[177]

Richardson v. Noyes, 2 Ban. & Ard. 398; | in it, the ends of the blank being notched or
Wallace v. Holmes, 5 Fish. Pat. Cas. 37.

There are two classes of combinations recognized by the patent laws, which are properly the subject of a patent.

Lee v. Blandy, 2 Fish. Pat. Cas. 93.

A combination patent is one in which all the elements enter into it so as to qualify every other.

Hailes v. Van Wormer, 87 U. S. 20 Wall. 368
(22:248); Pickering v. McCullough, 104 U. S.
810 (26:749); Reckendorfer v. Faber, 92 U. S.
357 (23:723); Webster Loom Co. v. Higgins, 105
U. S. 591 (26:1181); Gage v. Herring, 107 U. S.
640 (27:601).

Messrs. I. D. Leggett and Joseph A.
Osborne, for appellee:

None of the features found in appellant's de-
vice perform any different functions from what
they did in earlier honey frames, and none of
them perform any joint function.

dentated, and angular grooves cut across it at
those points which are to form the corners.
These blanks, after being thus prepared, may
be packed solidly in boxes, or otherwise, for
transportation, and, when required for use, are
bent into the square forms, and their ends unit-
ed at one of the corners, by means of the in-
terlocking notches or teeth, thus forming a
complete frame ready for use. In the draw-
ings, Fig. 1 is plan of one of the blanks,
showing the various recesses and grooves with
which it is supplied. Fig. 2 is an edge view
of the blank, and shows the form and depth of
the angular grooves which form the corners of
the frame. Fig. 3 shows the blank bent into
a square form, with the ends united, making a
complete frame ready for use. Fig. 4 shows a
modification of the groove, or miter, c, Fig. 2.
The blanks for these frames are preferably
formed from some light, tasteless, and compa-

It is a mere aggregation of devices, and can-ratively tough wood, which will bend at the not be considered an invention.

Curt. Pat. § 111 c; Walker, Pat. § 32; Hailes
v. Van Wormer, 87 U. S. 20 Wall. 353, 354, 368
(22: 241, 248); Reckendorfer v. Faber, 92 U. S.
847, 357 (23: 719, 723); Pickering v. McCullough,
104 U. S. 310, 318 (26: 749, 751).

The most liberal construction the court can
give the patent is that it is for a combination.
Curt. Pat. § 249; Neilson v. Harford, 1 Web.
Pat. Cas. 317.

The patentee, by the restricted form of his
claim, made the groove a material part of his
device, and the court cannot declare that it is
immaterial.

corners without steaming or boiling, such as
basswood or whitewood, the material being
produced by cutting it from the log in the
form of a thick veneer, or by sawing into thin
stuff and then planing both surfaces. The
blanks A are then cut from this material, of
the proper width and length, the ends dentated,
as shown at a a, by means of a series of circu-
lar saws placed close together upon an arbor or
other suitable tool, so that they will interlock
when brought together. The recesses b b are
then formed in its edges, at such points in its
length as will bring them at the top and bot-
tom of the frames when set up in the hive.
These recesses form openings which allow
space for the passage of the bees between the
frame, and for the ventilation of this part of
the hive. Three triangular grooves, c c c, are
then cut across the blank at such points in its
length as will divide it into four nearly equal
parts, each of which forms one side of the
This is a suit in equity, brought in the Cir- frame after the blank is bent into a quadran-
cuit Court of the United States for the North-gular shape. These triangular grooves are cut
ern District of Ohio, by James Forncrook
against Amos I. Root, for the infringement of
letters patent of the United States No. 243,-
674, granted to the plaintiff, June 28, 1881, for
an "improvement in sectional honey frames,"
on an application filed May 13, 1879.

U. S. Rev. Stat. § 4888; Union Water-Meter
Co. v. Desper, 101 U. S. 332, 337 (25:1024, 1026);
Gage v. Herring, 107 U. S. 640, 648 (27:601,
604.)

Mr. Justice Blatchford delivered the opin-
ion of the court:

The specification, claim, and drawings of the patent are as follows:

"Be it known that I, James Forncrook, of Watertown, in the County of Jefferson and State of Wisconsin, have invented certain new and useful improvements in sectional honey frames, and I do hereby declare the following to be a full, clear, and exact description of the invention, such as will enable others skilled in the art to which it appertains to make and use the same, reference being had to the accompanying drawings, and to letters of reference marked thereon, which form a part of this specification. This invention relates to an improvement in sectional honey frames, the object being to so construct them that they shall be stronger and in a more portable form than the frames now used for such purposes; and the invention consists essentially in forming the frames from a single blank or piece of material having all the necessary grooves and recesses required to form a conplete frame cut

nearly through the blank, sufficient wood only
being left to hold the parts firmly together.
As the sides of the grooves c are inclined to-
ward each other at a right angle, it follows
that, when the blank is bent into the form of a
frame, these grooves make perfectly fitting in-
terjoints at three of its corners, the fourth cor-
ner being that at which the ends of the blank
are united to each other by means of the in-
terlocking teeth formed thereon. In one of
these spaces, between two of the grooves c,
and preferably that which will form the top of
the frame when placed in the hive, is formed a
longitudinal groove, d, for the guide-strip,
which makes a secure point of attachment for
the comb, when the bees begin to build in the
frames set side by side in the hive, with the
parts of the frame containing the recesses bb
at top. These frames meet a want long felt
by beekeepers, as those in common use are
either dovetailed or nailed together at the cor-
ners, and, if set up at the manufactory, form a
large bulk for transportation, and are very lia-
ble to breakage in handling; but, if sold to the
user in pieces, to be put together by him, the
numerous joints to be made cause loss of time
and produce a very fragile article when fin
ished, which loses its rectangular shape with

[17

[17

[180]

the slightest rough usage, as the joints at the | the manufacture, it is merely in point of finish
corners lack the necessary strength and rigidity and workmanship. There is no difference
to hold them in shape. My frame will be whatever in principle, and the early examples
found to possess none of the above named de- were complete and practical frames, actually
fects, as it is intended for transportation in used and perfectly serving the purpose, so that
solid packages before being set up, and, when they cannot be considered as rude and imper-
set up, possess great strength and rigidity, pre- fect experiments subsequently developed into
serving its form without difficulty during all a successful manufacture." We concur in
the rough handling to which such frames are these views of the circuit court.
frequently subjected. Having thus described
my invention, I claim as new, and desire to se-
cure by letters patent, the following: As a
new article of manufacture, a blank for honey
frames formed of a single piece of wood, hav-
ing transverse angular grooves c, longitudinal,
groove d, and recesses b, all arranged in the
manner shown and described."

The answer sets up as defenses noninfringe ment and want of novelty. After issue joined, proofs were taken on both sides, and the circuit court, on a hearing, dismissed the bill. Its decision is reported in 21 Fed. Rep. 328.

The plaintiff does not carry his invention further back than the summer or late spring of 1877. The answer sets up that the same invention as that patented was known to Alexander Fiddes, who resides at Centralia, in the State of Illinois, as early as May or June, 1873.

In addition to this, the claim of the patent is as follows: "As a new article of manufacture, a blank for honey frames, formed of a single piece of wood, having transverse angular grooves c, longitudinal groove d, and recesses all arranged in the manner shown and described." The description in the specification states that "the invention consists, essentially, in forming the frame from a single blank or piece of material having all the necessary grooves and recesses required to form a complete frame cut in it." It also says that "in the drawings Fig. 1 is a plan of one of the blanks, showing the various recesses and grooves with which it is supplied." One of those grooves is the longitudinal groove d. The description further says: "In one of these spaces, between two of the grooves c, is formed a longitudinal groove, d, for the guide strip, which makes a secure point of attachment for the comb when the bees begin to build in the frames, set side by side in the hive, with the parts of the frame containing the recesses bb at the top." Thus the longitudinal groove d is made by the patentee a necessary element in the structure. The defendant's structure has no longitudinal groove, and no substitute or equivalent for it. Fay v. Cordesman, 109 U. S. 408 [27: 979]; Yale Lock Mfg. Co. v. Sargent, 117 U. S. 373 [29: 950]; Dryfoos v. Wiese, 124 U. S. 32 [ante, 362].

The circuit court, in its decision, said that if the patentee was entitled to claim the blank for honey frames as a new and useful device, it was because it is a constituent of the frame or section into which it is formed by bending, no matter who bends it, whether the maker or purchaser for use; and that, if the state of the art at the date of the alleged invention was such that the patentee could not claim as bis invention the honey frame or section when formed by bending and uniting the ends of such a frame, he, for the same reason, could not claim as his invention such a blank for the purpose of forming it into a frame or a section. The opinion then proceeded: "The question, therefore, is whether, upon the evidence, at the date of the alleged invention, the manufacture of honey frames or sections, by bending and uniting the ends of a blank consisting of a single piece, substantially as described in this patent, was a patentable novelty. Upon a careful comparison and consideration of all the evidence this question must be answered in the negative. Alexander Fiddes testifies to making and using honey sections formed from a single piece, grooved, bent, and united at the ends, as early as 1872 and 1873, some of which he sold to others for use; and if those now made by the complainant under his patent are superior in any respect to the first specimens of

It is urged by the plaintiff that it is shown that the defendant's section is to be used with the comb foundation or attachment made by the putting, by the user, of pieces of wax on the section. But this is not a mechanical equiva lent in the blank for the longitudinal groove, any more than, in Gage v. Herring, 107 U. S. 640, 648 [27: 601, 604], the person who shoveled or swept up, by manual labor, the meal depos ited upon the floor of the dust-room, was a mechanical equivalent, in the sense of the patent law, for the automatic conveyer-shaft in the dust-room.

The decree of the Circuit Court is affirmed.

UNITED STATES, Appt.,

D

JOSEPH C. IRWIN ET AL.

SAME, Appt.,

V.

CHARLES A. PERRY ET AL.

(Sce S. C. Reporter's ed. 125-133.)

Act of July 8, 1886-amount of claim.

certain claims to the court of claims for adjudica-
1. The Act of Congress of July 8, 1886, referring
tion, authorizes that court to give a final judgment
against the United States.

2. The reference made by such statute is limited
to a judgment for property taken and impressed
into the service, and for property sold to the Gov-

[181]

[1251

[126]

ernment; and does not embrace allowances for loss-Smith, who ordered the trains to proceed no
es consequent upon the refusal of Colonel Johnston further without his permission. Lieutenant-
to permit plaintiffs' trains to proceed upon their
Journey, arising from the mere delay and deten- Colonel Smith was under command of Col-
tion occasioned thereby.
onel Albert Sidney Johnston. The latter, on
[Nos. 1384, 1385.]
joining the command, issued an order addressed
to the parties in interest, as follows:

findings as, being reported to Congress, shall | steps and returned. This perhaps would also serve as the basis, in its discretion, for future have involved loss in breaking up their venture, legislative action; and (2) that, supposing the and perhaps damage to the property constitutjudgments of the court of claims, under the Act, ing the trains; but it would not have been takto be final, they are erroneous because founded ing and impressing the property into the service on allowances for consequential damages to the of the United States. So far as appears from property of the plaintiffs, by reason of deten- the finding of facts, it was the choice of the tion and delay, not within the limitation pre-plaintiffs to remain with Colonel Johnston's [129] scribed by the Act of Congress, which author- column and proceed with it. In making this ized judgment only for property taken and choice they elected to submit to the necessary impressed into the service of the United States. military orders governing the march and the În support of the first proposition it is camp, and to any inconveniences and losses neargued by the attorney-general that the direc- cessarily resulting therefrom. The case in that tion contained in the Act addressed to the court respect does not differ from what it would be of claims to "report the same to Congress," on the supposition of their having been ordered taken in connection with the title, which de- and compelled to remain at Rocky Ridge or to scribes it as "An Act Referring to the Court of return. Even if it be a just inference of fact Claims the Claims for Property Seized by Gen- that the plaintiffs were under compulsion in eral Johnston on the Utah Expedition, for Ex-keeping with the column of Colonel Johnston, amination and Report," sufficiently indicates the intention of Congress that the conclusions of the court of claims should not be final, but subject to revision at the discretion of Congress. But, in our opinion, the controlling words of the Act are those which declare that the claims of the parties are thereby referred to the court of claims "for adjudication according to law." The force of this phrase cannot be satisfied by anything less than a formal, regular, and final judgment of the judicial tribunal to which the matter is submitted, acting upon the acknowledged principles of law applicable to the circumstances of the case. All such judgments were required by existing law to be reported to Congress; and the addition of words to the same effect in this statute, while being perhaps unnecessary, does not change the character of the judgments to be reported.

[130]

On the second question, however, we are of the opinion that the court of claims has erred. The reference made by the statute is limited by its express language to a judgment "for property claimed to have been taken and impressed into the service of the United States in the year 1857 by orders of Colonel Albert Sidney Johnston, in command of the Utah expedition, as well as for property alleged to have been sold to the Government." Of course, there would be no doubt as to the legality of so much of the claims as arise upon sales, proven to have been made by the plaintiffs to the Government, of their property for its use; but in point of fact no such sales are found to have been made. So far as the judgments embrace allowances for losses consequent upon the refusal of Colonel Johnston to permit the plaintiffs' trains to proceed upon their journey, arising from the mere detention and delay occasioned thereby, they go beyond the intention of the Act of Congress. It was the clear dictate of military duty on the part of Colonel Johnston to prevent information and supplies from going forward to the public enemy. To effect this, he issued his order "that no goods or supplies of any kind will be permitted to pass this army for Salt Lake City, or other points occupied by the Mormons, so long as they maintain a hostile attitude to the Government of the United States." There is nothing in the terms of this order to require the plaintiffs to keep with the troops; they were only forbidden to pass them in advance. They might have remained at Rocky Ridge, or they might have retraced their

it by no means follows from that alone that their
property was taken and impressed into the ser-
vice of the United States in the sense of the
Act of Congress of July 8, 1886. However
proper it might have been for the Legislature to
have provided indemnity for the losses occur-
ring by reason simply of the detention thus oc-
casioned, we cannot think it was the intention
of the Act to go beyond payment for property
actually used and employed by the Government
in its service. To require the plaintiffs' trains
to remain with the military force, in order to en-
sure the success of the expedition by preventing
the enemy from obtaining information and sup-
plies, cannot be construed as a seizure and im-
pressment of their property into the public
service.

In opposition to this conclusion we are refer- [131]
red to the opinion of Mr. Bates while attorney
general (10 Ops. Atty-Gen. 21), upon the case
of the Porters, mentioned in the statement of
facts found by the court of claims. It seems
their claim was embraced, with those of the
plaintiffs in these cases, in the original draft of
the Act of July 8, 1886, as it passed the Senate,
but, before final passage, was struck out because
their claim was pending before the Treasury
Department. The accounting officers of the
treasury allowed their claim, presumably upon
the strength of the opinion of the attorney-
general, who held that they were entitled to an
allowance and payment under the provisions
of the Act of March 3, 1849, providing for the
payment for horses and other property lost or
destroyed in the military service of the United
States. The attorney-general, it is true, ex-
pressed the opinion that the order of Colonel
Johnston reduced the train of the claimants to
military control, and thereby subjected it to the
losses proved, for the purpose of depriving the
Mormons of any benefit from it, and was there-
fore an impressment into the military service
within the meaning of the Act of March 3, 1849.
But it is evident that he did not rest his recom-
mendation for the payment of the claimants on
that consideration, for the opinion proceeds as
follows: "But whatever may have been the legal
result of the order of General Johnston, the fact
is well proved that the property of the claim
ants was afterwards actually reduced to mili-
tary service. The loss of the army cattle com.
pelled a resort to those of the trains, and several
witnesses, servants of the Government and of
the claimants, state that the cattle of Messrs.

[132]

[133]

Porter were used indiscriminately with the
army cattle to haul the army wagons. In this
service many of them died and many were
abandoned, exhausted from overwork and want
of forage; many were killed and eaten by the
army, and for these I understand the claimants
have been already paid under this law. I am
unable to see any distinction between the cattle
that were eaten and those that were worked in
the army trains and lost, for both were cer-
tainly impressed within the meaning of the
statute. Nor do I see how any distinction can
be made between the cattle that actually died
when in the army trains and those that may
have been lost between South Pass and Fort
Scott; for, when they had been once used with
the army cattle to haul the trains, they were
actually employed in the service of the United
States, being under military control and liable
to be applied to that work when needed. It is
too rigid a construction to say that 'actual ser-
vice' means only the time employed in labor.
Possession and the power to use the animal,
Judge Black says in Oldham's Case (Man's Op.
No. 59), is the test of employment within the
meaning of the statute, and these General
Johnston undoubtedly had."

used to aid in hauling government trains, and
thus did extra work on insufficient food," there
is perhaps ground for a recovery to some
extent, under the terms of the Act, for property
taken and impressed into the service of the
United States; but we are unable, from the
findings, to determine the amount properly al-
lowable on that account. It becomes neces-
sary, therefore, to reverse the judgments in
both cases, and remand them to the court of
claims for more definite and specific findings;
and inasmuch as we have determined that the
facts as found by the court of claims in the
present record do not enable us to determine
what property of the plaintiffs was taken and
impressed into the service of the United States
by Colonel Johnston, the cases may be opened
for further proofs on that point.

The judgments are therefore reversed, and the
causes remanded to the Court of Claims for fur-
ther proceedings in accordance with this opinion;
and it is so ordered.

ATTERSON W. RUCKER, Piff. in Err.,

v.

JEROME B. WHEELER.

(See S. C. Reporter's ed. 85-96). Charge to jury-expression of opinion.

The amount found due to the Porters by the
accounting officers of the treasury was appro-
priated by Congress by the Act of February 7,
1887, heretofore referred to. The facts relied
upon by the attorney-general, as justifying the
payment in their case, of actual service in the
1. A judge of a court of the United States, in sub-
employment of the United States, do not ap-mitting a case to the jury, may, in his discretion,
pear in the present cases.
express his opinion upon the facts; and when no
fact are ultimately submitted to the determination
rule of law is incorrectly stated, and all matters of
of the jury, such expression of opinion is not re-
viewable on writ of error.

Neither does the conclusion of the court of claims derive support from anything said or decided by this court in the case of Mitchell v. Harmony, 54 U. S. 13 How. 115 [14: 75]. There the plaintiff was forced, against his will, to accompany the American troops with his wagons, mules, and goods in a hazardous expedition, and for the purpose of strengthening their military force. His wagons and mules were used in the public service in the battle of Sacramento, and on the march afterwards; when the place was evacuated they were left behind unavoidably, as nearly all of his mules had been lost in the march and battle; and when the Mexican authorities regained possession of the place, his goods were seized and confiscated and totally lost to him. The jury found, from the evidence, that there was an actual seizure of the plaintiff's property by the officer; and, in speaking to that point, the court says, p. 136 [84]: "We do not see any evidence in the record from which the jury could have found otherwise. From the moment they were taken possession of at San Elisario, they were under the control of Colonel Doniphan, and held subject to his order. They were no longer in the possession or control of the plaintiff, and the loss which happened was the immediate and necessary consequence of the coercion which compelled him to accompany the troops. It is true the plaintiff remained with his goods, and took care of them so far as he could during the march, but whatever he did in that respect was by the orders or permission of the military authorities. He had no independent control over them.”

to the jury fairly submitted to the jury the question
2. Heid, also, in this case, that the judge's charge
as to the existence of the agreement upon which
the plaintiff relied; and that there was no error in
the charge.

Submitted Jan. 9, 1888. Decided April 16,1888.
[No. 1306.]

Nd States for the District of Colorado, to re-
view a judgment in favor of defendant in a
suit to recover for the services of plaintiff.
Affirmed.

ERROR to the Circuit Court of the Unit

Statement by Mr. Justice Harlan:

The cause of action set out in the first count of the complaint is that the defendant in error, who was the defendant below, agreed with the plaintiff in error that if the latter assisted the former and his agents in purchasing the interest of Julia Webber in the Emma lode min. ing claim at a price not exceeding $40,000, he should receive for his services the sum of $10,000, but only $5,000 if the defendant was compelled to pay more than $40,000 for said interest. The complaint alleges that, in consequence of services rendered by the plaintiff under that agreement, the defendant was, on the 22d of November, 1884, enabled to buy said in terest at a sum exceeding $40,000, whereby the latter became indebted to plaintiff in the sum of $5,000.

The defendant in his answer denies that he made any such agreement as that alleged, or that he was enabled to purchase the interest of Julia Webber by reason of any services ren

As it appears from the findings of the court
of claims that "plaintiffs' animals were oftendered by the plaintiff.

[85]