a banking house, the vendor to be appointed and | Manufacturing Company, for the express purhold the office of cashier in permanence, at a pose of a banking house for said Company, of salary of $2,000, and to pay for the balance of which Helm was to be cashier. I think the sale the stock in money, are propositions that need would not have been made, but for the purpose not be argued. of a banking house. One hundred thousand dollars was to be the capital of the bank, and $2,000 to be Helm's salary. The bank was never established. How stands the proof as to which of these was the agreement made? If the arrangements and conditions were of this character, it is not pretended that they were ever carried out in form or in substance, and it would be far from an equitable disposition of the case to compel Mr. Helm to give a deed of the property. The certificate he offers to return, and it no doubt belongs to the Annexed to the complainants' bill are four exhibits and seventeen vouchers, by which the case is sought to be sustained. None of them, unless it be exhibit A, has even a tendency to support the complainants' view of the case rather than the defendant's. They are all equally consistent with either theory. They show that each party understood that the Manufacturing Company had an interest in the Jack-bankrupt's estate. son house, and that the defendant was making expenditures thereon and receiving rent therefrom, for which an account was expected by the Company. This would be equally the case whether the house was sold upon a simple agreement to pay $12,000 for it in stock, or whether it was connected with the other conditions claimed to exist by the defendant. The parties were then acting in confidence with each other, and were not particular in their actions or expressions. Exhibit A is a letter from the defendant acknowledging the receipt of a certificate for one hundred and fifty shares of stock, and sending to the Company a statement of their indebtedness to him. Whether the certificate and the indebtedness had any connection with each other, it is impossible to say. There is no evidence in the record that the title of the assignees in bankruptcy has been conveyed to the complainants. Without such conveyance, or without making them parties defendant, there can be no recovery in this action. The point, however, is not made by the defendant, and we do not base our decision upon it. For the reasons before stated, we are of the opinion that the decree dismissing the bill should be affirmed. LUCIEN B. MAXWELL, James L. Johnson, D. v. HENRIETTA STEWART, Guardian, etc., and 1. Where there is no appearance in this court, by plaintiff in error, and no errors assigned, this court may, upon request of the defendant in error, affirm the judgment, if the errors assigned in the court below were not well taken. 2. The form of a judgment record is regulated by the practice of the court in which the judgment was rendered. 3. To make a record of a state judgment valid upon its face, it is only necessary for it to appear that the court had jurisdiction of the subject-matter of the action and of the parties, and that a judgment had in fact been rendered. 4. A trial by the court without the waiver of a jury, is at most only error, which cannot be set judgment rendered upon such trial. The judgment up as a defense to an action brought upon the is not void, because such waiver of a jury was not entered on the journal. The letter proceeds: "You can send me the Company's obligation for the amount over and above the $12,000. I pay for the one hundred and fifty shares, and continue to give me acknowledgments of the Company's indebtedness as I make other payments." This assumes that the writer has paid $12,000 for the shares, but without specifying the manner, the conditions or connections, and assumes that the Company owes him money, but that he expects to make still other payments for those shares. "Continue to give me acknowledgments of the Company's indebtedness as I make other payments." The very slight effect to be attributed to this letter must entirely cease when we read the evidence of the President of the Manufacturing Company introduced by the complainant, in which he testifies that "Price of the house was what it cost to build it, which was less than $10,000;" and also "The letters marked A, C and D, were written by Helm, and refer to the house in controversy, and were in part payment of a contract which was never executed." If the price of the house was less than $10,000, and the one hundred and fifty shares were in part payment only of a contract for its purchase, the allegations that $12,000 was the price, and the one hundred and fifty shares received in full payment, are of course to be disregarded. Not only is the complainants' theory unsustained, but the defendant's theory is greatly aided by the further testimony of the same witness. In answer to the question"What connection had the banking arrangement, referred to in the exhibits of Helm, with the conveyance and sale of the property in dispute? Were they or not in any way depend- Argued Jan. 26, 1875. ent one upon the other, or what were the true facts relative thereto ?"-he says: "The house was sold by Helm and bought by the Miss. 5. A seizure of personal property under an attachment issued during the pendency of an action, is not necessarily a satisfaction of the judgment when afterwards obtained. There is therefrom no such presumption of satisfaction as in an action upon the judgment, to throw the burden of proof on the plaintiff to show that it was not satisfied. 6. Where the action was commenced by attachment and service had by publication, but afterwards the defendant voluntarily appeared and went to trial, and it so appears in the record, the court had jurisdiction of the person of the defendant, and could bind him by a judgment. 7. Fraud cannot be pleaded to an action in one State upon a judgment in another. 8. Nil debet is not a good plea to an action upon a judgment in another State. [No. 150.] Decided Feb. 1, 1875. NOTE. What entry or record is necessary to complete a judgment or order-see note, 28 L. R. A. 621. N ERROR to the Supreme Court of the Territory of New Mexico. The case is fully stated by the court. Two opinions were filed in this case. After the opinion here reported was filed, a petition for a rehearing was presented by J. S. Watts, in behalf of the plaintiffs in error, whereupon, without granting the rehearing, the Chief Justice filed a second opinion, in which he discussed the questions involved more fully, restated the decision. A report of the case, giving only the first opinion, is found in 21 Wall., 71, and another report, giving only the second opinion, is found in 22 Wall., 77. Except upon the above mentioned petition for a rehearing, no counsel appeared in this court for the plaintiffs in error. Mr. P. Phillips, for defendant in error. 5. The judgment sued upon was obtained by false and fraudulent assertion of a contract, and by means of false and interested testimony; and, 6. A demurrer was sustained to the plea of nil debet filed in this action. The form of the record of a judgment is regulated by the practice of the court in which the action is prosecuted. To make such a record valid upon its face, it is only necessary for it to appear that the court had jurisdiction of the subject-matter of the action and of the parties, and that a judgment had, in fact, been rendered. All else is form only. The record sued upon in this case did show the existence of these essential facts. A trial by the court without the waiver of a jury is at most only error. A judgment after such a trial is not necessarily void. Mere erMr. Chief Justice Waite delivered the opin-rors cannot be set up as a defense to an action ion of the court: There has been no appearance in this cause by the plaintiffs in error, and no errors have been assigned. The defendant in error has, however, opened the record and prayed an affirmance of the judgment. On examining the record we find that four errors were assigned in the court below. The first three relate to the form and sufficiency of the evidence offered to prove the record of the judgment in the District Court of the State of Kansas upon which the action was brought. We think the objections were not well taken, and that there was no error in overruling them. The fourth is to the effect that the judgment in the Kansas court was void because the cause was tried by the court without the waiver of a trial by jury entered upon the journal. Whatever might be the effect of this omission in a proceeding to obtain a reversal or vacation of the judgment it is very certain that it does not render the judgment void. At most it is only error and cannot be taken advantage of collaterally. The judgment is affirmed. Mr. Chief Justice Waite subsequently delivered a more extended opinion of the court in the foregoing case as follows: This was an action of debt commenced in the District Court of New Mexico upon a judgment in one of the courts of record in the State of Kansas. Numerous errors are assigned here which, for the purposes of their decision, may be stated as follows: 1. The record sued upon is not full and complete, because it does not contain copies of certain papers filed in the progress of the cause. 2. The same record also shows that the judg-| ment was rendered upon a trial of the cause by the court without the waiver of a jury. 3. The judgment sued upon was satisfied in law, because, as shown by the record, certain personal property of the defendant was seized and taken in possession of the sheriff, under an order of attachment issued at the time of the commencement of the action, and this property had not been legally accounted for. This objection was made first by a demurrer to the petition, which set forth the record in full, and afterwards by plea. 4. The court in Kansas did not have such jurisdiction of the defendant as was necessary in order to bind him by its judgment. brought upon it. So far as the defense of payment and satisfaction was made by demurrer to the petition, it is enough to say that it did not anywhere appear in the pleadings, by averment or otherwise, that the value of the property taken under the attachment was sufficient to discharge the entire judgment. *On the contrary, its [*80 appraised value was less than the amount of the judgment. If upon the case made by the pleadings the plaintiff could recover anything, the demurrer was not well taken. Issue was joined upon the plea presenting the same defense, and upon the trial of that issue it may have been shown that the property had been legally accounted for. In fact, it can be fairly inferred from the record itself, that the property had been restored before judgment to the possession of the defendant, upon the execution of a re-delivery bond. It appears affirmatively that after judgment a rule was granted and served upon the sureties on such a bond. But even if this were not so, it does not follow that the defense insisted upon was good. A seizure of personal property under an order of attachment issued during the pendency of an action is not necessarily a satisfaction of the judgment when afterwards obtained. Such a seizure is made for the purposes of security and, if the property is retained in the possession of the sheriff, he will be held responsible for the exercise of ordinary care for its preservation. If wasted, lost or destroyed by his negligence he must account and the amount for which he is liable on such account will, when ascertained, be applied toward the satisfaction of any judgment that may have been obtained. To that extent the plaintiff is made responsible for the sheriff, but such an application can only be made upon a proper showing by the defendant. There is no presumption which throws the burden of proof upon the plaintiff. No such showing was made or attempted in this case. The record shows that the action was commenced by attachment and service had by publication. So far the action was in the nature of a proceeding in rem, and would bind only the property attached. But afterwards, as the record also shows, the defendant voluntarily appeared and submitted himself to the jurisdiction of the court. He at first filed a demurrer. then an answer, and finally went to trial upon the issues made by the pleadings. After judgment he moved for a new trial which was over81*] ruled. If these statements appearing in the record are true, the court did have jurisdiction of the person of the defendant, and could bind him by a judgment. No evidence was introduced to contradict the record. Its truth is, therefore, presumed. In Christmas v. Russell, 5 Wall., 304, 18 L. ed., 479, this court held that fraud could not be pleaded to an action in one State upon a judgment in another. With this we are satisfied. Since the case of Mills v. Duryee, 7 Cranch, 481, it has been settled in this court that nil debet is not a good plea to an action upon a judgment in another State. The judgment is affirmed. 112*] *WILLIAM SMITH, Appt., v. NATHAN NICHOLS. (See S. C., 21 Wall., 112-119.) Patent-rights-disclaimers-patentable invention-improvement is-what is not. 1. Under the 7th and 9th sections of the Patent Act of 1837, disclaimers can be made as well after as before the commencement of the suit. It would. in such case, be the duty of the court to see that the defendant was not injuriously surprised, and to impose such terms as right and justice might require. 2. A patentable invention is a mental result. The machine, process or product is but its material reflex and embodiment. It must be new and shown to be of practical utility. 3. A new idea may be ingrafted upon an old in vention, be distinct from the conception which preceded it and be an improvement. In such case it is patentable. The prior patentee cannot use it without the consent of the improver, and the latter cannot use the original invention without the consent of the former. 4. But a mere carrying forward or 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. Its object and prayer are to have the defendant enjoined from infringing further, and required to account for the profits he has wrongfully made. The original patent was issued to the complainant on the 5th of April, 1853. On the 28th of March, 1867, it was extended for seven years. It was subsequently re-issued in three divisions, as follows: re-issue No. 2656, June 18, 1867, division A. for improvements in weaving; re-issue No. 3014, June 20, 1868, division B, for improvements in woven fabrics; and reissue No. 2844, January 14, 1868, division_C, for improvements in looms for weaving. vision B is the only one to be considered in this case. Di In the specification the loom and process for weaving corded elastic India-rubber fabrics are described, and the excellence of such fabrics so woven, and the points in which they are superior to fabrics not so woven, are pointed out and insisted upon. The claim is thus expressed: "What, therefore, I claim as my invention in this subdivision of my patent is The corded fabric, substantially as hereinbefore described, in which the cords are elastic and held between the upper and under weft threads, and separated from each other by the interweaving of the upper and under weft threads with the warp threads in the spaces between the cords, and only there, substantially as above shown." This bill was filed on the 19th of November, 1868. *On the 22d of January, 1870, the [*116 complainant filed a disclaimer of any fabric in which the warp and weft threads are so interwoven between the elastic cords as to form strips of shirred cloth between and by the contraction of the elastic cords-the warp threads in his improved fabric being, as he declared. only interwoven with the weft threads-for the purpose of binding them tightly around the elastic cords. On the 27th of May, 1862, he filed a disclaimer of "any fabric in which the weft threads are so interwoven with the warp threads that the former are not brought half way around each of said cords, so as to gripe them in such a way as not to permit said elastic cords to slip between said weft threads, in case said cords are cut crosswise or bias." the The substance of the specification as limited by the disclaimers may be thus summarized: The elastic cords are placed side by side, equidistant from each other. They are stretched In several times their normal length. spaces between the cords warp threads are placed parallel with the cords, and of less size. The cords remain stationary. The warp threads are thrown open by the machinery of the loom. Every alternate thread is thrown upwards and the intermediate one downwards. What is termed a "shed" is thus formed above the cords and one under them. Through each of these sheds a weft thread is passed, by means of a shuttle. One of the shuttles is thus passed above and the other below all the rubber cords. After both the weft threads have been driven home by the lathe, the position of the warp threads is inverted by the treadle. Sheds are thus formed on the opposite sides of the cords. Weft threads are then again passed across the 88 U. S. fabric. This process is continued until the weaving is completed. The weft threads form the only covering on the upper and under side of the cords. When their tension ceases after the weaving is done the cords contract in length and increase proportionately in thickness. The weft threads are necessarily brought into proximity with each other. They partially imbed themselves in the cords, hold them firmly, and prevent them from slipping back, if cut anywhere, 117*] while at the tension which subsisted when the weaving took place. So the weft threads cling tightly to the rubber cords in every degree of tension to which they may be subjected. Each of the former grasps firmly each of the latter half round. The points with respect to this litigation, which the complainant claims as covered by his patent, we understand, are that fewer warp threads are used, that the tightness of the weaving is greater, that the rubber cords in all stages of tension are more firmly and effectually held in his fabric than any which preceded it and especially the manner in which the weft threads, one above and the other below, grasp each of the rubber cords half round. It is objected that the disclaimers having been made after the filing of the complainant's bill, cannot avail him in this case. Upon a fair construction of the 7th and 9th sections of the Act of 1837, we think they could be made as well after as before the commencement of the suit. It would, in such case, be the duty of the court to see that the defendant was not injuriously surprised, and to impose such terms as right and justice might require. The question of unreasonable delay would be open for the consideration of the court, and the complainant could recover no costs. We see no reason for turning a party out of court to renew the litigation after filing the disclaimer, thus subjecting both parties to the delay and expense which must necessarily follow, and without any benefit to either. We cannot believe such to have been the intention of Congress. Tuck v. Bramhill, 6 Blatchf., 104; Silsby v. Foote, 14 How., 220; Aikin v. Dolan, 3 Fish., 197; Taylor v. Archer, 8 Blatchf., 315; Myers v. Frame, 8 Blatchf., 446; Guyon v. Serrell, 1 Blatchf., 244; Hall v. Wiles, 2 Blatchf., 194. The defense mainly relied upon is want of novelty; in other words, the prior public use of the things patented. The counsel for the appellant admits expressly that an elastic fabric with silk on one side and cotton on the other one woven with two shuttles, one woven with stationery elastic cords, and one with elastic cords covered above and below solely by weft threads, were known and in public use by themselves separately be118*] fore the alleged invention of the *complainant. It is also admitted that suspender webbing of different kinds, some provided with elastic cords having strips of cloth interwoven between them, and another class without the strips of cloth and similar to the complainant's, "Except that the weft threads in pairs were not made to grasp the elastic cords in the manner described in the complainant's specification," also in like manner preceded his invention. The proof to the same effect, less the exception named, is voluminous and conclusive. It is unnecessary particularly to refer to it. The testimony is equally full as to webbing for shoe gores. That, made in the same way as the suspender webbing, also came into public use and was largely sold at as early a period. The testimony of Hotchkiss establishes conclusively that also prior to the defendant's invention-he made and sold suspender webbing with what were called binding warps between the rubber warps, with weft threads which "Went over all the rubber warps, and under all the rubber warps," and that the fabric was woven while the rubber cords were in a state of tension. He says, further, that he had never known suspender webbing made by American manufacturers in any other way. There is a large mass of other testimony relative to the case in this aspect, but it is deemed unnecessary to pursue the subject further. The evidence before us leaves to the complainant none of the particulars claimed as of his invention, except, perhaps, greater tightness of the weaving, a firmer grasping of the elastic cords by the weft threads half round, above and below, and greater beauty and value of the fabric. The entire ground of the controversy between the parties is reduced to this narrow isthmus, and the question presented for our determination is one rather of law than of fact. A patentable invention is a mental result. It must be new and shown to be of practical utility. Everything within the domain of the conception belongs to him who conceived it. The machine, process or product is but its material reflex and embodiment. A new idea may be ingrafted upon an old invention, be distinct from the conception which pre- [*119 ceded it, and be an improvement. In such case it is patentable. The prior patentee cannot use it without the consent of the improver, and the latter cannot use the original invention without the consent of the former. a mere carrying forward or 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. These rules apply alike, whether what preceded was covered by a patent or rested only in public knowledge and use. In neither case But can there be an invasion of such domain and an appropriation of anything found there. In one case everything belongs to the prior patentee; in the other to the public at large. The question before us must be considered in the light of these rules. All the particulars claimed by the complainant, if conceded to be his, are within the category of degree. Many textile fabrics, especially those of cotton and wool, are constantly improved. Sometimes the improvement is due to the skill of the workmen, and sometimes to the perfection of the machinery employed. The results are higher finish, greater beauty of surface, and increased commercial value. A patent for the better fabric in such cases would, we apprehend, be unprecedented. The patent in the present case rests upon no other or better foundation. The decree of the Circuit Court is affirmed. JAMES R. CLARK, JR., Assignee of Henry v. ADRIAN ISELIN and Isaac Iselin ; and ADRIAN ISELIN and Isaac Iselin บ. Messrs. James Emott and Chas. H. Smith, for Clark, assignee. The pretended transfer of collaterals was a mere fraud and sham. The evidence shows that these so-called collaterals were openly retained, the proceeds collected and money used by Dibblee & Co. in their business, just as all other bills receivable of their house. If such facts were known to Iselin & Co., as JAMES R. CLARK, JR., Assignee of Henry should have put them as prudent business men E. Dibblee et al. (See S. C., 21 Wall., 360-378.) Pledge of promissory notes-exchange, when valid under Bankrupt Law-sales of bankrupt valid payment-entry of judgment, when valid. 1. Where promissory notes are pledged by a debt: or to secure a debt, the pledgee acquires a special property in them. That property is not lost by their being redelivered to the pledgeor to enable him to collect them, the principal debt being still unpaid. Money which he may collect upon them is the specific property of the creditor. 2. A mere exchange of securities not made to secure an unsecured debt, or to give any preference, is not void under the Bankrupt Law, although made within four months before the petition in bankruptcy. on inquiry, then they had reasonable cause to believe Dibblee & Co. to be insolvent within the meaning of the Bankrupt Act. See Buchanan v. Smith, 16 Wall., 277, 21 L. ed., 280. That they did have such information and notice is beyond dispute. Mr. Iselin and Mr. Dibblee were the two men who knew all about the affairs of this firm from the beginning. Mr Iselin held a secret confession of judgment by Dibblee, by which he expected, when the time came, to appropriate all the available assets of the firm. He had $25,000 invested in the firm, in effect as capital, and knew that, besides, Dibblee & Co. had only $20,000. These transfers in April, 1869, were made upon the very eve of bankruptcy, while the confession of judgment was hanging over the 3. The Bankrupt Law does not prevent an in- firm of Dibblee & Co., and with the manifest solvent from dealing with his property, selling or exchanging it for other property, at any time be- purpose of preventing the property thus transfore proceedings in bankruptcy are taken by or ferred from coming to the assignee in bankagainst him; provided such dealing be conducted without any purpose to delay or defraud his cred-ruptcy, or being reached by the operation of itors, or to give a preference to anyone, and does the Bankrupt Act, and of securing and prenot impair the value of his estate. ferring to this extent the creditors thus favored. 4. l'ayments made by a debtor while probably insolvent, but at a time when he did not anticipate any interruption to his business, but was planning its enlargement, to a creditor who neither knew nor had reason to believe his debtor to be insolvent, are not void under the Bankrupt Law. 5. The mere entry of a judgment against an insolvent debtor by virtue of a warrant of attorney, although entered just before the proceedings in bankruptcy are commenced, and when the creditor knows his debtor is insolvent, and though followed by an execution, is not such a preference as the statute avoids. 6. To render such a transaction unlawful, the debtor must have been insolvent or contemplating insolvency at the time, and he must have procured the judgment and execution with a view to give a preference to the judgment creditor, within tour months before filing petition in bankruptcy, and the creditor must have had reasonable cause to believe that the debtor was insolvent, and that the judgment and execution were given in fraud of the provisions of the Bankrupt Act. [Nos. 102, 103.] Argued Dec. 17, 1874. Decided Feb. 1, 1875. (ROSS APPEALS from the Circuit Court of the United States for the Southern District of New York. The bill in this case was filed by Clark, as bankrupt's assignee, in the District Court of the United States for the Southern District of New York, to recover the value of certain payments and transfers of property alleged to have been made in violation of the Bankrupt Law. A decree having been entered in favor of the complainant for part of the relief demanded, both parties appealed to the circuit .court, where the said decree was affirmed. Whereupon both parties appealed further to this court. The case is fully stated in the opinion of the court. NOTE. Power of pledgee to sell-see note to Brown v. McGran, 10 L. ed. U. S. 550. And The transfers of securities in April, 1869, and especially that by which, on the 5th of April, $65,000 of good notes were turned over to Iselin, were admittedly to secure a then pre-existing debt. We say that the original sham deposit of securities, in August, 1868, was to secure a debt previously contracted, and not for a new loan. But, however this may be, in April, 1869, the debt was an old one. from the necessities of Dibblee, with the knowledge and consent of Iselin, it had become, and indeed had constantly been, an unsecured debt. When, therefore, Dibblee took $65,000 of assets and handed them to Iselin, in April, 1869, when he was insolvent and on the verge of bankruptcy, and Iselin knew it, he was not making an exchange of securities, but turning over his property to one creditor in preference to the others; defeating the operation of the Bankrupt Law, and preventing these assets coming to the assignee. On the Cross Appeal. The judgment confessed by one partner in the name of the firm, without the knowledge or consent of his associates, was valid only as a judgment against the partner so acting, and was not, under the law of New York, a valid judgment against the firm. The whole transaction was a fraud by Dibblee upon his copartners. See, Wilson v. Robertson, 21 N. Y., 587; Lambert v. Converse, 22 How. Pr., 265; Bridenbecker v. Mason, 16 How. Pr., 204; Everson v. Gehrman, 10 How. Pr., 301. The confession or instrument upon which the judgment was finally entered in favor of Iselin & Co., against Dibblee & Co., was not executed to secure a debt incurred, or a loan or advance made on the 25th of February, 1869, the date of the paper. |