says the paragraph immediately preceding the claim, "that narcotics have been administered to patients undergoing surgical operations, and, as we believe, always by introducing them into the stomach. This we consider in no respect to embody our invention, as we operate through the lungs and air-passages." An examination of this single passage in the specification will demonstrate the impossibility of sustaining this patent on any grounds known to the law. Now suppose these agents had been fluids instead of elastic vapors, and their effect had been known, when taken into the stomach, to be the same as that now long known to have resulted from their inhalation, viz., a state of partial intoxication. Would the discovery that an increased quantity of the fluid produced a mere perfect effect, by rendering intoxication complete, accompanied with total insensibility to pain, have rendered the discovery patentable? We think clearly not. In this view of the subject, we here lay out of the case the application of the new effect to surgical operations. We will allude to that again in a moment. Now, a precisely parallel case is presented, by the actual facts before us, to the one just supposed. The inhalation of the ethers had long been known. By increasing their quantity, it was discovered that a new > more complete effect was produced, by which the subject was rendered wholly insensible. This can be no more patentable than the discovery that the increased quantity of liquors, taken into the stomach, would produce a like result. In both cases, there is only a naked discovery of a new effect, resulting from a well-known agent, working by a well-known process. This effect is a temporary suspension of sensibility and motion in the animal body. Here, what is new in the alleged invention begins and ends. The fact that the surgeon can operate upon the body in the condition to which it is thus reduced, forms no part of the invention or discovery. It simply furnishes evidence that it can be applied to at least one useful purpose; a fact quite independent of the other elements necessary to make a discovery patentable.

Before dismissing this case it may not be amiss to speak of the character of the discovery upon which the patent is founded. Its value in securing insensibility during the surgical operation, and

thus saving the patient from sharp anguish while it is proceeding, and mitigating the shock to his system, which would otherwise be much greater, was proved on the trial by distinguished surgeons of the city of New York. They agreed in ranking it among the great discoveries of modern times; and one of them remarked that its value was too great to be estimated in dollars and cents. Its universal use, too, concurs to the same point. Its discoverer is entitled to be classed among the greatest benefactors of mankind. But the beneficent and imposing character of the discovery cannot change the legal principles upon which the law of patents is founded, nor abrogate the rules by which judicial construction must be governed. These principles and rules are fixed, and uninfluenced by shades and degrees of comparative merit. They secure to the inventor a monopoly in the manufacture, use, and sale of very humble contrivances, of limited usefulness, the fruits of indifferent skill and trifling ingenuity, as well as those grander products of his genius which confer renown on himself and extensive and lasting benefits on society. But they are inadequate to the protection of every discovery, by securing its exclusive control to the explorer to whose eye it may be first disclosed. be first disclosed. A discovery may be brilliant and useful, and not patentable. No matter through what long, solitary vigils, or by what importunate efforts, the secret may have been wrung from the bosom of nature, or to what useful purposes it may be applied. Something more is necessary. The new force or principle brought to light must be embodied and set to work, and can be patented only in connection or combination with the means by which, or the medium through which, it operates. Neither the natural functions of an animal upon which or through which it may be designed to operate, nor any of the useful purposes to which it may be applied, can form any essential parts of the combination, however they may illustrate and establish its use fulness.

NELSON, J., concurred.

Motion for new trial denied.

Court of Appeals of New York.

JAMES MOORE vs. JOHN J. V. WESTERVELT, SHERIFF OF THE CITY AND COUNTY OF NEW YORK.

When a sheriff takes goods in execution or by attachment, or in an action where the plaintiff seeks to recover possession of them, he becomes a bailee for the benefit of all parties interested.

In such case his duties are analogous to those of a bailee where the bailment is beneficial to both parties, as in case of hiring, and he is therefore responsible only for such loss or damage to the goods as results from his want of ordinary care, which is such care as a man of common prudence takes of his own affairs.

This action was brought in the Superior Court of New York City, to recover damages for the alleged neglect of the defendant, as sheriff of that city, to keep in a secure place and deliver to the plaintiff, a cargo of anthracite coal, which was taken possession of on board the schooner Calcutta at a wharf on East river in said city, by the defendant as such sheriff, by virtue of papers delivered to him in an action brought to recover the possession of such coal by the plaintiff in this action against one Lewis Hoffman, who was the master of the said schooner. The schooner was fastened to the wharf. The sheriff did not remove the coal from the schooner, but left a person on board in charge of the coal with the assent of the master. Within three days after the sheriff thus took possession of the coal the schooner and coal were sunk in East river during a gale of wind; which sinking damaged the coal that was not lost, and the plaintiff was put to considerable expense in raising that portion of the coal not lost.

Hoffman did not take any steps to have the coal re-delivered to him, and the plaintiff became entitled to the same at the expiration of three days from the time it was seized by the sheriff, according to sections 209, &c. of the Code. The plaintiff recovered a judg ment in his action against Hoffman entitling him to the possession of the coal; and he subsequently brought this action against the defendant as sheriff, &c. Evidence was given by both parties as to whether the schooner was properly fastened or duly taken care

of, and as to whether the schooner or coal was sunk by reason of any negligence on the part of the defendant or the persons having charge of the same after the defendant seized the coal and claimed to have possession of it.

The action has been tried several times (see decisions in the same, 1 Bosworth 357, 2 Duer 59). On the last trial Charles H. Hallenback, a witness for the defendant, testified that he had been in freighting establishments seven years where they had vessels running from Hudson to New York; that he had been a clerk on board of a steamboat some three years; that he had charge of mooring the vessel when the captain was off, though he did not leave that altogether to his charge, but to his and the pilots; and that he thought he (the witness) understood it. He described the situation of the schooner, and testified that it was fastened at the bow and stern with hawsers, and that he had charge of the coal by direction of the defendant. He also stated the hawsers were a large rope and the kind usually used for fastening vessels. The defendant's counsel put this question to this witness: "Please state what was the condition of the fastenings of this vessel as to safety?" It was objected to on the ground that it was not a question of science, and that the jury were just as competent to judge of it as the witness. The objection was overruled, and the plaintiff's counsel excepted. The witness answered, "I should judge that she was safely moored." By the Court: "You mean to say that the fastenings were proper fastenings for a vessel in that condition." Answer: Yes, sir; I have seen vessels time and time moored in the same way." By the Court: "In ordinary times?" Answer: "Yes, sir." Question: "With reference to a storm, how was it?" Answer: I could not say; it would depend upon how severe the storm would be; sometimes our ships have broken them, and at other times with a storm not quite so heavy they would not part them."

Evidence was given that the schooner was leaky; as to the severity of the gale; and as to the manner the schooner was taken care of; and as to the circumstances under which she was sunk.

The Judge charged the jury that the great question in the case

was whether the sheriff, after having taken the coal into his possession, was guilty of such negligence in regard to its care and preservation, as occasioned its injury and consequent loss to the plaintiff. That it was the duty of the sheriff to take such steps to insure the safety of the coal, as a careful, prudent man of good sense and judgment, well acquainted with the condition of the vessel and her location with regard to exposure to storms, and having all the power of the sheriff in the matter, might reasonably have been expected to take, had the coal belonged to himself.

That if the jury came to the conclusion the sheriff did not take that degree of care for the preservation of the coal he had thus indicated, and that the injury was occasioned by the negligence of the defendant or his officers, the plaintiff would be entitled to a verdict. The plaintiff's counsel interposed: "I ask the Court to charge that the sheriff is responsible for the negligence of the master and crew after he took possession." The Judge then said, "The sheriff was bound to do this. If such an owner as I have indicated would have taken the coal from the vessel as it lay at the wharf in the first instance, the sheriff was bound to do it. He was bound to know the condition of the vessel, whether it leaked, whether it was seaworthy for the place in which it lay, how deeply laden, everything in regard to it, and he was bound to put on board the vessel if necessary, such men as would pump her out, and keep her in a condition to insure the safety of the coal." The defendant's counsel interposed: "I ask the Court to charge the jury, that if a prudent man in a case of his own vessel, would not have removed her in the storm, the sheriff would not be bound to." By the Court: Certainly he would not." To which the counsel for the plaintiff excepted. The following requests of the plaintiff's counsel to charge the jury were presented to the Court before the charge was made, viz: "1st. That the sheriff was bound to take more than ordinary care of this property, and if for the want of more than ordinary care the property was lost, he is responsible. 2d. That if the sinking happened from the want of due caution either by the sheriff, deputy sheriff, captain, master, or hands of the vessel, then the sheriff is responsible." The plaintiff's counsel