Wall., 40, 20 L. ed., 252; The Lady Pike, 21 | cuit court decree, together with one half of the Wall., 8, 22 L. ed., 501. costs of the circuit court as there taxed; and Neither the evidence exhibited in the record that the steam-tug, her tackle, apparel and fur nor the suggestions of counsel contained in the niture be condeinned therefor, with the probrief filed by the appellants have had the effect vision that if either of the offending vessels is to create any doubts in the mind of the court unable to pay her moiety of the damage, interthat the conclusion of the subordinate courts est and cost, the libelant shall have a remedy that the steamer was in fault is correct. Nor over against the other offending vessel for any do we deem it necessary to repeat the reasons such balance, from which it follows that the degiven by those courts in support of the decrees cree in No. 185 is correct; that the appeal in in that regard. No. 212 must be sustained for the purpose of modifying the decree in No. 186, and for the purpose of making the addition thereto as specified in the opinion, and that the decree in No. 186 as modified, and with the addition thereto specified, be affirmed. The Dundee, 2 Hagg.. 143; The Atlas [supra]. Other maneuvers to avoid a collision, failing, it was the clear duty of the steamer to stop and reverse. Both vessels were in plain view of each other, in a water where there was plenty of sea-room, which of itself is sufficient to af ford a strong presumption that both were in fault. Enough appears to justify the conclusion that if the steamer had stopped her engines the collision never would have occurred, and it is hardly less probable that it would have been avoided if she had put her helm hard a-port; but it is not necessary to enter into speculations upon the subject, as it is highly probable, to say the least, that the collision might have been avoided if either of the offending vessels had performed their duty. 2. Before examining the appeal and cross appeal in the other case, it should be remarked that it is settled law that wrongful acts done by the co-operation and joint agency of two or more parties constitute them all wrong-doers, and parties in a collision case, such as shippers and consignees, bear no part of the loss in such a disaster, and that they are entitled to full compensation for the damage which they suffer from the wrong-doers, except in the case where their loss exceeds the amount of the interest which the owners of the colliding ship or ships has in the offending vessel, and the freight then pending. Suppose the value of each vessel in such a case is equal or more than equal to a moiety of the damages, interest and costs found due to the libelant, then it is clear that the decree should be for a moiety of the same against each of the offending vessels with a provision that if either party is unable to pay his moiety of the damage, interest and cost, the libelant shall have his remedy over against the other party. The Atlas, 93 U. S., 318, 23 L. ed., 868: The Alabama and the Game-Cock, 92 U. S., 695, 23 L. ed., 763; The Washington and the Gregory, 9 Wall., 516, 19 L. ed., 788; Steam-Dredge case [ante, 890]. Apply that rule to the present case, and it is clear that the decree in the second case should be modified by inserting the provision, that if either party is unable to pay his moiety of the damage, interest and cost, the libelant may have his remedy over against the other; and that a further decree be entered, that the libelant do recover against the steam-tug, her tackle, apparel and furniture, the sum of $1,851.66, being one half part of the damages sustained by the libelant by reason of the collision in the pleadings mentioned, including interest thereon to the date of the decree of the district court, and the sum of $337.14 for the interest on said half part to the date of the circuit court decree; and that the libelant do also recover of the steam-tug one half of the costs of said libelant incurred in the district court in the seizure of the steam-tug, with interest on the same to the date of the cir Owners of ships and vessels are not liable, under existing laws, for any loss, damage or injury by collision, if occasioned without their privity or knowledge, beyond the amount of their interest in such ship or vessel and her freight pending at the time the collision occurred; but the decree in a proceeding in rem against the vessel is not a decree against the owner, nor will it render the owner liable in such a case for any greater amount than what the Act of Congress limiting the liability of such owners allows. Such a decree in such a case is merely the ascertainment of the damage, interest and cost which the libelant has sustained by the collision, and which he is entitled to recover, provided the interest of the owners in the colliding vessel or vessels is sufficient to pay it, and not otherwise. Suffice it to say, that the libelant, in such a case and in such a proceeding, is entitled to recover for the loss which he sustained by the collision, whether the offending vessel is or is not of a value sufficient to discharge the amount. Admiralty courts, where there are two offending vessels, may, undoubtedly, divide the damages between them; but the libelant in such a case is entitled to full compensation if the offending vessels are of sufficient value, and in that event the decree in each case should provide that the libelant is entitled, if either party is unable to pay his moiety of damage, to have his remedy over against the other offending vessel. Atlas [supra]. The Decree in No. 185 affirmed. Decree modified in No. 212 as specified in the opinion of the court and by adding thereto a decree against the steam-tug for one half part of the damage, interest and cost sustained by the libelant. Decree in No. 186, as modified and enlarged, affirmed. I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the opinion of the Court in the cases of Steamboat City of Hartford, etc., et al., Appts., v. Hudson G. Rideout et al.; and The Steamboat City of Hartford, etc., et al., Appts., v. Charles Robinson; and Charles Robinson, Appt., v. The Hartford and New York Steamboat Company, Claimant, etc., Nos. 185, 212 and 186, October Term, 1877, as the same remains upon the files and records of said Supreme Court. In testimony whereof I hereunto subscribe my name and affix the seal of [L. S.] said Supreme Court, at the City of Washington, this 20th day of March, A. D. 1885. James H. McKenney, Clerk, Supreme Court, U. S. COUNTY OF BATES, Plff. in Err., V. JONATHAN WINTERS et al. (See S. C., Reporter's ed., 83-92.) Subscription to railroad stock-popular vote. 1. An order of a county court, in Missouri, which railroad company, upon certain conditions, and to report to the court thereon, where the agent failed to make such subscription and so reported to the court which approved his report, did not authorize a subsequent subscription to the stock of another authorized an agent to subscribe to the stock of a company. 2. Where the popular vote gave authority to subscribe to one railroad company, while the subscrip: company, such vote did not authorize such subscription, and where such facts are recited in the bonds, there can be no bona fide holder of them. tion was made and the bonds issued to a different [No. 210.] Submitted Feb. 7, 1878. Decided Feb. 25, 1878. In Error to the Circuit Court of the United States for the Western District of Missouri. The case is stated by the court. Messrs. Thomas C. Reynolds, C. C. Bassett, Jno. W. Ross and Glover & Shepley, for plaintiff in error. Mr. T. K. Skinner, for defendants in error, cited Nugent v. Supervisors, 19 Wall., 251 (86 U. S., XXII., 89). Mr. Justice Hunt delivered the opinion of the court: The County of Bates in the State of Missouri brings its writ of error to a judgment rendered in favor of the Messrs. Winters for the sum of $6.251.14, the amount of certain bonds and coupons issued by said County in behalf of Mount I'leasant Township. The bonds were a part of a series amounting to $90,000, purporting to be issued upon an election authorizing a subscription to the capital stock of the Lexington, Chilicothe and Gulf Railroad Company, but issued to the Lexington Lake and Gulf Railroad Company and in the name of that company bearing date of the 18th day of January, 1871. The plaintiffs were found to be bona fide holders for value of the bonds in suit. The objection is now made that there was no authority on the part of Bates County to issue its bonds to the Lexington Lake and Gulf Railroad Company. The authority is based upon the following proceedings: The Missouri Statute of March 23, 1868, enacted that whenever twenty-five persons, tax payers and residents of a municipal township, should set forth their desire to subscribe to the capital stock of a railroad company proposing to build a road into or near said town, it should be the duty of the county court to order an election, to determine if such subscription should be made; and, if it should appear that two thirds of the qualified voters voting at such election were in favor of such subscription, it should be the duty of the county court to make such subscription in behalf of the township according to the terms and conditions thereof, and to issue bonds in the name of the County. Wagner, Stat., p. 313; sec. 551; L. Mo. 1868, p. 92. On the 5th day of May, 1870, the County Court of Bates County, having received such a petition, made an order that an election be held in Mount Pleasant Township at which the electors should determine whether they would subscribe $90,000 to the Lexington, Chilicothe and Gulf Railroad Company, to be paid in bonds, upon the terms and with the numerous conditions and qualifications in the said order particularly set forth. The election resulted in favor of making the subscription; and on the 14th of June, 1870, the county court made an order "That the sum of $90,000 be, and is hereby, subscribed to the capital stock of the Lexington, Chilicothe and Gulf Railroad Company, in the name and behalf of Mount Pleasant Township, subject to and in pursuance of all the terms, restrictions and limitations * * * of the order of the court" so made as aforesaid; and that the agent be authorized to make such subscription on the books of the company; and in making the subscription the agent be directed to have copied in full the order made by this court, as the conditions on which the same is made; and that he report his acts to this court. One of the said conditions thus referred to was, that from the proceeds of the sale of said bonds there should be paid to said company, monthly, ninety per cent. of the monthly estimate of the work done on said road in Mount Pleasant Township; and it authorized said bonds to be issued when all of the said road south of Lexington to the north line of Mount Pleasant Township should have been located and put under contract. The agent went to Lexington for the purpose of making the subscription, and carried with him a copy of the records of the county court, as he says, "for the purpose of showing his authority to act in the premises;" but the company had no books, by reason whereof he did not make the subscription; he sought to withdraw or reclaim his papers, but the company refused He went again for the to allow him to do so. same purpose, but, being dissatisfied with the condition of the company, did not make the subscription; and on the 19th day of December, 1870, reported his doings to the county court, ending in the words, "The bonds of said township are, therefore, not subscribed." This report was formally approved by the county court. Seven months after making the order above set forth, and on the 18th of January, 1871, the county court made another order, reciting that the subscription had been made to said Chilicothe road, that a consolidation had been made between that and another road, resulting in the Lexington, Lake and Gulf Railroad Company; directing that $90,000 of bonds be issued to that company, in payment and satisfaction of the original subscription as aforesaid; and concluding: "Said James M. Boreing (their agent to receive and dispose of the bonds) is hereby authorized to subscribe said stock to said railroad company," the Lexington, Lake and Gulf Railroad Company. Boreing did make the subscription on the books of the new company, which was accepted by that company; and then, for the first time, a certificate of stock was issued to the County. These are the material facts to be considered. If we hold that there was no valid subscrip tion until this last subscription on the 18th of January, 1871, which was to the Lake and Gulf Road Company, it is open to the objection that the Township voted an authority to subscribe to the stock of one company, and the county court subscribed to the stock of a different company. This was condemned in Harshman v. Bates Co., 92 U. S., 569, 23 L. ed., 747, which case arose upon the same issue of bonds and in relation to the same roads as the case before us. That case has since been modified as to the first point decided in it, in relation to the number of votes required to authorize the subscription, but remains unimpaired as to the point we are considering. It is said that the subscription was, in law, made on the 14th of June, 1870, by the proceedings herein before described, to the Lexington, Chilicothe and Gulf Railroad Company; and that, having been made by the authority of the popular vote, it could be transferred to the consolidated organizations. Nugent v. Supervisors, 19 Wall., 241, 22 L. ed., 83, is cited to sustain this proposition. pany," upon the conditions specified, and to report to the court thereon. Having failed, for the reasons given by him, to make the subscription, Mr. Betz reported to the county court his doings, and "That the bonds of the township are not, therefore, subscribed;" and the county court approved his report. A subscription to the amount of $90.000 was made in January, 1871, by color of said author| ity, on the books of the Lexington, Lake and Gulf Railroad Company. This subscription was accepted by that company, and a certificate of stock to the amount of such subscription was then, for the first time, issued to the County. The road whose stock was thus received has been graded in part, but never completed. The County of Bates or the Town of Mount Pleasant has never, in fact, received any benefit from this issue of its bonds. The county court did not intend their action to be final, and did not understand that a subscription was thereby completed. Their vote was a declaration that the power to subscribe It is decided, in that case, that an actual, should be exercised, and was an authority to manual subscription on the books of a company their agent to perfect a contract with the railis not indispensable; that where an order was road company, on the conditions set forth. No made by a county court, which said that it sub-acceptance was made by the railroad company; scribed for a specified number of shares of railroad stock, which was accepted by the road company, and notice of such acceptance given to the county court, when the minds of the parties met, and both understood that a contract had been made, and where the county court had accepted the position of a stockholder, received certificates for the stock subscribed and voted as a stockholder, that these facts constituted a valid subscription. In Moultrie Co. v. Bk., 92 U. S., 631, 23 L. ed., 631, a like decision was had, and upon like facts. In declaring the resolution of the corporation to have been an executed subscription, the court use this language: "The authorized body of a municipal corporation may bind it by an ordinance, which, in favor of private persons interested therein, may, if so intended, operate as a contract; or they may bind it by a resolution, or by vote clothe its officers with power to act for it. The former was the clear intention in this case. The board clothed no officer with power to act for it. The resolution to subscribe was its own act, its immediate subscription." no notice of acceptance was given, nor was there any act or fact which afforded a pretext for saying that the railroad company was bound by the contract of subscription. While it refused to allow the agent to withdraw his evidence of authority, it said nothing and did nothing to indicate that the minds of the parties had met upon the terms of a subscription. The county court was precise and particular in requiring those conditions to be copied in full on the books of the company, as the conditions on which the subscription was made; and there could be no mutual contract until the railroad company assented, on its part, to those conditions. At a subsequent time (January 18, 1871) when it had determined to issue bonds to a different company, and apparently as its justification for so doing, the county court recited that a subscription had been made to the Chilicothe road. It at once, and in the same order, contradicted and repudiated this recital, by directing a subscription for $90,000 of bonds in the Lexington and Lake Railroad Company. If the subscrip tion had been made before to the one road, there was no occasion or authority for a subscription to another road. This historical stateinent furnishes no satisfactory evidence of an actual or legal subscription in June, 1870. A similar case is that of Justices of Clarke Co. v. Paris, etc., 11 B. Mon., 143, where the order was entered in these words (in part): "With .the concurrence of all the magistrates of the County, ordered, that the County Court of We are of the opinion that the action of the Clarke County subscribe, as they hereby do, for county court on the 18th of June, 1870, did not fifty shares of stock in the Paris" Company, etc. constitute a subscription to the stock of the The court say (at p. 146): "It is manifest on Lexington, Chilicothe and Lake Railroad comthe face of the order that it was made as a sub-pany, and that the case of the Mossrs. Winters scription. The suspending order of October calls it a subscription, and the evidence shows that it was so intended and understood when made, both by the court which made it and by the company which solicited and accepted it." The present case is quite a different one. The order of the county court was not intended, as in the cases referred to, to be final and self-executing. While it recited that the sum named should be, and was thereby, subscribed, it "authorized and directed" Mr. Betz "To make said subscription on the stock books of the said com is fatally defective, under the ruling of Harshman v. Bates Co., in this: that the popular vote gave authority to subscribe to the Lexington, Chilicothe and Gulf Railroad Company, while the subscription was made and the bonds issued to a different company, to wit: to the Lexington, Lake and Gulf Railroad Company. The same decision holds that the recitals in the bonds are such that there can be no bona fide holders of them; and to the like effect in principle is McClure v. Oxford [ante, 129]. The judgment must be reversed and the case remanded to the Circuit Court, with directions | terest in the patent to the complainants, who to proceed to a new trial, according to the views instituted the present suit. What they charge above expressed. is that the respondents are making and using the patented improvement, the title to which they acquired by virtue of the aforesaid written assignment. Mr. Justice Clifford [with whom concurred Mr. Justice Swayne and Mr. Justice Strong], dissenting: I dissent from the opinion of the court in this case, upon the ground that it is in conflict with prior decisions of this court upon the same subject. I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the opinion of the Court and dissenting opinion, in the case of County of Bates, Piff. in Err., v. Jonathan Winters et al., No. 210, October Term, 1877, as the same remains upon the files and records of said Supreme Court. In testimony whereof I hereunto subscribe my name and affix the seal of [L. S.] said Supreme Court, at the City of Washington, this 11th day of April, A. D. 1885. James H. McKenney, Clerk, Supreme Court, U. S. THE UNION PAPER BAG MACHINE COMPANY and SAMUEL CUPPLES, Appts., V. MERRICK MURPHY et al. (See S. C., Reporter's ed., 120-126.) Patent law. The substantial equivalent of a thing, in the sense of the patent law, is the same as the thing itself; so that if two devices do the same work, in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form or shape. [No. 232.] Argued Feb. 15, 1878. Decided Feb. 25, 1878. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. The case is stated by the court. Service was made; and the respondents appeared and filed an answer. setting up several defenses, all of which are abandoned except the one denying the charge of infringement. Proofs were taken; and the circuit court, having heard the parties, entered a decree dismissing the bill of complaint. Prompt appeal to this court was taken by the complainants; and they now assign for error the decree of the circuit court in dismissing the bill of complaint, it being conceded that it was dismissed upon the ground that the charge of infringement was not proved. Machines for making paper bags are old, as both sides admit; and the evidence in this case shows that they have been constructed by many persons and in various forms for more than twenty years, and with more or less utility. Neither party, in this case, claims to be the original and first inventor of an entire machine of the kind; nor could such a claim, if made, be sustained, in view of the admitted state of the art. Improvements in various parts of such a machine are claimed by the assignon of the complainants; but, inasmuch as the charge of infringement is confined to the first claim of the patent, it will be sufficient to describe the nature and operation of the principal device embodied in that claim, without attempting to give any minute description of the other parts of the machine. Seven claims are annexed to the specification. the one in question being described in substance and effect as follows: Making the cutter, which cuts the paper from the roll, in such form that in cutting off the paper, it cuts it in the required form to fold into a bag without further cutting out. Such a machine, of course, has a frame which supports all its parts, and it also has a table to support the paper as it is unwound from the roll and moved forward under the cutter. Prior to the operation, the roll is prepared, being of the proper width to fold lengthwise and form the bag. Feed-rollers, are arranged in the machine for moving the paper under the cutter as it is unwound from the roll, the cutter being at Mr. Justice Clifford delivered the opinion of tached to a horizontal bar, and working within the court: Rights secured to an inventor by letters patent are property, which consists in the exclusive privilege of making and using the invention, and of vending the same to others to be used, for the period prescribed by the Patent Act; and the provision is that every patent and any interest therein shall be assignable in law by an instrument in writing. R. S., secs. 4884, 4898. Letters patent bearing date July 12, 1859, were granted to William Goodale, for new and useful improvements in machinery for making paper bags, as more fully described in the specification. Patents, at that date, were granted for the period only of fourteen years; but the record shows that the same was duly extended for the further term of seven years from the expiration of the original term, and that the patentee, on the 14th of July, two days subsequent to the extension of the patent, by an instrument in writing, sold and assigned all his right, title and in vertical guides erected on opposite sides of the machine. Operating vertically, as the cutter does, it will be sufficient to state that it derives its upward movement from two cams on a constantly rotating horizontal shaft, and that it descends by its own weight, which is sufficient to cause the cutting of the paper by the cutter, the descent taking place during the intermissions between the feeding movements of the paper. Devices and means for forming the bag of the desired length and width, are also shown in the specification and drawings, together with the devices and means for effecting the side lapping over the device called the former, and the devices and means for pasting one edge of the same by passing it over a paste roller, which causes it to adhere so as to form the seam when the edges of the blank are folded over by the lappers. Both the sides of the blank, so called, and the lap at the bottom are pasted by the means described in the specification; but it is unnecessary to enter into these details in this investigation, as the charge of infringement is limited to the first claim.. Evidence of a satisfactory character is exhibited, to show that the assignor of the complainants was the first person to organize an operative machine to make paper bags from a roll of paper in the flat sheet, by a transverse cut across the same with a knife having five planes, so that the blanks, so called, when cut and folded, will present a paper bag of the form and description given in the specification and drawings of the patent. Wide differences exist in the arrangement of the devices composing the operative parts of the respondents' machine in question, from those exhibited in the machine of the complainants; but the frames are not substantially different, and the machine of the respondents has two uprights which afford bearings for the shaft, and for the roller on which the paper is wound, and for two sets of feed rollers which perform the same function as the feed rollers in the complainants' patent. Instead of the cutter arranged to ascend and descend, as described in the complainants' specification, the respondents have a knife with a serrated edge, which is attached to the bed beneath the shaft on a line with the feed rollers, lying on its side, so that the paper, when moved by the rollers, will pass freely over it, as it extends slightly beyond the edge of the bed. Being attached to the bed, the knife, though it is substantially in the form of the cutter employed in the complainants' machine, neither rises nor falls, nor would it perform any function whatever in the machine were it not for the striker, which is a straight piece of metal with a blunt edge made to revolve with the shaft, which, by the aid of certain other devices, first causes it to rise, and then throws it sharply down in such a manner that it makes a vertical blow upon the paper, causing the knife to sever it as effectually as the cutter does in the complainants' machine, showing that the two devices, to wit: the knife and the striker, operating together, perform the exact same function as that performed in the complainants' machine by the ascent and descent of the cutter. Argument to show that the form of the knife and the cutter are substantially the same is quite unnecessary, as that is proved to a demonstration by a comparison of the two devices. Nor can it make any difference that the cutter is made to cut the paper by its own gravity, while the knife is made to cut by the fall of a device which performs no other function than to fall upon the paper at the proper moment, and cause the stationary knife to cut for the same purpose. Decided support to that proposition is found in the testimony of the expert witness examined for the complainants. He testifies that he finds in the patent of the respondents the representation of a cutter for forming paper bags, so shaped that, in the operation of separating the blanks from the roll of paper in the formation of bags, it will perform the same function as the cutter in the complainants' machine; giving as his reason for the conclusion, that the serrated edge of the knife, as it is there called, is so shaped as to form a blank for the bags, so that the seam may be made in the middle of the bag, and that the bottom is provided with a lap so that both parts may be firmly pasted together, and the top pro vided with a lip for the convenience of opening the bag when it is used. Explanations of a valuable character are also made by the same witness in respect to the particular form of the knife employed by the respondents in their machine when used to form the lip at the top or bottom of the bag. Speaking of the fact that the knife used by the respondents has serrations or teeth of different degrees of depth, he says that their outer points all coincide with the same straight line across the paper, and that the operation of cutting, when it has progressed to the depth of the small teeth in the knife, becomes substantially the same as that performed by the cutter in the complainants' machine, for the reason that the rest of the cutting is continued by a series of cutting edges that have a lap at the bottom and a lip at the top, or, in other words, the cutting that is commenced in a straight line ceases as soon as the small teeth cease to cut, and then the coarser teeth continue the cutting operation down to their full extent, and constitute a cutter substantially like the one employed in the complainants' machine. Suppose the explanation last given is too theoretical for practical application; still, we are all of the opinion that the knife and the striker employed by the respondents perform substantially the same function as the cutter in the complainants' machine, with the devices for raising it up and letting it drop upon the paper as it is moved forward by the rollers. Except where form is of the essence of the invention, it has but little weight in the decision of such an issue, the correct rule being that, in determining the question of infringement, the court or jury, as the case may be, are not to judge about similarities or differences by the names of things, but are to look at the machines or their several devices or elements in the light of what they do, or what office or function they perform, and how they perform it, and to find that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way to obtain the same result; always bearing in mind that devices in a patented machine are different in the sense of the patent law when they perform different functions or in a different way, or produce a substantially different result. Nor is it safe to give much heed to the fact that the corresponding device in two machines organized to accomplish the same result is dif ferent in shape or form, the one from the other, as it is necessary in every such investigation to look at the mode of operation or the way the device works, and at the result, as well as at the means by which the result is attained. Inquiries of this kind are often attended with difficulty; but if special attention is given to such portions of a given device as really does the work, so as not to give undue importance to other parts of the same which are only used as a convenient mode of constructing the entire device, the difficulty attending the investigation will be greatly diminished, if not entirely over come. Cahoon v. Ring, 1 Cliff., 620. Authorities concur that the substantial equiv alent of a thing, in the sense of the Patent Law, is the same as the thing itself; so that if two de vices do the same work in substantially the same way, and accomplish substantially the same re |