it introduced important enactments, in addition to the pre-existing naturalization laws, and that these additions are its main features, restricted, indeed, in all its sections except the 12th and 13th, to seamen; but as regards them making provisions far beyond mere "regulations." The excepted sections, as the Court have construed them, are consistent with the object and provision of the rest, and in accordance with what may fairly be presumed to be the intention of Congress by the repealing Act of 1848, from which it may be inferred that the words "continued residence" do not, as it would be most unreasonable they should deny the privilege of naturalization to one who, after his application to be admitted a citizen, should find it necessary to go beyond the limits of the United States before the time prescribed for naturalization.

It is ordered that this opinion be certified to the District Court.

In the District Court of Allegheny County.

DELANY'S ADMINISTRATORS v. HILL, ET AL.

(Vol. I., p. 25, 1853.)

In trover by the administrator of the payee of an unaccepted draft, against the drawer who obtained possession of it improperly, after the death of the payee, the measure of damages is the amount recoverable upon the draft.

THIS was an action of trover for a bill of exchange drawn by Hill & Curry, the defendants, on Messrs. Drexel & Co., of Philadelphia, payable to the order of P. Delany. At the trial on the plea of non cul., a verdict was rendered for the plaintiffs, for the full amount of the draft, the Court reserving the question as to the proper measure of damages, on the following admitted facts.

The defendants, Hill & Curry, were bankers and brokers in the city of Pittsburgh, with whom Patrick Delany, a merchant tailor, kept a banker's account. On the 16th of February, 1851, Patrick Delany purchased from Hill & Curry a draft or bill of

exchange, in the usual form, on Messrs. Drexel & Co., of Philadelphia, for $800. It was dated on the same day, payable at sight to Patrick Delany or order. For this draft Patrick Delany gave defendants his check as follows:

PITTSBURGH, Feb. 17, 1851. Messrs. Hill & Curry, Bankers-Pay par funds or bearer eight hundred and two dollars.

$802

P. DELANY.

At this time there was a balance of $38 97 due to Hill & Curry, on P. Delany's account, making his total indebtedness $840 97, the amount of the said draft and premium $802 being, at the time it was given, charged by defendants to Patrick Delany on his bank book and in their own accounts.

On the 28th of February, 1851, P. Delany started for Philadelphia with the said bill of exchange in his possession, but having died on the way, his body was brought back to Pittsburgh. Before this was done, however, and immediately after his decease, defendants directed Drexel & Co. to refuse payment of the draft.

Afterward, the defendants' agent called on the person having the body in charge, and procured from him the surrender of the said bill of exchange, and gave to him the check for $802, drawn by Patrick Delany. The defendants then credited the amount of the check on their account, leaving the former balance of $38 97, and cancelled the bill of exchange. The plaintiffs having taken out letters of administration, demanded the bill of exchange from defendants, which was refused, and the present action accordingly brought.

The case was argued by Messrs. Shaler and Umbstaetter for the plaintiffs, who cited 10 S. & R. 10 and 4 Barr 32. They contended that the draft was an actual transfer of the amount of $800 in the hands of Drexel & Co. to Patrick Delany, and that the rights of the parties became fixed at his death. He had then a right to that amount of money, and the conversion of the bill of exchange was the same as the taking of the money from his pocket, to which no set off could be admitted.

Selden, for defendants, admitted that no set off was allowable in actions of tort, and that undoubtedly the plaintiffs could sustain their action. But the measure of damages, he insisted, was the worth of the bill of exchange or the amount which could be recovered upon it in an action. No suit could be sustained upon. it against any person but the defendants, and as against them it was liable to a set off of their claim, and nothing could be recovered upon it. In support of his position he cited 2 Rawle 247, 7 Cowen 241.

The opinion was delivered by

WILLIAMS, A. J.-In this case a verdict has been rendered in favor of the plaintiff, for the full amount of the draft, subject to the opinion of the Court upon the reserved point, viz.: whether the plaintiffs, under the evidence in the case, are entitled to recover the full amount of the draft, or only nominal damagesthe Court to enter judgment in favor of the plaintiffs on the verdict, if of the opinion that they are entitled to recover the same; but if the Court shall be of the opinion that the plaintiffs are not entitled to recover the full amount of the draft, then judgment to be entered in favor of plaintiffs for six cents damages non obstante veredicto.

The defendants committed a wrong in obtaining possession of the draft in the manner they did. It belonged to Delany, at the time of his death, and the plaintiffs, as his representatives, are clearly entitled to maintain the action, and to recover, as damages, the amount recoverable on the draft. The case of Romig's Administrator v. Romig, 2 Rawle 241, rules this point, and is decisive of the reserved question. It is there held, that, in trover for bonds, the measure of damages is the amount which may be recovered on them.

What amount, then, was recoverable on the draft, at the time of its conversion? The defendants had previously forbidden its acceptance or payment by Drexel & Co., and the only parties to whom the plaintiffs could look for its payment where the defendants themselves, to whom the plaintiffs intestate was indebted in an amount exceeding the amount of the draft. In an action against them to enforce payment of the draft, the defendants

might set off the debt due them by the plaintiffs' intestate. The draft was, in reality, worth nothing to the plaintiffs at the time of its conversion, for nothing could be recovered on it. Still, the plaintiffs were entitled to its possession, and the defendants were guilty of a wrongful act in its conversion. The plaintiffs are consequently entitled to recover nominal damages. It is therefore ordered, that judgment be entered by the prothonotary in favor of the plaintiffs, for six cents damages, and costs of suit non obstante veredicto.

In the Circuit Court of the United States, Western District of Pennsylvania.

RICH & Co. v. LIPPINCOTT & BAKER.

(Vol. I., p. 25, 1853.)

1. A question of infringement is one of fact, which it is the province of the jury to decide. An infringement is said to take place whenever a party avails himself of the invention of the patentee, without such variation as will constitute a new invention.

2. If the plaintiff has discovered some substance possessing the requisite qualities for the purpose required, he has a right to patent his invention. But the defendant has an equal right to make or compound any other, or essentially different composition or substance for the same purpose.

3. The mere speculation of a philosopher or mechanic, never put into actual practice or operation, will not deprive a subsequent inventor, who has employed his labor and talents in putting it into practice, of the reward due to his ingenuity and enterprise.

4. A first inventor cannot acquire a good title to a patent, if he suffers the thing invented to go into public use, more than two years before he makes application for a patent.

CHARGE to the jury by

IRWIN, J.—The cases you are sworn to try are two actions between the same parties, brought for an infringement of the same patent; the questions involved in each are the same. They have been consolidated and tried as one action. But, in case you assess damages for the plaintiff, you will have to apportion them to each case.

The plaintiffs claim to be the assignees of a patent granted to Daniel Fitzgerald, on the 1st of June, 1843. In April, 1839, previous to the issuing of this patent, Daniel Fitzgerald sold and assigned his inchoate right to his discovery or invention to Enos Wilder. This assignment though antecedent to the patent, has been decided be a valid, legal assignment of the invention afterwards patented in the name of the inventor.

Enos Wilder afterwards assigned (September 1st, 1843) all his right and title to Benjamin G. Wilder, and, on the 25th of June, 1847, Benjamin G. Wilder assigned the same (with the exception of New York and the New England states) to Crandall Rich, Almond Ruff and John G. Staems, the plaintiffs in this case.

The patent purports to be "for an improvement in fire-proof chests and safes."

The specification is as follows. It is important that you note particularly the claim as stated in the specification, of what the patentee especially sets forth as his peculiar invention. The law, for good reasons, requires this to be set forth precisely and specifically, and concludes the patentee from alleging it to be different, or more enlarged than he has thus set it forth.

It is in these words: "I therefore claim as my discovery and invention, and improvement, the application and use of plaster of Paris, or gypsum in its raw state or prepared as above, either alone or with mica, in the construction of iron chests or safes, in the manner above described, or in any other manner substantially the same."

If the plaintiff be the first and original inventor or discoverer of the application, and use of plaster of Paris to this purpose, and this application produced a new and useful result, it cannot be doubted that it is the proper subject of a patent.

It is not for the discovery of the fact or principle, that gypsum has certain qualities not before known, to wit, that it was a non-conductor of heat, but it is for the application of this substance possessing such qualities to produce a beneficial result, a manufacture or machine, better than any before known.

Assuming for the present that the patentee is the original inventor of the subject-matter of this patent (of which the patent