[122] cannot be arbitrarily taken from them, any in its practice, but for the earnestness with Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Everyone may have occasion to consult him, but comparatively few can judge of the qualifications of learn[123] ing and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications Due consideration, therefore, for the protection of society may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified. The same reasons which control in imposing conditions, upon compliance with which the physician is allowed to practice in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained of the remedial properties of vegetable and mineral substances, or a more accurate knowledge is acquired of the human system and of the agencies by which it is affected. It would not be deemed a matter for serious discussion that a knowledge of the new acquisitions of the profession, as it from time to time advances in its attainments for the relief of the sick and suffering, should be required for continuance There is nothing of an arbitrary character in the provisions of the statute in question; it applies to all physicians, except those who may be called for a special case from another State; it imposes no conditions which cannot be readily met; and it is made enforceable in the mode usual in kindred matters, that is, by regular proceedings adapted to the case. It author izes an examination of the applicant by the oard of health as to his qualifications when be has no evidence of them in the diploma of ▲ reputable medical college in the school of medicine to which he belongs, or has not practiced in the State a designated period before [125] March, 1881. If, in the proceedings under the statute, there should be any unfair or unjust action on the part of the board in refusing him a ccrtificate, we doubt not that a remedy would be found in the courts of the State. But no such imputation can be made, for the plaintiff in error did not submit himself to the examination of the board after it had decided that the diploma he presented was insufficient. The cases of Cummings v. Missouri, 71 U. 8. 4 Wall. 277 [18: 356], and of Ex parte Garland, 71 U. S. 4 Wall. 333 [18: 366] upon which much reliance is placed, do not, in our judgment, support the contention of the plaintiff in error. In the first of these cases it appeared that the Constitution of Missouri, adopt ed in 1865, prescribed an oath to be taken by persons holding certain offices and trusts and following certain pursuits within its limits. They were required to deny that they had done certain things, or had manifested by act or word certain desires or sympathies. The oath which they were to take embraced thirty distinct affirmations respecting their past conduct, extending even to their words, desires and sympathies. Every person unable to take this oath was declared incapable of holding in the State" any office of honor, trust or profit under its authority, or of being an officer, councilman, director, trustee, or other manager of any corporation, public or private," then existing or thereafter established by its authority; or "of acting as a professor or teacher in any educational institution, or in any common or other school, or of holding any real estate or other property in trust for the use of any church, religious society, or congregation." And every person holding, at the time the Constitution took effect, any of the offices, trusts or positions mentioned was required, within sixty days thereafter, to take the oath, and if he failed to comply with this requirement it was declared that his office, trust, or position should, ipso facto, become vacant. No person after the expiration of the sixty days was allowed, without taking the oath, "to practice as an attorney or counsellor at law," nor after that period could "any person be competent as a bishop, priest, deacon, minister, elder, or other clergyman of any religious persuasion, sect or denomination to teach or preach, or solemnize marriages." Fine and imprison[126] ment were prescribed as a punishment for holding or exercising any of the "offices, positions, trusts, professions, or functions" specified without taking the oath, and false swearing or affirmation in taking it was declared to be perjury punishable by imprisonment in the penitentiary. A priest of the Roman Catholic Church was indicted in a Circuit Court of Missouri, and convicted of the crime of teaching and preaching as a priest and minister of that religious denomination, without having first taken the oath, and was sentenced to pay a fine of $500, and to be committed to jail until the same was paid. On appeal to the supreme court of the State the judgment was affirmed, and the case was brought on error to this court. As many of the acts from which the parties were obliged to purge themselves by the oath had no relation to their fitness for the pursuits and professions designated, the court held that the oath was not required as a means of ascertaining whether the parties were qualified for those pursuits and professions, but was exacted because it was thought that the acts deserved punishment, and that for many of them there was no way of inflicting punishment except by depriving the parties of their offices and trusts A large portion of the people of Missouri were unable to take the oath, and as to them the court held that the requirement of its Constitution amounted to a legislative deprivation of their rights. Many of the acts which parties were bound to deny that they had ever done were innocent at the time they were committed, and the deprivation of a right to continue in their offices if the oath were not taken was held to be a penalty for a past act, which was violative of the Constitution. The doctrine of this case was affirmed in Pierce v. Carskadon, 83 U. S. 16 Wall. 234 [21: 276]. In the second case mentioned, that of Ex parte Garland, it appeared that on the second of July, 1862, Congress had passed an Act prescribing an oath to be taken by every person elected or appointed to any office of honor or profit under the United States, either in the civil, military, or naval departments of the government, except the President, before entering upon the duties of his office, and before being entitled to his salary or other emoluments. On the 24th of January, 1865, Congress, by a supplemental Act, extended its provisions so as to embrace attorneys and counselors of the Courts of the United States. This latter Act, among other things, provided that after its passage no person should be admitted as an attorney and counselor to the bar of the Supreme Court, and, after the 4th of March, 1865, to the bar of any Circuit or District Court of the United States, or of the Court of Claims, or be allowed to appear and be heard by virtue of any previous admission, until he had taken and subscribed the oath prescribed by the Act of July 2, 1862. The oath related to past acts, and its object was to exclude from practice in the courts parties who were unable to affirm that they had not done the acts specified; and, as it could not be taken by large classes of persons, it was held to operate against them as a legislative decree of perpetual exclusion. Mr. Garland had been admitted to the bar of the Supreme Court of the United States previous to the passage of the Act. He was a citizen of Arkansas, and when that State passed an ordinance of secession which purported to withdraw her from the Union, and by another ordinance attached herself to the so called Confederate States, he followed the State and was one of her Representatives first in the lower House and afterwards in the Senate of the Congress of the Confederacy, and was a member of that Senate at the time of the surrender of the Confederate forces to the armies of the United States. Subsequently, in 1885, he received from the President of the United States a full pardon for all offenses committed by his participation, direct or implied, in the rebellion. He produced this pardon and asked permission to continue as an attorney and counselor of [127] this court without taking the oath required by the Act of January 24, 1865, and the rule of the court which had adopted the clause requiring its administration in conformity with the Act of Congress. The court held that the law in exacting the oath as to his past conduct as a condition of his continuing in the practice of his profession, imposed a penalty for a past act, and in that respect was subject to the same ob[128] jection as that made to the clauses of the Constitution of Missouri, and was therefore invalid. There is nothing in these decisions which supports the positions for which the plaintiff in error contends. They only determine that one who is in the enjoyment of a right to preach and teach the Christian religion as a priest of a regular church, and one who has been admitted to practice the profession of the law, cannot be deprived of the right to continue in the exercise of their respective professions by the exaction from them of an oath as to their past conduct, respecting matters which have no connection with such professions. Between this doctrine and that for which the plaintiff in error contends, there is no analogy or resemblance. The Constitution of Missouri and the Act of Congress in question in those cases were designed to deprive parties of their right to continue in their professions for past acts or past expressions of desires and sympathies, many of which had no bearing upon their fitness to continue in their professions. The law of West Virginia was intended to secure such skill and learning in the profession of medicine that the community might trust with confidence those receiving a license under authority of the State. Judgment affirmed. Lee v. Blandy, 2 Fish. Pat. Cas. 93; Howes v. Nute, 4 Cliff. 173. Necessary parts, left out of the claim, if well described, are supplied by legal construction. Kittle v. Merriam, 2 Curt. 479; Gathright v. Callaway Co. 10 Mo. 665; Richardson's App. 7 Pat. Off. Gaz. 1053; Wheeler v. Clipper Mower & Reaper Co. 2 Pat. Off. Gaz. 442. A description in a published work, to anticipate a patent, must be full, clear and exact, so as to reach the clearness of a patent specification. Seymour v. Osborne, 78 U. 8. 11 Wall. 555 (20: 42); Cohn v. U. S. Corset Co. 93 U. S. 370 (23: 908). The translation must be free from doubt, and the burden of proof is on the respondent. Bignall v. Harvey,5 Bann. & Ard. 638; Col gate v. Gold & S. Tel. Co. 4 Bann. & Ard. 415 The prior publication must show the same organized machine as that in complainant's patent, operating in the same way. Clark P. S. & F. Regulator Co. v. Copeland, 2 Fish. Pat. Cas. 221. Where there are two translations, that which is most literal will be taken. White v. Allen, 2 Cliff. 244. Alleged prior use must be proved beyond a reasonable doubt. Hawes v. Antisdel, 8 Pat. Off. Gaz. 685; Wood v. Cleveland Rolling Mill Co. 4 Fish. Pat. Cas. 550-560; Parham v. Am. Buttonhole, O. & S. Mach. Co. Id. 468-482; Sayles v. Chicago & N. W. R. Co. Id. 584-590; Crouch v. Speer, 6 Pat. Off. Gaz. 187; Roemer v. Simm, 5 Pat. Off. Gaz. 555; Coffin v. Ogden, 85 U. S. 18 Wall. 120 (31: 831); Campbell v. James, 19 Blatchf. 42. Mr. Wilbur F. Lunt, for appellee: Invention must be new and useful. If it is [47] NATHAN ROSENWASSER AND JENNIE & machine it must be operative, and accomplish A. SPIETH, Appts., the end practically and usefully in the way pointed out. Parkhurst v. Kinsman, 1 Blatchf. 497. There can be no invention in a simple en Bee 8. C., erroneously entitled in Reporter's ed. largement of the orifice for the discharge of First. That the plaintiff's contrivance, for which the patent was granted, is not new; and that, if it were new, there would be grave doubt whether it involved any invention. it Second. That, as the plaintiff's contrivance had been anticipated, half a century before, in the German publication mentioned in the opinion, It is unnecessary to decide whether, if new, would have been patentable. [No. 122.] Argued Dec. 11, 12, 1888. Decided Jan. 14, 1889. APPEAL from a decree of the Circuit Court of the United States for the District of Maine, that the plaintiff's letters patent were invalid, and dismissing a suit for their infringement. Affirmed. Reported below, 22 Fed. Rep. 841. The facts are stated in the opinion. Mr. William Henry Clifford, for appellants: The respondent must be accountable to us for the use of that part of his device which is our invention. the percolate. Vinton v. Hamilton, 104 U. 8. 491 (26: 809). plainant Rosenwasser has patented was patent- Plimpton v. Malcomson, L. R. 3 Ch. Div. 531. Mr. Justice Gray, delivered the opinion of [48] the court: [49] which serves the double purpose of a discharge | a small opening, attached to which is a flexible But, passing over the difficulty that the diaphragm is not claimed as part of the combination patented, neither the percolator open at one end, the diaphragm, the inversion of the percolator, the insertion of the tube in the small opening in the covered end, nor the making that tube flexible and with a stop-cock, is new. All those elements appear in the Real press, as modified by Beindorf, described in Geiger's Handbuch der Pharmacie, published in 1830 at Stuttgart in Germany, which is an exhibit in the case, and a translation of the material parts of which (Vol. 1, pp. 157-160), verified by the oath of a witness for the defendant, and included in the record, appears, though not quite grammatical, to be substantially accurate, notwithstanding the opposing testimony introduced by the plaintiff to impugn its correctness. The novelties suggested consist in having "What I claim is: the combination, with a vessel, G, and adjustable tube, F, of a percolator, A, having a large filling and discharge orifice at its lower end, and a restricted opening, B, at its upper end, with which connects the lower end of the adjustable tube or pipe F, substantially as set forth." The description of the percolator, and of the mode of using it to make fluid extracts or decoctions of drugs, amounts to this: The percolator is a cylinder wholly open at the lower end, and with a cover at the upper end, having It will be sufficient to quote from that trans- "The Die Real'sche Presse besteht der Hauptsache nach aus einem hohlen Cylinder, in welchem die auszuziehende Substanz im gepulverten Zustande zwischen 2 siebförmig durchlöcherten Platten fest gepackt enthalten ist, so dass sie nach keiner Seite enden offen ist, so wird an einem Ende ein Deckel hin weichen kann. Wenn der Cylinder an beiden luftdicht aufgepasst, welcher in der Mitte ein Loch hat, worein eine hohe Röhre ebenfalls luftdicht gesteckt wird. Zwischen dem Deckel und der obern siebförmigen Platte muss etwas Raum bleiben. Beim Extrahiren wird der Cylinder aufrecht fest [50] [51] [52] [86] 3. A suit in equity to set aside the sale of the minor's real estate had under a proceeding in the probate court is proper, under the circumstances of this case. The action of ejectment does not afford an adequate remedy. of equity, upon the ground of fraud. 5. The court, in such case, does not act as a court of review, nor inquire into irregularities of another court; but it will scrutinize the conduct of the parties, and if it finds that they have been guilty of fraud in obtaining a judgment or decree, it will deprive them of the benefit of it, and of any inequit on a chair [frame] having a hole in the middle, 6. If a case of fraud be established, equity will set aside all transactions founded upon it, by whatever machinery or contrivances they may have been effected, whether such machinery or contrivances consist of a decree of equity and a purchase under it, or of a judgment at law, or of other transactions between the actors in the fraud. [No. 133.] Argued Dec. 18, 1888. Decided Jan. 14, 1889. of tube may be closed after removing the sy-APPEAL from a decree of the Circuit Court phon.' of the United States for the Northern DisThis court concurs in opinion with the Cir- trict of Ohio, dismissing on demurrer a suit to cuit Judge that the plaintiff's contrivance is not set aside and declare void proceedings for the new, and, that if it were new, there would be sale of a minor's real estate instituted by his grave doubt whether it involved any invention. guardian in the Probate Court of Defiance 22 Fed. Rep. 841. As the plaintiff's contriv- County, in the State of Ohio, and for an acance had been anticipated in the German pub-counting as to rents and profits. Reversed. lication half a century before, it is unnecessary to decide whether, if new, it would have been patentable. Decree affirmed. DICK E. ARROWSMITH, Appt., v. EDWARD H. GLEASON ET AL. (See S. C. Reporter's ed. 86-101.) Ohio Statute for sale of a minor's real estate 1. Under the Ohio Statute which enacts that upon prescribed by the statute. 2. The Supreme Court of Ohio having decided that, where the probate court had jurisdiction of proceedings for the sale of a minor's real estate, and of the parties, the sale was not void by reason of the failure to require from the guardian the additional bond mentioned in section 27 of the Act on that subject, this construction of the local statute by such court should be followed. The facts are stated in the opinion. The third ground of demurrer is untenable. Gaines v. Fuentes, 92 U. S. 10 (23:524); Johnson v. Waters, 111 U. S. 640, 667 (28:547, 556). Defendant Gleason is a necessary party. Harwood v. Cincinnati & C. H. L. R. Co. 84 U. S. 17 Wall. 78 (21: 558); Gaylord v. Kelshaw, 68 U. S. 1 Wall. 81 (17:612). The allegations of the bill of the appellant bring this case within all the requirements of equity jurisdiction. Freeman, Judg. § 495; Davis v. Tileston, 47 U. S. 6 How. 114 (12:366); Shelton v. Tiffin, 47 U. S. 6 How. 163 (12:387); Long v. Mulford, 17 Ohio St. 484; Darst v. Phillips, 41 Ohio St. 514; Johnson v. Waters, 111 U. S. 640 (28:547); Baker v. O'Riordan, 65 Cal. 368; Taylor v. Walker, 1 Heisk. 734; Newcomb v. Dewey, 27 Iowa, 381; 2 Pom. Eq. Jur. § 914, 915, 918; Spellman v. Dowse, 79 Ill. 66, 70; Thomas v. Hite, 5 B. Mon. 590; Newland v. Gentry, 18 B. Mon. 671. Where infants have been deprived of a substantial right by a decree, courts of equity have sustained bills to impeach such decree. Am. ed. 834; 1 Dan. Ch. Pr. 3d Am. ed. 153; Story, Eq. Pl. 8th ed. § 427; Adams, Eq. 4th Lloyd v. Kirkwood, 112 Ill. 330; Long v. Mulgestellt, so dass ein Gefäss zum Aufsammeln der keit, so das der Spiegel der Flüssigkeit etwas niederFlüssigkeit untergestellt werden kann." "Eine er als das Ende der Röhre steht. Man senke jetzt sehr zweckmässige Abänderung der Real'schen einen Heber in die Flüssigkeit und in die Röhre, Presse hat Beindorf vorgenommen. Der Cylinder ziebe durch die Röhre mit dem Munde etwas Luft wird in einen Stuhl gepasst, dessen Deckel beweg- an, indem man mit den Lippen, dem Daumen, und lich ist, so dass durch Umdrehen desselben die Zeigefinger das Eindringen derselben von aussen Presse gefühlt und mit dem Rohr verbunden wer- zu hindern strebt; die Flüssigkeit wird sich beben den kann." "Der gefühlte, mit dem Boden nach und durch den Heber in die Röhre auslaufen, diese oben gerichtete Cylinder wird auf einen Stuhl ges- wird selbst damit augefüllt, und so wirkt die Fluistellt, der in der Mitte ein Loch hat, in welches sigkeit drückend und lösend auf die Substanz. Sie derselbe passt und mit seinem Wulste aufliegt." durchdringt sie und kommt, mit extractiven TheilDen obern leeren Raum füllt man mit der aus- en beladen, anfangs oft von Syrupsdicke, vollkomzuziehenden Flüssigkeiten an und passt in die Oeff- men klar hervor.' "Um die Wirkung nach Belnung des Bodens eine Röhre, sie kann von Weiss-ieben aufhören zu machen, bringt man einen Hahn blech, Glas, Holz, oder ein lederner Schlauch u. an die Röhre, den man schliefst, oder man versch6. w. seyn." "Neben das obere Ende der Röhre liefst nach weggenommenem Heber das obere Ende stelle man ein Gefäss mit der Ausziehungsflüssig- der Röhre." |