Raymond v. Tyson. instrument in any way that the payment is to be made in cash or bills before, or at, the delivery of the cargo, or even if it does not appear that the delivery of the cargo is to precede such payment;" and "that when the payment is to be made by bills, the right of retention continues till they are given, and would, it is conceived, revive, in case of their dishonor, before the ship-owner has parted with the goods." And so are adjudged cases. Abb. Ship., 299; 1 Dan. & L., 193; 1 Mau. & Sel., 535; Cross on Lien, and cases cited, 311. The circumstances that appear on the record seem to bring this case fully within the operation of these principles. It is not shown that the voyage from Cardiff to Panama "for orders," and the voyage from Panama to San Francisco pursuant to orders, were otherwise than in strict accordance with the calculations of the parties. The cargo taken at Cardiff, by contract, did not reach San Francisco until after the first instalment for the use of the vessel, upon these voyages, became due, and advices from New York had been received at San Francisco of the default of the shipper. That a right should arise for the detention of the cargo, until the freight was paid, would seem to follow, from the principles before stated. But it is said, that, there having been no express reservation *of a lien, and the owner having consented to receive his money in New York, by instalments, present conditions inconsistent with the existence of a lien. [*71 The reply is, that the commercial law does not exact a stipulation to support the lien of the ship-owner, but requires circumstances expressive of "a determinate abandonment, as the condition of its removal; no deduction can, therefore, be legitimately drawn from the silence of the contract. And the requisitions for payment in New York, by instalments, show that the owner had some confidence in the personal responsibility of Howard and Son, and did not rely exclusively upon the profits of the adventure, or the security of the cargo; but they cannot fairly be held to establish any renunciation or determinate abandonment of the remedies the law affords, in case of their default. And this evidence of a waiver of the lien, imperfect as it is, is still more impaired by the facts, that though the amount of the freight did not depend upon the lading of the vessel, but was payable in any event; and though a full cargo for so long a voyage could not fail to injure the vessel, nevertheless the owners stipulated that a 66 full cargo of lawful merchandise" should "be provided," and bills of lading signed, without prejudice to the charter. The Troy Iron and Nail Factory v. George Odiorne et al. I admit that, after the completion of her first voyage, and after the arrival of the vessel at San Francisco, and she had then entered upon the coasting trade between ports on the Pacific, cases may be put where a cargo might not be subject to a lien; and others, where the libellant would find embarrassment in enforcing one. But this case involves no difficulty. And to allow the lien, will be, in my opinion, a consistent application of familiar and well-settled principles of commercial law. I am authorized to say, Mr. Justice GRIER concurs in this opinion. Order. This cause came on to be heard on the transcript of the record from the circuit court of the United States for the northern district of California, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court, affirming the decree of the district court in this cause, be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said circuit court, with directions to dismiss the libel filed in this cause in the said district court, with costs. *72] *THE TROY IRON AND NAIL FACTORY, APPELLANT, v. GEORGE ODIORNE, JR., AND ORNE.* FRANCIS ODI A machine for making hook-headed spikes was constructed in Boston, prior to the 18th of April, 1839, and therefore not within a patent for a machine for a similar purpose which Burden applied for on that day. THIS was an appeal from the circuit court of the United States for the district of Massachusetts, sitting as a court of equity. It was a bill filed by the Troy Iron and Nail Factory, a manufacturing corporation established in the state of New York, to restrain the Odiornes from infringing certain letterspatent granted to Henry Burden, on the 21 of September, 1840, and by tm assigned to the complainant. The respondents filed an answer, taking various grounds of * Mr. JUSTICE CURTIS, having been of counsel, did not sit in this cause. The Troy Iron and Nail Factory v. George Odiorne et al. defense, which it is not necessary, under the circumstances of the case, to particularize. At October term, 1851, the following stipulation was signed by the parties, and filed in the cause: The defendants agree not to deny the validity of the complainants' patent, provided they make out their title to the said letters-patent to be good. They also agree not to deny that the machine complained of in the complainants' bill, is an infringement on the patent granted to H. Burden, on August 4, 1840. [Sept. 2.] If the complainants shall establish their title to the letterspatent aforesaid, the proper decree may be entered for the complainants, unless the defendants shall prove that the spike machine used by them, and complained of in the bill aforesaid, was constructed prior to the alleged application of H. Burden, made April 18, 1839, for letters-patent therefor, according to the provisions of the statute of the United States, 1839, ch. 88, sec. 7; or was the result of an independent, original invention, prior in time to the invention of the said Burden; in either of which cases the proper decree shall be entered for defendants. C. P. CURTIS, JR., Plaintiff's Attorney. Much testimony was taken upon the subjects involved, and in December, 1852, the circuit court dismissed the bill. From this decree, the complainant appealed to this court. The case was argued by Mr. George T. Curtis, for the appellants; no counsel appearing for the appellee. The argument upon the point upon which the court rested. its decision, consisted of an examination of the evidence bearing upon it, which it is not necessary to state. *Mr. Justice CATRON delivered the opinion of the court. [*73 Henry Burden obtained a patent, in 1840, for a machine to make hook-headed spikes. He applied for the patent on the 18th of April, 1839. It was assigned to the Troy Iron and Nail Company, who filed a bill against the Odiornes, to enjoin them, and for an account for using a machine to make similar spikes; and which machine, it is alleged, infringed the monopoly secured to Burden, by his patent of 1840. The case was brought to a hearing on the following stipulation: "The defendants agree not to deny the validity of the com The Troy Iron and Nail Factory v. George Odiorne et al. plainant's patent, provided they make out their title to the said letters-patent to be good. "They also agree not to deny that the machine complained of in the complainant's bill, is an infringement on the patent granted to H. Burden, on August 4, 1840. "If the complainants shall establish their title to the letterspatent aforesaid, the proper decree may be entered for the complainants, unless the defendants shall prove that the spike machine used by them, and complained of in the bill aforesaid, was constructed prior to the alleged application of H. Burden, made April 18, 1839, for letters-patent therefor, according to the provisions of the statute of the United States, 1839, ch. 88, sec. 7; or was the result of an independent, original invention, prior in time to the invention of the said Burden; in either of which cases the proper decree shall be entered for defendants." The only question presented for our consideration on the stipulation, is, whether the machine employed by the appellees was constructed prior to the 18th of April, 1839, when Burden made application at the patent office, for his patent. The machine complained of was built by Richard Savary, for the Boston Iron Company, in the spring of 1839, and obtained, by the appellees, by assignment. Savary was the patentee of a machine to make ship and boat-spikes, and, at the suggestion of the agents of the Boston Iron Company, added an attachment of an apparatus to make a hook-head to spikes; the process for making which, Savary deposes, he discovered in August, 1838. The time at which this apparatus was attached to the machine (substantially complete in its operative parts), is the time when the machine complained of was "constructed," in the sense of the stipulation; it not being necessary that the machine should be geared and doing work. We are satisfied that it was set up, and substantially finished, before the 18th of April, 1839, and, therefore, order the decree below to be affirmed. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the district of Massachusetts, and was argued by counsel; on consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs. 78 JOSEPH BATTIN, PATENTEE, AND SAMUEL BATTIN, ASSIGNEE, PLAINTIFFS IN ERROR, v. JAMES TAGGERT, DEFENDANT IN ERROR. JOSEPH BATTIN, PATENTEE, AND SAMUEL BATTIN, ASSIGNEE, PLAINTIFFS IN ERROR, v. ROBERT RAD CLIFFE AND JOHN JOHNSON, DEFENDANTS IN ERROR. JOSEPH BATTIN, PATENTEE, AND SAMUEL BATTIN, AsSIGNEE, PLAINTIFFS IN ERROR, v. JOHN G. HEWES, DEFEN DANT IN ERROR. Whether the defect be in the specifications or in the claim of a patent, the patentee may surrender it, and, by an amended specification or claim, cure the defect. When this is done, and a reissued and corrected patent is taken out, the omis sions and defects are cured; and nothing within the scope of the patentee's original invention can be considered as having been dedicated to the public by the lapse of time between the original and reissued patent. Hence, where a patent was taken out for a new and useful improvement in the machine for breaking and screening coal, and the claim was for the manner in which the party had arranged and combined with each other the breaking rollers and the screen: and the amended specification of the reis. sued patent described essentially the same machine as the former one did, but claimed, as the thing invented, the breaking apparatus only, a dedication to the public did not accrue in the interval between the one patent and the other.1 It was for the jury to determine, from the facts in the case, whether the specifications, including the claim, were so precise as to enable any person skilled in the structure of machines, to make the one described; also, to judge of the novelty of the invention, and whether the renewed patent was for the same invention as the original patent; also, whether the invention had been abandoned to the public. The jury were also to judge of the identity of the machine used by the defendant, with that of the plaintiffs, or whether they have been constructed and act on the same principle.2 THESE three cases were argued and decided together. They were brought up, by writ of error, from the circuit court of the United States for the eastern district of Pennsylvania.8 On the 6th of October, 1843, Joseph Battin obtained a patent for a new and useful improvement in the machine for breaking and screening coal, which he defined, in his specifi cation, as one in which the breaking and screening were effected simultaneously, by a set of breaking rollers, of a certain form, operating in connection with an assorting screen. I APPLIED. Rubber Co. v. Goodyear, 9 Wall., 795; Wilson v. Coon, 6 Fed. Rep., 617; s. c. 18 Blatchf., 537. 2 Consult also, Heald v. Rice, 14 Otto, 749; Milligan, &c. Glue Co. v. Upton, 1 Bann. & A.. 500; Calkins v. Bertrand, 2 Id., 217; Miller v. Du Brul, Id., 619; Herring v. Nelson, 3 Id., 63; Atwood v. Portland Co., 5 Id., 538; s. c. 10 Fed. Rep., 287; Edgarton v. Furst, &c. Manufacturing Co., 10 Biss., 416 n; Smith v. Merriam, 6 Fed. Rep., 719; Kells v. M'Kenzie, 9 Id., 286. 3 Reported below, 2 Wall. Jr., 101. |