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With the latter it is connected—the bevel-wheels, c, d; H is a horizontal shaft in the hold of the boat at the middle bulk-head, extending from the vertical shaft, G, to the capstan, B. With the foriner it is connected by the bevel-wheels, e, f, and with the latter by the bevel-wheels, g, h. The capstan is permanently fastened to its shaft, J. The vertical shaft, G, is so arranged that it can be lifted or lowered by means of a set screw, l, whereby the bevel-wheels, c, d, and e, f, can be set out or in gear at leisure, interrupting or establishing the connection with the engine. K, K, are the bearings of the shaft; i, i, are hooks, which can be taken off, and the cargowheel shaft lifted aside, so that any of the hoisting-rollers may be disengaged.” "The operation is as follows, viz.. When the engine is set in motion the same is communicated by the described shafts and wheels to the capstan. The line is thrown over the capstan as usual, and one man to pay off the line and another to attend the engine are all the hands necessary in the operation."
The claim was as follows: “Rotating a capstan placed on deck of a boat by means of an auxiliary engine, and capstan and engine are placed forward of
the steam boilers of said boat, substantially as hereinbefore described, and for the purposes set forth.'
*The first application for the patent sued on was filed July 23, 1855. Its claim was for “the application of the steam-power of a hoisting or other engine of steam-boats, or other crafts, to the capstan, by communicating the power of the engine to the capstan by means of the shafts, G and H, and the bevel-wheels, c, d, e, f, g, h, or by any other means. This application was rejected. On February 7, 1856, the application was amended by striking out the claim originally made and substituting the following: “I do not claim the application of steam-power to the capstan as a principle, but what I do claim is: the arrangement and combination of machinery employed to communicate rotary motion to the capstan from the hoisting or other engine of steam-boats and other crafts, namely, the shafts, G and H, and the bevel-wheels, c, d, e, f, g, and h,” etc. This amended application was also rejected, and no change therein was made until February 4, 1867, when it was stricken out, and the claim of the patent sued on was substituted by way of amendment. During all this time the drawings and specifications of the first application remained unchanged, and are embodied in the letters patent.
One of the defenses relied on by the appellants to defeat the patent was that it was invalid for want of novelty and patentability. Upon final hearing the circuit court rendered a decree for the complainants, and the defendants appealed. We are of opinion that the patent is open to the fatal objection that the device covered thereby did not, in view of the state of the art, involve the exercise of invention, and was therefore not patentable. The simply working of a capstan by means of steam is not claimed, but in the amended specification filed February 7, 1856, is expressly disclaimed. The capstan and the auxiliary*engine are both old. The device, consisting in an arrangement of shafts and cog-wheels by which the power of the engine is applied to the capstan, was, as averred in the answer, in common public use in flour and grist mills, and cotton and woolen factories, long prior to the alleged invention of McMillin. The testimony shows that both capstans and auxiliary engines have been commonly placed forward of the boilers of the boat, and that, as early as the year 1847, an auxiliary engine had been used for rotating a windlass, both the engine and the windlass being forward of the boilers. In view of these facts, which are either matters of common knowledge or well established by the evidence, the only field of invention left for the patent to cover was the application, by the old and familiar arrangement of shafts and cogwheels, of the power of an auxiliary engine to a capstan instead of a windlass. A capstan differs from a windlass in this respect only: that its barrel or shaft is vertical, while that of the windlass is usually horizontal. It is plain, there. fore, that no such ingenuity as merited the issue of a patent was required for this improvement, but only the ordinary judgment and skill of a trained mechanic.
The following cases illustrate the grounds upon which we base this conclusion: It was said by Mr. Justice BRADLEY, in delivering the judgment of this court in Atlantic Works v. Brady, 107 U. S. 192, S. C. 2 Sup. CT. REP. 225: “The process of development in manufactures creates a constant demand for new appliances which the skill of ordinary head-workmen and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. Each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different directions. To grant to a single party a monopoly of every slight advance made, except where the exercise of invention somewhat above ordinary mechanical or engineering skill is distinctly shown, is unjust in principle and injurious in its consequences.” In the case of Pennsylvania R. Co. v. Locomotive Truck Works, 110 U. S. 490, S. C. 4 SUP. Cr. REP. 220, Mr. Justice GRAY, speaking for the court, declared it to be the result of the de
cisions of the court that “the application of an old process or machine 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, even if the new form of result has not been before contemplated.” In Hailes v. Van Wormer, 20 Wall. 353, where the patentee had taken a fire-pot from one stove, a flue from another, and a coal reservoir from the third, and had put them into a new stove, where each fulfilled the oflice it had fulfilled in its old situation, and nothing more, the patent was held void for want of invention. In the case of Phillips v. Detroit, 111 U. S. 604, S. C. 4 SUP. CT. REP. 580, the patent sued on was for an improvement in street and other highway pavements. The improvement consisted in using round blocks of wood, formed of the sections of small trees, set vertically upon a foundation of sand or gravel, and filling the spaces between the blocks with sand or gravel. The court said that the use of blocks, such as were described, set vertically, was old, that the foundation was old, and the use of filling between the blocks was old, and that the only thing left for the patent to cover was the bring. ing together, in the construction of a pavement, of these three old and wellknown elements; and held that this did not require invention, and that the patent was void. See, also, Hotchkiss v. Greenwood, 11 How. 248; Phillips v. Page, 24 How. 164; Smith v. Nichols, 21 Wall. 112; Dunbar v. Myers, 94 U. S. 187; Heald v. Rice, 104 U. S. 737, 754–756.
Upon the ground stated, we think the letters patent upon which this suit is based are void. The decree of the circuit court, by which the patent was sustained, must therefore be reversed, and the cause remanded, with directions to dismiss the bill; and it is so ordered.
(112 U. S. 452)
LAMAR, Ex'r, etc., 0. Micou, Adm'x, etc.?
(December 1, 1884.)
1. GUARDIAN AND WARD-RESIDENCE IN SECEDING STATE.
The war of the rebellion, and the residence of both guardian and ward in the enemy's territory throughout the war, did not terminate the obligation of a guardian appointed before the war in a state never within that territory, nor discharge him
from liability to account to the ward in the courts of that state after the war. 2. SAME-RECEIPT GUARDIAN APPOINTED IN SEVERAL States.
A receipt given to a guardian appointed in one state, by a guardian afterwards appointed in another state, for specific personal property of the ward, transferred by the former to the latter, does not discharge the former from responsibility to account for previous loss by his mismanagement of the ward's property. Noris such responsibility lessened by the person last appointed guardian having before his ap
pointment concurred and aided in the acts complained of. 3. SamE-ACTION BY WARD'S ADMINISTRATORADMISSIONS.
Admissions by a ward's next of kin during the ward's life-time, cannot be set up
in defense of a bill by such next of kin as the ward's administrator. 4. SAME-MARRIAGE OF WIDOW-CHANGE OF DOMICILE OF CHILDREN.
The widow of a citizen of one state does not, by marrying again, and taking the infant children of the first husband from that state to live with her at the home of
the second husband in another state, change the domicile of the children. 5. SAME-CHANGING DOMICILE OF WARD.
A guardian, appointed in a state in which the ward is temporarily residing, can.
not change the ward's domicile from one state to another. 6. SAME-ACCOUNTING BY GUARDIAN.
A guardian, appointed in a state which is not the domicile of the ward, should not, in accounting in the state of his appointment for his investment of the ward's
1S. C. 1 Fed. Rep. 14, and 7 Fed. Rep. 180.
property, be held, unless in obedience to express statute, to a narrower range of se
curities than is allowed by the law of the state of the ward's domicile. 7. SAME-INVESTMENTS-STATUTES OF GEORGIA AND ALABAMA.
By the law of Georgia before 1863, and by the law of Alabama, a guardian might invest his ward's money in bank stock in Georgia or in New York, or in city bonds, or in bonds issued by a railroad corporation and indorsed by the state which had
chartered it. 8. SAME--SALE BY GUARDIAN-REINVESTMENT.
A guardian may, without order of court, sell personal property of the ward in his
possession, and reinvest the proceeds. 9. SAME-INVESTMENT DURING REBELLION.
A guardian, appointed in New York, before the war of the rebellion, of an infant then teniporarily residing there, but domiciled in Georgia, sold bank stock of his ward in New York during the war, and there invested the proceeds in bonds issued before the war by the cities of Mobile, Memphis, and New Orleans, and in bonds issued by a railroad corporation chartered by the state of Tennessee, and whose road was in Tennessee and Georgia, and the railroad bonds indorsed by the state of Tennessee at the time of their issue; and deposited the bonds in a bank in Canada. Held, that if in so doing he used due care and prudence, having regard to the best pecuniary interests of his ward, he was not accountable to the ward for loss by depreciation of the bonds, although one object of the sale and investment was to save
the ward's money from confiscation by the United States. 10. SAME-CONFEDERATE Bonds.
An investment by a guardian, of money of his ward, during the war of the rebellion, and while both guardian and ward were residing within the enemy's territory, in bonds of the so-called Confederate states, was unlawful, and the guardian is responsible to the ward for the sum so invested. Appeal from the Circuit Court of the United States for the Southern Dis. trict of New York.
E. N. Dickerson, for appellant. 8. P. Nash and Geo. C. Holt, for appellee.
GRAY, J. This is an appeal by the executor of a guardian from a decree against him upon a bill in equity filed by the administratrix of his ward. The original bill, filed on July 1, 1875, by Ann C. Sims, a citizen of Alabama, as administratrix of Martha M. Sims, in the supreme court of the state of New York, alleged that on December 11, 1855, the defendant's testator, Gazaway B. Lamar, was duly appointed, by the surrogate of the county of Richmond, in that state, guardian of the person and estate of Martha M. Sims, an infant of six years of age, then a resident of that county, and
gave bond as such, and took into his possession and control all her property, being more than $5,000; that on October 5, 1874, he died in New York, and on November 10, 1874, his will was there adınitted to probate, and the defendant, a citizen of New York, was appointed his executor; and that he and his executor had neglected to render any account of his guardianship to the surrogate of Richmond county, or to any court having cognizance thereof, or to the ward or her administratrix; and prayed for an account, and for judgment for the amount found to be due.
The defendant removed the case into the circuit court of the United States for the Southern district of New York, and there filed an answer, averring that in 1855, when Lamar was appointed guardian of Martha M. Sims, he was a citizen of Georgia, and she was a citizen of Alabama, having a temporary residence in the city of New York; that in the spring of 1861 the states of Georgia and Alabama declared themselves to have seceded from the United States, and to constitute members of the so-called Confederate states of Amer
ica, whereupon a state of war arose between the United States and the Confed* erate states, which continued to be flagrant for*more than four years after; that
Lamar and Martha M. Sims were in the spring of 1861 citizens and residents of the states of Georgia and Alabama, respectively, and citizens of the Confederate states, and were engaged in aiding and abetting the state of Georgia and the so-called Confederate states in their rebellion against the United States,
and she continued to aid and abet until the time of her death, and he continued to aid and abet till January, 1865; that the United s, by various public acts, declared all his and her property, of any kind, to be liable to seizure and confiscation by the United States, and they both were, by the various acts of congress of the United States, outlawed and debarred of any access to any court of the United States, whereby it was impossible for Lamar to appear in the surrogate's court of Richmond county to settle and close his accounts there, and to be discharged from his liability as guardian, in consequence whereof the relation of guardian and ward, so far as it depended upon the orders of that court, ceased and determined; that, for the purpose of saving the ward's property from seizure and confiscation by the United States, Lamar, at the request of the ward and of her natural guardians, all citizens of the state of Alabama, withdrew the funds belonging to her from the city of New York, and invested them for her benefit and account in such securities as by the laws of the states of Alabama and Georgia and of the Confederate states he might lawfully do; that in 1864, upon the death of Martha M. Sims, all her property vested in her sister, Ann C. Sims, as her next of kin, and any accounting of Lamar for that property was to be made to her; that on March 15, 1867, at the written request of Ann C. Sims and of her natural guardians, Benjamin H. Micou was appointed her legal guardian by the probate court of Montgomery county, in the state of Alabama, which was at that time her residence, and Lamar thereupon accounted for and paid over all property with which he was chargeable as guardian of Martha M. Sims, to Micou as her guardian, and received from him a full release therefor; and that Ann C. Sims, when she became of age, ratified and confirmed the same. To that answer the plaintiff filed a general replication.
The case was set down for hearing in the circuit court upon the bill, answer and replication, and a statement of facts agreed by the parties, in substance as follows: On November 23, 1850, William W. Sims, a citizen of Georgia, died at Savannah, in that state, leaving a widow, who was appointed his administratrix, and two infant daughters, Martha M. Sims, born at Savannah on September 8, 1849, and Ann C. Sims, born in Florida on June 1, 1851. In 1853 the widow married the Rev. Richard M. Abercrombie, of Clifton, in the county of Richmond and state of New York. On December 11, 1855, on the petition of Mrs. Abercrombie, Gazaway B. Lamar, an uncle of Mr. Sims, and then residing at Brooklyn, in the state of New York, was appointed by the surrogate of Richmond county guardian of the person and estate of each child “until she shall arrive at the age of fourteen years, and until another guardian shall be appointed;" and gave bond to her, with suretics, “to faithfully in all things discharge the duty of a guardian to the said minor according to law, and render a true and jnst account of all moneys and other property received by him, and of the application thereof, and of his guardianship in all respects, to any court having cognizance thereof;" and he immediately received from Mrs. Abercrombie in money $5,166.89 belonging to each ward, and invested part of it, in January and April, 1856, in stock of the Bank of the Republic, at New York, and part of it, in March and July, 1857, in stock of the Bank of Commerce, at Savannah, each of which was then paying, and continued to pay until April, 1861, good divi. dends annually, the one of 10 and the other of 8 per cent.
In 1856, several months after Lamar's appointment as guardian, Mr. and Mrs. Abercrombie removed from Clifton, in the state of New York, to Hartford, in the state of Connecticut, and there resided till her death, in the spring of 1859. The children lived with Mr. and Mrs. Abercrombie, Lamar as guardian paying Mr. Abercrombie for their board, at Clifton and at Hartford, from the marriage until her death; and were then removed to Augusta, in the state of Georgia, and there lived with their paternal grandmother and her unmarried*daughter and only living child, their aunt; Lamar as guardian