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says: Atintervals of, say, a mile, more or less, sections of the said track, a, al, a”, are electrically insulated from the reinainder in a manner well understood, and therefore requiring no detailed description." And again: “Each of the insulated sections of track, a, , a?, etc., is placed at some point at or near which it is desired to erect a signal, and any required number of these may be employed to ineet the requirements or any particular case." And in describing the operation of the apparatus, it further says: “Upon reaching the point, a, the wheels and axles of the train will form an electrical connection between the opposite insulated rails,” etc. “Upon reaching the point, a>, the closing of the circuit by the train will in like manner cause the signal attached to M? to be displayed, and the signal last displayed by M'to be withdrawn.” It is true that the patentee also says, in the specification: “I do not desire to confine myself to the use of any particular form of visual or audible signals, nor to the particular devices herein described for closing the electric circuit at points from which a signal is to be operated;" but that he does not thereby indicate any intention of dispensing with insulated sections of the track, as a necessary part of the mode of forming and closing the circuit, appears from what immediately follows: "Instead of the circuit being closed automatically by the train itself, it may be closed by a signalman by means of a key, or switch, or otherwise." This language evidently implies that the insulated sections of the track are constant factors in the plan, the only alternatives proposed having reference, not to a substitute for them, but merely to another mode of using them in closing the circuit. So in each of the three claims, the circuit closers, a, , a?, or one or more of them, are expressly named as part of the combination claimed as the invention of the patentee. The use of insulated sections of the railroad track thus repeatedly appears in every part of the specifications as an unchangeable and characteristic feature of the invention, and there is nothing in the state of the art at that date, as disclosed in the evidence, to show that the patentee would have been justified in applying, or that, if he had applied, an application would have been sanctioned by a grant of a patent for a combination as large and undefined as that now claimed by implication and construction, so as to cover every form of a circuit-closer then known or thereafter invented. For that employed by the defendants as part of the Hall system, was not only not known and in use at the date of the patent, but was a device invented by Hall himself or one by Snow, for which the latter obtained a patent dated October 21, 1873. It dispenses altogether with the use of insulated sections of the track, and employs instead a separate instrument placed near the track, and worked by means of a lever connected with the track, so that the wheels of locomotives and cars passing on the track depress the outer end, the lever being raised again and held up after the train has passed by means of a spring, which holds it in place. Upon this point, the case seems to fall clearly within the rule declared in Prouty v. Ruggles, 16 Pet. 336; Silsby v. Foote, 14 How. 218; McCormick v. Talcott, 20 How. 402; Dance v. Campbell, 1 Black, 427; Eames v. Godfrey, 1 Wall. 78; Dunbar v. Myers, 94 U. S. 187; Fuller v. Yentzer, 94 U. S. 288; Imhaeuser v. Buerk, 101 U. S. 647; Gage v. Herring, 107 U. S. 640; S. C. 2 SUP. CT. REP. 819; Seymour v. Osborne, 11 Wall. 516; Gould v. Rees, 15 Wall. 194; Gill v. Wells, 22 Wall. 1; McMurray v. Mallory, 111 U. S. 97; S. C. 4 Sup. CT. REP. 375; Fay v. Cordesman, 109 U. S. 408; S. C. 3 SUP. CT. REP. 236.

On the second branch of the issue as to infringement, we think the case is quite as clearly for the defendants. In the patent, the entire circuit operated by the single battery, and which is closed at intermediate points for the purpose of displaying and concealing the signals, is described as formed by means of two wires or other conductors, C and Z, attached to the positive and negative poles of the battery, extended to any required distance in a direction parallel, or nearly so, to the line of the railroad. These wires may be placed

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on poles, it is said, and should be suitably insulated from each other and from the earth, and they are declared to be virtually prolongations of the positive and negative poles of the battery. * Throughout the two conductors are desig-* nated as metallic, and insulated from the earth, and they are embraced under that description in each of the claims. On the other hand, the defendant's plan does not include a metallic circuit, composed of two conductors as thus described, but uses a circuit composed in part of the earth itself. The material difference in the principle or mode of operation of the two plans, as distinguished in this particular, is indicated by Prof. Morton in the extract from his testimony already quoted. It will become more apparant on further ex. planation.

The object proposed by the plan of the patent is to operate with one battery instead of several, along the line of a railroad, an electric circuit of considerable length, divisible into a number of subsidiary circuits, for the display of signals at many stations, by means of circuit-closers operated automatically by passing trains in definite and predetermined succession. It is obvious that the battery must have sufficient power, being placed at one end of the entire circuit, to operate efficiently at the other extremity. The force necessary for that purpose would be much greater than would be needed for the subsidiary circuits, all of which, it will be observed, are different in length; and this difference of force in the battery might be so great, owing to the required length of the whole circuit, as, when expended upon a shorter intermediate circuit, to destroy its capacity for working the signals by overheating. It becomes, therefore, a matter of importance, in some way, to equalize the resistance of these varying circuits. The patent itself contemplates this necessity, and undertakes to make provision for it. It is said in the specification that "the respective resistances of the several circuits should be so adjusted that they will be as nearly as possible equal to each other, as a much more perfect action of the apparatus will be secured thereby." The specification does not point out any particular methods for that purpose, but it is stated in the evidence of experts that such means were well known at the time and in common use; such as by varying the dimensions of the wire on the magnets, or the introduction of resistance coils into the nearer circuits. These devices would be independent of the apparatus described in the patent, and would have to be adjusted to the peculiar situation of each line of signals in practical use.

In the Hall system, as used by the defendants, no such necessity exists. According to that plan, there is no necessity of equalizing the resistance of the several subcircuits, for they are all exactly equal by their construction, as the electric fuid in working the signal at any point, when a subcircuit has been formed by a circuit-closer, nevertheless traverses the whole extent of the large circuit, and returns by means of the connection formed by the earth to the battery. So that, in effect, the Hall plan forms its apparatus, counting the connection through the earth, as though it were a continuous wire, as it might be, by means of three lines of conductors, of which two are combined by connecting wires with the magnets which operate the signals, at points where the circuit is closed for that purpose, carrying the positive electricity throughout the whole distance to the extreme point of the entire circuit, and then returning it by the third line, which is the connection by means of the earth. And inasmuch as a wire might be used for this purpose, instead of the earth, it would then show three metallic conductors; and Mr. Farmer, the complainants' expert, is quite right in saying, as he does, that the equalization of the resistances in the several subcircuits, accomplished in the plan of Hall, “is due to the arrangement of the wires wholly, and not at all to the fact that the earth is used as a portion of the conductor."

This arrangement is altogether unlike that of the patent. It introduces into the plan of the defendants new elements, a new combination, and a new

result. The two wire conductors are not the same, for, in the patent, one conducts positive electricity, the other returns the current and completes the circuit, while, in the other, both the metallic conductors carry the current forward, while the earth returns it, and in this mode the desideratum is obtained of securing equality of resistance by making all the circuits equal in size.

The device cannot be regarded as a substitute or an equivalent for anything contained in the complainants' patent. It is of itself an independent invenÖtion, and, as such, forms the sole subject of a patent granted to Hall and Snow,

July 13, 1875. To explain more satisfactorily the mode of its operation, so as to show that it differs substantially from the arrangement of the complainants, the descriptive parts of the Hall and Snow patent, and the attached drawings, are here given:

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“In the drawing, the letters, A, B, designate two wires, which extend along the line of a railroad track, or, in other words, form the line-wires of a telegraph line. The wire, A, connects by a wire, 10, with one-say the positive--pole of a galvanic battery, G, and the other pole of this battery connects by a wire, 11, with the ground. The battery, G, is supposed to be situated at one end of the line, and at the opposite end of said line the wire, B, is made to connect by a wire, 12, with the ground. Along the line are distributed a series of keys or circuit-closers, C, D, each of which is connected with the line-wires, A, B, the connection of the circuit-closer, C, being effected by wires, 13 and 14, and that of the circuit-closer, D, by wires, 15 and 16. If the circuit is closed through the circuit-closer, C, the current passes from the battery through wire, 10, line-wire, A, wire 13, circuit-closer, C, wire i4, line-wire, B, and wire, 12, to th ground, and through the ground and wire, 11, back to the battery. If the circuit is closed through the circuitcloser, D, the current from the battery passes through wires, 10, A, 15, circuit-closer, D, wires, 16, B, and 12, to the ground, and through the ground and wire, 11, back to the battery. From these two examples it will be seen that whenever the circuit is closed along the line, the electric current has to traverse the whole circuit, and consequently the resistance is the same in all cases.

It thus clearly appears that the difference in this particular, between the invention claimed by the coinplainants and the alleged infringement, is a difference in the arrangement of the parts and in the principle of the combination, with different elements performing different functions; and that the difference is something more than the mere substitution of a connection by means of the earth for one of the conducting wires. The case is, therefore, clearly distinguishable from that of Electric Tel. Co. v. Brett, 10 C. B. 838, cited and relied on by counsel for the appellants as in point, where the substitution of the earth for a wire as a conductor, being the sole difference, was held, under the English patent laws, not to be sufficient to destroy that identity between the two competing devices, which constituted in that case the infringement alleged, although the patent itself called only for metallic conductors. Were that the only difference between the two plans under examination in the present case, there might still be question, in view of our own patent laws, whether the patentee had not made a wholly metallic circuit a necessary part of his combination, to be determined by considerations which we have not thought it necessary to bring into view as bearing upon that point. For, as we have seen, the difference on which we ground our conclusion that the defendants are shown not to have infringed the complainant's patent, in this particular, is, not merely that they have used the earth for the return of the current that completes the circuit, instead of a metallic conductor, but that they have arranged their conductors, in reference to the battery, the magnets, the rails, and the earth, upon such a system, and with such relations and connections, that, in operating their signals by a single battery, the circuits are equalized as to resistance; while in that of the plaintiffs the circuits are of unequal size and resistance, requiring for successful practical use the equalization of the resistances thus created by means of independent and additional devices. One plan proceeds upon the idea of unequal circuits, to be afterwards equalized; the other adopts and embodies the idea of avoiding the necessity of subsequent rectification by an original adjustment of equal resistances. The difference is inherent in the two combinations and is substantial.

On the ground that, in the two points mentioned, the defendants' system of signaling is shown not to be an infringement of that described in the patent of the appellants, the decree of the circuit court dismissing the bill is affirmed.

• 563

(114 U. S. 662)
ALLING, Surviving Partner, etc., 0. UNITED STATES.

(May 4, 1885.)
Couet or CLAIMS-JURISDICTION-CLAIM GROWING OUT OF A TREATY.

A claim growing out of and dependent on a treaty stipulation entered into witb a foreign government is not cognizable in the court of claims. Appeal from the Court of Claims.

C. W. Hornor and W. L. McGary, for appellant. Asst. Atty. Gen. Maury, for appellee.

MILLER, J. This is an appeal from the court of claims. Belden & Co., having a claim for seizure and confiscation of goods by the Mexicans during or shortly after the Mexican war, preferred their claim to the United States for presentation to the Mexican government. The goods having been*imported into Matamoras while that city was in the possession of the American forces, on which Belden & Co. had paid duties to the amount of $18,347, the United States refunded this sum to Belden & Co. and took an assignment pro tanto of their claim against Mexico. By the convention or treaty of July 4, 1868, between Mexico and the United States, (15 St. 679,) a cominission was organized for the adjustment of the claims of the citizens of the respective countries against the government of the other for injuries to persons and property. To this commission Belden & Co.'s claim was submitted by the United States, and its award was that the Mexican government should pay to the United States, on account of this claim, the sum of $53,099.25, of which the United States might retain out of this gross award the sum of $35,920.81, on account of the tax which it had refunded to Belden & Co. and its interest. An act of congress provided that the distribution of the money received by the United States under all the awards made by this commission should be distributed under the order of the secretary of state.

Claimants in this case having received the sum specifically awarded to them, appealed to the secretary for the whole or a part of the sum for customs duties, which was awarded to the United States under the assignment of Belden & Co. This was refused, and this suit is brought to enforce the claim. It is clearly a claim founded on and growing out of a treaty with a foreign nation, within the provisions of section 1066 of the Revised Statutes. It is in all respects like the case of the Great Western Ins. Co. v. U. $. 112 U. S. 193, S. C. ante, 99, which holds that the court of claims had no jurisdiction by reason of that section. That was a case of a claim submitted to the United States for reclamation against Great Britain. A treaty between the two powers provided, as in the present case, for an arbitration, under which the claim was allowed and paid to the United States. On appeal from the court of claims we decided that it was, within the meaning of section 1066 of this Revision, claim*growing out of and depenılent on a treaty stipulation entered into with a foreign government” of which that court could not entertain jurisdiction. The present case is stronger than that, because the act of congress of June 18, 1878, (20 St. 144,) confers on the secretary of state the authority to distribute these awards among the several claimants. Frelinghuysen v. Key, 110 U. S. 63; S. C. 3 SUP. Cr. REP. 462. Not only is the court of claims forbidden to entertain jurisdiction of this claim, but the secretary of state is by law authorized and directed to do all that can be done for claimants, without further legislation.

It is apparent from the record that the court of claims entertained jurisdiction of the case and decided against the claimants on the merits. As that court had no such authority, its judgment must be reversed, with direction to dismiss the petition for want of jurisdiction.

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