Hammond v. Franklin, a re-issue. He thereupon abandoned that application and obtained leave to withdraw the model, with a view to filing it in an application for the re-issue of a former patent for the same invention. Application was made for the re-issue and it was granted, as it is in suit, but upon what communications between him and the Department does not appear. In the re-issue, the construction of the car itself, with its compartments, is the same in all respects as in the original. The ice receptacle is the same, except that, in the re-issue, it is described as extending from near the bottom of the chamber, but leaving a space between it and the bottom of the chamber, to the top of the chamber; and that its sides are slightly inclined or tapering, from the top to the bottom, so that the bottom is less in area than the top. This is stated to be an essential feature to the complete and successful operation of the invention, for, the inclined sides will keep the melting ice in close contact with them, causing the moisture to be frozen upon them, as long as any ice remains; but it is added, that the walls may be "perpendicular or equilateral,” but that the inclined sides are preferred as best in effect. One drawing shows the ice receptacle with inclined sides near a side or end of the inner chamber, raised from the floor and extending to the top of the chamber. It is stated in the specification, that, by the arrangement of the ice receptacle in and with relation to the chamber as shown, only a thin film of air lies between the top of the receptacle and wall of the chamber; that the air in this thin space is colder than in any other portion of the chamber, and hence there is a current or circulation of the air from the thin space between the top of the receptacle and wall of the chamber, downward and under the receptacle, into the space in the chamber between the ice receptacle and the opposite wall, until the whole air in the chamber is at the same temperature. This is all that is said in the specification, apart from the claims, about the production of currents for equalizing temperature. This thin space and its film of air is treated on both sides of the case as being between the upper surface of the ice receptacle and the ceil Hammond v. Franklin. ing of the chamber, so that the falling of the cold air would create a current over the top, and down behind the receptacle, but such does not appear to me to be the case. The receptacle is described and shown everywhere as extending to the top of the chamber; the current is described as being downward and under, but not over, the receptacle; and the third claim, which is framed upon this part of the specification, is for the receptacle, "so constructed and arranged as to be pendent from the inner upper wall" of the chamber, "and allowing a free circulation underneath the receptacle, and on all sides, substantially as described." The thin space would seem to be between the projecting top of the inclined side of the receptacle and wall. The descending cold air would be replaced by currents around the ends and along the sides of the receptacle, and would thus pass under it, and thereby fill the whole description, and not contradict any of it. The first two claims of the re-issue are the same as the two claims of the original. There are two others in the re-issue, the third being as just stated, and the fourth is for the construction and relative arrangement of the ice receptacle with the chamber, whereby the moisture in the chamber is frozen to the walls of the receptacle, substantially in the manner and by the means described. The defendant does not have the construction, arrangement, or combination of either of the claims of the original patent, and infringement of the two new claims only is relied upon. The claims of the original are enlarged in the re-issue, and the suit rests upon the enlargement. But little more than two months, and less than three, elapsed between the date of the original and the application for the re-issue. This does not seem to be too long a time to take before proceeding for an enlargement of the claims to cover parts of the invention described but not claimed in the original, especially when not shown to be done to cover the progress of other inventors. The decided cases appear to warrant this course. (Miller v. Brass Co., 104 U. S., 352; James v. Campbell, 104 U. S., 371; Clements v. Odorless Apparatus Co., 109 U. S., 641; Hartshorn v. Eagle VOL. XXIII.—6 Hammond v. Franklin. But where the re-issue Shade Roller Co., 18 Fed. Rep., 90.) is for an invention not shown in the original, or a different one from that shown there, neither promptitude nor delay in making application for the re-issue would seem to make any difference. It is understood that an inventor cannot at any time take out a valid re-issue for an invention not shown in the original, in some manner, so as to be discernible there. (Gill v. Wells, 22 Wall., 1; Russell v. Dodge, 93 U. S., 460; Manufacturing Co. v. Ladd, 102 U. S., 408.) The evidence tends to show that Davis made a refrigerating apparatus showing the principle of these new claims, and of the alleged infringement, prior to his application for the original patent; and it is urged that this shows that the invention which he undertook and intended to patent included the same thing, and that the re-issue is for the same invention. The same thing was done in Manufacturing Co. v. Ladd, (supra,) and the Court said that if it were true it would be nothing to the purpose; that there was no safe or just rule but that which confines a re-issued patent to the same invention which was described or indicated in the original. It is also urged, that the action of the Patent Office, in suggesting an application for a re-issue when the application for a new patent was made, should have weight in upholding the re-issue. But that application was for a patent for a different invention from that to which the new claims of the re-issue are applicable. That was for an arrangement to have the air still; this for having it in circulation. Therefore, if a new invention was taken into the re-issue, it was not that, and the suggestion, if it would have any weight when acted upon, was not acted upon for this purpose. Upon this question, the original patent as it was made, not as it might have been made, is to be compared with the re-issued patent as it is. Now, the invention sought to be covered by these new claims consists essentially in the production of circulation of the air about the ice receptacle, by the falling of the cold and heavy air behind it and passing under it, to replace the warmer air taking the place of the falling cold air, and the freezing of the Hammond v. Franklin. moisture taken by the warmer air from the articles to be preserved, to the surfaces of the ice receptacle, as it passes them. The original patent does not mention this operation nor this result. If the ice receptacle was raised from the floor so as to make an air passage under it, this result would be produced. It would, doubtless, be well enough, if the patent showed the parts arranged to produce the result, without saying expressly that they would produce it. It is an important question, therefore, whether the original patent shows the ice receptacle so raised from the floor of the compartment. It is described as extending from the bottom to the top of the compartment. The model shows it resting on the floor of the compartment. The drawing shows nothing to support it raised. Figures 2 and 3 of the drawings show cross sections of it touching a line at the bottom. It is not clear what that line is intended to represent; if the floor, then the drawing shows the receptacle resting on the floor; if another part of the receptacle, then it may show it raised. But, the cross-sections of the structure are at such points that there would be no part of the receptacle there to be represented by this line. The drawings themselves are ambiguous on this point, and do not appear to be sufficiently clear to control the expressions of the specifications and model. Probably no one, not even of those skilled in the art or science to which this invention appertains, would read the specifications, examine the model and drawings, without taking any suggestions from without them, and perceive any invention there depending at all upon a passage for air under the ice receptacle; certainly, what the inventor delivered was not a written description of an invention or discovery covering such device, in such full, clear and exact terms as to enable any person so skilled to construct and use it, as required by the statute under which the patent was granted. (Act of July 4th, 1836, § 6, 5 U. S. Stat. at Large, 119.) The conclusion follows, that the invention described in the re-issue, and that part of it relied upon, is a different invention from that described in the original, and that, to this extent at least, the re-issue is void. Dow v. The Memphis and Little Rock Railroad Company. Let a decree be entered dismissing the bill of complaint, with costs. Livingston Gifford, for the plaintiff. Charles Levi Woodbury, for the defendant. ROBERT K. Dow AND OTHERS V8. THE MEMPHIS AND LITTLE ROCK RAILROAD COMPANY. IN EQUITY. The trustees in a railroad mortgage to secure $2,600,000 of bonds, successfully defended, in this Court, a suit brought by the railroad company to set aside the mortgage. The Court allowed to them $17,000, as counsel fees, and an additional sum for disbursements, and $26,000 for their personal compensation, being at the rate of commission allowed by the law of the State, to trustees, for receiving and paying out $2,600,000 of money, and apportioned the sum among the trustees, according to their services. (Before WALLACE, J., Southern District of New York, January 19th, 1885.) WALLACE, J. The defendant filed a bill to set aside a mortgage for $2,600,000 to trustees for the holders of the mortgage bonds. (22 Blatchf. C. C. R., 48.) The mortgage, among other things, provided that the trustees should receive a reasonable compensation for executing their trust. The trustees filed the present cross bill, and obtained a decree adjudging the complainant to pay to them the amount of compensation to which they are entitled, and the costs, charges, and expenditures which they have incurred in defending their trust, by reason of the suit brought to set aside the mortgage. It was referred to a master to take an account and report. He has reported that they should be allowed the sum of $17,000 for counsel fees, and an additional sum for disbursements actually incurred in defending the suit. He has |