cause the verdict was against the weight of evidence; (3) because the damages were excessive. The first and second points go to the extent of challenging the propriety of any verdict for the plaintiff. The third, falling short of this, has reference only to the amount of damages. On the argument of the rule, the counsel of the defendant did not dwell upon the first and second, but laid much stress upon the third point.

We have given more than ordinary attention to the motion, (1) because if the court had been charged with the responsibility of setting the amount of the damages which ought to have been recovered it would probably have awarded a smaller sum than the jury gave; and (2) because the case is one where the defendant has no opportunity of invoking the aid of an appellate court to correct any errors of judgment which may be committed here; but, after a careful consideration of all the points, we have not been able to find any ground which will justify the court in disturbing the verdict. The suit was fairly tried by able and experienced counsel. There was no pretense that anything more than compensatory damages should be demanded or awarded. The real plaintiff was a child of tender years, who, it was alleged, was run over in one of the streets of the city of New York by a beer-wagon of the defendant, in consequence of the neglect and careless driving of his servant, and a compound fracture inflicted on the elbow of her left arm, which, the medical testimony went far to show, had not only occasioned much suffering in the past, but, by hindering a free use of the arm, would prove a life-long injury in the future.

It is not, therefore, one of the class of cases where a legal measure of damages exists, as where one sues in trespass for an injury to his freehold, and where no right is involved beyond a mere question of property. In such cases the rule to be applied is a fair compensation for the injury done, as shown by the evidence, and the verdict is under the control of the court. Berry ads. Vreeland, 1 Zab. 183. But the action in this case is for a personal tort, and the damages cannot be measured by any fixed standard; they rest in the sound discretion of the jury, and that discretion cannot be interfered with by the court in the exercise of its discretion. The rule here is that the judgment. of the jury, and not the opinion of the court, must govern in the assessment of damages, unless they are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case. See Wood's Mayne, Dam. 751.

The jury was an intelligent one, and there is no evidence that the jurors were influenced by any of these motives. The damages are not so excessive that the court would be warranted in inferring from their amount alone that they were thus influenced. The elements of injury which they were to consider in making up their verdict were carefully stated to them by the court, and we know of no legal measure

or criterion to which we may subject their judgment or determine its reasonableness.

The rule to show cause is discharged.

UNITED STATES V. PAYNE and others.

(District Court, D. Kansas. December 11, 1884.)

1. CONSPIRACY TO COMMIT OFFENSE AGAINST THE UNITED STATES-Settlement ON AND RETURN TO INDIAN COUNTRY.

A conspiracy to make settlement on Indian lands and to return to the Indian country, after being removed therefrom, is not an indictable offense, within the meaning of the conspiracy clause of chapter 8, Supp. Rev. St. 484, or one that can be prosecuted by criminal proceedings.

2. SAME-PENALTY, HOW RECOVERED.

The proper proceeding in such a case is by action under Rev. St. § 2124, to recover the penalty prescribed for such offenses.

On Motion to Quash Indictment.

J. R. Hallowell, U. S. Atty., for the United States.

J. W. McDonald, for defendants.

FOSTER, J. The indictment in this case charges the defendants with conspiring and confederating together to commit an offense against the United States under chapter 8, Supp. Rev. St. 484. The offense alleged, in brief, is that the defendants conspired and confederated together among themselves and with other persons to enter upon and make settlement on certain lands belonging, secured, and granted by treaty of the United States to certain Indian tribes, and lying between the Canadian and north fork of the Canadian rivers, in the Indian Territory, and commonly known as the Oklahoma lands. And also hav ing, before that time, been removed from the Indian country by the military forces of the United States, did conspire and confederate together, and with other persons, to return to said Indian country commonly known as the Oklahoma country, and also to enter upon lands known as the Cherokee strip or outlet in said Indian country; and charging defendants with certain overt acts to effect the object of said conspiracy, etc.

The law concerning the entering and making settlement on Indian lands is found in section 2118, Rev. St. p. 370, tit. 38, and reads as follows:

"Every person who makes a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe, or surveys or attempts to survey such lands, or to designate any of the boundaries by marking trees, or otherwise, is liable to a penalty of one thousand dollars. The president may, moreover, take such measures and employ such military force as he may judge necessary to remove any such person from the lands." The law concerning the removal of persons from the Indian country further provides as follows:

"Sec. 2147. The superintendent of Indian affairs and the Indian agents and subagents shall have authority to remove from the Indian country all persons found therein contrary to law, and the president is authorized to direct the military force to be employed in such removal.

"Sec. 2148. If any person who has been removed from the Indian country shall thereafter at any time return or be found within the Indian country, he shall be liable to a penalty of one thousand dollars."

It will be observed that the law fixes a penalty of $1,000 in either case, and section 2124 defines how this penalty shall be enforced. It reads as follows:

"All penalties which shall accrue under this title shall be sued for and recovered in an action in the nature of an action of debt, in the name of the United States, before any court having jurisdiction of the same in any state or territory in which the defendant shall be arrested or found, the one-half to the use of the informer and the other half to the use of the United States, except when the prosecution shall be first instituted on behalf of the United States, in which case the whole shall be to their use."

The act to accomplish which this conspiracy was formed, i. e., to make settlement on Indian lands, and to return to the Indian. country after being removed therefrom, might be termed an offense against the United States, but it is evidently not an indictable offense, nor could it be prosecuted by criminal proceedings. It is an offense created by statute, with a definite penalty attached, and the mode prescribed for enforcing the penalty. The prosecution may be instituted by an informer, and thus become a qui tam action. We find all through the acts of congress a distinction made between prosecutions for crimes and offenses, and suits for penalties and forfeitures. Thus, in defining the jurisdiction of the district court, (Rev. St. § 563,) after defining its jurisdiction of crimes and offenses, it reads as follows: "Third, of all suits for penalties and forfeitures incurred under any law of the United States." Again, in defining the jurisdiction of the circuit court, (Rev. St. § 629,) subdivision 20 gives the circuit court jurisdiction with the district court of crimes and offenses, etc.; but in subdivision 4 of the same section, defining suits of which the court shall have jurisdiction, it expressly excepts from the circuit court jurisdiction of suits for penalties and forfeitures.

In section 711, defining the general jurisdiction of the United States courts, this distinction is again observed. Section 732 provides where such suits may be brought. Section 1047 prescribes the period of limitation in such suits. There are various penalties prescribed for violations of the internal revenue and navigation laws, and sections 3213 and 4234 appertain to those subjects. From these several provisions of the statutes I am of the opinion that the acts charged do not show a conspiracy to commit an offense against the United States within the meaning of the conspiracy clause of chapter 8, Supp. Rev. St., and for this reason these indictments must be quashed.

GILBERT V. WEIR PLOW Co.

(Circuit Court, N. D. Illinois. November 24, 1884.)

PATENTS FOR INVENTIONS-ANTICIPATION.

Where the devices used were all anticipated by devices used in older inventions, the mere circumstance of a different method of producing the same result in a combination will not entitle a claimant to the exclusive right to the use of such combination.

In Equity.

Geo. W. Dyer, for complainant.

West & Bond, for defendant.

BLODGETT, J. This is a suit to restrain the infringement of patent No. 88,413, issued as of March 23, 1869, to John G. Robinson, for an "improvement in gang and trench plows," and for an accounting for profits and damages. This patent covers several devices, but the only one in controversy in this suit is what the patentee describes "as a device for adjusting the depth of the furrows." It consists of a movable arm or wheel-journal for the right hand, or furrow-wheel, with an angular lever so connected with this movable arm that this wheel-arm can be raised above or lowered below the end of the axle. The wheel-arm or journal is fastened horizontally to a grooved vertical plate, which is arranged to move on a plate fixed vertically to the end of the axle, and an angular lever fulcrumed on the axle is connected by a pitman with the grooved plate which carries the wheel, so that the axle may be raised or lowered by the movement of this lever in the notches of a ratcheted bar with which it is held in engagement by a spring. This feature of the patent is covered by the first claim, which is:

(1) "The combination of the angular lever, A, ratchet, C, and spring, B, with the pitman, D, and sliding axle-tree arm, E, in the manner described and for the purposes set forth."

The defenses are (1) that defendant does not infringe; (2) that the patent is void for want of novelty.

The proof in this case shows that wheel-arms, which could be moved upon the end of the axle of a wheeled cultivator or plow so as to bring the axle, or one end of it, above or below the center of the wheel, are old, and were well known long prior to the issue of this patent. In fact, it is only the axle inside the hub of the wheel which moves up or down in the complainant's device, or any of the devices shown in the proof, as the wheel always rests upon the ground, and the axle is the part of the device which changes its position. We find in the patent of Joseph Vowles, for a cultivator, issued in February, 1860, a wheel-spindle, vertically movable on the end of the axle, the slides, or plates, to which the spindle or wheel-arms were fixed, having a rack, and levers being arranged with teeth to engage with the teeth or cogs of the rack, so as to move the wheel-arm up or down with these levers.

Robinson, the patentee of complainant's device, also obtained, in December, 1860, a patent for an "improvement in plows," wherein he showed a wheel-arm arranged to be moved up or down so as to raise or lower the plows; but he showed no levers for this operation, the movable plate carrying the wheel-arm being held in place by pins, which were taken out to make the adjustment, and then replaced in other holes, as provided. In May, 1861, another patent was issued to Vowles for an "improvement in cultivators," showing the same device for a movable wheel-arm that was shown in his patent of February, 1860. In the patent of Edwin J. Fraser, issued April 23, 1861, for an "improvement in plows," a movable wheel-arm is shown, by which the axle is raised and lowered so as to adjust the axle horizontally when one wheel is running in the furrow. This adjustment is made by means of a lever with an eccentric or sector fulcrumed on the top of the vertical guide or socket in which the wheel-arm was moved. In the patent granted to J. L. & W. L. Black, December 19, 1865, a movable wheel-arm is shown, actuated; that is, moved up or down by means of a chain fixed to the slide which carried the movable wheel-arm which is worked by a bent or angular lever connected with the chain. So, too, the patent issued to A. Hammond, issued March 27, 1866, shows a wheel-arm movable up and down by means of a screw engaging in a toothed rack on the plate to which the movable arm is fixed.

It therefore clearly appears that devices for adjusting the height of one or both ends of the axle in relation to the center of the wheel when applied to cultivators and plows was old before the patent now before the court was granted, and that in all the prior patents substantially the same mode of securing the movability of the axle was adopted; that is, the wheel-arm was made fast to a vertical plate, which is either grooved so as to slide on a vertical plate fixed to the end of the axle, or the plate fixed to the end of the axle is grooved, and the plate fixed to the end of the arms slides in such grooves. We also find that in the Vowles patents of 1860 and 1861 the wheel-arm is actuated by means of a lever having a toothed segment at the end which engages with the teeth or cogs of a rack attached to the plate which carries the wheel-arm; this segmental lever being fulcrumed on a pin so as to move the plate up or down without the aid of a connecting link or pitman. In the Fraser patent of 1861 a sector or eccentric is applied to raise or lower this movable wheel-arm. In the patent of Black of December, 1865, a bent or angular lever is shown attached to a chain. connected with the sliding-plate fixed to the wheel-arm; and it also shows an arched or segment-shaped notched bar so arranged as to engage with or hold the lever in any place within its range; in other words, a ratchet bar.

Here we have in these older devices, as it seems to me, all the elements of the first claim of this Robinson patent. Vowles' two patents show levers with segments or eccentrics, and the teeth or cogs