pellant did not materially differ from those which were in common use. This was virtually conceded by the appellant, when, being under examination as a witness in his own behalf, he was asked by counsel for the appellees in what respect the valve described in his patent differed from any other automatic relief-valve, he replied: "It is about the same as others." ilar to other automatic steam-pump valves."

"It is sim

Upon this state of facts it was plain that the mere employment by the defendants of the old and well-known automatic safety-valve afforded no ground upon which to base the relief prayed for in the appellant's bill. Appellant's counsel, therefore, disclaimed any right to the exclusive use of an automatic safety-valve, and said: "We do not claim the valve any further than in this combination with a steam fire-engine." If it be conceded, therefore, that the second claim of appellant's patent covered the use of an automatic relief-valve applied to a steam fire-engine and hose, the question is presented whether the appellant's patent thus construed is valid.

"It is settled," says Mr. Justice GRAY, speaking for the court, "by many decisions of this 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 before been contemplated." Pennsylvania R. Co. v. Locomotive Engine S. T. Co. 110 U. S. 490, S. C. 4 SUP. CT. REP. 220, and cases there cited. It follows from this principle that, 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.

If there is any qualification of this rule, it is that if a new and different result is obtained by a new application of an invention, such new application may be patented as an improvement on the original invention; but if the result claimed as new is the same in character as the original result, it will not be deemed a new result for this purpose. For instance, an automatic reliefvalve, used to relieve the pressure of steam, produces no new result in char acter when used to relieve the pressure of water, unless some further effect besides the mere relief of pressure is obtained. This qualification, therefore, will not affect the present case, because no new result in character is accomplished by the supposed invention of the plaintiff. Besides, it appears from the evidence that before Bailey's patent was applied for, relief-valves were in common use, both on land and at sea. They were commonly used on the steam feed-pumps of steam-ships. These pumps were usually fitted with nozzles for the attachment of hose, so that the feed-pump could, in case of need, be used as a steam fire-engine. It is therefore plain that in this state of the art Bailey could not obtain a valid patent for applying a similar valve to a portable steam fire-engine. He could not do this for two reasons: First, because the public had the right to use the valve for all similar purposes for which it was adapted; and, second, because the application of a valve, which had been used on a stationary steam fire-engine on ships, to a portable steam fire-engine on land, did not require any ingenuity, or involve invention. It is no answer to this to assert that the application of a relief-valve to a portable steam fire-engine is the invention of a new combination. There was no invention. The combination was already in public use on steam-ships. The application of the valve to a similar use on land was not a new combination or a new invention.

We are of opinion, therefore, that, construing his patent as the appellant has been compelled by the testimony to do, Bailey invented nothing but the pin-hole and pin mentioned in his specification, and this is not used by the appellees.

The decree of the circuit court is affirmed.

889.

(113 U. S. €84)

FOURTH NAT. BANK OF ST. LOUIS v. STOUT and others.1

(March 16, 1885.)

SUPREME COURT-DISMISSAL OF APPEAL-$5,000 LIMIT OF JURISDICTION-DECREE BELOW FOR PRO RATA SHARE of Fund.

Motion to dismiss appeal granted, on the authority of Seaver v. Bigelows, 5 Wall. 208, and Schwed v. Smith, 106 U. S. 188; S. C. 1 Sup. Cr. Rep. 221.

Appeal from the Circuit Court of the United States for the Eastern District of Missouri. On motion to dismiss.

F. N. Judson and John H. Overall, for the motion. B. D. Lee, in opposition.

WAITE, C. J. This was a suit in equity, begun by Stout, Mills & Co., judgment creditors of the Yeager Milling Company, to recover from the Fourth National Bank their pro rata share of certain property of the debtor company which was in the hands of the bank. The bank claimed a superior right to the property, and denied its liability to account to creditors therefor. The only questions in the case, as made by the bill, were (1) whether the bank held the property, or the proceeds thereof, in trust for the creditors of the company; and, if so, (2) what was the pro rata share of the complainants? No decree was asked for any more than this share. The bank in its answer did not seek affirmative relief. Upon the hearing, the court found that the bank did hold certain property in trust for the creditors, and sent the case to a master to ascertain the share of the complainants therein. In the interlocutory decree to this effect leave was given other creditors to intervene pro interesse suo for the recovery of their respective pro rata shares of the trust property. Upon the coming in of the master's report a final decree was entered, "that the said complainants and the several intervenors, severally, have and recover of defendant, the Fourth National Bank of St. Louis, the several sums hereinafter stated, being the several pro rata shares, as ascertained by the said report of the special master pro hac vice, in the assets of the Yeager Milling Company, heretofore found by the interlocutory decree herein of Oc-* tober 30, 1882, to have been wrongfully appropriated by said Fourth National Bank, as follows:

The

-And to have each his several execution therefor, with his costs." bill was also dismissed as to all the defendants except the bank, and as to the bank except to the extent of the decree, in favor of the several creditors as above, such dismissal being "without prejudice to any claims or rights and claims of any defendant, as against each other, connected with the matters set forth in the master's report." From this decree the bank appealed, and the appellees, the several creditors in whose favor the decree was rendered, now move to dismiss, because the value of the matter in dispute between the bank. and the several appellees does not exceed $5,000.

The motion is granted on the authority of Seaver v. Bigelows, 5 Wall. 208, and Schwed v. Smith, 106 U. S. 188; S. C. 1 SUP. CT. REP. 221. The appellees have separate and distinct decrees in their favor, depending on separate

1S. C. 13 Fed. Rep. 802.

989.

689.

*688

$687

and distinct claims. If none of the other creditors had intervened, and the decree had been rendered in favor of Stout, Mills & Temple alone, upon their b'll as filed, in which they sought to recover only their pro rata share of the a sets of their debtor in the hands of the bank, it certainly could not be claimed that an appeal would lie if their recovery was for less than $5,000. The suit was instituted, not for the whole property in the hands of the bank, but only for the complainants' pro rata share. After the suit was begun the intervening creditors were allowed to come in, each for his separate share of the assets. On their intervention the case stood precisely as it would if each creditor had brought a separate suit for his separate share of the fund. The decree in favor of the several creditors has precisely the same effect, for the purposes of an appeal, that it would have if rendered in such separate suits. Since the bill was dismissed as to the other parts of the case without prejudice to the rights of the defendants among themselves, the report of the master is binding on the parties only so far as it fixes the amounts due the several appellees. In its effect the decree binds no one except the parties to the appeal in respect to the right of the several appellees to their recovery. Dismissed.

(113 U. S. 687)

DAVIES, Collector, etc., v. UNITED STATES ex rel. CORBIN and others.

(March 16, 1885.)

PRACTICE-Writ of Error-DOCKETING CAUSE IN ADVance of Return-Day.

The docketing of a cause by defendant in error in advance of the return-day of the writ of error would not prevent the plaintiff in error from doing what was necessary, while the writ was in life, to give it full effect.

In Error to the Circuit Court of the United States for the Eastern District of Arkansas. Motion to dismiss, with which is united a motion to affirm. *W. Hallett Phillips, for the motion. A. H. Garland, in opposition. WAITE, C. J. This is the second time a motion has been made to dismiss this cause. The ground of the present motion is that the security required by section 1000 of the Revised Statutes has never been given. Against this it is shown that a supersedeas bond was accepted by the judge, who signed the citation on the eighth of April, 1884. The judgment brought under review by the writ of error was rendered on the eleventh of February, 1884. The writ of error was sued out and served on the seventh of March, in the same year, and the citation was also signed and served on that day. The cause was duly docketed in this court by the defendant in error, on the twenty-second of March, in advance of the return-day of the writ. On the same day the defendant in error filed his motion to dismiss for other reasons than that now relied on. The plaintiff in error was notified that the motion would be presented to the court on the fourteenth of April. When the motion was filed the security had not been given, but before the time fixed for hearing it was tendered in proper form*and accepted. Early in the present term that motion was overruled.

The docketing of the cause by the defendant in error, in advance of the return-day of the writ, did not prevent the plaintiff in error from doing what was necessary while the writ was in life, to give it full effect. The present motion to dismiss is, therefore, overruled.

The original rule allowing a motion to affirm to be united with a motion to dismiss, was promulgated May 8, 1876, (91 U. S. vii.,) and in Whitney v. Cook, 99 U. S. 607, decided during the October term, 1878, it was ruled that the motion to affirm could not be entertained unless there appeared on the record at least some color of right to a dismissal. This practice has been steadily adhered to ever since, and, in our opinion, prevents our entertain. ing the motion to affirm in this case. That motion is consequently denied.

(113 U. S. 687)

GAINES, Collector, etc., v. UNITED STATES ex rel. CORBIN and others.

(March 16, 1885.)

Motion to Dismiss, with which is united a motion to affirm.

B. C. Brown, E. W. Kimball, and C. P. Redmond, for the motion. A. H. Garland, in opposition.

These motions are denied. There is not sufficient color of right to a dismissal to make it proper for us to entertain a motion to affirm.

(113 U. S. 659)

FLAGG and another v. WALKER.

(March 2, 1885.)

1. DEED OF TRUST-MORTGAGE-CONVEYANCE TO PARTY TO SELL AND Pay Debts. A conveyance with the understanding that the grantee, in assuming title and con. trol of the property with discretion as to a sale, is to pay out of his own means obligations of the grantor, and, after sale and satisfaction of debts, to share with him the excess, if any, of the proceeds of sale, creates a trust and not a mortgage. 2. SAME DECLARATION OF TRUST-WRONG OF CESTUI QUE TRUST-EFFECT AS TO TRUS

TEE.

A trustee having, in a declaration of trust, engaged to pay money out of his own means to keep down the interest of the debts of the cestui que trust, until such time as a sale would be expedient, the subsequent disregarding by the cestui que trust of a conveyance upon which the declaration was based, and his resuming possession of the property, releases the trustee from his engagement.

Appeal from the Circuit Court of the United States for the Southern District of Illinois.

Leonard Sweet and P. S. Grosscup, for appellants. A. E. Stevenson and J. H. Rowell, for appellee.

*WOODS, J. William F. Flagg, one of the appellants, was the owner, in February, 1875, of real estate in and near the city of Bloomington, Illinois, which may be generally described as follows: (1) A large manufacturing establishment, known as the Empire Machine Works, and about three acres of land upon which it stood. (2) A tract of land containing about 69 acres, known as "the pasture," situate in the northeastern part of the city. (3) Block No. 1, in Flagg's third addition to the city of Bloomington, containing about five acres, on which stood his residence. This property is designated in the record as the "homestead." (4) A large number of lots in the city, most of them vacant, but on about 10 of which were tenement houses. (5) A tract in Fayette county, Illinois, and lands in Pettis county, Missouri. He also owned a large amount of personal property, consisting mainly of the machinery and tools in the Empire Machine Works. At the date mentioned he was embarrassed in business and owed over $50,000. The larger part of this indebtedness bore interest at the rate of 10 per cent. per annum. Much of the real estate was covered by mortgages; his tenement houses were out of repair; he was largely in arrears for taxes and for interest on his indebtedness, and was in broken health. In this condition of his affairs he sent for, the appellee, Samuel Walker, who resided in Massachusetts, and who was the brother of his first wife, and made a statement to him of his financial condi tion and embarrassments.

On February 22, 1875, after a conference between Flagg, Maggie R. Flagg, his wife, Walker, and J. H. Rowell, who, up to that time, had been the counsel of Flagg, but who, on that occasion, with the knowledge of Flagg, acted as attorney for Walker, Flagg agreed to convey all his real estate to Walker by deed, his personal property by bill of sale, and his choses in action by assignment. Although there is some conflict in the testimony on this point, it plainly appears that these transfers were to be made to enable Walker to control and

099.

*663

662

dispose of the property as he saw fit. Its management and disposition of the proceeds were left entirely to his judgment and discretion, both Mr. and Mrs. Flagg having full confidence in his business ability and integrity; but their understanding was that the proceeds of the property were to be applied to the payment of Flagg's debts, and Walker was to advance money temporarily for that purpose. The effect of the proposed transfer was explained to Mr. and Mrs. Flagg by Rowell. On the next day, February 23d, Flagg and wife executed to Walker deeds of conveyance, absolute on their face, of all the real estate above mentioned, and Flagg gave him a bill of sale of all his personal property, and an assignment of his choses in action. Walker at once took possession of all the property, except the "homestead," which by agreement was to be left in the occupancy of Mr. and Mrs. Flagg.

In the following April, Walker stated to Mrs. Flagg that he would allow her $1,500 per year for four years; that, at the end of that time, he thought he would be able to dispose of the property, and would give a bond that whatever was left, after paying all the indebtedness and the expenses of disposing of the property, he would divide equally between himself and Mr. and Mrs. Flagg. This proposition was accepted. Afterwards Walker executed and delivered to Mrs. Flagg (Mr. Flagg being absent from home) a writing, which opened with the following recital:*"This agreement, made this twelfth day of April, 1875, between Samuel Walker, of the first part, and William F. Flagg, of the second part, witnesseth, that the said Flagg and wife have heretofore conveyed to the said Walker all the real and personal property of the said Flagg." The writing then declared that in consideration of such conveyance Walker agreed, in addition to the moneys already advanced by him for Flagg, to pay him $1,500 per year for four years, and pay off all the ascertained indebtedness of Flagg which had at that time been made known to him, and that Flagg should occupy his residence for one year free from any interference by sale of the same, or otherwise. But Walker, by the same instrument, limited his liability to pay the sum of $25,000 due to Hiram Sibley, secured by trust deed to Corydon Weed, "to the amount realized out of the lands mortgaged to secure the same.' He further agreed that, after "a disposition" of the property conveyed to him by Flagg, if anything should remain of the proceeds after reimbursing Walker for payments for Flagg, and paying the expenses of the management and sale of the trust property, he would pay to Flagg, or his legal representatives, the one-half of such excess. The writing then stated, and was signed and witnessed, as follows:

"It being the express understanding that the conveyance heretofore made to said Walker is absolute for all purposes; that said Walker is to have the free and unobstructed ownership and control of said property; that he will dispose of such property at pleasure, and according to his best judgment; and in all things be the sole judge of time and manner of using and disposing of said property, both real and personal; and this agreement is to include the property known as the Empire Machine Works, as well as the other property of said Flagg. The said Flagg, by his acceptance of this contract, agrees to its terms, and consents to all its parts. Witness our hands the day and year first above written. SAM'L WALKER.

"Witness: J. H. ROWELL and JOHN M. HAMILTON."

*There is no doubt that the agreement of Walker embodied in this paper was accepted by Mr. and Mrs. Flagg, and was for a time acted on by both them and Walker.

Walker, upon the transfer above mentioned by Flagg of the property of the latter, paid off all, or nearly all, of the unsecured debts of Flagg, and furnished Mrs. Flagg with money to pay the taxes which were due and interest due and unpaid on the residue of Flagg's debts, and supplied Flagg with