Opinion of the Court.

gether, gave to these simple contract creditors any lien upon the property of the corporation, nor charged any direct trust thereon.

With respect to the propriety of the decree of dismissal in this suit after the entry of the decree of foreclosure in the trustee suit, the case of Stout v. Lye, 103 U. S. 66, is conclusive. Indeed, that case is conclusive of every question in this, except such as arise from the fact that the debtor is a corporation rather than an individual. It appeared that, pending a foreclosure suit, J. W. and J. O. Stout obtained a judgment against the mortgagor on an unsecured claim. They thereupon instituted a suit, making both mortgagee and mortgagor parties defendant, to set aside the mortgage as illegal; or, if not illegal, to have its amount reduced by certain payments of usurious interest. While this suit was pending the foreclosure suit passed into decree, the Stouts having never been made parties or entered an appearance in that suit. Thereupon their suit was dismissed, and such dismissal was held by this court proper, on the ground that the Stouts, being simple contract creditors at the time the foreclosure suit was commenced, were not only unnecessary but improper parties. "If they had been made parties when the suit was begun, they could have done nothing by way of defence to the action until they had acquired some specific interest in the mortgaged property. As creditors at large they were powerless in respect to the foreclosure proceedings, but when they obtained their judgment, not before, they were in a position to contest in all legitimate ways the validity and extent of the superior lien which the bank asserted on the property, in which, by the judgment, they had acquired a specific interest." And on the further ground that the mortgagor represented in the foreclosure suit not merely himself, but all parties who, like the Stouts, acquired any interest in the property since the commencement of that suit.

So here these plaintiffs were simple contract creditors when the trustee's suit was commenced. That suit passed to decree of foreclosure, and up to that time these plaintiffs had acquired no specific lien upon the property. They entered no appear

Opinion of the Court.

ance in that suit; did not intervene or claim any rights in the property, and they were represented in that suit by the corporation, the party under whom both they and the trustee claimed. A decree of dismissal was, therefore, proper. It appears in the record as a decree upon the merits. It should have been for want of jurisdiction, and to that extent the decree as entered will be modified. The appellants will be charged with all the costs in the case.

Dismissed for want of jurisdiction.

MR. JUSTICE BROWN and MR. JUSTICE JACKSON dissented.

MAGIN ". KARLE.

MAGIN v. LEHMAN.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.

Nos. 84, 85. Argued November 15, 16, 1893. - Decided November 27, 1893.

Letters patent 248,646, granted to Charles Gordon, October 25, 1881, for "an improved apparatus for cooling and drawing beer" are void for want of patentable novelty, and the invention patented was anticipated.

THE case is stated in the opinion.

Mr. John R. Bennett, (with whom was Mr. George B. Selden on the brief,) for appellant.

Mr. Josiah Sullivan for appellee.

MR. JUSTICE JACKSON delivered the opinion of the court.

These two causes present the same questions on the same state of facts. They were heard in the lower court and in this court as practically one case, and will therefore be considered

Opinion of the Court.

and determined together. The suits were brought by the appellant as assignee of letters patent No. 248,646, granted to Charles Gordon, October 25, 1881, for "an improved apparatus for cooling and drawing beer," against the respective appellees for the alleged infringement of the patent. The defences

interposed by the answer of each respondent were, want of patentable novelty in the invention covered by the letters patent, the anticipation thereof by certain prior devices, and non-infringement. The latter defence was not insisted on, either in the court below or in this court, the main defence relied on being that of anticipation by a prior apparatus used for the same purpose before the date of the Gordon invention. Upon this question much proof was taken on both sides.

The causes were heard before Mr. Justice Blatchford, sitting in the Circuit Court of the United States for the Northern District of New York, who found from the proof that the existence of the prior anticipating device was clearly established, and shown to have been in practical use before the Gordon invention. The court said:

"This is the same patent which was involved in the suits of Magin v. McKay and Magin v. Welker, decided by me in this court August 20, 1885, 24 Fed. Rep. 743. In the opinion. in those cases, the material parts of the specification and the four claims are set forth, and the operation of the apparatus is described. It was there held that, so far as claims 1 and 4 were concerned, the invention was anticipated by an apparatus put in use by one Meinhard, in Rochester, New York, in the summer of 1877, and which was continued in use about four years. A description was given of that apparatus, and it was held, on the evidence, that it was practical and successful, and embodied the same principle as that of Gordon; that it was continued in use for nearly two years after Gordon obtained his patent; and that, although it did not contain the non-conducting jacket surrounding the outer wall of the cold-air passage, which was a feature in claim 3 of the patent, there was no patentable invention in adding a non-conducting jacket to the elements found in claim 1, or to those found in claim 4.

Opinion of the Court.

Infringement of claim 2 was not alleged in those cases. The bills were dismissed on the ground of the prior existence of the Meinhard apparatus.

"In the present suits infringement is alleged in each of them of claims 1 and 4 of the Gordon patent. The testimony on both sides taken in the McKay and Welker suits in regard to the Meinhard apparatus is introduced in evidence in the present cases, and voluminous proofs in addition have been taken by both parties in regard to that apparatus.

"A careful examination of all the evidence, with the aid of exhaustive briefs for the respective parties, confirms me in the conclusion at which I arrived in the McKay and Welker cases, that the invention embodied in claims 1 and 4 of the Gordon patent existed in the Meinhard apparatus prior to the time when the invention was made by Gordon, and that that apparatus was practical and successful." 40 Fed. Rep. 155.

Having reached this conclusion the court dismissed the bill, and from that decree the present appeals are prosecuted.

The character of the invention, so far as relates to the first and fourth claims, which are the only claims alleged to be infringed by the appellees, is thus set forth in the specification:

"My invention relates to an improved apparatus having for its object the keeping of beer, ale, or other liquid at a low temperature during the operation of drawing the same for consumption; and it consists in surrounding the supply plate through which the beer is delivered to the faucet with a coldair passage, for the purpose of maintaining a low temperature in the liquid in the supply pipe."

The first and fourth claims are as follows:

"1. The combination of the ice-box D, supply pipe B, faucet C, and the cold-air passage H, surrounding the supply pipe, substantially as and for the purposes set forth."

"4. The combination of the ice-box D, supply pipe B, faucet C, lower chamber F, and the cold-air passage H, communicating between the ice-box and the chamber, substantially as described."

These two claims are substantially the same, the only difference between them being that the fourth claim includes the

Opinion of the Court.

lower chamber F, which is not specifically mentioned as an element of the combination in the first claim.

The apparatus consists of an upper or saloon ice-box, provided with a suitable faucet and a chamber located in the cellar, which is connected with the upper or saloon ice-box by an air passage, through which passes the beer supply pipe conveying the beer from the keg in the cellar chamber to the faucet in the upper or saloon ice-box. The air cooled by the ice in the upper or saloon ice-box, and the water produced by the melting of the ice, flow down through the air passage, coming in contact with the beer-supply pipe, thereby reducing the temperature of the beer contained therein, and passing through it. The beer is forced from the keg upward through the beer supply pipe to the faucet by air pressure introduced in the keg by any suitable air apparatus.

Gordon made this invention in June, 1879. The anticipating apparatus was used by one Meinhard, in Rochester, New York, in 1877, or early in 1878. That apparatus had the upper ice-box, faucets, the lower chamber, and the supply pipe extending from the upper to the lower chamber, and the supply pipe was surrounded or encased in another pipe which formed an air passage communication between the upper icebox and the lower chamber. Each supply pipe led to a barrel or keg in the lower chamber, and the upper portion of the supply pipe was surrounded or encased in a tin pipe, while the lower part was enclosed in a rubber hose. The water of the melted ice, and the cold air from the upper ice-box, flowed down around the supply pipe through this tin and rubber encasement. It was claimed that this apparatus was a practical and successful one, and embodied the same principle as that of the Gordon device, though it may have been inferior in degree of utility and perfection, and that the Gordon apparatus was simply an improvement, which did not involve any patentable invention.

It is purely a question of fact, to be determined from the testimony in the cases, whether the anticipating Meinhard apparatus actually existed, as alleged by the appellees. They have established by a number of respectable witnesses that