A loan made with a view of obtaining money to carry on the government of a nation, and which contains a provision by which the amount can be increased as to a portion of it upon a contingency named therein, does not constitute a lottery scheme, and is not in violation of the Constitution and laws of this State prohibiting lotteries.

THE opinion states the case.

Benno Loewy, for appellant.

Leo Goldmark, for respondent.

MILLER, J. The plaintiff claims to recover in this action double the amount paid by him for a bond, issued by the authority of the government of Austria, which he purchased of the defendant, and which it is alleged purported on its face to be a share or interest in and to a certain illegal lottery, and a certificate of the said share or interest therein, describing the same. The complaint alleges that the action accrued against the defendant under and by virtue of a violation of the provisions of section 32 of article 4 of title 8 of part 1, chapter 20 of the R. S. (2 R. S., 6 ed., 923), which declares as follows: "Any person who shall purchase any share, interest, ticket, certificate of any share or interest, or part of a ticket, or any paper or instrument purporting to be a ticket, or share, or interest in any ticket, or purporting to be a certificate of any share or interest in any ticket, or in any portion of any illegal lottery, may sue for and recover double the sum of money, and double the value of any goods or things in action which he may have paid or delivered in consideration of such purchase, with double costs of suit."

The bond in question provides for the payment of the sum of one hundred gulden by the Austrian government, in accordance with the conditions indorsed on the back of the same, together with one-fifth part of any such sum as may be allotted to the prize number of the bond, which sum must amount to at least one hundred and twenty gulden, with interest as provided.

Under the rules and regulations indorsed on the bond relating to the drawing and redemption of the bonds of which the one in question constituted a part, provision is made for the drawing of the bonds by a division into series, and the drawing of a certain number of series tickets to be deposited in a wheel to await the drawing of the prize numbers. At a time named, a drawing is to be had from the series numbers, and provision is also made for the drawing of the prize num bers deposited in another and separate wheel, and the last named drawing designates the numbers which are entitled to prizes, which prizes vary from six hundred gulden to three hundred thousand gulden. Under the terms of the loan for which the bonds were issued, the holder is entitled to receive his principal and interest and a premium of twenty per cent, and what is termed a prize, if by the drawing provided for he becomes entitled to the same. The bonds referred to, were issued by the Austrian government for the purpose of obtaining a loan of money, and the holders or owners receive the same upon payment of the amount of principal therein named. The evident object and purpose of the government in issuing the bonds was to obtain money for its own use and benefit.

According to the true interpretation of the instrument the government, upon receiving the money, promises to pay the principal, interest and premium named, and in addition any sum which may be drawn by the holder of the bond, in accordance with the rules and regulations indorsed upon the same. This additional sum depends upon a contingency which is to be decided by lot or chance. Independent of this the amount and the terms are fixed by the conditions of

the bond. The substance of the transaction relates to a loan of money to the government and the provision made for its payment. This is the main object and purpose for which authority was given to issue the bonds, and they were disposed of evidently having this in view. The provision by which, upon a certain contingency, the holder of the bond might receive an additional sum, was no doubt an inducement held out for the purpose of obtaining money on the same, but it did not constitute the main feature and the substance of the transaction between the government and the purchaser of the bond. It was a mere appendage and an incident to its main purpose, by means of which the holder might by chance receive a larger sum than the principal, interest and premium which the bond itself provided for. In loaning money upon these bonds the holder thereof ran no risk of loss, and he took the chance, which might arise in case it should be determined by lot that his bond was entitled to a larger sum than the principal, interest and premium which he was sure to get in any event. While this latter privilege depended upon chance it cannot, we think, be held, upon any sound theory, that it converted the bonds into lottery tickets and imparted to the loan, which was made thereon, the character, object and accompaniments of a mere lottery scheme. The purchase and sale of bonds, stocks and other securities are often matters of chance as to the value of the securities. Prices in these fluctuate; sometimes they may be bought at par, and sometimes they command a premium. A purchaser at par takes the chances of a rise in the value or of a reduced valuation if he purchases at any price. Here the purchaser ran the risk of a deterioration beyond the price named, and took the chance of a rise, if by lot the bond which he held became entitled to it. In both cases the value is a matter of chance, and in neither can it be said, because it depends upon chance, that this chance constitutes a lottery.

The same remarks will apply to other securities which have a valuation which depends upon constant changes in the market. In may instances the value of securities of corporations may depend upon some chance which is annexed to the terms provided for the issue of the same. A proposition is made for the sale of bonds by some corporate body, and subscriptions made therein. The series of bonds and the times when payable are to be determined by chance, and their value may depend upon the time they have to run. It cannot well be said that a subscriber who takes the chance of drawing by lot a bond for a long term, which commands a higher price than one for a shorter period, purchases a lottery ticket, and that the corporation that issued it is engaged in a lottery enterprise. This rule might well apply to the drawing of a series of bonds from a wheel, and to the drawing of an additional amount by lot by any of the holders of that series. It cannot, we think, be said that a loan made with a view of obtaining money to carry on the government of a nation, and which contains a provision by which the amount can be increased as to a portion of it upon a contingency named therein constitutes a lottery scheme, and is in violation of the Constitution and laws of this State prohibiting lotteries, and of the statutes cited.

In Hull v. Ruggles, 56 N. Y. 427, a lottery is defined as follows: "Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery." A similar definition is given of a lottery in section 323 of the Penal Code.

Lotteries which are the subject of condemnation under the Constitution and laws of this State are schemes where money is paid for the chance of receiving money

in return. As a general rule the money thus paid in case a prize is not drawn is lost, and no return had for the same. The purchaser may draw a prize or may draw a blank, and he thus hazards what he has paid upon the chances incident to a drawing by lot. The evils attending a system of lotteries, and against which the laws of this State are aimed, consist in the risk which people are willing to take in hazarding their money with a chance of losing the same without any benefit or advantage whatsoever, and with but a remote prospect of gain. This was a species of gambling which inflicted serious injury upon certain classes of the community, which prompted the prohibition of lotteries in the Constitution of this State and the enactment of severe laws against their operation. A government boud of the character of the one which is the subject of this action does not come within the mischief intended to be remedied or within the scope and purpose of the enactments against lotteries. Such an instrument is not named, nor is it within the purview of the statute or the intention of the law-makers. These bonds have been issued by several of the governments of other countries, and in no sense can they be regarded as being within the inhibition of the statutes of this State which were intended to suppress lotteries and to prevent citizens from indulging in this species of gambling.

The bond in question was an evidence of debt, and a public security of a foreign government exposed for sale, the same as other securities upon which money is loaned, and its sale did not violate the provisions of the statute already cited. It was not raffled for or distributed by lot or chance, and it cannot be said that the purchase of the same by the plaintiff was within the provisions of section 22 of 1 R. S. 665. Nor was the issue of the bond or its sale a gift enterprise within the provisions of the Penal Code already cited.

We think that the General Term erred in reversing the judgment entered upon the referee's report, and its order should be reversed, and the judgment entered upon the referee's report.

All concur, except Finch, J., dissenting.

Affirmed.

SUNDAY-SIGNING CONTRACT ON, DOES NOT AVOID.

SUPREME COURT OF THE UNITED STATES, MAY 5, 1884.

GIBBS AND STERRETT MANF. Co. v. BRUCKER. When a contract is signed on Sunday, but not delivered till another day, it does not take effect on Sunday, and is not void.

One who has participated in a violation of law cannot be permitted to assert, in a court of justice, any right founded upon the illegal transaction.

N error to the Circuit Court of the United States for the Eastern District of Wisconsin. Opinion states the case.

W. P. Lynde, for plaintiff in error.

Ed. S. Bragg, for defendant in error.

WOODS, J. This was an action at law brought by the Gibbs and Sterrett Manufacturing Company, the plaintiff in error, against Peter Brucker, the defendant in error, and Pirmin Koepfer, upon a cause of action which was stated in the complaint substantially as follows:

On January 23, 1878, the plaintiff, as party of the first part, made an agreement in writing with James Gibson, John Wirtz, and Peter Fox, as parties of the second part, by which the latter were appointed agents for the former to sell, within certain designated territory, during the season of 1877, the reapers and mowers manufactured by the plaintiff. In consideration of such appointment, the parties of the second part agreed to sell the reapers and mowers within the designated territory, and to account for the proceeds of the sales to the plaintiff. The contract bore date January 11, 1878. After the signatures of Gibson, Wirtz and Fox, the following contract of guarantee was appended:

For value received we hereby guarantee the fulfillment of the contract on the part of James Gibson, John Wirtz, and Peter Fox, and here by join them in each and every obligation therein contained."

This guarantee also bore date January 11, 1878, and was signed by Pirmin Koepfer, Jacob Steffes and Peter Brucker. The contract and guarantee were negotiated by one Matteson, a special agent of the plaintiff for that purpose, but who had no power to close or conclude the same. After the execution and delivery of the contract and guarantee, and between that time and September 1, 1878, the plaintiff delivered to Gibson, Wirtz and Fox reapers, mowers, etc., of the value of $7,379.10, and of that sum they failed to account for or pay over to the plaintiff $4,664.49 although demanded of them by the plaintiff, and on September 15, 1878, the plaintiff gave notice thereof to Koepfer and Brucker, Steffes having previously died, and demanded payment from them of the sum so due the plaintiff, which they refused to pay. The demand of the complaint was for judgment against Kopfer and Brucker for $4,664.49, with interest from December 4, 1879.

Koepfer made no defense. Brucker filed an answer, in which he alleged, by way of defense, that he signed the guarantee, and so far as he was connected therewith, delivered the same upon the day of the week commonly called Sunday. Upon the issue raised on this answer, the case was tried by the court, which made special findings of fact substantially as follows:

The plaintiff was a manufacturing corporation of the State of Pennsylvania, with its home office in that State, and having a branch or general agency in the city of Chicago, in the State of Illinois. During and after the month of January, 1878, Messrs. Hoag & Conklin, of Waterloo, in the State of Wisconsin, were the agents of the plaintiff for that State for the purpose of making sales of the manufactures of the plaintiff therein, through sub-agents, to be appointed in the following manner: Hoag & Conklin were to canvass the State of Wisconsin for the purpose of selecting good and responsible men to become agents, and were to fill out in duplicate the plaintiff's printed form of contract, and cause the same to be signed by the agents selected, and by their sureties, and immediately thereafter to forward such duplicates to the plaintiff at its western branch, at Chicago, for its approval and signature. Hoag & Conklin had no power or authority to sign or close any such contract on behalf of the plaintiff.

From January 10th until January 25, 1878, and thereafter, one M. V. Matteson was an employee and agent of Hoag & Conklin, for the purpose of carrying out the said contract on their part, and had and exercised no other or greater or different powers in that regard than Hoag & Conklin.

Hoag & Conklin were to be paid by the plaintiff, by certain commissions upon the amount of machinery sold, and Matteson was to be paid by Hoag & Conklin,

On January 11, 1878, which was Friday, the agency contract, referred to in the complaint, was at the instance of Matteson, signed by Gibson, Wirtz and Fox, and the guarantee contract on which the suit was brought was on the same day signed by Koepfer. On Sunday, January 13th, the guarantee contract was signed by Steffes and Brucker, and on the same day delivered to Matteson.

At this time Wirtz, Gibson and Fox knew, but Brucker did not, that Matteson had no authority to sign or close the contract on behalf of the plaintiff, but that it must be sent to the plaintiff at Chicago to be accepted and signed by it. Brucker had no knowledge of the powers of Matteson, and made no inquiry concerning them.

On Monday, January 14th, Matteson sent duplicates of the contract and guarantee so signed by mail to the plaintiff at Chicago for acceptance and signature, and the same were accepted and signed by the plaintiff on Wednesday, January 23d, and or the same day one of the duplicates was returned by mail to Gibson, Wirtz and Fox, but no communication took place between the plaintiff and Brucker in reference thereto.

During the spring and summer of 1878, the plaintiff delivered to Wirtz, Gibson and Fox, upon the contract reapers and mowers, on which there remained due to plaintiff the sum of $3,336.25, with interest thereon from March 14, 1881, for which defendant Brucker was liable, provided the guarantee contract was valid as against him.

Neither the plaintiff, nor any officer or agent thereof, excepting Matteson, ever had notice or knowledge, until after the signing of contracts in Chicago, and until after the delivery of all of the reapers and mowers to Gibson, Wirtz and Fox, that the instrument of guarantee was signed and delivered by defendant Brucker on Sunday.

Upon these facts the judges of the court were divided in opinion upon the question whether the contract of guarantee and suretyship, upon which this suit was brought, was void and invalid under the statutes of Wisconsin, because the same was so signed and delivered by the defendant Brucker upon Sunday; and the presiding judge being of opinion that the contract was invalid, for the reason stated, judgment in favor of the defendant was rendered in accordance with his opinion, and thereupon the plaintiff sued out this writ of error.

The law of Wisconsin referred to in the certificate of division of opinion is as follows:

"Any person who shall keep open his shop, warehouse or workhouse, or shall do any manner of labor, business or work, except only works of necessity and charity, or be present at any dancing or public diversion, show or entertainment, or take part in any sport, game or play, on the first day of the week, shall be punished by fine, not exceeding ten dollars; and such day shall be understood to include the time between the midnight preceding and the midnight following ing the said day, and no civil process shall be served or executed on said day." Rev. Stat. of Wis. of 1878, $ 4595.

The ground upon which courts have refused to maintain actions on contracts made in contravention of statutes for the observance of the Lord's day is the elementary principle that one who has himself participated in a violation of law cannot be permitted to assert in a court of justice any right founded upon or growing out of the illegal transaction. Cranson v. Goss, 107 Mass. 439; Holmes v. Johnson, Cowp. 341.

If therefore the evidence shows a good cause of action without any participation of the plaintiff in an

fusing its aid to either party in giving effect to an illegal transaction in which he has taken part. Tuckerman v. Hinckley, 9 Allen, 452; Stackpole v. Symonds, 3 Foster (N. H.); Bloxsome v. Williams, 3 B. & C. 232; Roys v. Johnson, 7 Gray, 162.

Applying these principle, it is clear there was no obstacle to a recovery by the plaintiff in this case. The plaintiff itself took no part in any violation of the law of Wisconsin forbidding the doing of labor, business or work on Sunday, unless it was bound by the acts and knowledge of Matteson in regard to the signing of the contract by Brucker, the defendant, but it was not so bound.

The complaint alleged that Matteson was the special agent of the plaintiff to negotiate the agreement set out therein, but that he had no power to close or conclude the same. This averment is fully sustained by the findings, by which it appears that neither Hoag & Conklin nor Matteson had power to sign, accept or close any such contract on behalf of the plaintiff. The knowledge therefore of Matteson that the defendant Brucker signed the contract on Sunday, and his acceptance of the manual delivery of the contract on the same day, was not within his agency, and was not the act of, and was not binding on the plaintiff. So far therefore as there was any violation of the law of Wisconsin forbidding the transaction of business on Sunday, it was the act of Brucker alone, in which the plaintiff took no part, and of which it had no knowledge. The fact therefore that the contract was signed by the defendant and handed to Matteson on Sunday is, upon the authorities cited, no obstacle to a recov

ery.

There is another ground on which the case of plaintiff may be placed.

In order to make good the defense set up in the answer, it is necessary to prove not only that the defendant signed his name to the contract on Sunday, but that he delivered it on Sunday. The mere signing of a contract on Sunday, which is not delivered on that day does not avoid the contract. Adams v. Gay, 19 Vt. 358; Goss v. Whitney, 24 id. 187; Saltmarsh v. Tuthill, 13 Ala. 406; Flanagan v. Meyer, 41 id. 132; Commonwealth v. Kendig, 2 Penn. St. 448; Hill v. Dunham, 7 Gray, 543; Hall v. Tucker, 37 Mich. 593; Hilton v. Houghton, 35 Me. 143.

The question therefore arises, was the contract which was sigued by Brucker on Sunday delivered by him on Sunday? The delivery on Sunday relied on by defendant to avoid the contract was the alleged delivery to Matteson. But we have seen, that according to the findings of the Circuit Court, Matteson was not the agent of the plaintiff for that purpose, and could not accept a delivery of the contract so as to bind the parties. In other words, the handing to him by the defendant of the contract was not a delivery in the legal sense, and was no more effectual to bind the plaintiff or the defendant than if the contract had been handed to an indifferent third person. The fact was that the delivery to Matteson was virtually the delivery to a messenger to transmit the contract to the other party for its approval or disapproval. Until the contract was approved and executed by the plaintiff, the defendant had his locus penitentiæ, and could have withdrawn his assent to the contract. In a word, there was no contract until the agreement had been assented to by both parties, and this, according to the findings, was on Wednesday, January 23, when the contract was approved and signed by the plaintiff.

The fact that the defendant did not know, when he handed the contract to Matteson, what the powers of Matteson were, or that the contract would have to be sent to the plaintiff for its acceptance and signature,

can have no influence on the result. Even if it was the purpose of the defendant to bind himself by a delivery of the contract to Matteson, such delivery being to an unauthorized person, who could not bind the plaintiff, and if the plaintiff was not bound neither was the defendant.

The defense therefore resolves itself into this, that the defendant, without the concurrence or knowledge of the plaintiff, signed on Sunday a paper writing, which bore date of a week day, and which, to become a contract between the parties, required the assent and signature of the plaintiff, which was given on a week day. This, according to the authorities, does not avoid the contract.

We have examined all the cases decided by the Supreme Court of Wisconsin which have been cited by counsel, and find nothing in them contrary to the views we have expressed. Moore v. Kendall, 2 Pin. 99; Hill v. Sherwood, 3 Wis. 309; Melchoir v. McCarthy, 31 id. 252; Knox v. Clifford, 38 id. 651; Troewert v. Decker, 51 id. 320; De Forthe v. Wis. & Min. R. Co., 52 id. 320. The case of Knox v. Clifford, ubi supru, sustains the conclusion we have reached, though on a different ground. In that case it was held that he who makes and puts in circulation a promissory note bearing date on a week day, is estopped as against an innocent holder from showing that it was executed on Sunday.

We base our decision however on the grounds that we have indicated-first, because it does not appear that the plaintiff had any part in executing the contract in violation of the law of Wisconsin forbidding the transaction of business of Sunday; and second, because the contract, though signed by the defendant on Sunday, was not delivered by him, and did not take effect on that day.

We are of opinion that the Circuit Court erred in rendering judgment for the defendant upon the findings of fact. Its judgment is therefore reversed, and the cause remanded, with directions to grant a new trial.

UNITED STATES SUPREME COURT ABSTRACT.

MORTGAGE - - FORECLOSURE-RECORD EVIDENCEFORMER SUIT-JURISDICTION.-In 1876, K. brought a suit in a Circuit Court of the United States in Missouri, to foreclose a mortgage on a railroad, making the railroad corporation (a citizen of Missouri) and others defendants. There was a decree of sale, and a sale, and it was confirmed in October, 1876. In February, 1877, the corporation appealed to this court. The case was affirmed here in April, 1880. In June, 1880, the corporation filed a bill in the same court against another Missouri corporation (a citizen of Missouri), and other citizens of Missouri, alleging fraud in fact in the foreclosure suit, in the conduct of the solicitor and directors of the corporation defendant in that suit, and praying that the decree in the K. suit be set aside. On demurrer to the bill, held, (1) the record in the K. suit, not being made a part of the bill or the record in this suit, could not be referred to; (2) the charges of fraud, in the bill, were sufficient to warrant the discovery and relief based on those charges; (3) the case set forth in the bill, being one showing that no real defense was made in the K. suit, because of the unfaithful conduct of the solicitor and directors of the defendant in that suit, was one of which a court of equity would take cognizance; United States v. Trockmorton, 98 U. S. 61; (4) there was no laches in filing the bill, as the time during which the appeal to

this court was peuding could not be counted against the plaintiff; Ensminger v. Powers, 108 U. S. 292; (5) as the bill showed hostile control of the corporate affairs of the plaintiff by its directors during the period covered by the K. suit, mere knowledge by or notice to the plaintiff, or its directors, or officers, or stockholders, of the facts alleged in the bill, during that period, was unimportant, a case of acquiescence, assent, or ratification, or of the intervention of the rights of innocent purchasers, not being shown by the bill, and the corporation having acted promptly when freed from the control of such directors; (6) it did not follow that parties who became interested in the plaintiff's corporation, with knowledge of the matters set forth in the bill, were entitled to the same standing as to relief with those who were interested in the corporation when the transactions complained of occurred. Upon the question of jurisdiction, there can be no doubt that the Circuit Court, as the court which made the K. decree, and had jurisdiction of the K. suit, as this court, in Pacific R. R. v. Ketchum, 101 U. S. 289, held it had, has jurisdiction to entertain the present suit to set aside that decree on the grounds alleged in the bill, if they shall be established as facts, and if there shall be no valid defense to the suit, although the plaintiff and some of the defendants are citizens of Missouri. The bill falls within recognized cases which have been adjudged by this court, and have been recently reviewed and reaffirmed in Krippendorf v. Hyde, 110 U. S. 276. On the question of jurisdiction the suit may be regarded as ancillary to the K. suit, so that the relief asked may be granted by the court which made the decree in that suit, without regard to the citizenship of the present parties, though partaking so far of the nature of an original suit as to be subject to the rules in regard to the service of process which are laid down by Mr. Justice Miller in Pacific R. R. v. Missouri Pacific R. Co., 1 McCrary, 647. The bill, though an original bill in the chancery sense of the word, is a continuation of the former suit, on the question of the jurisdiction of the Circuit Court. Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633. Pacific R. Co. v. Missouri Pacific, etc., R. Co. Opinion by Blatchford, J.

[Decided May 5, 1884.]

SHIP AND SHIPPING-ENROLMENT OF VESSEL — NECESSITY-OWNER'S RIGHT TO.-Every vessel of the United States, which is afloat, is bound to have with her from the officers of her home port, either a register or an enrolment. The former is used when she is engaged in a foreign voyage or trade, and the latter when she is engaged in domestic commerce, usually called the coasting trade. If found afloat, whether by steam or sail, without one or the other of these and without the right one with reference to the trade she is engaged in, or the place where she is found, she is entitled to no protection under the laws of the United States, and is liable to seizure for such violation of the law, and in a foreign jurisdiction or on the high seas, can claim no rights as an American vessel. To seize and detain these papers therefore is to expose her to numerous evils, and in fact to prevent her use by her owners, and as the mildest evil, to tie her up so long as the detention of her papers lasts. It is to be observed, that when he procured the enrolment and license at Shieldsborough, the owner gave up his register, so that when the license and enrolment were taken from him, his vessel was left without any legal evidence whatever of her right to pursue either domestic or foreign trade. It is also to be mentioned, that it is the right of the owner to exchange a register for an enrolment, and where this is done, the register is necessarily delivered to the officer who is

sues the enrolment. If this enrolment was for any reason improperly issued, there must be methods by which the act may be set aside or cancelled, or a penalty enforced for its improper use. In such case, the owner would undoubtedly be entitled to a proper issue of another enrolment, or to a return of his register. In no event, that we can conceive of, had the defendant a right to keep from him both his register and enrolment, and leave his vessel destitute of these indispensable evidences of her national character and right to pursue her vocation. He is liable in tort, although the secretary of the treasury justifies the proceedings. Badger v. Gutierex. Opinion by Miller, J.

[Decided May 5, 1884.]

PATENT-NOVELTY-WHEN LACKING, NO INVENTION -IMPROVEMENTS.-In passing upon the novelty of the alleged improvement covered by this patent, we are permitted to consider matters of common knowledge or things in common use. Brown v. Piper, 91 U. S. 37; Terhune v. Phillips, 99 id. 592; King v. Galbrin, 109 id. 99; Ah Kow v. Nunan, 5 Saw. 552. The improvement described in the appellant's patent consists therefore in simply taking a material well known and long used in the making of pavements, to wit, wooden blocks set vertically, and with them constructing a pavement in a method well known and long used. It is plain therefore that the improvement described in the patent was within the mental reach of any one skilled in the art to which the patent relates, and did not require invention to devise it, but only the use of ordinary judgment and mechanical skill. It involves merely the skill of the workman and not the genius of the inventor. The following cases illustrate the subject: In Hotchkiss v. Greenwood, 11 How. 248, the substitution of a well-known procelain door-knob for a clay knob, in combination with a particular shank, was held to be no invention. So where the patentee had taken a fire-pot from one stove, a flue from another, and a coal reservoir from the third, and had put them into a new stove, where each fulfilled the office it had fulfilled in its old situation and nothing more, the patent was held void for want of invention. Hailes v. Von Wormer, 20 Wall. 353. In Smith v. Nichols, 21 Wall. 212, it was held that "a mere carrying forward a new or more extended application of the original thought, a change only in form, proportions, or degree, the substitution of equivalents doing substantially the same thing in the same way by substantially the same means with better results, is not such invention as will sustain a patent." The case of Reckendorfer v. Faber, 92 U. S. 347, is much in point. The patent was for an improvement which was described in the specification as follows: "I make a lead pencil in the usual manner, reserving about oue-fourth the length, in which I make a groove of suitable size, A, and insert in this groove a piece of prepared India rubber, secured to said pencil by being glued at one edge. The pencil is then finished in the usual manner, so that on cutting one end thereof you have the lead B, and on cutting the other end you expose a small piece of India rubber C ready for use." This device was held not to be patentable, and it was declared that "the law requires more than a change of form or juxtaposition of parts, or of the external arrangement of things, or of the order in which they are used to give patentability." In Atlantic Works v. Brady, 107 U S. 193, is found one of the most recent and emphatic declarations of this court upon the subject. It was there said, that the design of the patent laws was to reward those who make some substantial discovery or invention which adds to our knowledge or makes a step in advance in the useful

arts, and that it was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. In How v. Abbott, 2 Story, 190, it was held that the application of a process to palm leaf to curl it for mattresses, the same process having been used to curl hair for mattresses was not patentable. In the case of Kay v. Marshall,8 Cl.& Fin. 245, it was said to be no invention to use for spinning flax, which had been so macerated that its fibres were shortened, an arrangement of rollers borrowed from cotton spinning machinery. See also Stimpson v. Hardman, 20 Wall. 117; Rubber Tip Pencil Co. v. Howard, id. 498; Slawson v. Graud Street R. Co., 107 U. S. 649; King v. Gallon, 109 id. 99. The cases cited are conclusive of this. We are of opinion that taking into consideration the state of the art, no invention was required for the construction of the pavement described in the patent, and that it demanded only ordinary mechanical skill and judgment and but a small degree of either. Phillips v. City of Detroit. Opinion by Woods, J. [Decided May 5, 1884.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

PRACTICE-REHEARING-MOTION-LACHES.-An application for a rehearing, based on alleged newly-discovered evidence, must be denied when it appears that the existence of such evidence was known to the applicant or his counsel at the time of the former trial, and that the evidence was not then produced. Ruggles v. Eddy, 11 Blatchf. 524, 529; India Rubber Co. v. Phelps, 8 id. 85; Hitchcock v. Tremaine, 9 id. 550; Paige v. Holmes Burglar Alarm Co., 18 id. 118; 8. C., 2 Fed. Rep. 330. The law of laches, as applied to motions for new trials or rehearings, is founded on a salutary policy. It is for the interest of the public, as well as for litigants, that there should be an end of litigation, and that efforts to reopen controversies by unsuccessful parties, after they have had a full opportunity to be heard, and a careful hearing and consideration, should be discouraged. Cir. Ct., S. D. N. Y. April 4, 1884. Colgate v. Western Union Tel. Co. Opinion by Wallace, J.

---- INFRINGEMENT

PATENT DAMAGES -ROYALTY. -In an account before a master evidence of payments for past infringement, for the purpose of ascertaining the amount which should be paid by the defendant, is incompetent. To admit it is contrary to the maxim, Inter alios acta, etc. It involves an attempt to resolve one doubt or difficulty by another. Litem lite solvit. There are doubtless reported cases in which it appears that such evidence was received and considered, but generally this has been done without objection, and uniformly (so far as I know) without a judicial declaration or decision that it was proper. In the opinion of the Supreme Court, in Packet Co. v. Sickles, 19 Wall. 611, the rule, as reaffirmed, is laid down in Seymour v. McCormick, 16 How. 480, "that in suits at law for infringement of patents, when the sale of licenses by the patentee had been sufficient to establish a price for such licenses, that price should be taken as the measure of his damages against the infringer." "The rule thus declared," it is added, "has remained the established criterion of *Appearing in 19 Federal Reporter.