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*272

*The following are the drawings of the reissue, those of the original patent being the same, except that the button-hole is not lettered in the original:

The answer sets up, as defenses, (1) that the reissue was obtained for the purpose of covering a style or form of collar not intended to be covered by the original patent, the original covering a short or sectional band collar only, and the reissue being intended to cover a different style of band, subsequently adopted by the plaintiff, and not having been procured for the purpose of correcting a mistake in the claim of the original; (2) that the plaintiff was not the original and first inventor of the thing patented; (3) non-infringement.

The case was heard on pleadings and proofs, and a decision rendered (18 Blatchf. C. C. 532; S. C. 6 Fed. Rep. 611) in favor of the plaintiff, on which an interlocutory decree was entered, January 8, 1881, adjudging the reissued patent to be valid, and to have been infringed by the defendants, by the manufacture and sale of four collars: Exhibit F, Delhi; Exhibit G, Orion; Exhibit H, Zenith; and Exhibit I, Spy; and awarding an account of profits and damages, to be taken by a master, and a perpetual injunction. On the report of the master, a final decree was entered, July 28, 1881, in favor of the plaintiff, for $8,355.32, which included costs. The defendants appealed to this court.

*The defendants' collars have bands which are continuous from end to end of the collar, and are not in two parts, nor divided by any vertical or other seam, at the center of their length or elsewhere. They have no short or sectional bands, which start from the center of the collar, or from any point between the center and the ends. The band is not shorter than the length of the collar. In the original patent, the invention is stated to be a collar having short or sectional bands; that is, the collar has not a continuous band, of one piece of cloth as long as the collar, and extending from end to end of the collar, but has its band made in two sections, and each of those sections starts or begins to run from the center of the length of the collar, or from a point between the center and the end, to and beyond the end. The bands have a graduated curve and increasing width, from their starting points, to and beyond the ends of the collar. But that is only one feature in the claim of the

original patent. The other feature, the sectional bands, is made equally important in that claim, and a collar is not the collar of that claim unless it has both of those features. That claim is limited to a collar with those features, "substantially as described and shown."

The circuit court adopted the view that a band, composed of two sectional bands, starting from the center, and proceeding with a graduated curve and increasing width, would not make the whole band any less a continuous band with a graduated curve and increasing width towards each end; that the use of a continuous band of the latter description would not make the parts of it each side of the center any the less sectional bands; that neither would be a continuous band of uniform width, and, as compared with that, there would be a saving of material by the use of either arrangement; and that it made no difference, in the Wilson invention, whether there was a vertical seam in the center of the band or not, provided the other features of the collar existed; that if there existed, before Wilson's invention, a collar having those features, the fact that it had not such vertical seam would not distinguish it from the Wilson invention; that the real invention shown in the original specification was that claimed in the reissue; and that the reissue was, therefore, valid.

The defendants' collars have a band of continuous material from end to end of the collar, and the back button-hole in the body of the collar, but the band is not of uniform width throughout, being narrowed in the center. It has, as a whole, the same style of graduated curve which the Wilson collar has. The defendants' collars were first made and sold after the original patent of Wilson was granted, and after the defendants had seen sectional band collars made under it. The first of the defendants' four collars was made and sold in February, 1878, and the other three in March or April or May, 1878. The reissue was applied for March 11, 1878, and Wilson testifies that his impression is that he had previously heard of the defendants' collars. It is evident that the reissue was obtained because the defendants' collar, with a continuous band, had been put on the market, and for the purpose of obtaining claims which would certainly cover such a collar. The changes made in the specification and claims show this. The specification of the reissue, in stating what the invention consists of, omits the statement that it is a collar having sectional bands, and states that it is a collar having curved and graduated bands. It also omits the statement that the bands start from the center, or from a point between the center and the ends, and states that the curved and graduated bands extend along the lower edge of the collar, from the center, or from a point between the center and the ends. The statement of the invention, in the original patent, did not cover the defendants' collars, nor did the claim of that patent. The second claim of the reissue is substantially the same as the claim of the original patent. But the first and fourth claims of the reissue, corresponding with the changes made in the description, ignore the short or sectional bands, and refer only to a curved and graduated band. The third claim preserves the short bands, curved and graduated. As the defendants' collars do not have the short or sectional bands,' and so do not infringe the second and third claims of the reissue, the question arises as to the validity of the first and fourth claims, which it is alleged are infringed.

The final decree in this case was entered July 28, 1881. The decisions of this court in Miller v. Brass Co. 104 U. S. 350, and James v. Campbell, Id. 356, were made January 9, 1882. Under those decisions, and many others made by this court since, the first and fourth claims of the reissue cannot be sustained. Although this reissue was applied for a little over three months after the original patent was granted, the case is one where it is sought merely to enlarge the claim of the original patent, by repeating that claim and adding others; where no mistake or inadvertence is shown. so far as the

short or sectional bands are concerned; where the patentee waited until the defendants produced their continuous band collar, and then applied for such enlarged claims as to embrace the defendants' collar, which was not covered by the claim of the original patent; and where it is apparent, from a comparison of the two patents, that the reissue was made to enlarge the scope of the original. As the rule is expressed in the recent case of Mahn v. Harwood, 112 U. S. 354, S. C. ante, 174, a patent "cannot be lawfully reissued for the mere purpose of enlarging the claim, unless there has been a clear mistake, inadvertently committed, in the wording of the claim, and the application for a reissue is made within a reasonably short period after the original patent was granted." But a clear mistake, inadvertently committed, in the wording of the claim, is necessary, without reference to the length of time. In the present case there was no mistake in the wording of the claim of the original patent. The description warranted no other claim. It did not warrant any claim covering bands not short or sectional. The description had to be changed in the reissue, to warrant the new claims in the reissue. The description in the reissue is not a more clear and satisfactory statement of what is described in the original patent, but is a description of a different thing, so ingeniously worded as to cover collars with continuous long bands and which have no short or sectional bands. The*drawings show no continuous band; and the statement in the original patent that "the use of the short or sectional bands produces a saving of material, as compared to the old style of continuous band," shows that the patentee was drawing a sharp contrast between the only bands he contemplated-short or sectional bands—and a continuous band, of one piece of material, as long as the collar. The original patent industriously excluded from its scope a continuous band. In the reissue, to cover a continuous graduated band, the two bands, B, B, are converted into a single band composed of the parts, B, B, and, while that is described as extending along the top or body of the collar, the "shorter graduated bands" are described as saving material, as compared with an old-style continuous band, of uniform width.

While we are of opinion that the views of the circuit court, as before recited, were erroneous, we presume that if this case had been decided after January, 1882, the decree would not have been for the plaintiff.

The decree of the circuit court is reversed, and the case is remanded to that court, with a direction to dismiss the bill, with costs.

(113 U. S. 328)

Ex parte BIGELOW, Petitioner.

(February 2, 1885.)

1. JURISDICTION SUPREME COURT OF DISTRICT OF COLUMBIA CONSTITUTION OF THE UNITED STATES.

The act of congress has made the judgment of the supreme court of the District of Columbia conclusive as to the question whether, under the circumstances of the case, a prisoner has or has not, for "the same offense, been twice put in jeopardy of life or limb or been deprived of life, liberty, or property, without due process of law." Amendment 5, Const. U. S.

2. SAME-JUDGMENT A NULLITY, WHEN-Rule.

In regard to the question as to what matters go to the jurisdiction of a court so as to make its action, when erroneous, a nullity, the general rule is that when the court has jurisdiction by law of the offense charged, and of the party who is so charged, its judgments are not nullities.

On Petition for Writs of Habeas Corpus and Certiorari.

Robert Christy, for petitioner.

MILLER, J. This is an application for a writ of habeas corpus to release the petitioner from imprisonment in the jail of the District of Columbia, where he is held, as he alleges, unlawfully by John S. Crocker, the warden of said

088.

jail. He presents with the petition the record of his conviction and sentence in the supreme court of the district to imprisonment for five years, under an indictment for embezzlement; and this record and the petition of the applicant present all that could be brought before us on a return to the writ, if one were awarded. We are thus, on this application for the writ, placed in possession of the merits of the case.

The single point on which petitioner relies, arises out of the following facts which occurred at the trial. There were pending before the court 14 indictments against the petitioner for embezzlement as an officer of the Bank of the Republic, and an order of the court had directed that they be consoli dated under the statute and tried together. A jury was then impaneled and sworn, and the district attorney had made a statement of his case to the jury, when the court took a recess. Upon reconvening a short time afterwards, the court decided that the indictments could not be well tried together; directed the jury to be discharged from further consideration of them; and rescinded the order of consolidation. The prisoner was thereupon tried before the same jury on one of those indictments and found guilty. All of this was against his protest and without his consent. The judgment was taken by appeal to the supreme court in general term, where it was affirmed.

*

* *

It is argued here, as it was in the court in general term, that the impaneling and swearing the jury, and the statement of his case by the district attorney, put the prisoner in jeopardy with regard to all the offenses charged in the consolidated indictments, within the meaning of the fifth amendment of the constitution, so that he could not be again tried for any of those offenses. That amendment declares, among other things, that no person "shall be subject for the same offense to be twice put in jeopardy of life or limb, nor be deprived of life. liberty, or property without due process of law." If the transaction, as thus stated, brings the prisoner's case within this principle of the constitution, the court committed an error. On account of this error, among others assigned, the case was carried by appeal to the court in general term, where the matter was heard by other judges, and, after full consideration, the judgment of the trial court was affirmed.

No appeal or writ of error in such case as that lies to this court. The act of congress has made the judgment of that court conclusive, as it had a right to do, and the defendant, having one review of his trial and judgment, has no special reason to complain. It is said, however, that the court below exceeded its jurisdiction, and that this court has the power, in such case and for that reason, to discharge the prisoner from confinement under a void sentence. The proposition itself is sound if the facts justify the conclusion that the court of the district was without authority in the matter. But that court had jurisdiction of the offense described in the indictment on which the prisoner was tried. It had jurisdiction of the prisoner, who was properly brought before the court. It had jurisdiction to hear the charge and the evidence against the prisoner. It had jurisdiction to hear and to decide upon the defenses offered by him. The matter now presented was one of those defenses. Whether it was a sufficient defense was a matter of law on which that court must pass so far as it was purely a question of law, and on which the jury under the instructions of the court must pass if we can suppose any of the facts were such as required submission to the jury.

If the question had been one of former acquittal-a much stronger case than this-the court would have had jurisdiction to decide upon the record whether there had been a former acquittal for the same offense, and if the identity of the offense were in dispute, it might be necessary on such a plea to submit that question to the jury on the issue raised by the plea. The same principle would apply to a plea of a former conviction. Clearly, in these cases the court not only has jurisdiction to try and decide the question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial it is er