Opinion of the Court.

resurrection;" and "that a purchaser buying under such circumstances ought to have the right to resist their reappearance." This would hardly be contended if the orders of April 10, 1884, were void for want of jurisdiction to enter them. Those orders were not made upon a bill of review or a bill in that nature, nor upon any petition for rehearing, which under equity rule 88 could not then have been filed if the decrees of December 22, 1883, were final and appealable. On March 15, 1884, the Central Trust Company filed certain petitions which it asked might be treated as petitions for rehearing or in review, but the court made no order in regard to them, and did not predicate its action upon them. On the contrary, it was specifically set forth that the orders of December 22, 1883, were annulled and set aside "by the court of its own motion."

If these orders were final decrees, the court could not vacate them of its own motion after the close of the October Term, 1883. McMicken v. Perin, 18 How. 507, 511. We think they were final. They determined the ownership of the locomotives and the right to their possession; that they were essential to the operation of the roads by the receiver, and should be purchased by him; that certain designated amounts should be paid for the rentals and the purchase price, which amounts were made a charge upon the earnings, income and property of the Toledo, Cincinnati and St. Louis Railroad Company, and especially of the particular divisions named; and that the amounts should be paid by the receiver, and any balance remaining unpaid at the date of the foreclosure and sale of the railroad, or the particular division, should be a first lien thereon and the sale be made subject thereto. They were, therefore, final in their nature, and made upon matters distinct from the general subject of litigation, the foreclosure of the mortgages.

In Trustees v. Greenough, 105 U. S. 527, an appeal from an order for the allowance of costs and expenses to a complainant, suing on behalf of a trust fund, was sustained. In Hinckley v. Gilman, Clinton & Springfield Railroad Company, 94 U. S. 467, a receiver was allowed to appeal from a decree against him to pay a sum of money in the cause in which he was appointed. In Williams v. Morgan, 111 U. S. 684, a decree

Opinion of the Court.

in a foreclosure suit, fixing the compensation to be paid to the trustees under a mortgage from the fund realized from the sale, was held to be a final decree as to that matter; and in Fosdick v. Schall, 99 U. S. 235, a decree upon an intervening petition in respect to certain cars used by a railroad company under a contract with the manufacturer was so treated. There was a fund in court in that case, but in principle the orders here are the same. And see Farmers' Loan & Trust Co., Petitioner, 129 U. S. 206, 213.

The decrees of June 11, 1887, were clearly right in adjudicating the orders of April 10, 1884, to be of no effect, and reinstating the prior decrees.

Even if the orders of April 10, 1884, were voidable merely, the purchasers should have made the defence now suggested, of reliance upon them, when the application was made which resulted in the decrees of June 11, 1887. They did indeed appear and file a demurrer, but they made no resistance upon the merits, and they certainly prayed no appeal from the decrees then entered.

The result is that the appeals of the Dayton, Fort Wayne and Chicago Railroad Company, Nos. 1278 and 1280, must be dismissed.

Turning to the appeals of the Central Trust Company, it is strenuously argued, in support of the motions to dismiss, that as the decrees of January 28, 1889, affected the purchasers only, the bondholders as such had no further interest in the litigation, nor had their representative, the Trust Company; that at least the record does not definitely show that either the Trust Company or the railroad company had certainly an interest; that though one or the other may have had, it is not sufficiently clear which it is; and that, therefore, the appeals of both must be dismissed. It is enough that sufficient color is given to the motions to enable us to pass upon the motions. to affirm.

The orders of January 28, 1889, which are alone appealed from, were merely in execution of the former decrees, and as such we do not find that any error supervened in their rendition. The amounts named were not disputed and could not

VOL. CXXXV-15

Opinion of the Court.

have been, except in respect to credits, as to which there was no controversy, inasmuch as those amounts had been previously determined, and their payment decreed; and the resale had been expressly provided for in the foreclosure decrees and the order of confirmation.

The action of the Circuit Court in refusing to allow the Trust Company to amend and supplement its petitions of March 15, 1884, and file them as original bills of review as of that date, and in denying the application of the Dayton, Fort Wayne and Chicago Railroad Company to intervene and file a petition in the cases in review of the orders of December 22, 1883, was taken in the exercise of a discretion with which we are not justified in interfering. Buffington v. Harvey, 95 U. S. 99; Brockett v. Brockett, 2 How. 238; Mellen v. Moline Iron Works, 131 U. S. 352.

No appeal having been prosecuted from the orders of December 22, 1883, or those of June 11, 1887, and the appeals from the orders of January 28, 1889, only, not bringing the former orders before us for revision, we are constrained to sustain the motions to affirm in Nos. 1277 and 1279, without entering upon the consideration of the errors so earnestly urged as existing in the December decrees.

It remains to dispose of the motions in Nos. 1281 and 1282. These are appeals from orders of the Circuit Court striking from the files two bills placed there on the 28th of January, 1889, by the Central Trust Company, to review the decrees of December 22, 1883, for errors apparent.

Reference is made to the records in the cases 3554 and 3578, and we do appellant no injustice in assuming that these bills, verified January 10, 1889, are the same presented to the Circuit Court when application was made in those cases for leave to amend and supplement appellant's petitions of March 15, 1884, and docket the same as bills of review of that date. That application having been denied, appellant put these papers on file as the court was entering the other orders. Here again, while the motions to dismiss will not be sustained, we hold there was color for them.

The bills are not based upon new matter or newly discov

Syllabus.

ered evidence, and no leave was given to file them. They are clearly bills for the review of the orders of December 22, 1883, for errors apparent of record. Such bills must ordinarily be brought within the time limited by statute for taking an appeal from the decree sought to be reviewed. Thomas v. Harvie's Heirs, 10 Wheat. 146; Ensminger v. Powers, 108 U. S. 292, 302. Over five years had elapsed, but it is insisted that the time between the 10th of April, 1884, and the 11th of June, 1887, when the orders of April 10, 1884, were declared void, ought not to be considered in passing upon this question, because of appellant's belief in the validity of and reliance upon those orders and the acquiescence of appellees therein.

It seems to us that appellant was not justified in such belief and reliance, and that, at all events, after the orders of June 11, 1887, it should have moved promptly by way of appeal or bill of review. These bills attack the orders of December 22, 1883, merely, and not the decrees of June 11, 1887, reinstating the former as in full force and effect.

The rule laid down in Thomas v. Harvie's Heirs is based upon the principle of discountenancing laches and neglect. Under all the circumstances, we cannot concede that appellant acted in apt time, and must therefore affirm the orders of the Circuit Court striking the bills from the files.

The appeals in Nos. 1278 and 1280 are dismissed and the decrees in Nos. 1277, 1279, 1281 and 1282 are affirmed.

ST. GERMAIN v. BRUNSWICK.

APPEAL FROM THE

CIRCUIT

COURT OF THE UNITED STATES FOR

THE DISTRICT OF CALIFORNIA.

No. 257. Argued and submitted April 11, 1890. — Decided April 28, 1890.

The application of an old process, or machine or apparatus to a similar or analogous subject, with no change in the manner of application, and no result substantially distinct in its nature, will not sustain a patent,

Statement of the Case.

although the new form of result may not have before been contemplated.

Letters patent No 72,969, granted to Emanuel Brunswick, January 7, 1868, for a revolving cue-rack, are void for want of novelty.

THIS was a bill filed by Emanuel Brunswick against Ferdinand de St. Germain in the Circuit Court of the United States for the District of California, October 25, 1880, for an alleged infringement of letters patent No. 72,969, granted to Brunswick, January 7, 1868, for a revolving cue-rack.

The defendant demurred to the bill February 16, 1881, and among other causes of demurrer assigned that "the said complaint does not describe or set forth any new or useful invention or discovery, or any invention or discovery patentable under the patent laws of the United States, but, on the contrary, the descriptions of the alleged inventions contained in said complaint show that the same is not patentable." The demurrer was overruled, whereupon the defendant answered, denying, among other things, that the alleged invention was of any utility or value. Replication having been filed, proofs were taken, and an interlocutory decree was entered on the 12th of May, 1884, in favor of the complainant, sustaining the patent, finding that there had been infringement, and referring the case to a master to take and state an account of the gains and profits, and also the damages. The master subsequently reported that the defendant had realized $1176 profits from the manufacture and sale of the cue-rack, but that no damages had been sustained by complainant, by reason of respondent's sales, over and above the profits. Exceptions were filed by both complainant and defendant and were overruled by the court, and on the 27th of May, 1886, a final decree in complainant's favor was entered in the case, for the amount reported by the master, with interest and costs, and an appeal duly taken to this court by the defendant.

The first error assigned is "that the court erred in holding that the said letters patent were valid." The specification, drawings and claim are as follows:

"Be it known that I, E. Brunswick, of the city of Chicago, in the county of Cook, State of Illinois, have invented new