possible terms, not exceeding 25 per cent. of the proceeds of the property, which percentage must be full compensation for all expenses, of whatever character, incurred in collecting, preparing, and delivering such property at the point suggested." But it was also provided that, "prior to any such contract being made, the party proposing must submit in writing a statement of the kind and amount of property proposed to be collected, the locality whence to be obtained, and all the facts and circumstances connected with it, particularly as to its ownership;" that "any contract made in pursuance of this regulation must be in writing, and restricted to the collection and delivery of particular lots at named localities, or, when circumstances clearly justify it, to the general collection and delivery of all abandoned property in limited districts, not greater in any case than one parish or county, and not more than one district to be assigned to one contractor;" and that "should a case arise, in the opinion of the supervising special agent, justifying the payment of a larger percentage than one-quarter of the proceeds of the property, he will make a statement of the facts and circumstances, and the reasons in his opinion justifying such additional allowance, and refer the same to the secretary for instructions." Reg. 12. By another regulation of the same series it is expressly enjoined that no liability be incurred or assumed, or contract be made, on the part of the United States by such agents except as authorized. Reg. 13.

*These regulations were in force when the claimant made the before-men-* tioned verbal "arrangement" with Hart, who was merely an assistant special agent, and not, as alleged in the petition, a supervising special agent of the treasury department. Under them, only supervising special agents could bind the United States by contracts with parties proposing, for compensation, to collect and deliver captured and abandoned property. They could not allow more than 25 per cent. of the proceeds without referring the matter to the secretary. And no contract of that character made even by them bound the government unless it was in writing. Plainly, therefore, the verbal arrangement, which Camp had with an assistant special agent, was not binding upon the United States, even had it been reduced to writing. It imposed upon the government no legal obligation whatever. Whiteside v. U. S. 93 U. S. 250. It is equally clear that it was not otherwise understood by the claimant; for Hart only agreed "to represent the arrangement and business, whatever it might be, to the secretary of the treasury," and to inform the latter that he "had assured the claimant, by the arrangement, that the secretary would allow him 25 per cent. of the proceeds of the cotton at least." Camp, evidently, undertook to bring in the cotton and deliver it to the proper agent of the United States, in reliance upon such action as the secretary of the treasury, in the exercise of his discretion, might ultimately take touching his compensation, and not at all in the belief that he had a binding contract with the government. He must be held to have known that the secretary was not compelled to accept the arrangement with Hart as obligatory upon the government, but was at liberty, without violating any legal rights that Camp had, to allow less compensation than was ordinarily allowed under written contracts made by supervising special agents. Indeed, had the secretary, in view of the non-conformity of the proceedings to his regulations, determined not to allow any compensation whatever, it is not perceived how the jurisdiction of the court of claims could have been invoked by Camp, as upon contract express or implied.

In

*The counsel for appellant rely upon Salomon v. U. 8. 19 Wall. 17, and Clark* v. U. S. 95 U. S. 539. Those cases differ radically from the present one. Salomon's Case the property appropriated and used by the government was admitted to belong to the claimant. In Clark's Case the government received the property from the claimant under such circumstances as precluded it from raising any question as to his title. In each case the United States were V.58-44

*655

held liable, as upon implied contract, to make compensation to the owner. But there is no claim that Camp ever owned the cotton which he delivered at Natchez. As between him and the United States, it was the property of the latter. At any rate, he could not legally have withheld it from the United States. Its seizure by the government was not a taking of his property; and, as he did not conform to the regulations prescribing the only mode in which the government could become bound, by contract, to make compensation for the recovery of the property, he was not in a position to demand compensation as matter of legal right. Any other view would lead to the conclusion that parties who voluntarily brought in and delivered to the United States captured and abandoned property were entitled, as upon implied contract, to be compensated for their services; for the services rendered by Camp, under an arrangement with an assistant special agent, who had no authority whatever to bind the United States in respect of compensation, presents no stronger case, in law, for compensation as upon implied contract, than if they were voluntarily rendered without such previous arrangement. An interpretation of the regulations in question different from that indicated would have resulted in transferring to the courts the determination of matters which the acts of congress committed entirely to the discretion of the secretary of the treasury. But it is contended that the government, having availed itself of the labors of claimant, and the treasury department having made two payments on his claim, to be compensated on the basis fixed by the arrangement with Hart, that arrangement must be deemed to have been ratified by the secretary of the treasury as a contract with the United States, binding them to allow what was ordinarily paid by the department in such cases, or what was, under all the circumstances, reasonable.

The precise form in which appellant's claim for compensation was presented at the treasury department is not shown by the findings of fact. The orders, given in 1865, by the assistant secretary, for the statement of an account and a requisition in favor of the claimant, discloses the fact that Camp had collected the cotton "for an interest therein," and that the payment of $30,000 was intended as an advance to him on account of his expenditures in relation to the cotton, while the payment of $15,000 to Smith was "on account of his joint interest with Camp in said cotton." But this falls far short of an agreement, by the department, to make further payment. These facts, at most, imply, necessarily, nothing more than that the department was willing, under the circumstances, to compensate him to the extent of the foregoing sums. Whether he should receive any compensation, or how much should be awarded him, were matters which depended, as we have seen, upon the discretion of the secretary of the treasury. No one, acting by his authority, had bound the government to make compensation. If the secretary refused to pay anything, the claimant had no remedy except to apply to congress for a special appropriation in his behalf. The mere payment of $45,000 on a claim for a much larger sum, as compensation for services rendered in delivering captured or abandoned property to the government, for which services it was under no legal obligation, express or implied, to make compensation,cannot be deemed a recognition of a legal liability to make further payments on such claim. We find in the record no evidence of any purpose, or agreement, upon the part of the secretary of the treasury to make compensation to claimant beyond that already allowed; and to say that the court may award such compensation as it deems just and proper, is to impose upon the government the obligations of a contract, in respect of captured or abandoned property, which, under the acts of congress, only the secretary of the treasury, or such agents of the department as he designated for that purpose, had authority to make. These views make it unnecessary to consider other questions argued by counsel, and lead to an affirmance of the judgment. Judgment affirmed.

(113 U. S. 656)

PARSONS and another, Ex'rs, etc., v. WILKINSON and others.

(March 2, 1885.)

EVIDENCE-MEMorandum-ReFRESHING MEMORY.

A memorandum in writing of a transaction 20 months before its date, and which the person who made the memorandum testifies that he has no recollection of, but knows it took place because he had so stated in the memorandum, and because his habit was never to sign a statement unless it was true, cannot be read in aid of his testimony.

In Error to the Circuit Court of the United States for the Southern District of New York.

Sol. Gen. Phillips, for plaintiff in error. A. W. Griswold, for defendant

in error.

This is a writ of error by the executors of a former collector of the port of New York to reverse a judgment in an action brought against him by the defendants in error on January 11, 1855, to recover back the amount of duties paid by them on imported iron on October 23, 1852. Upon a trial of that action on December 16, 1856, a verdict was taken for the plaintiffs by consent, subject to the opinion of the court upon a case to be made. On March 30, 1883, the plaintiffs moved to set aside that verdict, and the motion was afterwards granted, on their stipulating to waive interest from the date of the verdict to the date of the motion. Upon a second trial, the main question was whether the duties had been paid under protest. The plaintiffs introduced evidence tending to show that the entry of the goods, to which any protest would have been attached, could not be found at the custom-house, and called William S. Doughty, a clerk of their consignees, who produced a copy of a protest, purporting to be dated October 13, 1852, and to be signed by the consignees, and having upon it these two memoranda: First, in pencil, "Handed in on the twenty-third day of October, 1852." Second, in ink, "The above protest was handed to the collector the twenty-third day of October, 1852. New York, June 16, 1854. WM. S. DOUGHTY.”

Doughty, on direct examination, testified that he handed the original, of which this was a copy, to the collector on October 23, 1852. Being then cross-examined, by leave of the court, he testified that the memorandum in ink was written by him on June 16, 1854; that he had previously made the memorandum in pencil so as to be able to make a statement in ink at some future time; that he did not know when he made the pencil memorandum; that he could not tell, otherwise than as his memory was refreshed by the memoranda, that he ever filed a protest with the collector; that he had no recollection now that he filed such a protest; but that he must have done it because it was his duty to do it; and that he was willing to swear positively that he did so, because he had signed a statement to that effect, and his habit was never to sign a statement unless it was true. The witness then, by permission of the court, voluntarily stated as follows: "The fact that the statement was made two years after, was when there was sufficient data for me, unquestionably, to make that statement at the time, two years afterwards. Probably there were memoranda which were destroyed long ago." The defendant's counsel thereupon objected to the admission in evidence of the alleged copy of the protest, "upon the ground that the witness testifies that he has no recollection of the fact of the service of the original upon the collector at or prior to the time of the payment in question, and that the memorandum referred to by the witness, as the basis of his willingness to swear to the fact without any recollection, was not made for nearly two years after the transaction to which it relates, and that the data upon which the witnes made the memorandum to which he refers are not produced or shown." The court overruled the objection, and admitted the copy of the protest in

evidence, and, a verdict being returned for the plaintiffs, allowed a bill of exceptions to its admission.

*GRAY, J. The witness, according to his own testimony, had no recollection, either independently of the memoranda, or assisted by them, that he had filed a protest with the collector; did not know when he made the memorandum in pencil; made the memorandum in ink 20 months after the transaction, from the memorandum in pencil, and probably other memoranda, since destroyed and not produced, nor their contents proved; and his testimony that he did file the protest was based exclusively upon his having signed a statement to that effect 20 months afterwards, and upon his habit never to sign a statement unless it was true. Memoranda are not competent evidence by reason of having been made in the regular course of business, unless contemporaneous with the transaction to which they relate. Nicholls v. Webb, 8 Wheat. 326, 337; Insurance Co. v. Weide, 9 Wall. 677, and 14 Wall. 875; Chaffee v. U. S. 18 Wall. 516.

It is well settled that memoranda are inadmissible to refresh the memory of a witness, unless reduced to writing at or shortly after the time of the transaction, and while it must have been fresh in his memory. The memorandum must have been "presently committed to writing," Lord HOLT in Sandwell v. Sandwell, Comb. 445; S. C. Holt, 295; "while the occurrences mentioned in it were recent, and fresh in his recollection," Lord ELLENBOROUGH in Burrough v. Martin, 2 Camp. 112; "written contemporaneously with the transaction," Chief Justice TINDAL in Steinkeller v. Newton, 9 Car. & P. 313; or “contemporaneously or nearly so with the facts deposed to," Chief Justice WILDE (afterwards Lord Chancellor TRURO) in Whitfield v. Aland, 2 Car. & K. 1015. See, also, Burton v. Plummer, 2 Adol. & E. 341; S. C. 4 Nev. & Man. 315; Wood v. Cooper, 1 Car. & K. 645; Morrison v. Chapin, 97 Mass. 72, 77; Spring Garden Ins. Co. v. Evans, 15 Md. 54.

The reasons for limiting the time within which the memorandum must have been made are, to say the least, quite as strong when the witness, after reading it, has no recollection of the facts stated in it, but testifies to the truth of those facts only because of his confidence that he must have known them to be true when he signed the memorandum. Halsey v. Sinsebaugh, 15 N. Y. 485; Marcly v. Shults, 29 N. Y. 346, 355; State v. Rawls, 2 Nott & McC. 331; O'Neale v. Walton, 1 Rich. 234.

In any view of the case, therefore, the copy of the protest was erroneously admitted, because the memorandum in ink, which was the only one on which the witness relied, was made long after the transaction which it purported to state; and its admission requires that the judgment be reversed, and a new trial ordered.

(113 U. S. 679)

BLAKE . CITY AND COUNTY OF SAN FRANCISCO and others.

(March 2, 1885.)

1. PATENT LAW-STEAM FIRE-ENGINES-BAILEY'S PATENT.

An automatic valve in combination with a contrivance consisting of a pin-hole and pin, by which the valve may be raised from its seat, so as to leave the valvehole permanently open, or by which the valve may be rigidly closed upon its seat, making a closed or plug valve, is void for want of novelty.

SAME-OLD DEVICE-APPLICATION TO NEW AND SIMILAR PURPOSE.

Where the public has acquired in any way the right to use a machine or device for a particular purpose, it has the right to use it for all the like purposes to which it can be applied, and no one can take out a patent to cover the application of the device to a similar purpose.

Appeal from the Circuit Court of the United States for the District of California.

Geo. W. Dyer, for appellant. Wm. Craig, for appellees.

WOODS, J. This is an appeal from a decree dismissing a bill filled by the

*680

appellant to restrain the infringement by the appellees of reissued letters patent granted to the appellant as the assignee of original letters patent issued to Thomas H. Bailey. The original patent was dated February 9, 1864, and the reissue, September 18, 1877. They were for "a new and improved valve for water cylinders of steam fire-engines and other pump cylinders.' The specification, which was substantially the same in both patents, stated that, previous to the invention therein described, the only valve used to relieve the pressure upon fire-hose to prevent them from bursting was one operated by hand. To obviate the defects of such a valve the inventor applied, at some point between the engine or pump and the hose nozzle, a valve which opened automatically by the pressure in the hose or the pump cylinder, so as to discharge an additional stream, and thereby relieve the pressure. The specification then minutely described an automatic relief or safety-valve, and added: "To enable the valve to be screwed down to bring all practical pressure upon the pump and hose in the trial of an engine, there is a hole, d', drilled through the upper part of the screw-cap, D, and valve-stem, d. When the valve is down in its seat, for the reception of a pin, by the insertion of which the valve-stem and cap can be connected rigidly, so that by slightly turning the cap the valve may be screwed down close to its seat.

The reissued patent contains two claims, the second of which only is found in the original. They were as follows: (1) The combination, with a pump, cylinder and hose of a fire-engine, of an automatic relief-valve, arranged relatively thereto, substantially as specified. (2) The combination of the valve, C, stem, d', spring, E, adjustable cap, D, and pin-hole, d, whereby the valve may be either held upon its seat with a variable yielding pressure, or may be elevated therefrom, or held immovably thereon, as an ordinary screw-plug.

The answer of the defendants denied infringement, denied that Bailey was the original inventor of the devices described in his patent, and averred that his alleged invention had been in notorious public use many years before the application of a patent therefor by Bailey. The appellant does not contend that the appellees infringe the first claim of the reissued patent. He bases his demand for relief on the alleged infringement of the second claim only. We think that the proper construction of this claim is that it covers an automatic valve in combination with a contrivance consisting of a pin-hole and pin, by which the valve may be raised from its seat, so as to leave the valvehole permanently open, or by which the valve may be rigidly closed upon its seat, making a closed or plug valve.

The evidence shows that Bailey was not the first to conceive the idea of a device for opening or closing rigidly an automatic valve. The same thing had been done by means of wedges and screws, and other devices. He cannot, therefore, cover by his patent all the devices for producing this result, no matter what their form or mode of operation. The claim must be confined to the specific device described in the specification and claim, namely, a pinhole and pin. If this construction of the claim be adopted, it is clear that no infringement is shown, for the appellees do not use a pin-hole and pin for holding their valve open or closed, but a screw, sleeve, or cap; and therefore one of the elements of the combination, covered by the second claim of appellant's patent, is wanting in the device used by the appellees. Prouty v. Ruggles, 16 Pet. 336. See, also, Rowell v. Lindsay, ante, 507, and cases there cited.

But, if it be contended that the device covered by the second claim of the appellant's patent is infringed, simply by the use of an automatic relief-valve, a which can be converted at will into an open or closed valve, the evidence in the record is abundant to show that long before the application of Bailey for the original patent, automatic safety-valves, which could be thus rigidly opened or closed, were in common use for the purpose of relieving pipes and cylinders from the pressure of steam or water, and that the valve of the ap