Opinion of the Court.

injunction. The court denied a rehearing, and the case was referred to a master, who proceeded to take testimony in

respect to the damages, and a final decree was entered. have not felt at liberty to rehearing.

submitted a report, upon which Under these circumstances, we consider the affidavits for a

But assuming that the court was correct in its conclusion that the testimony of Wright and Blakesley, with respect to the process of immersing the bare strip of metal in the dextrine, and then covering it, should be disregarded, by reason of their omission to mention the fact in their affidavits to oppose the injunction, the question still remains whether the process about which they did testify, and which it is admitted Blakesley did adopt, was not a substantial anticipation of the Mills and Hershey patent. This, which is known as the double-cover process, consisted in covering the plain strip of metal with cotton, and conducting the strip so covered through a dish of dextrine under a roller journalled in the dish, and thus saturating the cotton thoroughly throughout its length; thence to a pair of stripping rolls, which deprived it of the surplus cement, when the cover was braided on, so that, as he states, "all three-core, cotton, cover and silk cover were cemented together." Blakesley states that the cotton strands did not make as compact a braid as silk, but left the meshes somewhat open, so as to allow the cement to circulate more freely through the covering. If, as he states to have been the case, the saturation of the cotton was so thorough that all three-core, cotton cover, and silk cover were cemented together, it is difficult to see why this process did not cover everything that is claimed for the Mills and Hershey patent. The advantage of cementing the braid to the core throughout its entire length is stated in their patent to be "so that when cut into proper lengths for use the ends will not fray out, but remain the same into whatever number of pieces the crimper may be divided," while the outer surface of the braid is left soft and unsaturated.

This was precisely the object sought to be accomplished, though for a temporary purpose, by Wright, in his first experi

Opinion of the Court.

ments, by applying dextrine to the braided covering at intervals of two or three inches, and by Blakesley in the several processes used by him, including the one which is charged to be an infringement, and which consists in enclosing the metal core in long strips of paper passed through a bath of dextrine, before the braided covering is applied. But whether Blakesley applied the dextrine to the bare metal in the manner described in the Mills and Hershey patent, or to the metal after it was covered with the cotton braid, makes apparently little practical difference with respect to fraying out, and was a matter which rested in the judgment of the manufacturer. If either plan were known, the adoption of the other would involve no invention, the dextrine in both cases being used for the same object, namely, to prevent the silk braid from fraying at the point where it is cut. It was a matter of simple mechanical skill to determine whether that object were better accomplished by running the bare metal or the covered metal through the dextrine before the outer braid of silk was applied. If the meshes of the cotton were loose or open, the adhesion of the core would be amply sufficient to prevent the fraying out, which it was the object of the patent to accomplish. The bath of dextrine was the essential feature of both devices, and, even if the double cover were less efficient than the other, it required no exercise of the inventive faculty to omit the cotton cover and immerse the bare metal.

It is evident that if Mills and Hershey had been the first to use the process described in this patent of immersing the bare metal in a bath of dextrine and then covering it with a fibrous coating, the double-cover process of Blakesley would have been an infringement. The intervention of a loose cotton covering between the outer braid and the bare metal would have been treated simply as an evasion.

In an examination made of the plaintiffs' and defendants' exhibits put in evidence in this case it appears in fact there is very little adhesion between the covering and the core in the plaintiffs' device, and none at all in the defendants', though it is possible this may be due to their age. Such adhesion as there is in plaintiffs' crimpers seems to be due rather to the

Statement of the Case.

pressure of the braid upon the core than to the use of an adhesive material.

The decree of the court below must be

Reversed and the case remanded with directions to dismiss the bill.

HAMMOND v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY.

HAMMOND v. GORDON.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

Nos. 937, 938. Submitted December 11, 1893. - Decided December 18, 1893.

The court follows Hammond v. Johnston, 142 U. S. 73, on a substantially similar state of facts, and holds that the ruling of the state court was broad enough to maintain the judgment, without considering the Federal question.

MOTION to dismiss. By stipulation of counsel in No. 938, both cases were heard on the printed record in No. 937, it being "agreed that for all purposes of trial .the records in both cases are identical."

The Supreme Court of Missouri in its opinion in that case said: "The facts of the case, so far as they are material to the questions raised in this court, are these:

"Joseph Hunot claimed a head-right, under a concession dated in 1802, for 800 arpens of land in what is now New Madrid County. In 1810 he conveyed the land to Joseph Vandenbenden. The claim was presented to the first board of commissioners for confirmation, but the board rejected and disallowed it on the 31st January, 1811. It was presented again to Frederick Bates, recorder of land titles, and by him approved and recommended for confirmation on the 1st November, 1815. The claim was then confirmed by the act of Congress of April 29, 1816. Prior to the confirmation

Statement of the Case.

Vandenbenden conveyed the land to Rufus Easton by a deed dated the 4th November, 1815. It is conceded that the effect of this confirmation by Congress was to vest the legal title to the land in Easton.

"The land having been injured by earthquakes, Easton sought to exchange it for other lands under the provisions of the act of Congress of February 17, 1815, entitled An act for the relief of the inhabitants of the county of New Madrid, in the State of Missouri, who suffered by earthquakes.' On the 12th August, 1816, the recorder of land titles issued a certificate stating that Joseph Hunot or his legal representatives were entitled to locate 480 acres under the provisions of said act. This certificate is known as New Madrid certificate No. 161.

"On the 16th June, 1818, Rufus Easton, as the legal representative of Iunot, made application to locate the certificate on 480 acres of land, giving a general description of the land in the application. The deputy surveyor surveyed the land, and on the 23d June, 1819, certified this survey to the surveyor general. This survey was designated and is known as survey No. 2500. The surveyor general transmitted this surveyand the plat made a part of it—to the recorder on the 8th January, 1833. The latter recorded the same on the 2d February, 1833, and on that day issued a patent certificate to Joseph Hunot or his legal representatives for the 480 acres. This patent certificate was delivered to Peter Lindell, and it was forwarded to the General Land Office. Conflicting claims were interposed, so that the patent was not issued until the 13th August, 1859.

"As has been stated, Easton signified his desire to locate his certificate on the land on the 16th June, 1818, and the survey and plat were made on the 23d June, 1819, but the plat and survey were not filed with the recorder until early in January, 1833. Rufus Easton, by his warranty deed, dated the 29th September, 1823, acknowledged by him and his wife on the 9th October, 1823, and recorded on the 9th February, 1824, conveyed 240 of the 480 acres to Samuel Hammond. This deed contains a recital that it was made in consideration of $1583 to him in hand paid by said Samuel Hammond and pursuant

Statement of the Case.

to the conditions of a certain bond executed by the said Rufus Easton to said Samuel Hammond and James I. Wilkerson, dated September 3d, 1818.' On July 10, 1819, Easton conveyed the residue of the 480 acres to William Stokes. There is evidence that Hammond went into possession under his title bond and remained in possession for several years. On the 8th October, 1823, the sheriff sold the 240 acres to Richard Relf and Beverly Chew by virtue of an execution issued upon a judgment against Samuel Hammond, and executed to them a deed dated the 4th November, 1823. Relf and Chew conveyed the land to Peter Lindell in March, 1840. Lindell also held a deed to the land from Hunot, dated in 1834, and it appears that Lindell took possession at that date and continued his possession until his death, in 1861. The lot in question is part of the 240 acres, and was set off to one of the heirs of Lindell in the partition of that estate. The plaintiffs have acquired all the title of such heir by deeds in due form.

"The defendants claim title by deeds from the heirs of Samuel Hammond, obtained since 1870. They got possession of the land in 1879 by virtue of an execution on a judgment in an ejectment suit against the tenant of the heir of Lindell, to whom the lot had been assigned in the partition suit. The bank brought this suit to regain possession in 1882.

"1. From the foregoing statement it will be seen that all parties to this suit claim under Samuel Hammond, the defendants through the heirs of Hammond, and the plaintiffs under the sheriff's deed. The title is with the defendants, unless the sheriff's deed divested Samuel Hammond of his interest in the land. . . . We hold that the bond recited in the deed vested in Hammond an interest in the land which was subject to sale under an execution.

"2. The defendants insist, in the next place, that there was not a particle of title, legal or equitable, out of the United States and in Hammond at the date of the execution sale, and that he had nothing which could be sold, because the surveyor general did not file the survey with the recorder until early in 1833, which was about ten years after the land was sold under the execution. The claim that the doctrine of rela