an injunction to restrain, pending the suit, the infringement by the defendants of letters patent No. 143,359, granted to Phillipp Lippmann, dated September 30th, 1873, for "a corset clasp and cloth attachment." The patentee claims, "as a new article of manufacture, a covered corset clasp, the cloth of which forms a marginal flap or flaps along its length, suitable for, and adapted to, being sewn upon the corset, substantially as described, and for use in the place of broken, injured, or worn. out clasps or cloth, as herein set forth." The patent is not sustained by any previous adjudication and it is attacked by affidavits tending to show that the article which the patent describes was in earlier use than the time claimed by the patentee as that of his invention. Want of novelty may be made out, even conceding that, in a certain sense, the use which the patentee makes of the article is new. It is shown, that corset clasps covered with material similar to that of the corsets to which the clasps were to be applied, have been long made with flaps by which they might be sewn upon the rest of the corset; and that they were so sewn to the other parts of the corsets, in order to complete them. It is, also, shown that these, when worn out, have been frequently, and as matter of business, removed and replaced by new ones sewn on to the old corsets by means of the flaps. These, in a legal sense, are the uses to which the patentee contemplates that his articles shall be put; but he insists, inasmuch as he manufactures these clasps with covers, as a separate article of trade, in assorted sizes, and applicable by purchasers to the making or mending of corsets generally, that a qualtity of patentable novelty is imparted, not exactly to the article itself, but to the manufacture of the article. It is the thing made that is patentable or not. The use made of it is not patentable. The right to make the thing involves the right to use it, when made, at the pleasure of its owner. To make and sell a part of a known thing, as a separate article, is not patentable. If knife blades had never been made and sold separately from their handles, or the handles separately from The United States v. Barnabo. the blades, it would not be patentable to introduce either of those manufactures. Upon the affidavits as they stand, it appears to me that the plaintiff's claim is merely to the making and selling a part of an old and known manufacture, as a new way of trade, and that this is not, in its nature, the subject of a patent. The motion for a preliminary injunction must, therefore, be denied. John B. Staples, for the plaintiff. THE UNITED STATES 28. JOSEPH BARNABO. The laws of the State of New York do not deprive of the right of suffrage a person who has been convicted in a Court of the United States of the offence of uttering a counterfeited security of the United States, such offence being created by § 5431 of the Revised Statutes of the United States. An indictment will not lie, in a United States Court in New York, against a person for having fraudulently registered at a registry of voters in New York, for an election for representatives in Congress, when he was disqualified as a voter by reason of having been convicted of a felony, where the conviction set forth is for having committed the offence created by § 5431 of the Revised Statutes of the United States, of uttering a counterfeited security of the United States. (Before BENEDICT, J., Southern District of New York, December 29th, 1876.) BENEDICT, J. The accused is charged with having fraudu lently registered at a registry of voters for an election for representatives in Congress, he being at the time disqualified as a voter by reason of having been convicted of a felony. The conviction set forth is a conviction of uttering a counterfeited security of the United States, the offence being created by § 5431 of the Revised Statutes of the United States. A demurrer to the indictment presents the question whether the laws of the State of New York deprive of the right of suf The United States v. Barnabo. frage a person who has been convicted, in a Court of the United States, of an offence against the United States, of the character described in § 5431 of the United States Revised Statutes. The question is new in this Court, and I have not been referred to any case where the question has arisen in the Courts of the State. In order to a proper understanding of the statutory provisions in the laws of the State of New York, bearing upon the question, mention must be made of the following provisions in those laws. According to the provisions of § 25 of the Act of April 17th, 1822, no person was allowed to vote who had been "convicted of any infamous crime." In 1823, the second Constitution of the State took effect, and gave authority to pass laws "excluding from the right of suffrage persons who have been, or may be, convicted of infamous crimes." In 1828, the Revised Statutes of the State (1 R. S., 127, § 3,) excluded from the right of suffrage every person "convicted within this State of an infamous crime," "unless he shall have been pardoned by the Executive, and, by the terms of such pardon, restored to all the rights of a citizen." In order to prevent infractions of this law, further provision was then made, (1 R. S., 135, § 21,) that, "if any person so convicted shall vote at any such election, unless he shall have been pardoned and restored to all the rights of a citizen, he shall be deemed guilty of a misdemeanor," &c. An original note of the revisers to chapter 6, title 4, article 2, section 10, says: "The Act of 1822, § 25, provides, that no person who has been convicted of an infamous crime shall be permitted to vote, but it does not point out any mode in which a challenge for that cause shall be determined. Parol evidence of the fact of conviction ought not to be received; nor ought the oath of the person challenged to be demanded. The revisers have therefore, in the above section, required the production of the record; though it is worthy of consideration whether such a regulation would not make the exclusion, to all practical purposes, a nullity. Perhaps a list of the convicts might be annually furnished to the town clerks, and be made evidence in cases of this sort." On the 5th of |