and so believing armed himself solely for the act of defendant; they cannot be consid necessary self-defense in the event of his being ered, I say, because you cannot kill a man bepursued and attacked, and if the circumstances cause of previous threats. You cannot weigh on the occasion of the meeting at or near the in the balance a human life against a threat. saloon were such as, by themselves, made a There is no right of that kind in law. Threats case of manslaughter, then the defendant arm- are only admitted as illustrative of another coning himself, after the difficulty near the post-dition that exists in the case. If the party, at office, did not, in itself, have the effect to con- the time of killing, who is killed, is doing that vert his crime into that of murder. which indicates a purpose to do great bodily harm, to kill, or is about to do it, so near doing it, and goes so far that it can be seen from the nature of the act what his purpose is, then for the purpose of enabling you to more clearly see the situation of the parties you can take into consideration the *threats made by him.[281 But if there is an absence in the case of that which indicates a deadly design, a design to do great bodily harm, really or apparently, threats cannot be considered in connection with the asserted right of a defendant that he can avail himself of the right of self-defense. You cannot do that. But if threats are made, and there is an absence from the case of the conditions I have given you where you can use them as evidence, you can only use them_and_consider them for the purpose of showing the existence of special spite or ill will or animosity on the part of the defendant.”

"Stated in another form: Although the defendant may not have been justified on the occasion and in the particular circumstances of the difficulty at the billiard saloon in believing that the taking of his adversary's life was. then and there, necessary to save his own life or to protect himself from serious bodily harm, nevertheless the jury were not authorized to find him guilty of murder because of his having deliberately armed himself, provided he rightfully armed himself for purposes simply of self defense, and if, independently of the fact of arming himself, the case, tested by what occurred on the occasion of the killing, was one of manslaughter only. The court, in effect, said, or the jury may not unreasonably have understood the judge as declaring, that preparation by arming, although for self-de fense only, could not be followed, in any case, by manslaughter, if the killing, after such arming, was not in fact in necessary self-defense. "If this defendant killed this party, Charles Such we understand to be the meaning of the Hermes, because the old man, the father of charge. In our opinion the court erred in so Charles Hermes, had threatened him with viocharging the jury. If the accused was justi-lence, or threatened to have something done to fied in the eye of the law in arming himself for him because of his belief that he had done self-defense, and if, without seeking, but on something with his hogs or killed them and meeting his adversary, on a subsequent occa- made threats, that is no defense, that is no mitsion he killed him, not in necessary self-de-igation, but that is evidence of malice afore280]fense, *then his crime was that of manslaughter or murder, as the circumstances, on the occasion of the killing, made in the one or the other. If guilty of manslaughter, looking alone at those circumstances, he could not be found guilty of murder by reason of his having previously armed himself solely for self-field." defense."

We think there was also error in that portion of the charge wherein the court instructed the jury as to the effect which they should give to the evidence on the subject of previous threats, uttered against the defendant by Hermes and his sons. The learned judge seems to have regarded such evidence not merely as not ex tenuating or excusing the act of the defendant, but as evidence from which the jury might infer special spite, special ill-will, on the part of the defendant. The language of the learned judge was as follows:

And again:

thought; it is evidence of premeditation; it is evidence of deliberation of a deliberately formed design to kill, because of special spite, because of a grudge, because of ill-will, because of animosity that existed upon the part of this defendant towards these people in the

While it is no doubt true that previous threats will not, in all circumstances, justify or, perhaps, even extenuate the act of the party threatened in killing the person who uttered the threats, yet it by no means follows that such threats, signifying ill-will and hostility on the part of the deceased, can be used by the jury as indicating a similar state of feeling on the part of the defendant. Such an instruction was not only misleading in itself, but it was erroneous in the present case, for the further reason that it omitted all reference to the alleged conduct of the deceased at the time of the killing, which went to show an intention then and there to carry out the previous threats.

"Previous threats fill a certain place in every case where they are brought out in the evidence. If, at the time of the killing, the party is doing nothing which indicates a deadly de- The instructions which have thus far been sign, or a design to do great bodily mischief- the subject of our criticism were mainly appli if he is doing nothing, I say, of that kind-cable to the contention that the defendant acted then previous threats cannot be considered by in self-defense, but they also must have been unthe jury. If they are satisfied from the law derstood by the jury as extending to the other and the testimony that the deceased was not proposition that the defendant's act con-[282 doing anything that amounted to a deadly at-stituted the crime of manslaughter and not of tack, or there is no question in their minds as murder. The charge shows that the instructo what the attitude of the deceased was, pre- tions of the learned judge, on these two disvious threats cannot be considered by them; tinct defenses, were so blended as to warrant they cannot enter into their consideration of the jury in believing that such instructions were the case by the way of justifying any act that applicable to both grounds of defense. resulted in the death of Charles Hermes from

Whether this be a just view or not, there

were distinct instructions given as to the contention that the act of killing in this case was manslaughter and not murder, which we think cannot be sustained. A portion of such instructions was as follows:

MASSACHUSETTS & SOUTHERN
CONSTRUCTION CO., Appt.,

v.

CANE CREEK TWP.

(See S. C. Reporter's ed. 283-280.)

Jurisdiction of circuit court-necessary party. 1. In a suit in the circuit court of the United States, to recover the possession of bonds, a plea to the jurisdiction of the court, on the ground that one of the defendants was a citizen of the same state as the plaintiff and a necessary party to controversy, is good.

2.

Where the object of an action or suit is to recover the possession of real or personal property, the one in possession is a necessary and indispensable (and not a formal) party. [No. 112.]

APPEAL from a decree of the Circuit Court South Carolina, in favor of the defendants, the township of Cane Creek et al., in a suit commenced by the Massachusetts & Southern Construction Company, plaintiff, to recover the possession of certain bonds. Reversed and case remanded with instructions to dismiss the suit for want of jurisdiction.

of the United States for the District of

"Now I have been requested to charge you upon the subject of manslaughter. Manslaughter is defined by the law of the United States to be the wrongful killing of a human being, done wilfully, and in the absence of malice aforethought. There must be out of the case that which shows the existence of this distinguishing trait of murder, to find the ex istence of a state of case that authorizes a mitigation of the offense from murder to man slaughter. It is an unlawful and willful kill ing, but a killing in such a way as that the conduct of the deceased Hermes, in this case, at the time he was killed, was not of a character to authorize him to shoot, but that the defend-Submitted Nov. 20, 1894. Decided Dec. 3, 1894. ant could so far have the benefit of that conduct provocative in its nature as that he could ask you to mitigate his crime, if crime_exists here, from murder to manslaughter. Let us see what is meant by that. It cannot grow out of any base conception of fear. It cannot grow out of a state of case where there is a killing because of threats previously made, be cause of that which evidences special spite or ill-will, for if the killing is done on that ground, and if it is shown by the threats, and the previous preparation of the defendant, or the fact of his arming himself, and going back to the field where they were at work, and while there he shot Charles Hermes to death, it cannot be evidence of that condition; but at the time of the killing there must have been that in the conduct of Charles Hermes in the shape of acts done by him that were so far provocative as to then and there inflame the mind of the deceased (defendant) to authorize you to say that it was so inflamed; in such an inflamed condition that 283]the defendant did not act with premeditation; that he did not act from a previously formed design to kill, but that the purpose to kill sprang into existence upon the impulse of the moment because of the provocative conduct of Charles Hermes at the time of the killing,

Statement by Mr. Justice Brewer:

This was a suit commenced by the appellant, a citizen of the state of Massachusetts, in the Circuit Court of the United States for [284 the District of South Carolina, to recover the possession of certain bonds. The defendants were the township of Cane Creek, Lancaster county, South Carolina, a citizen of that state, and the Boston Safe Deposit & Trust Company, a corporation created by and a citizen of the state of Massachusetts, the state of which the plaintiff was a citizen.

The facts as alleged in the bill were that $19,000 of the bonds of the township of Cane Creek, one of the defendants, had been by Company, the other defendant, to be delivered agreement deposited with the Deposit & Trust that would be a state of manslaughter. The law says that the previous selection, prep township was completed and ready for operato the plaintiff when a certain railroad in the aration, and subsequent use of a deadly weapon tion, as shown by the certificate of the enshows that there was a purpose to kill contemplated before that affray existed, and when-gineer of the railroad company, and a majority ever that exists, when it is done unlawfully of the board of county commissioners of Lanand improperly so that there is no law of self-caster county, the corporate agent of said townfense in it, the fact that they may have been in an actual affray with hands or fists would not reduce the grade of the crime to man

slaughter."

ship; that the road had been fully completed, fused to sign the required certificate; that the but that the commissioners wrongfully reDeposit & Trust Company had no interest in the bonds, and claimed none, and was ready and willing to deliver the bonds whenever it

v. Smalley, 7: 287.

The error here is in the assumption that the act of the defendant in arming himself showed a purpose to kill formed before the actual NOTE. As to colorable conveyances to enable suit affray. This was the same error that we found to be brought; motive of transfer; when no objection; in the instructions regarding the right of self-coupons: residence of assignor, see note to McDonald defense and brings the case within the case of Gourkov. United States, previously cited, and the language or which we need not repeat. These views call for a reversal of the judg. ment, and it is therefore unnecessary to consider the assignments that allege errors in the selection of the jury.

The judgment is reversed, and the cause remanded for a new trial.

As to jurisdiction of United States circuit court dependent on residence of parties; proper place of suit, see note to Roberts v. Lewis, 36: 579.

As to amount necessary to give jurisdiction in circuit court cases prior to Act of 1875; amount necessary since Act of 1875; amount in dispute, see note to Schunk v. Moline, M. & S. Co. 37: 256.

As to parties in error; who necessary, see note to Owings v. Kincannon, 8: 727.

ant, being a citizen of the same state with the plaintiff, there was no right of removal on the part of Montague, or of the intervening defendant, the Oswego township, on the ground that the Union Savings Association was a formal, unnecessary, or nominal party."

Further comment is not required. The decree of the circuit court must be reversed, and the case remanded, with instructions to sustain the plea, and to dismiss the bill for want of jurisdiction.

WILLIAM DEERING, Appt.,

V.

(See S. C. Reporter's ed. 286.)

was protected in so doing. The prayer was, first, for process; second, that pending said suit, and until further order of the court, the said trust company be ordered to deliver and pay over said bonds to the complainant; third, that the said defendant township may be required to specifically perform its aforesaid agreements by assenting to the delivery of said bonds now in the hands of said defendant trust company to the complainant; fourth, that said defendant trust company be ordered to pay and deliver said bonds to the complainant;" fifth, for further relief. The township defended by a motion to set aside the service of process, by a plea to the jurisdiction of the court, on the ground that one of the defendants was a THE WINONA HARVESTER WORKS. citizen of the same state as the plaintiff, and a necessary party to the controversy, and by an answer to the merits. The Deposit & Trust Company also filed an answer, which set forth that it had no interest in the bonds, or the debt represented thereby, made no claim for any services in connection therewith, that it was a mere stakeholder, and ready to deliver the bonds whenever protected in so doing. It was agreed 285jby counsel "that the motion to set aside service and the pleas to the jurisdiction should be heard when the case was tried on its merits without prejudice, the motion not to be deemed as waived or overruled by the pleas and answer and the pleas not to be deemed waived or overruled by the answer, and for the sake of convenience this agreement shall continue of force for the purposes of this appeal and hearing in the Supreme Court."

The motion to set aside service and the plea were overruled, but upon the merits a decree was entered in favor of defendants. To reverse this decree the plaintiff appealed to this court, the bond on appeal running only to the township.

Mr. Samuel Lord for appellant.
Mr. Ira B. Jones for appellee.

Mr. Justice Brewer delivered the opinion of the court:

Olin patent for harvesters-application-proof of prior use-cogent evidence-abandoned experiments-first inventor.

1.

The first claim of the Olin patent No. 223,812 for an improvement in harvesters which describes a swinging elevator located upon the grain or ascending side of the main belt, pivoted at its lower end and movable at its upper end, cannot be construed to cover a similar device located upon the stubble side, pivoted at its upper end and swinging at its lower end.

2. If an inventor describes and claims only a part of his invention in his application for a patent, be is presumed to have abandoned the residue to the public.

3.

Oral testimony, unsupported by patents or exhibits, tending to show prior use of a device regularly patented, is open to grave suspicion.

4. Anticipations of patents are to be proven by evidence so cogent as to leave no reasonable doubt in the mind of the court.

5.

Unsuccessful and abandoned experiments, do not affect the validity of a subsequent patent. 6. The first inventor of a machine is entitled to a patent therefor, though the infringer may make use of other means than those employed by him to operate it.

7. Steward was the inventor of the pivoted extension described in the twentieth claim of his patent of Feb. 20, 1883, No. 272,598, for an improvement in grain binders; and the claim is valid and was infringed by defendants; the twenty-first claim was not infringed.

[No. 54.]

The plea to the jurisdiction should have been sustained. The substantial object of the suit was to obtain possession of the bonds. The Deposit & Trust Company was the party in possession, and, although it claimed no in- Argued Nov. 5, 6, 1894. Decided December 3, terest in the bonds as against the plaintiff and its codefendant, yet possession could not be en

1894.

forced in favor of the plaintiff except by a de- APPEAL from a decree of the Circuit

cree against it. Where the object of an action or suit is to recover the possession of real or personal property, the one in possession is a necessary and indispensable (and not a formal) party. The case of Wilson v. Oswego Trop. 151 U. S. 56 [38: 70] is decisive on this point. In that case a suit was commenced in a state court in Missouri to recover possession of certain bonds in the custody of the Union Savings Association. There were several defendants, among them one Montague, and an intervenor, Öswego township, who, claiming the bonds, removed the case on the ground of diverse citizenship to the Federal court. Such removal was adjudged to he erroneous, this court holding that "the Union Savings Association, being the bailee or trustee of the bonds, was a necessary and indispensable party to the relief 286]sought by the petition, and *that defend

of the United States for the District

NOTE.-A8 to what constitutes infringement of machines; construction of patent, see note to Royer patent; similarity of devices; designs; combinations; v. Coupe, 36: 1073.

As to patentability of inventions; patentable subject-matter; utility; what constitutes invention; patentable novelty; combinations; foreign patents and their effects, see note to Grant v. Waiter, 37: 552.

As to anticipation of patents; prior patents and publications; application and issue; claims and specifications, see note to Leggett v. Standard Oil Co. 37: 737.

For what patents are granted; when declared void. see note to Evans v. Eaton, 4: 433.

As to patents for designs, when valid, see note to Smith v. Whitman Saddle Co. 37: 606.

As to patentability of inventions, see notes to Thompson v. Boisselier, 29: 76, and Corning v. Burden, 14: 683.

289] *The plaintiff claimed an infringement | binder, shall make it automatically regulate of the first claim of the patent, which reads as follows:

The object of my invention is to provide means that, combined with an automatic grain device:

290] *The plaintiff claimed an infringement | discharged from the machine either into the of the twentieth and twenty-first claims of the Steward patent, which reads as follows: