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Opinion of the Court.

consequently, the title of the defendants to the land would have been extinguished, and their redress upon a reversal would have been of a different kind from that of a restitution of the land sold; and that under a decree of foreclosure and sale, the ulterior proceedings were but a mode of executing such decree.

A leading case where this court held the decree below to be final was that of Forgay v. Conrad. The decree in that case ordered that certain deeds be set aside as fraudulent and void; that certain lands and slaves be delivered up to the plaintiff ; that one of the defendants pay a certain sum of money to the plaintiff; that the plaintiff have execution for those several matters; and that the master take an account of the profits of the lands and slaves and an account of certain money and notes; and then concluded as follows: “And so much of the said bill as contains, or relates to, matters hereby referred to the master for a report, is retained for further decree in the premises; and so much of the said bill as is not now, nor has been heretofore, adjudged and decreed upon, and which is not above retained for the purposes aforesaid, be dismissed without prejudice, and that the said defendants do pay the costs.” It was held that that decree was a final decree and appealable, Chief Justice Taney saying: “And when the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, although so much of the bill is retained in the Circuit Court as is necessary for the purpose of adjusting by a further decree the accounts between the parties pursuant to the decree passed.”

In Bronson v. Railroad Co., it was held that a decree for the sale of mortgaged premises was a final decree, settling the merits of the controversy, and that the subsequent proceedings were simply a means of executing the decree. The same principle was applied in St. Louis, Iron Mountain &

VOL. CXXXII-7

Counsel for Parties.

Southern Railroad v. Southern Exp. Co. and in Ex parte Norton.

In Winthrop Iron Co. v. Meeker, it was held that where a decree decides the right to the property in contest, and the party is immediately entitled to have it carried into execution, it is a final decree, although the court below retains possession of so much of the bill as may be necessary for adjusting accounts between the parties, the court remarking that such a case was different from a suit by a patentee to establish his patent and recover for infringement, because there the money recovery was a part of the subject matter of the suit.

Within the principles established by the foregoing cases, the decree now before us was not a final decree and the appeal must be

Dismissed.

DAY V. FAIR HAVEN AND WESTVILLE RAILWAY

COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

THE DISTRICT OF CONNECTICUT.

No. 35. Argued October 23, 24, 1889. — Decided November 11, 1889.

The fourth claim in the reissued letters patent No. 8388, granted August 27,

1878, to Augustus Day for an improvement in track clearers, viz., “The combination with the draw-bar C and scraper A of the diagonal brace E, as and for the purpose set forth,” would naturally suggest itself to any

mechanic, and involves no patentable novelty. A claim in letters patent must be held to define what the Patent Office has

determined to be the patentee's invention, and is not to be enlarged in. construction beyond the fair interpretation of its terms.

IN EQUITY for the infringement of letters patent. Decree dismissing the bill. Complainant appealed. The case is stated in the opinion.

Mr. Charles J. Hunt for appellant.

Mr. William Edgar Simonds for appellee.

Opinion of the Court.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

Augustus Day filed his bill in equity against the Fair Haven and Westville Railway Company in the Circuit Court of the United States for the District of Connecticut, alleging an infringement of the fourth claim of reissued letters patent No. 8388, dated August 27, 1878, for an improvement in track clearers.

The defence was that the claim lacked patentable novelty, unless construed to contain parts not mentioned in it, and if so construed, then that there bad been no infringement. The Circuit Court, Shipman, J., decided, that the claim did not cover patentable novelty, Day v. Fair Haven &c. Railway, 23 Fed. Rep. 189, and dismissed the bill accordingly, and from this decree the cause was brought to this court by appeal.

So much of the specification as is necessary to be quoted here states that:

“The nature of this invention relates to an improvement in the construction of railway-track-cleaning devices and the means of operating them, being more especially designed to be attached to horse-cars for the purpose of removing snow, ice, mud and other obstructions from the rails and immediately at the sides thereof; and it consists in the combination of a pair of independently acting scrapers, pivotally secured to the floor of a car, and resting upon the track, when in operation, wholly by their own weight, with means for raising and lowering such scrapers simultaneously; in the combination, with an independently acting scraper resting, when in operation, wholly by its own weight upon the track, of a draro-bar in the direct line of draft and a supplementary and diagonal draw-bar, which at the same time acts as a brace, the forward ends of both of said draw-bars being secured on the same axial line; in the peculiar construction and arrangement of a cast-shank with relation to the scraper, which is secured thereto, and the draft-irons, which connect it to the under side of the car; in the pendent guards, which lift the scraper from the track on meeting with an obstruction on the outside of the rail, and deflect outwardly

Opinion of the Court.

from the track, and in a peculiar crank for operating the shaft which raises and lowers the pair of scrapers at each end of the car, as more fully hereinafter set forth.

“ In the drawing, A represents my scraper, being a plate of sheet metal of the form shown, slightly curved in cross-section. The front end of this scraper is rounded off at its lower edge, as shown in the drawings, to allow it to pass, without jar or danger of breaking, over the ends of rails that may be projected above the plane of the adjacent rails. The lower edge of the rear part of the wing of the scraper is cut away, as shown, to allow it to pass over pavement or earth at the side of the track which projects above the rail, thereby preventing such projecting matter from lifting the scraper proper from the face of the rail. B is the shank, to which it is secured by the bolts a a. This shank is a casting in the form shown in Fig. 2. It is formed with a pair of longitudinal ribs, b, on top, to receive the end of the draw-bar, C, whose other end is pivoted to a hanger, D, pendent from the car; or it may be pivoted directly to the sill of the car.

“ The shank is also fitted or cast with diagonal studs c on top of said ribs b to receive the outer end of a diagonal brace, E, whose other end is pivoted to a hanger, D', parallel with the hanger D, but near the longitudinal centre of the car, both draw-bar and diagonal brace being thus pivoted on the same acial line, so that when it is desired to raise and lower the scrapers, the same will be done without disturbing the vertical

position thereof with relation to the track, as would be done were there but one pivotal point. While the scraper and the parts to which it is attached are free to move in a vertical plane, this brace E effectually resists any lateral pressure to which the scraper may be subjected in moving obstructions from the rail, its own weight being sufficient to keep it down on the rail. The draw-bar and brace are securely bolted to the shank, and by the described arrangement of the ribs and studs perfect accuracy in the 'set' of the scraper is secured an essential feature of my invention.”

The claims were nine in number, of which the first four are as follows:

Opinion of the Court.

“1. In a railway car, a pair of independently acting scrapers, pivotally secured to the floor of the same, and resting upon the track, when in operation, wholly by their own weight, in combination with means for raising and lowering such scrapers simultaneously, substantially as and for the purpose set forth.

“2. In a track-cleaning device, the combination, with an independently acting scraper, resting, when in operation, wholly by its own weight upon the track, of a draw-bar in the direct line of draft, and a supplementary and diagonal drawbar, which at the same time acts as a brace, the forward ends of both of said draw-bars being secured on the same axial line, substantially as and for the purpose set forth.

“3. The construction and arrangement of the shank B, as described, with relation to scraper A, draw-bar C, and diagonal brace E, as and for the purposes set forth.

“4. The combination, with the draw-bar C and scraper A, of the diagonal brace E, as and for the purpose set forth.”

But it was stipulated that the complainant did not seek to recover except under the fourth claim.

The original patent, No. 125,547, was granted April 9, 1872, and the original specification did not contain the words italicized above, nor the first and second claims.

Upon the hearing, the complainant adduced the evidence of certain expert witnesses, who testified, on cross-examination, in substance, that the draw-bar C performed the office of drawing the scraper along the track, and was assisted in so doing by the diagonal brace E, which brace also performed the office of preventing the scraper from being removed from the track by the side thrust; that while the diagonal brace assisted in the direct draft, yet its most important function was to prevent the lateral movement of the scraper from the track; that, in considering the office performed by the draw-bar C and brace E, that office was the same if they were attached to any scraper in any way, provided an attachment was made ; that so far as the fourth claim of the reissue was concerned, it was not material how the draw-bar and brace were pivoted, except that the pivoting should be on “the same axial line," so that when the

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