Opinion of the court.-Mellier's patent.

Mellier was a Frenchman and probably familiar with the French tables.

Understanding the terms used in the specification thus, the elements of the process claimed are, 1st, the use of a solution of pure caustic soda (natrium and oxygen), from two to three degrees Baumé strong; and, 2d, boiling the materials to which the process is applied in the solution raised to a temperature of not less than 310° Fahrenheit, which, of course, implies the use of a close boiler. The preparation of the materials for the process is no part of it, nor is the subsequent washing and bleaching.

The claim, it is true, in referring to the material to be treated, mentions only straw, but the object of the claim was to secure a monopoly of the process, not to enumerate the materials to which it might be applied. They had already been described in the specification, and there was no necessity for mentioning any of them in the claim. It is true the patent cannot be extended beyond the claim. That bounds the patentee's right. But the claim in this case covers the whole process invented, and the complainants seek no enlargement of the process. Certainly the claim of the process ought not to be regarded as excluding all other substances than the one mentioned. As already noticed, the specification avows the object of the invention to be a process for treating straw and other vegetable fibrous materials requiring like treatment preparatory to the use of such fibres in the manufacture of paper. The subject to be treated is fibrous materials of a vegetable nature. And it may well be doubted, in view of this general declaration of the object, whether there is anything that limits the scope of the iuvention to a process of treating straw and other like materials. The language of the patent is not "straw and other like vegetable materials." The specification speaks of “straw or such other fibrous matters," of "straw or fibrous matters," of "straw or fibrous substance," "straw or other fibrous material," and it uses other similar forms of expression, but all of them clearly referring to fibrous materials requiring treatment like that required by straw for the pro

Opinion of the court.—Mellier's patent.

duction of paper-pulp. It would, therefore, in our opinion, be too narrow a construction of the patent to hold that it is for a process applicable only to straw or other similar vegetable substances, and not applicable to vegetable substances generally requiring like treatment for the uses mentioned.

It remains only to inquire whether the defendants have infringed upon the complainants' rights as thus defined, for no sufficient reason has been given to justify our holding the patent void. This part of the case presents real difficulty. If there has been any infringement it was very slight. Admitting that bamboo, which is the subject principally used by the defendants (though there is some evidence that straw was also used), is one of the vegetable fibrous materials to which the complainants have an exclusive right to apply their process, does the evidence show that the process has been applied? Certainly it has not, unless in boiling bamboo or straw the minimum degree of heat and 'pressure specified in the patent has been employed by the defendants in their treatment of vegetable substances. The evidence upon this subject is that while using an alkaline solution of less than 3 degrees Baumé the defendants have sometimes used an external pressure, as measured by the gauge, of from forty to sixty pounds, the latter being equivalent to an internal pressure of nearly seventy-five pounds, or a temperature above 310°. This may have been, and it probably was, only occasionally, but it was, nevertheless, an invasion of the monopoly. In regard to the strength of the solution of caustic alkali employed, there is evidence that the general strength was from two and a half to three degrees Baumé.

Upon the whole, therefore, we have come to the same conclusions as those reached by the court below.

DECREE AFFIRMED: each party to pay his own costs in this

court.

APPENDIX.

SECTION 709 of the Revised Statutes of the United States (in its main provisions, the same as the twenty-fifth section of the Judiciary Act of 1789, and the second section of the act of 1867, much similar to it) being referred to in the body of this book more than once, is here given below. The section, for convenience of reference, is broken up by the reporter into paragraphs.

SECTION 709. A final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had,

Where is drawn in question the validity of a treaty or statute of or an authority exercised under the United States, and the decision is against their validity,

OR where is drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity,

OR where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority,

May be re-examined and reversed or affirmed in the Supreme Court upon a writ of error.

The writ shall have the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States; and the proceeding upon the reversal shall be the same, except that the Supreme Court may, at their discretion, proceed to a final decision of the case, and award execution or remand the same to the court from which it was so removed.

(608)

INDEX.

ABANDONED AND CAPTURED PROPERTY ACT.
Under the act which gives to "the owner'
•" of any

abandoned and captured
property a right, after it has been sold by the government, to recover
the proceeds of it in the Treasury of the United States, a factor who
has merely made advances on the property-there being another per-
son who has the legal interest in the proceeds-is not to be regarded
as "the owner;" at least not to be so regarded beyond the extent of
his lien. United States v. Villalonga, 35.

"ABSENT FROM DUTY WITH LEAVE." See Army Officer.
Meaning of the expression within the act of March 3d, 1863. United
States v. Williamson, 411.

ACCEPTANCE, QUALIFIED. See Life Insurance.

ACCIDENTAL FIRE. See Anchor-ground; Principal and Agent; Tow-
ing Tug.

ACCORD AND SATISFACTION. See Omnia præsumuntur rite esse acta;
Pleading, 2.

ACKNOWLEDGMENT OF DEED. See Feme Covert.

ADMIRALTY. See Anchor-ground; Collision; Evidence, 1, 3; Pilot; Prin-
cipal and Agent; Proceeding in rem; Salvage; Ship-master; Towing
Tug.

AGENT. See Principal and Agent.

ALIEN. See Estoppel; Practice, 8.

ALLUVION.

1. Means an addition to riparian land, gradually and imperceptibly made,
through causes either natural or artificial, by the water to which the
land is contiguous. County of St. Clair v. Lovingston, 46.

2. The test of what is gradual and imperceptible is that, though the wit-
nesses might see from time to time that progress has been made, they
could not perceive it while the process was going on. Ib.

8. It matters not whether the addition be on streams which overflow their
banks or those that do not. In each case it is alluvion. Ib.

AMENDMENT. See Practice, 13.

VOL. XXIII.

89

(609)

ANCHOR-GROUND.

A vessel anchored in the Hudson, opposite to the Hoboken wharves, if
anchored three hundred and fifty yards from their river front, is an-
chored so far from shore that in case of a collision with a vessel towed
in flames out of the Hoboken docks, no allegation can be made that
she is anchored too near the shore. The Clarita, 1.

ANCHOR-WATCH.

A vessel at anchor having an anchor light and one man on deck, though
not strictly an anchor-watch, is guilty of no fault in not being better
lighted or watched. The Clarita, 1.

ARBITRATION AND AWARD. See Pleading, 2.

ARMY OFFICER.

1. One who is ordered, even on his own request, to proceed to a particular
place, including his home, and "there await orders," reporting thence
by letter to the Adjutant-General of the Army and to the headquarters
of the department to which he then belongs, is not an officer "absent
from duty with leave" within the act of Congress of March 3d, 1863,
which enacts that "any officer absent from duty with leave, except
from sickness or wounds, shall during his absence receive half of the
pay and allowances prescribed by law, and no more." United States
v. Williamson, 411.

2. The action of army officers in matters of a judicial character, especially
when done in the wilds of the West, to be favorably construed and so
that they may have effect rather than perish. United States v. Shrews-
bury, 508.

ASSIGNMENT OF ERRORS.

Quare. Whether a general assignment of errors, on a special case, “that
the judgment below was for the wrong party," is a sufficient assign-
ment. Scholey v. Rew, 831.

"AWAITING ORDERS." See Army Officer.

The meaning of the expression in connection with the act of Congress of
March 3d, 1863. United States v. Williamson, 411.

BANKRUPT ACT.

1. Where a person has bought land subject to a vendor's lien, and has
given his notes for payment of the purchase-money, the obligation of
another person who buys the land from him and assumes to pay the
notes, will be discharged so far as the notes are concerned, by his dis-
charge under the Bankrupt Act; but the vendor's lien is not dis-
charged. Lewis v. Hawkins, 120.

2. When District Courts sitting in bankruptcy mean to order a sale of the
real estate of the bankrupt which he has mortgaged, in such a way
as to discharge it of all liens, and so that the purchaser have a title
unincumbered, it is indispensable that the mortgagee have notice of
the purpose of the court to make such an order; or that in some
other way he have had the power to be heard, in order that he may
show why the sale should not have the effect of discharging his lien.