Carlos Clough was living and cohabiting within the afternoon. Two days afterwards, as the another woman. This proof the court refused boat approached Davenport, in the State of Iowa, to receive. It was offered for two avowed pur Mrs. Clough, the witness, had a conversation poses: one in mitigation of damages, and the with the captain, in which he made some stateother to disprove the fact alleged in the declara- ments respecting the accident, and these statetion that the plaintiffs were husband and wife. ments the court allowed to be given in evidence But how, if received, it could have tended to against the defendants. In this we think there mitigate damages has not been made plain to us. was error. Declarations of an agent are, doubtThe suit, as we have seen, was for an injury in- less, in some cases, admissible against his prinflicted upon the wife. Surely the injury was cipal, but only so far as he had authority to the same whether the husband lived with her or make them, and authority to make them is not not. And the evidence was inadmissible for the necessarily to be inferred from power given to other purpose for which it was offered. It is do certain acts. A captain of a passenger steamer true, ordinarily, the general issue in an action is empowered to receive passengers on board, of trespass on the case imposes upon the plaint but it is not necessary to this power that he be iff the necessity of proving all the material facts authorized to admit that either his principal, or averred in the declaration, but the ability of the any servant of his principal, has been guilty of plaintiffs to sue is not a fact directly averred negligence in receiving passengers. There is no and, therefore, it cannot be disproved under a necessary connection between the admission and plea of not guilty. In fact it is not put in issue the act. It is not needful the captain should by such a plea. The defense, that the plaintiffs have such power to enable him to conduct the suing as husband and wife are not married, goes business intrusted to him, to wit: the reception to the form of the writ, rather than to the cause of passengers, and, hence, his possession of the of action, and it should, therefore, be pleaded power to make. such admissions affecting his in abatement, and not in bar. Thus, in Chitty's principals is not to be inferred from his employPleadings, p. 392, it is laid down as a proper ment. 1 Taylor, Ev., sec. 541. It is true that plea in abatement to the form of the writ that whatever the agent does in the lawful prosecuthe plaintiffs or defendants suing, or being sued, tion of the business intrusted to him, is the act as husband and wife, are not married. And in of the principal, and the rule is well stated by Stephens, Pl., p. 160, it is said "the plea of not Mr. Justice Story (Story, Ag., sec. 134), that guilty in trespass on the case operates as a de- "Where the acts of the agent will bind the prinnial of the breach of duty, or wrongful act al- cipal, there his representations, declarations and leged to have been committed by the defendant. admissions respecting the subject-matter will also bind him, if made at the same time, and constituting part of the res gesta." A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified or explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done at a later period. 1 Taylor, Ev., 526. The reason is that the agent to do the act is not authorized to narrate what he had done or how he had done it, and his declaration is no part of the “res gestœ.”

* *

*

But not guilty will apply to no other defense than a denial of the wrongful act." The general issue at length is that the defendant is not guilty of the grievances laid to his charge, in manner and form as the said plaintiff hath above thereof complained against him, and of this he puts himself upon the country, etc. 1 Chit. Pl., 432. While, since the time of Lord Mansfield, the scope of this issue has been much enlarged, it has not been supposed to extend to a denial of the ability of the plaintiff to sue. In Coombs v. Williams, 15 Mass., 243, it was ruled that in the trial of an action upon a promise to a feme sole, brought by her husband and herself after marriage, it is not competent for the defendant under the general issue to prove the illegality of the marriage,such matter being wholly in abatement. True, this was in an action of assumpsit, but the general issue is as broad, in such a case, as it is in case for a tort. And if this were not so, even if in the state of the pleadings the defendants were at liberty to prove that the plaintiffs were not husband and wife, they could not prove it by such evidence as that which they offered. Cohabitation as husband and wife may tend to prove marriage, but noncohabitation has not been accepted as disproving the existence of the marital relation in the face of uncontradicted evidence that a marriage in fact had taken place.

The fifth assignment of error is without any foundation. It would be very extraordinary were we to hold that the plaintiff had settled and discharged her claim upon the defendants with out any intention or understanding on her part to give it up.

The next assignment is more important. The accident by which the plaintiff was injured oc curred at Reed's Landing, in Minnesota, on the 30th day of September, 1869, about two o'clock

Applying this rule to the present case, how does it stand? The thing of which the plaintiffs complain was negligence, on the 30th of September; a fault in providing for Mrs. Clough's embarkation on the steamer. That and that alone caused the injury she sustained. That and nothing else was theres gestæ. What the captain of the boat said of the transaction two days afterwards was, therefore, but a narrative of a past occurrence, and for that reason it could not affect his principals. It had no tendency to determine the nature, quality or character of the act done, or left undone, and it is not, therefore, within the rule stated by Judge Story. That rule has been recognized

in totidem verbis" in Wisconsin by Chief Jus tice Dixon, in delivering the opinion of the court in Mil. & Miss. R. R. Co. v. Finney, 10 Wis., 388. And there is nothing in any of the decisions cited by the defendants in error inconsistent with such a rule. The case of The Enterprise, cited from 2 Curt., 317, was a suit in admiralty for subtraction of wages, and the declarations of the master respecting the contract with the seamen were admitted, though not a part of the res gesta. But the decision was rested upon the ground that the admiralty rule is dif

Judgment reversed, and a venire de novo awarded.

63: 30 Hun, 280; 2 Mont., 520; 25 Am. Rep., 746; 54 Wis., 144; 41 Am. Rep., 19; 72 Ala., 112; 47 Am. Rep., 405.

Cited-21 Wall., 157, 262; 111 U. S., 536; 13 Blatchf.,

ferent from the rule at common law. The case
of Burnside v. R. R. Co., cited from 47 New
Hamp., 554, simply decides that the state-
ments of the general freight agent as to the
condition of goods delivered to him for trans
portation made while the goods are still in trans
it, or while the duty of the carrier continues,
are admissible in evidence against the company.
This was a case of contract not executed, and,
while it remained unexecuted, the agent had
power to vary it; had, in fact, complete con-
trol over it. The transaction was still depend- THE
ing, and the agent was still in the execution of
an act which was within the scope of his au-
thority. But in the present case the declarations
admitted were not made in the transaction of
which the plaintiffs complain, or while it was
pending. They refer to nothing present. They
are only a history of the past.

It is argued they were made before the voy age upon which Mrs. Clough entered was com pleted. True, they were; but they were not the less mere narration. The accident was past. The injury to Mrs. Clough was complete. The only wrong she sustained, if any, had been con summated two days before. We cannot think the fact that she had not arrived at her port of destination is at all material. If she had left the steamer before the declarations were made it is not claimed, as certainly it could not be, that they were admissible. Now, suppose two persons were injured by the negligence which the plaintiffs assert, and one of them had left the boat before the captain's declarations were made, clearly they would have been inadmissi ble in favor of the person whose voyage had been completed. This is not denied. Yet the connection between them and the accident would be as close in that case as in this. Can they be admissible in the one case and not in the other? Assuredly not. We must hold, therefore, that there was error in admitting in evidence the statement of the captain of the steamboat made two days after the wrong was done of which the plaintiffs complain.

The last assignment of error is the rejection of the deposition of Turner. Of this it is sufficient to say that we have not before us either the deposition or any statement of what it tend ed to prove. We cannot know, therefore, that it was of any importance, or that, if it had been admitted, it could have had any influence upon the verdict. A party who complains of the rejection of evidence must show that he was injured by the rejection. His bill of exceptions must make it appear that if it had been admitted, it might have led the jury to a different verdict. This must be understood as the practice in this court, and such is the requirement of our Twen ty-first Rule. By that rule it is ordered that when the error assigned is to the admission or rejection of evidence, the specification shall quote the full substance of the evidence offered, or copy the offer as stated in the bill of excep tions. This is to enable the court to see whether the evidence offered was material, for it would be idle to reverse a judgment for the ad mission or rejection of evidence, that could have had no effect upon the verdict.

But for the reception of the statement made by the captain, shortly before the arrival of the boat at Davenport, the judgment must be reversed.

NORTHWESTERN UNION PACKET
CO., Piff. in Err.,

v.

EUPHRALIA F. VILES.

The case of Packet Co. v. Clough, ante, 406, followed-declarations of captain, when not admissible to prove negligence.

The errors assigned in this case are the same as those which were considered in the case of the same plaintiff against Clough, ante, 406; and that case governs this.

Declarations of a captain of a boat, in regard to
a transaction resulting in an injury to a passenger,
made after the occurrence, are inadmissible in evi-
dence, in an action to recover damages for such in-
jury.
[No. 70.]

Argued Nov. 17, 18, 1874. Decided Dec. 7, 1874.
IN ERROR to the Circuit Court of the United

States for the Eastern District of Wisconsin. The history and facts of this case are substantially like those of the preceding case of The Packet Company v. Clough. The defendant in error was injured in the same accident with Mrs. Clough, and the proof in the court below was the same in the two cases, including the conversation of Mrs. Clough with the captain of the steamer. At the time of this conversation, however, the defendant in error in this case had already completed her voyage and left the steamer. For a full statement of facts of the case, see the preceding case.

Messrs. John W. Cary and J. P. C. Cottrell, for plaintiff in error.

Messrs. Matt. H. Carpenter and N. S. Murphey, for defendant in error.

Mr. Justice Strong delivered the opinion of the court:

The errors assigned in this case are the same as those which were considered in the case of these plaintiffs against Clough and wife, just decided, except that some assigned in that case have not been assigned in this. The rejection of Turner's deposition, and the admission of the captain's declarations to Mrs. Clough, are the only matters now brought to our attention. We need add nothing to what we have said in the former case. The same reasons that required the reversal of the judgment obtained by Clough and wife, require the reversal of this judgment. Indeed the error here is more apparent. It does not appear that the conversation of the captain with Mrs. Clough occurred before the plaintiff left the boat, and before the relation as a passenger to the defendants or to the captain had ceased. In fact the contrary appears.

The judgment of the Circuit Court is reversed, and a venire de novo is directed.

sale in lieu of dower in the land, was not proven. On a new trial that proof may be supplied and a judgment rendered thereon satisfactory to the now complaining party. In that manner the present supposed federal question may be put out of the case. So, too, the present pleadings may be amended and a new case made, which will Writ of error, to what state courts issued-final render unnecessary the consideration of any

Mr. Chief Justice Waite delivered the opin- APPEAL from the Circuit Court of the United

This is clearly insufficient.

Nor can the invention of said Blair be consid

ered a double use or new application of the nipple testified to have been sold before, within the principles or authorities upon which that doctrine depends.

pencil being covered or uncovered, and is sub- | word "nipple." There is no description whatject to the express condition that the forms ever. shall be convenient for the purpose, and the implied condition, to be fairly derived from the Seymour v. Osborne (supra); Reeves v. Keyuse of the word "precise," that they must cor-stone Bridge Co., U. S. Circuit Court, Eastern respond substantially with the drawings. There District of Pennsylvania, 1872; 1 Off. Gaz., is certainly nothing from which it can be fairly 466, 471; Judson v. Cope, Leavitt, J., Law, inferred that he intended to disclaim the features Am. Dig., 609, pl. 9. which are clearly portrayed in the drawings, upon which its practical value as an eraser depends; and the use of the words, "to suit the fancy or the taste of an artist or other person,' clearly confines the meaning of the inventor to a matter of simple style, and indicates that he does not limit himself to a precise contour as a matter of ornamental configuration; and this is further indicated by the fact that in the drawings, while the top of the head is varied, and the contour of the projecting erasive working surfaces about the sides may be varied from hexagon to square or circular, the projecting working surfaces themselves are always retained.

The drawings constitute a part of the specification, and are to be resorted to, to aid a specification which would otherwise be imperfect; to help out the description; to furnish clearer information respecting the invention described in the specification; to show the nature, character and extent of the claim, as well as make a part of the description; and to add anything to the specification which is not specifically contained or mentioned therein.

Earl v. Sawyer, 4 Mason, 9; Burrall v. Jewett, 2 Paige, 143; Washburn v. Gould, 3 Story, 133; Emerson v. Hogg, 2 Blatchf., 9; Hogg v. Emer son, 6 How., 485; S. C., 11 How., 606; Winans v. Schen. & Troy R. R. Co., 2 Blatchf., 284; Heinrich v. Luther, 6 McLean, 348, and other

cases.

A duly issued patent is prima facie evidence that the patentee is the original and first invent

or.

Where, as in the case of said Blair, the patentee has made two applications before he obtained the patent, it is for this purpose, connected with and relates back to his first and original application, and is prima facie evidence of invention at the date that was filed, provided he has not abandoned the invention. It is denied that, as a matter of fact or law, Blair ever intended to abandon or did abandon his said invention.

Joshua Gray's alleged invention, merely ex perimental and imperfect as it was, was not identical with or substantially the same as that of said Blair.

The novelty of said Blair's invention is further attacked by the defendants by the allegation that it was described in a printed publication entitled "Personal Narrative of the Origin and Progress of the Caoutchouc or India-rubber Manufacture in England, by Thomas Hancock," published in London in 1857, and especially at the plate opposite page 116, which is put in evidence, and also by the testimony of Edward Oelzner, showing sales of nipples made of india-rubber, intended to be, and applied to, bottles for artificially nursing babes; in other words, by the defense of double use.

So far as the alleged printed publication is concerned, nothing is shown save a plate, on which appears a small figure, and under it, the

Strong v. Noble, 3 Fish., 586.

Moreover, if it could be considered in any respect a new use, it would not avail; for it is well settled that if, in the new use, any new function is performed, or an old function in a better manner, or effects already known are produced, but so as to be more economically or beneficially enjoyed by the public, or a new or better or cheaper article of manufacture is produced, it is patentable.

Ex parte H. L. Smith, App. Cas., 1853, Ex parte Seeley, App. Cas., 1853; Ex parte Blandy, App. Cas., 1858; Ex parte Newman, App. Cas., 1859.

But in fact it cannot be fairly said that there is any real resemblance between the nipple and the Blair rubber head. That the former may be irregularly and inconveniently used so as to erase pencil marks, constitutes none.

Messrs. Frederic H. Betts and S. W. Kellogg, for appellees:

The claim is not for the combination of the erasive head with a pencil, but for the erasive head itself, apart from its connection with the pencil.

It is perfectly apparent from the specification that the invention claimed is a very broad one. It is in substance for a piece of erasive material of any external form suitable for rubbing out pencil marks, having in it a hole or socket, extending entirely or partly through the same, and of such size that a lead pencil "or other articles," could be inserted in the hole, and in that case the piece of rubber would be held on by the elasticity of the rubber.

Not a word is found limiting the invention to any particular form of head. On the contrary, it is expressly stated that it may have the form shown in the drawings, or any other convenient for the purpose.

Not a word is found limiting the invention to a head having any particular form of internal cavity or socket. On the contrary, it is expressly stated that the socket is "cylindrical or other proper shaped cavity.'

Any piece of rubber, into a hole in which a pencil or other article could be inserted, and which in that case, if the article was large enough to fill the hole, would tend to hold to the article so inserted, and would present an erasive surface about the sides of the articles, would be an infringement of the patent.

The applicants for patents on this subject, prior to the time of the grant of Blair's patent, have been numerous.

The nature of these several applications, the action of the Patent Office upon them, and their result are clearly and briefly stated in the opinion of the Honorable R. L.B. Clark, one of the examiners in chief of the United States

Patent Office, in the interference case between | claimer to the use of metallic ferules or sockets the application of Joshua Gray, the first applicant, and the other applicants.

It thus appears that though several, since Gray, have applied for the broad combination of rubber and pencil, yet they have all been rejected on reference to Gray.

All of them seemed satisfied with the refersec-ence, and in some instances amended and lim ited their claims to the peculiar construction of the eraser or the mode of attaching it.

He disclaimed a rubber tip pencil, but claimed a combined sliding sleeve and eraser, to be used on a pencil.

On appeal to the examiner in chief, he was allowed for his peculiar device, as not being fully answered by the references, and patent issued June 3, 1862.

11. Vosburgh & Ludden applied in April, 1862, and claimed for a special device for holding rubber on pencils, consisting of rings and clamps, etc. Patented May 20, 1862.

12. L. L. Tower applied for a re-issue of Shaw's patent, May 14, 1862, putting in a dis- |