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the defendants for damages on account of fraud in procuring their execution. This action is brought to recover damages for the deceit practiced upon plaintiffs. The claim here asserted is not one from which the bankrupts are protected by their discharges; for it is not a claim provable against their estates in bankruptcy. Rev. St. SS 5067-5072, inclusive; Id. SS 5117, 5119.

(2) But had the plaintiffs waived their right to claim damages specifically for the deceit practiced upon them, and made a claim against the estate of the bankrupts, based wholly upon their legal obligation to save plaintiffs harmless on account of their being the makers and indorsers of the notes in question, or if the present action had been based upon that obligation, and not upon the fraud committed by defendants, it would not follow that the defendants would be protected by their discharges in bankruptcy; for the statute expressly declares that a discharge is subject, even in respect of claims provable in bankruptcy, to the limitation that no debt created by the fraud of the* bankrupt shall be discharged by the proceedings in bankruptcy, and that a debt so created may be proved, and the dividend thereon shall be a payment on account of such debt. Rev. St. SS 5117, 5119. It is therefore clear that, whether the claim asserted by plaintiffs is regarded as one arising out of the deceit or fraud of the defendants, or as a debt created by their fraud, the discharges in bankruptcy do not constitute a defense.

The only other question to be determined is whether the defendants John B. Holland and Joseph Holland can be held liable for the false and fraudulent representations of their partner, it being conceded that they were not made by their direction nor with their knowledge. Whether this action be regarded as one to recover damages for the deceit practiced upon the plaintiffs, or as one to recover the amount of a debt created by fraud upon the part of Strang, we are of opinion that his fraud is to be imputed, for the purposes of the action, to all the members of his firm. The transaction between him and the plaintiffs is to be deemed a partnership transaction, because, in addition to his representation that the notes were for the benefit of his firm, he had, by virtue of his agency for the partnership, and as between the firm and those dealing with it in good faith, authority to negotiate for promissory notes and other securities for its use. Each partner was the agent and representative of the firm with reference to all business within the scope of the partnership. And if, in the conduct of partnership business, and with refer ce thereto, one partner makes false or fraudulent misrepresentations of fact to the injury of innocent persons who deal with him as representing the firm, and without notice of any lipitations upon his general authority, his partners cannot escape pecuniary responsibility therefor upon the ground that such misrepresentations were made without their knowledge. This is especially so when, as in the case before us, the partners, who were not themselves guilty of wrong, received and appropriated the fruits of the fraudulent conduct of their associate in business. Stockwell v. U.S. 13 Wall. 547, 548; Story, Partn. SS 1, 102, 103, 107, 108, 166, 168; Chester v. Dickerson, 54 N. Y. 1; Locke v. Stearns, *1 Metc. 560; Lothrop v. Adams, 133 Mass. 481; Blight's Heirs v. Tobin, 7 T. B. Mon. 617; Durant v. Rogers, 87 III. 508; Colly. Partn. (Wood's Ed.) 88 446, 449, 450; Lindl. Partn. (Ewell's Ed.) § 302. The judgment is affirmed.

v.58-66

*562

(114 U. S. 1) THOMPSON, Trustee, etc., and others v. BOISSELIER and another. (Two Cases.) Appeals from the Circuit Court of the United States for the Eastern District of Missouri.

MCNAB & HARLAN MANUF'G Co. and another 0. SAME.1 Appeal from the Circuit Court of the United States for the Southern District of New

York.

EATON and others v. SAME. Appeal from the Circuit Court of the United States for the Southern District of New

York.

(March 30, 1885.)

1. PATENTS FOR INVENTIONS-CARR WATER-CLOSET-Reissue No. 978.

The third claim of reissued letters patent No.978, granted to William 8. Carr, June 12, 1860, for “improvements in water-closets,” (the original patent having been granted to him August 5, 1856, and, as reissued, extended, July 23, 1870, for 7 years from August 5, 1870,) namely,“ In a valve for water-closets, a cup-leather for control. ling the motion of said valve in closing gradually, substantially as specified, said cup-leather moving freely in one direction, and closing against the containing cylinder in the other direction, and the leakage of water in said cylinder allowing the movement of said cup-leather, as set forth,” construed, and the operation of the

device explained. 2. SAME-STATE OF THE ART.

The state of the art as to prior devices, and the construction and operation of the

defendants' device, set forth. 3. SAME-INFRINGEMENT.

In view of the state of the art, held, that, for the purpose of securing the free passage of water in one direction, and preventing its escape in the other direction otherwise than gradually, the defendants had used nothing which they did not have a right to use, and had not appropriated any patentable invention which Carr had a right to cover, as against the defendants' structure, by the third claim of his re

issue. 4. SAME-WHAT EFFECTED BY CARR'S INVENTION.

All that Carr did, if anything, was to add his form of orifice to the valve and cup

leather of an existing pump-plunger. 6. SAME—THIRD CLAIM OF CARR REISSUE.

The third claim of the Carr reissue involves, as an element in it, the means of

leakage set forth. 6. SAME-INVENTION-LEAKAGE.

The only point of invention, if it could be dignified by that name, was the spe

cial means of leakage shown by Carr, but which the defendants did not use. 7. Same- What PATENTABLE.

To be patentable, a thing must not only be new and useful, but must amount to

an invention or discovery. 8. SAME--REVIEW OF RECENT DECISIONS.

Recent decisions of this court on the subject of what constitutes a patentable in.

vention cited and applied. 9. SAME-VALIDITY OF THIRD CLAIM OF Carr ReissuE-INFRINGEMENT.

Under them, claim 3 of the Carr reissue must, in view of the state of the art, either be held not to involve a patentable invention, or, if it does, not to have been

infringed. 10. SAME-BARTHOLOMEW Water-CLOSET-INFRINGEMENT.

The first claim of letters patent No. 21,734, granted to Frederick H. Bartholomew, October 12, 1858, for an improved water-closet," and extended, October 2, 1872, for seven years from October 12, 1872, namely, “The use of a drip-box or leak: chamber, arranged above the closet, and below and around the supply-cock, substantially as described," must, in view of the state of the art, be limited to a drip box arranged above or on top of the closet, and is not infringed by a structure in which the drip-box is cast on the side of the truuk, near the top, but below it, and not on top of it.

IS. C. 7 Fed. Rep. 821.

Edmund Wetmore and G. G. Frelinghuysen, for Thompson, Trustee, etc., and others. L. Deane, for appellees in Missouri cases, and appellants in New York cases.

BLATCHFORD, J. These are four suits in equity. The first one was brought *in February, 1877, in the cireuit court of the United States for the Eastern* district of Missouri, by Charles F. Blake, as trustee of William S. Carr and Frederick H. Bartholomew, against Elizabeth E. Boisselier and John C. Kupferle, for the infringement of reissued letters patent, No. 978, granted to William S. Carr, June 12, 1860, for “improvements in water-closets,” the original patent having been granted to him August 5, 1856, and, as reissued, extended, July 23, 1870, for seven years from August 5, 1870. The second suit was brought in February, 1879, in the same court, by Charles F. Blake, as trustee of Sarah Bartholomew, against the same defendants, for the infringement of letters patent, No. 21,734, granted to Frederick H. Bartholomew, October 12, 1858, for an “improved water-closet," and extended, October 2, 1872, for seven years from October 12, 1872. The third and fourth suits were brought in July, 1879, in the circuit court of the United States for the Southern district of New York, by Charles F. Blake, as trustee, etc., and William S. Carr and Sarah M. Bartholomew-one against the McNab & Harlan Manufacturing Company and John Harlan, and the other against John Eaton and others--each for the infringement of the said Carr patent, as reissued and extended, and of the said Bartholomew patent, as extended. In each of the two suits in Missouri a decree was made in May, 1880, adjudging that the patent sued on was not good and valid in law, and dismissing the bill. In each of the two suits in New York, a decision was made in February, 1881, (19 Blatchf. C. C. 73, S. C. 7 Fed. Rep. 821,) adjudging that the two patents were good and valid in law, and that the third claim of the Carr reissue, and the first claim of the Bartholomew patent, had been infringed, and awarding an account of profits and damages; and in January, 1882, a final decree was made in one suit for $1,200 damages and $118.74 costs, and in the other for $415 damages and $101.24 costs. The plaintiffs in interest in each of the Missouri suits, and the defendants in each of the New York suits, have appealed to this court. The questions are the same in all of the suits and arise on the same proofs.

The third claim of the Carr reissue is the only claim of that* patent which is alleged to have been infringed. So much of the specification of that reissue as relates to that claim is as follows: “Fig. 1 is an elevation of my closet as in place for use; Fig. 2 is a plan of the cock and part of the plan of said closet; and Fig. 3 is a vertical section of my cock made use of in letting the water into and shutting the same off from said closet. * Similar marks of ref- ** erence indicate the same parts in all the figures. The nature of my said invention consists in a peculiar construction of cock, which is opened by the motion of the seat of the water-closet, and allows but little water to run into the pan of the closet until the weight is removed from the seat, when the cock, gradually closing of itself, allows the water to run for a limited and regulated time, sufficient to wash out the basin.

In the drawing, a is the trunk on the upper end of the soil-pipe, b, fitted with the pan, r, on the shaft or spindle, q, and c is the basin setting on to the trunk, a. These parts, thus far, are to be of any usual or desired character; d is a pipe supplying water from any suitable head, and said pipe is attached to the coupling 1, that screws on to the body, e, of the cock, and f is a pipe and coupling passing water (when admitted as hereafter detailed) to the basin, c, where it is to be fitted with the deflector, as usual. The cock, e, that supplies water to the basin, is constructed with a stem, h, passing nearly or quite air-tight through the leather washer, 4, beneath the cap, n, and the lower end of said stem, h.co is formed with a valve, g, and with a cylindrical part, 3, fitting water-tight, or nearly so; the opening of the washer, 2, between the coupling, 1, of the

pipe, d, and cock, e, and the sides of this cylinder, 3, are formed with notches, or a groove, 2. It will now be seen, that, if the stem, h, be pressed down by the weight of the person acting on the seat, u, rod, o, and lever, p, or by any other suitable means, the valve, g, will be forced away from the washer, 2, and allow a dash of water to pass through the notch, o, sufficient to fill up the parts of the cock, and then that the cylinder, 3, descending and filling the opening in the washer, 2, will prevent, or nearly so, the passage of any more water into the closet; i is a spring around the stem, h, which acts in aid of the pressure of the water on the valve, g, to close the same, as soon as the force which opened the said valve is removed, but, if this alone was used, the concussion would be so great as to tend to break the parts, besides which sufficient water would not be supplied to the water-closet to cleanse the same. I, therefore, make use of the following means, which cause said valve, g, to

n

Fig.1.

close slowly and in a regulated amount of time, thereby allowing the desired quantity of water to dash past the washer, 2, at the time the notches or openings, æ, are moving past the same. The upper part of the cock, e, is formed as a cylinder, k, in which is a disk, l, attached to the stem, h, and a cupleather, m, above the same; n is a cap of the cylinder, k, which is formed with a short tube, 8, passing up through a hollow projection, 0, from the side of the trunk, a, and secured thereto by a nut, 6. At the time the valve, g, is pressed down, as before stated, the water dashes momentarily on to the cock and fills the same, passing the cup-leather, m, and filling the cylinder, k, and, upon the pressure on the stem, h, being removed, the cup-leather expands by the slight rise of the stein, and would retain the valve, g, open were the cylinder, k, water-tight, and, therefore, the closing of said valve will be regulated according to the extent of leakage provided in said chamber, k, and for this purpose the leakage at the washer, 4, around the stem, h, may in some cases

*

*

he sufficient; but I propose to use a screw, 9, entered through the cap, n, with a head next the washer, 4, and part of one side of the screw filed away, so as to adjust the amount of leakage and regulate the time during which the water* will run into the closet.

I am also aware that a given amount of water leakage has been used to prevent a sudden motion in cocks, balances, meters, and a variety of other instruments; therefore, I do not claim the same, but I am not aware that a cup-leather has ever before been so fitted and applied with a valve as to allow the water to pass the said cup-leather freely in the chamber in which it moves, and then act, when the power is relieved from the valve, upon the water in said chamber and gradually allow the valve to close."

The third claim of the Carr reissue is as follows: "Third. I claim, in a valve for water-closets, a cup-leather for controlling the motion of said valve in closing gradually, substantially as specified, said cup-leather moving freely

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in one direction, and closing against the containing cylinder in the other di. rection, and the leakage of water in said cylinder allowing the movement of said cup-leather as set forth.”

In the Carr apparatus, the valve is combined with a containing cylinder and a cup-leather, in such manner that the valve is caused to close slowly, because the action of the cup-leather as a tight packing prevents the passage of water while the valve is closing, and the valve can open rapidly, because, as it opens, the cup-leather does not act as a packing, but permits the passage of water outside of it. In the containing cylinder there is a piston which has on it centrally a cup-leather, and is provided with a small aperture, which permits the gradual escape of water from it. When the cylinder is filled with water, the valve is held to its seat by a spiral spring. When the valve-stem is depressed, the valve opens rapidly, because the cup-leather permits the water to pass freely outside of it. When the force which depressed the valve-stemi is removed, the spring acts to shut the valve, but it shuts slowly, because the cup-leather acts as a tight packing, being forced outward against the in

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