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purchases of school lands, the appraised value, namely, August 28th, he applied for the same of which had not been fully paid.

sections, except section co, in the name of On February 14, 1887, the defendant, Beck- Margaretta Rhomberg and F. M. Robinson. er, began an action of ejectment against the He also seems to have intended that these Monroe Cattle Company, and on February 1, should lapse, but, as the ninetieth day (No1888, the latter filed this bill to restrain vember 26th) fell on Sunday, he wrote his Becker from further prosecuting his action at attorneys on the 22d: “The old file expires law, to remove the cloud upon its title to the on Sunday next. You will therefore probland, and for the cancellation of the patents ably have to refile on Saturday." A new apgranted to the defendant. Upon a hearing plication was therefore made on Saturday, on the pleadings and proofs the court entered November 25th, in the name of Maggie L. a decree dismissing the bill, and the plaintiff Rhomberg and Frank Robinson. In this conappealed to this court.

nection the bill charged that Rhomberg made

these applications in the names of other perA. H. Garland and Heber J. May, for ap

sons, who did not intend to be actual purpellant. W. D. Williams, for appellee.

chasers, for his own use and benefit, in order

to acquire more than he was permitted to Mr. Justice BROWN, after stating the facts purchase directly from the state; that he furin the for oing language, delivered the opin ther determined, in violation of the ision ion of the court.

against renewing files in the names of other This case involves the construction of the persons, to take advantage of the 90-day statutes of Texas with regard to the purchase limit, to allow the applications to be forfeitof school lands, and depends upon the ques ed, and to make new applications in the tion whether, during the 90 days allowed to names of other persons, not intending to be the proposed purchaser to make his first actual purchasers, and thus to hold the lands payment, it is competent for the surveyor to for a longer period than was permitted by receive another application for the same the law; and, for the time being, to avoid the land, or rather to permit a person, who had payment of any part of the purchase money theretofore filed applications for two parties, and of the taxes, which would be assessed to treat such applications as withdrawn and after the first payments had been made. abandoned, and to make other applications in An answer under oath being required, the the name of different persons within the 90 defendant denied the fraudulent purposes days.

and designs charged against Rhomberg in No one can examine critically the provi the bill, and in his testimony Rhomberg sious of the statutes in question without noti swore that Margiretta and Maggie L. Rhomcing the solicitude of the legislature to pre berg were different persons, as were also F. vent a monopoly of these lands by capitalists, M. Robinson and Frank Robinson, and that or their withdrawal from the market by ficti they were each of them bona fide living pertious applications. To secure a measurably sons, three of them living in Iowa, and one equal allotment to each purchaser it was pro in Chicago; that Margaretta Rhomberg was vided:

his sister-in-law; that he was only distantly (1) That no one should purchase more than related *to the husband of Maggie L. Rhomn-* three sections within five miles of the center berg, and that he was not related to either of of any county, or upon any water front, nor the Robinsons; that he was not interested in more than seven sections in any case.

any of the purchases himself; that he consid(2) That he should make his first payment ered investments in Texas school lands good, within 90 days of his application,

and made his views known to many of his (3) That applications should be made in the relatives and friends, and advised them to real name of the actual purchaser.

buy; that, as he was making his headquar(4) That no one should renew his applica ters in Texas, many of them confided their tion nor file on the same land more than once interests to him; that he looked after them in 12 months.

without demanding or expecting any pay for (5) That no one should renew his file in the bis services; and that the persons for whom name of another.

he acted furnished the money to pay for the In this case there were circumstances cal- lands. He admitted making several appliculated to arouse suspicion in the conduct of cations to purchase the lands in question, both parties. Upon the one hand, *Rhom and that these were abandoned without makberg made application on February 28, 1882, ing the first payments; that the different apfor the purchase of these 11 sections in the plications were not renewals, but were for names of F. Becker, S. L. Rhomberg, and different persons; and that they were not inConrad Becker. These applications were suf tended to keep other persons from purchas. fered to lapse, and on the ninetieth day there ing the lands. In short, that the applications after, namely, May 29th, he made applica were made bona fide for the benefit of the tion for seven sections of the same lands in applicants, and that he had no personal interthe name of J. M. Beechem, and on the fol est in any of them. As there was no testh lowing day for four sections in the name of mony contradictory of this, Rhomberg being M. B. Thompson. These applications were al the only witness examined on the subject, the so suffered to lapse, and 92 days thereafter, | charges of fraud must be regarded as not

sustained, 1f, indeed, the answer be not sufi- , words "shall not entertain another applicacient for that purpose without other testi tion” refer to the surveyor, and not to the mony. Hughes v. Blake, 6 Wheat. 453; (commissioner. As more than 90 days had Vigel v. Hopp, 104 U. S. 441; Beals v. Rail elapsed from May 29th and 30th, the appliroad Co., 133 U. S. 290, 10 Sup. Ct. Rep. 314. cations of August 28th are admitted to have

Upon the other hand, the answer charges been regular, and no other application could that one H. C. Jacobs was county surveyor have been lawfully entertained within 90 and J. L. Fisher was county judge of Shackle days thereafter. As the ninetieth day fell ford county; that they were partners as real on Sunday, the lands were not open to anestate agents, transacting business under the other application until Monday; the general name of Jacobs & Fisher; that the F. B. Ja rule being that, when an act is to be percobs who made application in January was formed within a certain number of days, and a brother of H. C. Jacobs, and postmaster at the last day falls on Sunday, the person Albany, the county seat of Shackleford coun charged with the performance of the act has ty, and that Malinda Fisher, who applied for the following day to comply with his obligathe remainder of the lands, was the wife of tion. Eud. Interp. St. $ 393; Salter v. Burt, one John A. Fisher, deputy surveyor of the 20 Wend. 203; Hammond v. Insurance Co., 10 county, and brother of the other member of Gray, 306. The defendant claims that, while the firm of Jacobs & Fisher; that they en the act prohibited the entertaining of a sectered into a conspiracy to levy a contribution ond application in less than 30 days from the upon all the purchasers of school lands in prior application, Rhomberg in fact had the the county, and to control the same for their right to withdraw and abandon the applicaown benefit; that the firm of Jacobs & Fisher tion and make another at any time within wrote letters to Rhomberg soliciting his busi the 90 days. As no record exists of its aban. ness, promising to sell his lands at an ad donment, and no allusion is made to it in rance, and offered to make files of applica- Rhomberg's letter of November 22d, such tions, promising special favors and attention abandonment can only be presumed from the to all who should employ them. It seems fact that the new application was made that Rhomberg did employ them in this con November 25th. There is nothing, however, nection, and had some correspondence with to distinguish this from the prior applications them. As these charges were made upon in in that particular. A construction of the act, formation and belief only, and as there is no too, which would permit such an abandonevidence to support them, except the simi ment would defeat the very object of the larity of names, they must also be treated as legislature, which was to fix a time within not sustained.

which no other application should be enterThe case resolves itself, then, into the sim tained, so that parties desiring to purchase ple question whether the surveyor was au the land would be apprised of the day when thorized to receive the applications of No it would be open to an application. Such vember 23th, and whether the plaintiff is in persons, however, could never know when an in a position to take advantage of his failure application would be abandoned, and such of jurisdiction in this particular. The lan-proceedings would permit an applicant, by a guage of the act is somewhat ambiguous, simple change of name of the person he repbut the intent of the legislature that no appli resents, to keep the lands out of the market cation shall be entertained within the 90 days for an indefinite period. It is true that in is entirely clear. It provides that the state Martin v. Brown, 62 Tex. 469, it was held treasurer "shall then issue his receipt for that a fictitious application to purchase would suid amount and forward it, with the above not have the effect of preventing another named application, to the commissioner of person from applying before the expiration the general land office, who shall file said ap of the 90 days, but it certainly does not lie plication and receipt in his office, and issue in the mouth of the defendant to claim that his receipt in lieu thereof,

which Rhomberg's first application was fictitious, certificate shall authorize the

since his whole case depends upon the proveyor to survey the land

and enter priety and legality of his action. In Martin the same on his books as sold, and shall not v. Brown the demurrer admitted that the entertain another application to purchase first application was fictitious, and made by said land until notified of the forfeiture as an agent for his own benefit, for the purpose hereinafter specitied." Grammatically, the of withholding the lands from the market. words “shall not entertain" refer to the com In this case the defendant claims, and proves missioner of the land office; but the proviso by the testimony of Rhomberg, that the apthat, “should the applicant fail to make his plication was made by him in good faith for first payment * * * and present the certif the benefit of the applicants, and not for his icate of the commissioner of the general land office to the surveyor or his deputy within During the 90 days allowed by law for the ninety days from the date of the record of first payment*the land is in the position of* his application, then, and in that case, the reserved lands under railroad grant acts. said lands shall be again for sale, and the The grant does not attach to them if at the surveyor shall be authorized to receive ap time they are pre-empted or otherwise segreplications for the same,” indicates that the gated from the public lands. This principle

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is established by a large number of cases in a land board to investigate all purchases of this court. Wilcox v. Jackson, 13 Pet. 498; state school lands held under the acts of Leavenworth, etc., R. Co. v. U. S., 92 U. S. 1879 and 1891, cuts no figure in this case. 733; Railway Co. v. Dunmeyer, 113 U. S. Such an act could operate only as between 629, 5 Sur. Ct. Rep. 566; Railroad Co. v. the state and the purchaser. It would be beWhitney, 132 U. S. 357, 10 Sup. Ct. Rep. 112; yond the competency of thc legislature to Bardon v. Railway Co., 145 U. S. 535, 12 Sup. affect the vested rights of the plaintiff as Ct. Rep. 856; U. S. v. Southern Pac. Ry. Co., between him and the defendant by the pas146 U. S. 13 Sup. Ct. Rep. 152.

sage of the act in question. Defendant's position that the subsequent Section 66 was not included in the appliissuing of a patent put an end to the equi. cations of August 28th, but was included in table rights of the appellant cannot be sus one of those of Noveniber 25th, and there. tained, either under the decisions of this fore, as to this section, the defendant has court or that of the supreme court of Texas. shown the better right.

Defendant was impleaded by the name of the general rule was stated to be “that, A. W. Becker. Initials are no legal part of where several parties set up conflicting claims a name, the authorities holding the full to property, with which a special tribunal Christian name to be essential. Wilson V. may deal, as between one party and the gov Shannon, 6 Ark. 196; Norris v. Graves, 4 ernment, regardless of the rights of others, Strob. 32; Seely v. Boon, 1 N. J. Law, 138; the latter may come into the ordinary courts Chappell v. Proctor, Harp. 19; Kinnersley v. of justice, and litigate their conflicting Kuott, 7 C. B. 980; Turner v. Fitt, 3 C. B. claims." To the same effect are Cunning 701; Oakley v. regler, (Neb.) 46 N. W. Rep. ham v. Ashley, 14 How. 377; Lytle v. Ar 920; Knox v. Starks, 4 Minn. 20, (Gil. 7;) kansas, 22 How. 193, 203; Berthold v. Mc Kenyou v. Semoni, (Minn.) 15 N. W. Rep. 10; Donald, Id. 334; Lindsey v. Hawes, 2 Black, | Reggs v. Wellman, 82 Ala. 391, 2 South. Rep. 554; Shepley v. Cowan, 91 U. S. 330; Bohall 877; Nash v. Collier, 5 Dowl. & L. 341; Fewv. Dilla, 114 U. S. 47, 5 Sup. Ct. Rep. 782; lass V. Abbott, 28 Mich. 270. This loose Sturr v. Beck, 133 U. S. 541, 550, 10 Sup. Ct. metliod of pleading is not one to be comRep. 350. In the case of Stark v. Starrs, 6 mnended, but, as no a:lvantage was taken of Wall. 402, 419, these cases are said to be it in the court below, it will not be consid"only applications of the well-established ered here. doctrine that, where one party has acquired *The decree of the circuit court, except as to* the legal title to property to which another section 66, is therefore reversed, and the bas a better right, a court of equity will con case lemanded for further proceedings in vert him into a trustee of the true owner, and couformity with this opinion. coinpel him to convey the legal title.” And in Silver v. Ladd, 7 Wall. 219, it was held that the proper relief was not the annulment

(146 U. S. 515) and cancellation of the patent wrongfully is

BRINKERHOFF et al. V. ALOE. sued, but was onc founded upon the theory

(December 12, 1892.) that the title which had passed from the

No. 85. United States to the defendant inured in

PATENTS FOR INVESTIONS-ANTICIPATION-RECTAL equity to the benefit of the plaintiff, and that

SPECULA-COMBINATION-INVENTIOX. the decree should conipel him to convey to

1. The first claim of letters patent No. 224,the plaintiff, or to have such conveyance 991, issued March 2, 1880, to A. W. Brinkermade in his name by a commissioner appoint hoff for an improvement in "rectal specula." ed by the court for that purpose. See, also,

consisting in a slide extending the entire length

of tlie tube, is void, in view of the prior art; Johnson v. Towsley, 13 Wall. 72. It seems

and the fact that the slide of the patent is of that this is also the law of Texas. Todd v. metal, while former slides were of glass. is imFisher, 26 Tex. 239; Mitchell v. Bass, Id. material, since the material of which the slide 370; League v. Rog 59 Tex. 427; Sher

is composed was not claimed as an essential

feature of the device. 37 Fed. Rep. 92, afwood v. Fleming, 25 Tex. Supp. 408, 427; firmed. Wright v. Hawkins, 28 Tex. 452.

2. The third claim of the patent, corering It is no defense that plaintiff has not com

an "incline" in cylindrical tubular specula, hav

ing slotted sides and closed ends, such incline plied with the law as to making the final pay

being for the purpose of preventing injury by ments. it appears that Jacobs and Fisher | impaction against pile tunors, enlarged slands, executed their obligations, as required by the

etc., in withélrawing the instrument, was anact, for the balance of the appraised value,

ticipated by prior devices, wherein the incline,

though not so pronounced as in the pateut, and that such obligations as have matured seems to have effectually answered the purhave been discharged and paid off, as well pose. 37 Fed. Rep. 92, affirmed. the matured interest thereon. In any

3. The second claim of the patent which

covers the “incline," in combination with the event, the defendant is in no position to claim

tube, slot, and slide, is void for want of inven. a forfeiture on this ground. Canales v. Pe tion, as the combination produced no new re. rez, 63 Tex. 291, 69 Tex. 676, 7 S. W. Rep.

sult from the joint and co-operating action of 507.

the old eleinents. 37 Fed. Rep. 92, affirmed. The act of the legislature of Texas ap Appeal from the circuit court of the United proved April 14, 1883, for the appointment of States for the eastern district of Missouri

68

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Suit by Milford H. Brinkerhoff and Willie Warren B. Outen, Dr. Charles Bernays, and C. Brinkerhoff, executors of Alexander W. Dr. Charles E. Michel, as well as the testi. Brinkerhoff, deceased, against Albert S. mony of William Grady and Herman SpeckAloe, for infringement of a patent. The cir ler, satisfies me that rectal speculums closed cuit court held that the patent was void for at one end, having a slot in the side extending want of invention, and because of anticipa the full length of the chamber, and fitted tion by prior devices, and dismissed the bill. with a slide, had been used by the medical 37 Feil. Rep. 92. Complainants appealed. fraternity in this country before the date of Affirmed.

the alleged invention. While it is true that The rase is stated in the opinion delivered defendant has not produced any of the spea below by THAYER, J., which is here given ula that were so in use, and has only proin full:

duced a model of one made in his own shop “This is a bill to restrain the infringement since this suit was filed, known as the 'Reed of letters patent No. 224,991, granted to Speculum,' yet I consider this fact not suffiAlexander W. Brinkerhoff, under date of cient in itself to overcome the positive stateMarch 2, 1880, for an improvement in ‘rectal ments of intelligent and entirely disinterestspecula.' The patentee, in his specification, ed witnesses, who had occasion to know the thus describes his invention: 'My speculum fact whereof they speak, that specula with is inade of metal, and plated in the usual slotted sides fitted with slides were in use, manner, to secure a bright interior and and to some extent were on sale, in this counsmooth surface. In shape it is conical, and try prior to the date of the alleged invention was one side slotted through its entire length in July, 1878. The Reed instrument, and of chamber. Into such slot is closely fitted possibly all the instruments of which the wita movable slide, having upon its rear end a nesses above named have spoken, had glass handle for actuating it. On the side of the slides, instead of metal; but that fact is not tube opposite the slide is another handle, by important, as the material of which the slide which to hold the tube when in use. Around is composed is not claimed as an essential the large end of the tube is a flange or lip, feature of the device. But, even if the

* and in the forward end of the cham- foregoing view is erroneous, I am furthermore ber is an incline, made necessary in specula of the opinion that the first claim of the patLaving closed ends, * *

to prevent the ent was anticipated by 'Segala's Tri-Valve impaction of pile tumors, enlarged glands, or Vaginal Speculum,' which was produced on surplus membrane in the end of the chamber, the hearing, and was shown to have been in and thereby enable the operator to withdraw use in this country since 1860; also by the the instrument with safety and ease.' of 'catheter' which was produced on the trial, the nature of his invention the patentee says: and shown to have been on sale in this coun*My invention consists in the use of a slide try since 1874. The uses for which both of extending through the length of one side of the instruments last referred to were de the tube, and an incline inside of the forward signed are analogous to that in which comor small end of the chamber, extending from plainant employs his instrument. Both inthe bottom of the chamber upward and for struments are tubular; each has a slot in the ward to the under side of the slide when in side extending the full length of the chamber place, to prevent injury to the membrane fitted with a metal slide, which is intended to while withdrawing the instrument,' etc. The be wholly or partially withdrawn (the same claims made in the specification are as fol as the slide in the rectal speculum) when the lows: ‘(1) A slide in the side of a speculum, operator has occasion to examine or treat the extending through its whole length, and used particular organs for the treatment of which substantially as herein described. (2) The these instruments were constructed. In view incline in the front end of the chamber, in of the slides shown in Segala's vaginal specucombination with the tube, slot, and slide, lum, and in the catheter, and the use made substantially as and for the purposes herein of the same, it must be held that there is set forth. (2) In cylindrical tubular specula nothing novel in the slide in complainant's having a slotted side and closed end to pre patent. He has, in this particular matter, vent the entrance of faeces, the incline in the merely appropriated a device long known and front end of the chamber, extending upward used in surgical instruments fitted for the exfrom the bottom and forward to under side amination of certain interior membranes or of slide, substantially as described, and for cavities of the body, for the improvement of the purposes herein set forth.'

another instrument adapted to the treament “1. It is clear that the first claim of this of other interior membranes. Hilton's rectal patent, covering 'a slide in the side of a speculum, an instrument said to have been in speculum extending through its whole length,' use in England as early as 1870, also clearly cannot be sustained. Indeed, it is not seri anticipates the first claim of complainant's ously contended by complainant's counsel patent, and probably the second and third that the device covered by that claim is claims. If Hilton's speculum, as contended, novel. I shall not go into the details of the was described in a printed publication in evidence, therefore, on this branch of the England as early as 1876, that fact also in. case, but will content myself with the gen validates the first claim of the patent under eral statement that the testimony of Dr. consideration, and most likely the second and

third claims. The original printed publica- , also shows an incline in the forward or closed tion relied upon, said to have been published | end, in all respects like that in complainant's in London as early as 1876, was not produced instrument; but the testimony in the case at the hearing before the master, but in lieu leaves it somewhat doubtful whether the 'inthereof a volume entitled 'Rest & Pain,' pub- cline' in Squire's speculum was placed therelished in New York in 1879, which purports in shortly before or shortly after complainant to be a reprint of the earlier English publi claims to have invented it. For that reason cation, was produced. Some testimony was the patent is not affected by the evidence ofoffered to the effect that application had fered by defendant in relation to the Squire's. been made to the English publishers, and to instrument. other booksellers in London and in this coun “3. In view of what has been said it appears try, for a copy of the original publication, that plaintiff's right to relief depends on the and that they reported the work to be out of second claim for the 'incline, * print. All of the testimony, however, tend combination with the tube, slot, and slide." ing to show that a book entitled 'Rest & This claim is attacked on two grounds: Pain' was published in London in 1876, and First, that the combination, as a whole, was. that the work reprinted in this country in anticipated by Dr. Hodgen when he caused 1879 is an accurate copy thereof, is of the na an incline in the form of mirror to be set ture of hearsay; and as objection was duly permanently in the forward end of the old taken to the testimony when it was produced •Reed Speculum,' about the year 1876; and, before the master, and was insisted upon at second, that the combination is devoid of inthe trial, the objection must be sustained, no vention and patentable povelty. I shall conmatter how persuasive the inference may be cede that the evidence as to what Dr. Hodthat there was a foreign publication which gen caused to be done with the Reed specudescribed Hilton's speculum. The latter in lum 12 or 13 years since is, under the circumstrument is accordingly ignored as an antici stances, not of that certain and convincing pation of complainant's invention.

character which ought to be required to over“2. The third claim of the patent is a claim turn the claims of a duly-issued patent. The for the incline' in cylindrical tubular spec second objection to the claim, however, is ula having a slotted side and closed end. more formidable. The Reed speculum, beThe particular device attempted to be cov fore alluded to, shows the tube, slot, and ered by this claim was anticipated, in my slide' combined in a manner that does not opinion, by a rectal speculum produced by differ essentially from the form in which the Dr. Mudd, and shown to the satisfaction of same elements are combined in complain. the court to have been purchased at an in ant's combination. To these three elements strument store, and to have been in use in the patentee added a fourth,—the 'incline in this country before the date of complainant's the front end of the chamber,—but the 'ininvention. The instrument in question is cline,' as before stated, was itself an old de tubular. It is conical in form, has a slotted vice, which had been used in specula such side, a closed end, and, what is of more im was produced by Dr. Mudd. Furtherportance, an incline at the closed end, ex more, it was used in the old instruments for tending from the bottom of the chamber up the same purpose that complainant professes ward and forward to the end of the slot. It to have invented it; that is to say, to avoid is true that the angle made by the incline injuring protruding membranes when the with the axis of the tube in the latter instru speculum was withdrawn. Even if comment approaches more nearly to a right an plainant had been the first to use the incline gle than the incline in complainant's specu in tubular specula having closed ends, the delum; nevertheless there is a pronounced 'in- vice was a very obvious one, scarcely rising cline;' and, moreover, Dr. Mudd testifies to the dignity of an invention, considering that one purpose of the 'incline' is to pro the function it performed, as is well illustect the mucous membrane from injury when trated by the account which the patentee the speculum is withdrawn. It should be fur- gives of the manner in which the idea was ther observed that complainant's specification conceived. He states that he first constructdoes not make the angle at which the incline cd his speculum as shown in the specification, is set in his speculum an essential feature of with a tube, slot, and slide, but without an the device. As described in his specification, incline. When he made the first trial of the the utility of the incline consists in prevent instrument he discovered the risk of injuring ing the ‘impaction of pile tumors,' etc., and such membranes as happened to protrude in enabling the operator to withdraw the in through the slot, as others had discovered strument without injury to the membranes. who made the Mudd instrument. Thereupon This is precisely the function of the incline he employed a jeweler to solder a small piece in the speculum produced by Dr. Mudd, and of metal in the forward end of the chamber, apparently it was set at an angle which ef so as to form an incline, and subsequently tectually accomplished that purpose. At all amended his specification by adding the third erents, no complaint appears to have been claim, which is substantially a claim for the made against that speculum on the ground incline as an independent device. But, rethat the incline failed to accomplish the pur- gardless of the obvious nature of the impose had in view. The Squire's speculum provement made by adding the incline, the

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