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Opinion of the court.

the property, described in the declaration, as collector of internal revenue, under an assessment against the plaintiff duly made by the assessor of the district and certified to him. The difference in the language used in the two pleas, and in the particularity with which the assessment of the tax and the distraint and sale of the property were set forth, did not change the substantial identity of the defence made.

Now the replication of de injuriâ, which was interposed to the first special plea, put in issue the material averments of that plea. It threw upon the defendant the burden of proving so much of the plea as constituted a defence to the action. As no error in the ruling of the court on the trial is presented, we are forced to presume that the defendant was afforded every opportunity allowed by law to establish the facts averred by him. To arrest judgment upon the verdict rendered on this issue because an immaterial issue was formed upon a replication to another plea setting up the same defence, and award a repleader, would be in effect to allow the same matter to be twice tried. Such being the case, the granting or refusing the motion rested in the discretion of the court below, with which this court will not interfere.

We are aware of numerous decisions in this country to the effect that the replication de injuriâ is only a good replication where the plea sets up matter of excuse, and is not good where the plea sets up matter of justification, though the justification be under process from a court not of record, or rest upon some authority of law other than a judgment of a court. Such are the decisions of the Supreme Court of New York, and they proceed upon the supposed doctrine of the resolutions in Crogate's Case. But an examination of that case will show that the doctrine is not supported to the extent laid down in the New York decisions. The third resolution in Crogate's case does state that a replication de injuria is bad where the justification is under au

* Griswold v. Sedgwick, 1 Werdell, 131; Coburn v. Hopkins, 4 Id. 577. † 8 Coke, 132.

Opinion of the court.

thority of law, but, as observed by Mr. Justice Patteson, in Selby v. Bardons,* this, if taken to the full extent of the terms used, is inconsistent with that part of the first resolution which states that where the plea justifies under proceedings of a court not of record the replication may be used. In that case the declaration was in replevin for goods and chattels. The avowry of the defendant stated that the plaintiff was an inhabitant and occupier of a tenement in a certain parish; that a rate for the relief of the poor of the parish was duly made and published, in which the plaintiff was rated at seven pounds; that he had notice of the rate and was required by the defendant, as collector, to pay the same, which he refused; that he was then summoned before two justices to show cause why he refused; that he appeared, but showing no cause, the justices issued a warrant to the defendant to distrain the plaintiff's goods and chattels, under which he, and the other defendant as his bailiff, took the goods and chattels mentioned in the declaration. To this avowry the plaintiff filed the plea of de injuriâ, to which a special demurrer was interposed. assigning for cause that the plea offered to put in issue several distinct matters, and was pleaded as if the avowry consisted wholly in excuse of the taking and detaining and not as a justification and claim of right. The court considered at length both causes, and held that the plea was good. On error to the Court of Exchequer Chamber this ruling was affirmed,† and the decision, it is believed, has never been departed from in the English courts. The plea de injuria in this case to the avowry stands like the replication de injuriâ to a plea setting up similar matter in an action of trespass. There is no distinction in the effect. of the plea in one case and the replication in the other. This was held by the King's Bench in the case cited, and by the Court of Exchequer Chamber on error.

This case is authority for the sufficiency of the replication to the first special plea. Other cases might be cited to the same purport. The decisions in England on this point will

* 8 Barnewall & Adolphus, 2.

8 Tyrwhitt, 480.

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Syllabus.

be found collected in a learned note to Crogate's case by Mr. Smith in his Leading Cases, and the decisions in this country will be found collected in an equally learned note by the American editors of that work.

But aside from the considerations mentioned, however the replication might be regarded in some courts on special demurrer, its defective character, if at all defective, was cured by the verdict. The objection to its sufficiency to put the averments of the plea in issue cannot be raised after verdict.*

JUDGMENT AFFIRMED.

MOWRY v. WHITNEY.

1. Asa Whitney's patent of April 25th, 1848, for an "improvement in the process of manufacturing cast-iron railroad wheels," was for a process, not for a combination.

2. Where only vague and uncertain directions could be given as to the degree of foreign heat to be applied in any particular case, there, when a patentee in his specification, establishes a maximum and a minimum, the ascertainment of the proper intermediate degree may be left to the skill and judgment of the operator practicing the process.

3. It is as true of a process, invented as an improvement in a manufacture, as it is of an improvement in a machine, that an infringer is not liable to the extent of his entire profits in the manufacture.

4. In such a case the question to be determined is, what advantage did the infringer derive from using the invention, over what he had in using other processes then open to the public and adequate to enable him to obtain an equally beneficial result? The fruits of that advantage are his profits, and that advantage is the measure of profits to be accounted

for.

5 When a patent is for an entire process made up of several constituent steps or stages, the patentee not pretending to be the inventor of those constituents, his claim to the process as an entirety does not secure to him the exclusive use of the constituents singly. What is secured is their use when arranged in the process.

6. The profits recoverable from an infringer are the measure of the paten

*See Lytle v. Lee & Ruggles, 5 Johnson, 112, and the cases there cited.

Statement of the case.

tee's damages, and though called profits are really damages; and unliquidated until a final decree is made.

7. Interest upon unliquidated damages is not generally allowable, and should not be allowed before a final decree for profits.

APPEAL from the Circuit Court for the Southern District of Ohio; the suit being a bill by Whitney for an alleged infringement by Mowry, of a patent which Whitney had for an improvement in the process of making wheels for railcars. The case was thus:

Wheels for rail-cars require to be made in a special way. The "tread" of the wheel, as it is commonly called-that is to say, the periphery-the surface which runs over the rail-must be very hard, or else it will wear out. On the other hand, the interior portions of the wheel, especially the hub, against which there is no friction, but on which there is great strain, need not be so hard, but must be very tough. Now here are requisites which by a law of the metal do not coexist in the same casting. Iron can be very hard only when it exists in a state of laminated crystallization, and then it is brittle. It can be very tough only when it exists in a state of granulated crystallization, and then it is soft. Now how is the "tread" to be made very hard and the interior very tough? This was the first problem in regard to iron car-wheels. And it was thus solved. It had been long observed that where molten iron was cooled suddenly, it came out solid in the laminated or hard and brittle form, but when cooled slowly it came out solid in the tough and softer form.

The problem, of course, then was to cool rapidly the part of the melted mass of iron which was to make the "tread " of the wheel, and to cool more slowly the rest which was to make the interior of the wheel; that is to say, the spokes and hub. To do this the moulds into which the molten iron was to be cast were made of sand, surrounded by a circle of iron; this circle, called in the manufacturer's language a "chill." Iron being a rapid conductor of heat and sand a slow one, the part of the molten mass which came against

Statement of the case.

the iron or chill-the part, in other words, of the molten mass which was to form the tread, was cooled rapidly, and came out in the laminated and hard (though brittle) form; while the parts of the wheel nearer to the hub, and especially the hub itself (which is a very thick part of the wheel, and where a very great strain is put when the rail-car is in motion), cooling slowly, the requisite toughness was obtained, through this part (and particularly the hub, owing to the greater mass of it) coming out in the granulated and tough. (though soft) form. The cut below, which represents a piece fractured from off that part of the wheel including the flange, which runs over the rail, indicates the two forms. The lower part or chilled "tread" (which in the ordinary car-wheel itself is about half an inch deep) being distinguished by its laminated crystallizations and light gray color, and the upper part which runs in the direction of the hub by its granular crystallization, and a deeper gray line.

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This problem, therefore-the problem of obtaining a hard tread, and a tough interior and hub-was solved. The thing desired was attained through the process of a sand mould with an iron "chill."

But of this good result in one way, a very bad one in another was the consequence. The wheels had no strength. And here was the cause. A mass of iron in its molten state

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