the satisfaction of both officers. As it does not appear in the record that the proof was not made to the satisfaction of both officers, it must be presumed that the money received by Potter in the absence of Brashear was justly due the United States and was received by him in his official capacity. We find nothing either in the cases or the statutes cited by the plaintiffs in error which tends to establish a different construction of the law.

But if it be conceded that the statute required the register and receiver to pass concurrently upon the proof of the settlement and improvement before lands could be entered by a pre-emptor, we are, nevertheless, of opinion that the plaintiffs in error are responsible for the moneys received by Potter.

The moneys were received by him as public moneys, for he charged himself with them in his accounts with the government. They were paid as public moneys by pre-emptors as a consideration for title to portions of the public domain. If any objection could be raised to the transfer of title to the preemptors, it could be made by the United States only. But the United States makes no objection. On the contrary, all objection is waived by the bringing of this suit by the government to recover the moneys paid by the pre-emptors for their lands. These moneys are, therefore, public moneys. They belong neither to Potter nor the pre-emptors, and must, consequently, be the property of the United States. It was, therefore, his duty as receiver to account for and pay to the United States the moneys so received, and it does not lie in the mouths of the sureties on his official bond to raise an objection to the payment of the moneys to him, which he could not raise, and which is not raised by the pre-emptors, or the United States. Their responsibility for the moneys so received is therefore

clear.

In support of this view, the case of King v. United States, 99 U. S. 229, is in point. That was a suit brought against one Chase, a collector of internal revenue, and the sureties on his official bond, to recover taxes collected by him, and never accounted for or paid over. The facts were that on June 1, 1868, the Toledo, Wabash, and Western Railroad Company was indebted to the United States in a large sum for the five per

cent tax for interest paid on its first-mortgage bonds. The tax was, on the day named, paid to Chase by the treasurer of the company. At the time of the payment the treasurer delivered to Chase the monthly returns of the taxes so due, in the form prescribed by law, signed by him as treasurer, but not sworn to, and which had never been filed with or delivered to the assessor. Chase delivered to the assessor all these returns, except those for August, September, and October, 1867, which were never delivered. He did not at any time make mention of them in his report to the government, and he retained the amount, $24,923, paid by the company as the tax upon the returns for the three months just mentioned. Five years after his receipt of this money, and when he had become insolvent, suit to recover it was brought on his official bond. The defence set up by his sureties was that, as the money was not received by him, on any return made to the assessor, or on any assessment of said taxes made by the assessor or by the Commissioner of Internal Revenue, and as the return delivered to Chase by the treasurer of the company was not verified by oath, it was a voluntary deposit of money in his hands by the treasurer, and was not received by him in his official capacity; that it was not his duty to receive it for the government; and the sureties were not liable because its receipt was an unofficial act.

But the court held that the payment of the taxes to the collector was a good payment to him in his official capacity, that the money so paid was the money of the United States, and that the sureties on his bond were responsible for it.

This case is so apposite to the question in hand, and so conclusive, as to require no further remark.

It is next contended by the plaintiffs in error that they are not liable for the $1,400 received during the absence of Potter, extending from April 9 to June 30, 1874, by the person whom he had left in charge of his office, because that person had no authority to perform any of the duties of receiver.

There are two sufficient replies to this contention. First, no such defence is set up in the answer or amended answer of the plaintiffs in error. They cannot complain that the Circuit Court did not give effect to a defence which they did not think it worth while to plead. Second, it is not made to appear by

the bill of exceptions that any money was paid to Goodfellow, the person left by Potter in charge of his office, which was not due the United States from pre-emption entries made by persons who had proved the settlement and improvement of the land to the satisfaction of both the receiver and register. If, therefore, this contention of the plaintiffs in error is sustained, we should, in effect, decide that the sureties of the receiver would not be answerable for public moneys paid, with his concurrence and assent, to his assistant or cashier, but only for moneys actually paid into the hands of the receiver himself. It requires no argument to expose the fallacy of such a conclusion. If a public officer sees fit to allow the money of the government to be paid during his absence from his office into the hands of his agent or servant, it is a good payment to him, and the risk is with him and his sureties and not with the government.

Judgment affirmed.

HOFFHEINS v. RUSSELL.

1. Claims 1, 8, 9, 11, 12, 14, 16, and 19 of reissued letters-patent No. 2224, granted April 10, 1866, to Reuben Hoffheins, for an “improvement in harvesters,” the original, No. 35,315, having been granted to him May 20, 1862; and claims 1, 2, 6, 7, and 9 of reissued letters-patent No. 2490, granted Feb. 19, 1867, to him, for an "improvement in harvesters," the original, No. 40,481, having been granted to him Nov. 3, 1863, and reissued in two divisions, one, No. 1888, Feb. 28, 1865, and the other, No. 2102, Nov. 7, 1865; and No. 2490 having been issued on the surrender of No. 2102, - considered; and the difference between the specifications and the drawings of No. 35,315 and those of No. 2224, and that between the raking apparatus and rake-support of No. 2224 and those of the defendants, pointed out.

2. There is no warrant in No. 35,315 for locating the rake-support, or any part of it, on the finger-beam, and as each of the above-named claims of No. 2224 has, as an element, either a rake, or a rake and reel, mounted on, or attached to, the cutting apparatus or the finger-beam, No. 35,315 could not lawfully be reissued with those claims.

3 The defendants devised a new arrangement of rake, which made it possible to mount a rake-support on the heel of the finger-beam, where the rakesupport of No. 2224 could not be mounted. The difference between the yielding belt-tightener of No. 2224 and their arrangement for driving the

raking apparatus pointed out, and the latter held not to be a mechanical equivalent for the former.

4. No. 40,481 negatives the idea of mounting the rake-post on the finger-beam, while an element in claim 1 of No. 2490 is the mounting of the raking mechanism on the finger-beam. In No. 2490, a driver's seat mounted on the main frame, so as to enable the driver to ride on the machine while the rake is in operation, is an element in claims 1 and 9, while the driver's seat in No. 40,481 is not, and cannot be, in such a position that the driver can ride on the seat while the rake is in operation.

5. The raking apparatus is an element in claims 2, 7, and 9 of No. 2490, and, in view of the differences between the two machines, in the construction of the raking mechanism and the arrangement and location of the rake-post, the rake of claims 2, 7, and 9 is to be construed to be such a rake, and one so arranged, on a rake-post so mounted, as is shown and described in the specification, and thus does not include the defendants' raking mechanism or rake-post.

6. The driving device in claims 6 and 7 of No. 2490 held not to include the defendants' driving device, the former being an extensible tumbling shaft and the latter a chain belt with open links, and patentability or invention inhering only in the device and not in its location.

7. No cause of action is established against the defendants on either of the patents sued on.

APPEAL from the Circuit Court of the United States for the Northern District of Ohio.

The facts are stated in the opinion of the court.

Mr. George H. Christy and Mr. John H. B. Latrobe for the appellant.

Mr. George Harding and Mr. John R. Bennett for the appellees.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This suit is brought for the infringement of two reissued letters-patent granted to Reuben Hoffheins, the appellant. One, No. 2224, was issued April 10, 1866, for an "improvement in harvesters," the original patent, No. 35,315, having been issued to him May 20, 1862. The other, No. 2490, was issued Feb. 19, 1867, for an "improvement in harvesters," the original patent, No. 40,481, having been issued to him Nov. 3, 1863, and reissued in two divisions, one, No. 1888, Feb. 28, 1865, and the other, No. 2102, Nov. 7, 1865, and No. 2490 having been issued on the surrender of No. 2102.

No. 2224 contains nineteen claims, and No. 2490 contains

nine claims. In No. 2224, claims 1, 8, 9, 11, 12, 14, 16, and 19, and in No. 2490, claims 1, 2, 6, 7, and 9, are alleged to have been infringed. The Circuit Court rendered a decree that the appellees had not infringed any invention of which the appellant was the original and first inventor, recited in the two reissues sued on: that No. 2224" contains inventions different from that contained" in No. 35,315; that No. 2490 contains inventions different from that embraced in No. 40,481; that the said reissues respectively are, therefore, void; and that the bill be dismissed. From this decree this appeal is taken.

In No. 2224 the claims in question are these: "1. A sweeprake, which is mounted upon the heel of the finger-beam proper, or upon the inner front corner of the platform of a harvester which has its cutting apparatus and platform hinged to the draft-frame, all in such manner that the rake-arm sweeps the platform from front to inner side, and maintains a correct position in relation to the finger-beam and platform during the rising or falling movements thereof on the joint or joints by which the finger-beam is connected to the draft-frame, substantially as set forth." "8. In a harvesting machine which has its cutting apparatus hinged or jointed to the main frame in such manner as to allow it to conform at both ends to the undulations of the ground, and a rake mounted upon the said cutting apparatus, or upon the platform thereof, I claim so constructing and arranging the several parts, that the support of the rake can occupy a position outside of the inner drivewheel B, or a position which is between the point of suspension h and the outer divider G, and can also be hung or be suspended below the draft-frame, substantially as described." "9. Effecting a combination of a rake and reel, located substantially as described, and a finger-beam and platform, with the main frame, by means of a hinged draw-bar, b, and hinged brace, I, or hinged suspender, f, and an extension bracket, 2, or their equivalents, substantially as and for the purposes described." "11. Preventing a too sudden or abrupt deflection of a rake and reel mounted upon a hinged-joint cutting apparatus, by carrying the point of suspension beyond the rake-support toward the centre of the draft-frame, by means substantially as described." "12. A continuously revolving