failure to meet one of the payments designated; | and that after default the defendants succeeding to the interests of the mortgagee had the absolute right to all the timber cut from the land, without liability to account to anyone. We do not state the position of the defendants in the precise language of their counsel, but we state it substantially.

mortgagor, and the tenant claimed under the mortgagee through various mesne conveyances executed after the law day, and it was held that nothing passed to the tenant, the court observing, that to enable the mortgagee to sell and convey his estate was not one of the purposes for which his interest is to be thus treated; that there was no necessity that it should be so treated, as the sale could be equally well effected by the transfer of the note secured by the mortgage.

different from an estate in fee simple." In that case it was held that the interest of the mortgagee in the land was a mere chattel, and passed by a simple delivery of the note secured as an incident of the debt. And in Ellison v. Daniels, 11 N. H., 274, the same court said: "The right of the mortgagee to have his interest treated as real estate extends to and ceases at the point A mortgage is, in form, a conveyance, vesting where it ceases to be necessary to enable him in the mortgagee upon its execution a condi- to avail himself of his just rights, intended to tional estate, which becomes absolute upon be secured to him by the mortgage." In that breach of the condition. At law it was origi-case the demandant, in a writ of entry, was nally held to carry with it all the rights and incidents of ownership. The right of the mortgagee to be treated as owner of the mortgaged premises could only be defeated upon the performance of the conditions annexed by the day designated. Subsequent performance only gave a right to the mortgagor to resort to a court of equity for relief from the forfeiture arising 58*] upon breach of the conditions. Such is the law at this day in some of the States of the Union. But in a majority of the States the law, in this respect, has been greatly modified by considerations drawn from the object and intention of the parties in executing and receiving instruments of this character. The doctrine established by courts of equity, looking through the form to the real character of the transaction, that a mortgage is a mere security for a debt and creates only a lien or incumbrance, and that the equity of redemption is the real and beneficial estate in the land, and may be sold and conveyed in any of the ordinary modes of transfer, subject only to the lien of the mortgage, has to a great extent, "by a gradual and almost insensible progress,' as Kent observes, been adopted by the courts of law (4 Kent, 160). To such a degree has this equitable view prevailed that the interest of the mortgagee is now generally treated by the courts of law as real estate, only so far as it may be necessary for the protection of the mortgagee and to give him the full benefit of his security. Although, in the absence of stipulations as to the possession, he may enter upon the premises, his interest is widely different from that of owner. He cannot, by conveyance, transfer any interest in the premises without a transfer of the debt secured (Johnson v. Bronson, 19 Johns., 325); his interest is not subject to attachment or seizure on execution (Jackson v. Willard, 4 Johns., 41); he cannot remove the buildings on the premises, nor the fixtures attached; nor can he subject the premises to any uses but such as may furnish the means for the payment of the debt secured without impairing the value of the estate.

In few States is the equitable doctrine respecting mortgages more clearly asserted than in New Hampshire, where the mortgage was executed upon which the rights of the parties to the present action arise. Thus, in Southerin v. Mendum, 4 N. H., 429, the Supreme Court of that State, in considering the nature of the interest which a mortgagee possesses, said: "In order to give him the full benefit of the security, and appropriate remedies for any violation of his rights, he is treated as the owner 59*] *of the land. But for other purposes, the law looks beyond the mere form of the conveyance to the real nature of his interest, and treats his estate in the land as a thing widely

With these views of the nature of the interest of the mortgagee, under the law of New Hampshire, the question presented in the case at bar becomes one of easy solution. The timber growing upon the land mortgaged constituted a portion of the realty. It was embraced in the pledge of the land as security. As the assignees of the mortgage held the land, so they held the timber upon it both before and after it was cut, as a portion of their security. They could not sell it, any more than they could pass, by their conveyance, the fee of the land.

The mortgagors had, it is true, no right to cut the timber after default made in any of the payments designated in the mortgage. They could do nothing to diminish the value of the estate. The right to cut the timber rested upon the license contained in the stipulations of the mortgage. Their cutting, except in pursuance of such license, might have been *restrained, [*60 upon proper application, by a court of equity. Brady v. Waldron, 2 Johns. Ch., 148. The sale by them, after it was cut, did not devest the lien of the assignees of the mortgage; the purchaser took the timber subject to their paramount rights. The assignees could follow it and take possession of it, and hold it until the designated amounts due at the time were paid. these were paid, their rights over it ceased, and the vendee of the mortgagors became invested with a complete title. The subsequent detention of the timber by the assignees was wrongful and the sale of it a conversion, for which they were liable to the purchaser.

When

Some other positions were pressed, by the plaintiffs in error, upon the attention of the court on the argument, but we do not notice them; because what is termed in the transcript "a bill of exceptions," does not show that any exception was taken to the rulings of the court. The bill simply shows that certain positions were urged by the parties, and certain rulings asked. We have, however, considered the material question argued, because no objection was taken to the record on the argument, and because the associate justice of this court, who presided at the circuit where the cause was tried, informs us that an exception was, in truth, taken, and that the omission of the bill to state the fact is a mere clerical error We do

not intend, however, to allow this case to be drawn into a precedent. To authorize any objection to the admission or exclusion of evidence, or to the giving or refusal of any instructions to the jury, to be heard in this court, the record must disclose not merely the fact that the objection was taken in the court below, but that the parties excepted at the time to the action of the court thereon.

Judgment affirmed.

78*] *CHARLES T. EAMES, Plff. in Err.,

v.

BENJAMIN D. GODFREY.

(See S. C., 1 Wall., 78-80.) Infringement of patent-what is. There is no infringement of a patent claims mechanical powers in combination, all the parts have been substantially used. [No. 83.]

IN

which
unless

for infringing a certain patent issued to Jarvis Howe, for a new and useful improvement in boot-trees, of which patent Godfrey was the assignee. Eames pleaded not guilty, and gave notice of special matters of defense.

This case was tried by a jury, who found the defendant guilty and assessed the damages in the sum of $2,177.50.

The patent was for a combination of mechanical powers for a new and useful improvement in boot-trees. The plaintiff did not claim that the defendant had used the same mechanism that he did for distending the leg of the boot-tree, but had used all the other parts of his combination, and that the mechanism which the defendant used, although different in construction and operation from that described in the patent, yet performed the same function. The defendant contended that, not having used the mechanism described in the patent for distending the leg of the boot-tree, although he had used the other parts of the combination, he was not guilty of infringing the patent, and requested the court so to rule.

The court refused to rule as requested, but instructed the jury that to make out an in

Argued Dec. 21, 1863. Decided Jan. 18, 1864. N ERROR to the Circuit Court of the United States for the District of Massachusetts. This action was commenced in the court be-fringement of the first claim in the patent (the low by the defendant in error, to recover damages for the infringement of a patent. The trial resulted in a verdict and judgment for the plaintiff, and the defendant brought the case to this court.

The case is sufficiently stated in the opinion.
Mr. Causten Browne, for defendant in

error:

claim for combination), it was not necessary for the plaintiff to show that the mechanism for distending, used by the defendant, and its mode of operation, were the same with that de scribed in the plaintiff's patent for the purpose, of distending the boot-tree; and if said mechanism for distending the leg, &c., used by the defendant, was not the same mechanism,

The special form and operation of the dis-operating in the same manner as that described tending mechanism are not material, so far as in the plaintiff's patents for the same [*79 regards the invention of the plaintiff; the es- purpose; still, if there were in the defendant's sence of which is, establishing a certain me- machine a mechanism performing the same chanical relation between the distending me- function as that performed by plaintiff's dischanism and the boot-tree, swivel, bearing, turn- tending mechanism, and if this was combined ing journal and supporting stand, so as to dis- with the other parts in the manner in which tend the parts of the tree while so supported, the distending mechanism described in the and hold them so distended while the tree is plaintiff's patent was combined, it was an inturned over and over, about its bearing, as de-fringement of said patent and the defendant sired. would be liable therefor.

Unquestionably, the patentee might have so described and claimed this element (the distending mechanism) in his combination as to include only one construction of the distending instrument itself. But it is submitted, as clear upon the patent, that he has not done so, and that for that reason his case is distinguished from Prouty v. Ruggles, 16 Pet., 341; Carver v. Hyde, 16 Pet., 513; Stimpson v. & S. R. R. Co., 10 How., 329.

The general construction of the distending mechanism, as above stated, appears to have been new with the patentee; and on that ground he is entitled to cover any equivalent for performing the same operation.

McCormick v. Talcott, 20 How., 407 (61 U. S., 930).

Mr. Justice Davis delivered the opinion of the court:

This was a writ of error to the Circuit Court of the United States for the District of Massachusetts.

Godfrey sued Eames in an action on the case NOTE. What constitutes infringement; similarity of devices; combinations-see note, 36 L. ed. U. S. 1073.

The defendant excepted to the instructions given and to the refusal of the court to instruct as prayed for.

The patent in controversy was for a combination of mechanical powers to effect a useful result, and such a patent differs essentially in its principles from one where the subject-matter is new.

The law is well settled by repeated adjudications in this court and the Circuit Courts of the United States, that there is no infringement of a patent which claims mechanical powers in combination, unless all the parts have been substantially used. The use of a part less than the whole is no infringement.

The

In Prouty v. Ruggles, 16 Pet., 341, the law is well considered. The patent there was for the combination of certain parts of a plough, arranged together so as to produce a certain effect. The suit was for an infringement. court below had charged the jury, that unless the whole combination was substantially used in the defendant's plough, it was no violation of the plaintiff's patent. Chief Justice Taney, in deciding the case, said: "None of the parts referred to are new, and none are claimed as new; nor is any portion of the combination

less than the whole claimed as new, or stated to produce any given result. The end in view 80*] is proposed to be accomplished by the union of all, arranged and combined together in the manner described. The use of any two of these parts only, or of two combined with a third, which is substantially different in form or in the manner of its arrangement and connection with the others, is, therefore, not the thing patented. It is not the same combination if it substantially differs from it in any of its parts."

Where county bonds, on their face, import compliance with the law under which they were issued, the purchaser is not bound to look further. Evidence of fraud practiced by the Railroad Company to whom the bonds were delivered and by whom they were paid to bona fide holders for value, or the fact that they were negotiated at less than their par value, cannot defeat a recovery on them by such holders.

This species of bonds have the qualities of negotiable paper.

On questions of mercantile or commercial law, this court does not feel bound to yield its own judgment to state decisions. [No. 88.]

Argued Jan. 7, 1864. Decided Jan. 18, 1864.

vania.

The case is stated in the opinion of the court. Mr. Wm. Stewart, for plaintiff in error: 1. The evidence offered and rejected, would prove or tend to prove a fraud practiced upon the County of Mercer by the Railroad Company, in procuring the subscription by Mercer County and in obtaining the bonds in payment

thereof.

2. The subscription was made and the bonds issued therefor without lawful authority, and they are not binding on Mercer County.

Testing this case by these principles, the court erred in charging the jury as it did, and in refusing to instruct as asked by the defend-N ERROR to the Circuit Court of the United States for the Western District of Pennsylant. There is nothing in the record that shows in what manner the mechanism used by Eames, in distending the leg of the boot-tree, differed from that claimed in the patent. It is stated that the mechanism used by Eames was different in its construction and operation, but how far the difference extended we are left to conjecture. It is fair to presume, in the absence of proof, that it was essentially different. If, however, the mechanism used by Eames was not substantially different in its form or the manner of its arrangement from the mechanism used by Godfrey, there was an infringement; but this was a question that should have been left to the jury to pass on. The court laid down a broad rule without qualification-that although Eames' mechanism for distending the leg of the boot-tree did differ in its construction and operation from that patented, yet, if it performed the same functions as the mechanism in the combination, there was an infringement. This view of the law was wrong on principle and authority. Eames had a right to use any of the parts in Godfrey's combination, if he did not use the whole; and if he used all the parts but one, and for that substituted another me. chanical structure, substantially different in its construction and operation but serving the same purpose, he was not guilty of an infringement. Judgment reversed and venire awarded.

THE COUNTY OF MERCER, Plff. in Err.,

v.

H. Y. HACKETT.

(See S. C., 1 Wall., 83-97.)

Recitals in county bonds, effect of-sale of for less than par value-county bonds negotiable -commercial law.

NOTE.-Negotiability of railroad bonds. See note to White v. Vt. & Mass. R. Co., 16 L. ed. U. S. 221.

Recitals in negotiable bonds or securities evidence of the facts recited. Estoppel by recitals in.

Where negotiable bonds or securities on their face import by recitals a compliance with the law under which they were issued, the purchaser is not bound to look further for evidence of compliance with the conditions annexed to the power to issue them. Knox Co. v. Aspinwall, 21 How. 539, 16 L. ed. 208; St. Joseph's Township v. Rogers, 16 Wall. 659; Pendleton Co. v. Amy, 13 Wall. 305; Bissell v. Jeffersonville, 24 How. 287, 16 L. ed. 664; Moran v. Miami Co., 2 Black, 722, 17 L. ed. 342; Grand

3 Casey (27 Pa., St.), 389; 8 Casey, 141. 3. The bonds having been issued by the County with the corporate seal affixed, are specialties and not commercial paper, subject to the law merchant as negotiated paper.

15 Wend., 255; 1 Barr. Pa., 381; 13 Serg. & R. 311; 1 Wright (37 Pa.), 353.

4. If the bonds to which the coupons in suit were attached were negotiable in form, having been issued without legal authority, no subsequent transfer or negotiation of them would render them valid and binding on the County

of Mercer.

Mr. A. W. Loomis, for defendant in error, cited 21 How., 545 (62 U. S., XVI., 210); 27 Pa. St., 389, 404; 8 Casey, 27 Pa. St., 152; 1 Black, 386-411, 412-414; 1 Wright, 37 Pa. St., 358, 237; 8 Casey, 218; 10 Casey, 34 Pa. St., 490.

Mr. Justice Grier delivered the opinion of the court:

The bill of exceptions in this case shows the refusal of the court below to receive evidence tending to prove two distinct matters of alleged defense of the County of Mercer, to the payment of the interest coupons on their bonds. In order to show their relevancy, it will not be necessary to state at full length the very numerous facts contained in the offer.

The purpose of the evidence offered was to sustain the positions

1st. That the bonds were issued by the Chute v. Winegar, 15 Wall. 372; Larned v. Burlington, 4 Wall. 276; Lynde v. County, 16 Wall. 6; Kennicott v. Supervisors, 16 Wall. 464; Meyer v. City of Muscatine, 1 Wall. 384; Town of Coloma v. Eaves, 92 U. S., 484; Town of Venice v. Murdock, 92 U. S. 494; Lincoln v. Iron Co., 102 U. S., 412.

Where the officers to decide whether the issue is authorized and to issue, are the same, a recital by them in the bonds issued in general terms that they have been issued in pursuance of the Act authoriz ing their issue, is sufficient. Knox Co. v. Aspinwall, 21 How. 539, 16 L. ed. 208.

Where the recital in bonds was that "they were issued by the authority of the common council of the city, three fourths of the legal voters of the

County Commissioners without authority of law, and were, therefore, void.

2d. That the Railroad Company, to whom they were delivered, had committed a gross fraud in obtaining them, and had, moreover, paid them out to the contractors and laborers on the road, below their par value.

The bonds and coupons offered to show the indebtedness of the County, were received without objection.

The bonds purport to be issued for stock in the Pittsburg and Erie Railroad Company. This is the consideration alleged on their face.

They set forth that the County is indebted to said Company for the full sum which the County "promises to pay twenty years after date, to said Company or bearer, with interest payable semi-annually, &c., upon delivery of the coupons annexed; for which payments well and truly to be made, the faith, credit and property of the County is solemnly pledged under the authority of an Act of Assembly, entitled A Supplement to the Act of Incorporation of the Pittsburg and Erie Railroad Company, approved the 21st day of April, 1846, and which said supplement became a law on the 4th day of May, 1852," &c.

further. The decision of the Board of Commissioners may not be conclusive in a direct proceeding to inquire into the facts before the rights and interests of other parties had attached; but after the authority has been executed, the stock subscribed, and the bonds issued and in the hands of innocent holders, it would be too late, even in a direct proceeding, to call it in question.

The case of Mercer Co. v. The Railroad, 27 Pa., 389, has been cited as governing this case. But on examination it will be found not to contradict the doctrine we have just stated. That was a bill in equity, praying an injunction against the issuing of a portion of the bonds not yet delivered over to the Company, or negotiated by them. It charged that the commissioners had not pursued the conditions, limitation, and restrictions of the Act that authorized their issue; that, by the Act, "all such subscriptions shall be made after and not before the amount of such subscriptions shall have been designated, advised and recommended by a grand jury," whereas the grand jury only "recommended that the commissioners of Mercer County subscribe to the capital stock of the "In testimony whereof and in pursuance of Pittsburg and Erie Railroad, to such amount said Act, &c., and resolutions of the County and under such restrictions as may be required Commissioners in their official capacity, the by the Act of Assembly, by authorizing them Commissioners of said County have signed and to subscribe, to an amount not exceeding $150,the clerk countersigned these presents," &c., &c. | 000." The bill charged also most gross frauds Now, this bond declares on its face that the perpetrated by the Company, which fully justifaith, credit, and property of the County is sol-fied the decree of the court, without resorting emnly pledged, under the authority of certain to the very ingenious and rather astute critiActs of Assembly, and that in pursuance of said cism of the phraseology of the grand jury. It Act the bonds were signed by the Commission- is true they recommend only, and have not used ers of the County. They are on their face com- the words "designate and advise" a subscripplete and perfect; exhibiting no defect in form tion not to exceed $150,000. It would require or substance and the evidence offered is to show no great latitude of construction to treat this, the recitals on the bonds are not true; not that as the commissioners might justly do, as a no law exists to authorize their issue, but that substantial compliance with the Act. [*94 93*] the bonds *were not made "in pursuance But it would be contrary to good faith and comof the Acts of Assembly" authorizing them. mon justice to permit them to allege a newly discovered construction of an equivocal power, after they have sold the bonds and they have passed (as is admitted in this case) into the hands of bona fide purchasers for value. It is proper to state that the construction given has U. S., 104: Comrs. of Johnson Co. v. January, 94 U. S.. 202; County of Warren v. Marcy, 97 Ü. S., 96, 104.

We have decided in the case of Com. of Knox Co. v. Aspinwall, 21 How., 545, 16 L. ed. 210, that where the bonds on their face import a compliance with the law under which they were issued, the purchaser is not bound to look city having petitioned for the same, as required by the charter," parol evidence was not allowed to show that three fourths had not petitioned. Bissell v. City of Jeffersonville, 24 How. 287, 16 L. ed. 664. Where proviso as to issue of bonds was that two thirds of the citizens who were freeholders should petition for the subscription, bonds signed by the mayor and clerk, reciting that they were issued by virtue of an ordinance of the common council of the city, held valid. Van Hostrup v. Madison City, (ante, 538).

Where the Act authorizing the issue contained a proviso "that the amount of bonds voted by any one township should not be above such a sum as would require a levy of morc than one per cent. per annum" to pay the yearly interest, and the bonds recited that they were "issued in pursuance of, and in accordance with." the act, this recital was considered evidence that the bonds did not exceed the statutory limit for the issue of such bonds. Humbolt Township v. Long, 92 U. S., 642; Marcy v. Township of Oswego. 92 U. S. 638.

Where the defense to bonds in the hands of a bona fide holder related to a popular vote required to be taken before the issue of the bonds, a general recital in the bonds, that they were issued in accordance with statute enabling the municipality to subscribe and issue bonds, was held to be a decision of the municipal officers that the condition precedent was complied with and was binding upon the municinality. Comrs. of Douglas Co. v. Bolles, 94

Recitals on the face of bonds that they were issued in accordance with certain ordinances whose titles are given, and which characterize the ordinances as providing for a loan for municipal purposes, estop the city trom showing that the foan was not for such purposes, and that the bonds are void as against an innocent purchaser for value. Hackett v. Ottowa, 99 U. S., 86; Ottaway v. Nat. B'k, 105 U. S., 342.

The power to issue bonds must exist. It cannot be created by recital. "No bona fides can dispense with this, and no recital cure it." Daviess County v. Huidekoper, 98 U. S., 98: Anthony v. Jasper County, 101 U. S., 693; Wells v. Supervisors, 102 U. S., 625.

A bona fide holder of town bonds is not bound to look beyond their recitals and the legislative authority under which they were issued. Walnut v. Wade, 103 U. S., 683.

Where the bonds recite that they were issued in pursuance of the authority conferred by statutes. Such recitals import a compliance with the statute and the township is estopped to assert, as against a bona fide holder for value, that such recitals are untrue." Bonham v. Needles, 103 U. S. 648, 650; Harter v. Kernochan, 103 U. S., 570; Buchanan v. Litchfield, 102 U. S., 278.