A memorandum of these, in the order of their dates, is as follows:

Chambers' Patent (English), 1824.-Nature of the Invention.

"Consists in an arrangement of conical-formed stones, &c., placed on their natural bases, cemented together at their lower extremities, and having their remaining interstices filled with loose materials insoluble in water."

He proposes, however, for all ordinary pavements, to make use of stones broken and hewn in the manner in which they are usually prepared for paving, but taking care, in their application to the said improved pavement or carriageway, always to lay their natural bases or largest end downwards, which is the exact reverse of the mode adopted by pavers. Lindsay Patent (English), June, 1825.

Describes his street as

"Paved with the common or usual-sized paving stones, but the method of arranging them is as follows: Instead of laying them with the broadest ends upwards, I lay them with their broadest ends downwards, and as each stone is made of a wedge form, this leaves a considerable space open between the stones; these I close with smaller stones of a wedge form, which, being carefully placed and well rammed down, after a sufficient quantity of fine gravel or grout has been worked between them, will make a pavement nearly as substantial as a solid sheet of granite."

Nicholson Patent, 1854; Reissue, 1867.

"Board or other foundation made water-proof; square blocks in transverse rows, with spacing strips between to make a groove, the groove to be filled with broken stone, gravel and tar, or other like materials."

Cowing's Patent No. 101,590.-Application in 1865, issued in 1869.

First application—

"The nature of my invention consists in providing and arranging blocks of a peculiar shape in manner to form

wedge-shaped crevices for the reception of earth or gravel, and wherein such earth and gravel will be retained to act as a key to bind and confine the blocks in their place."

The amended claim in 1869 is for "a wood pavement composed of blocks, each side having a single plane surface, and one or more of the sides being inclined, and the blocks being so laid on their larger end as to form wedge-shaped grooves or spaces to receive concrete or other suitable filling."

It will thus be seen that Cowing does not claim the use of wood as new in the construction of pavements; nor does he ever claim the use of wedge-shaped blocks as new, for he expressly disclaims a pavement composed of wedge-shaped wooden blocks when they are laid alternately on the larger and smaller end. But what he claims is, substantially, the collocation or arrangement of the blocks, so as to leave wedge-shaped grooves or spaces between them to receive. concrete or other suitable filling to act as a key to bind the blocks together.

This claim may be susceptible of two constructions:

1. It may be construed to be a claim for a new arrangement of paving blocks of a known shape, without reference to their material; or,

2. It may be a claim for the application of a known arrangement to a new material, i. e., wood instead of stone. If the first, it seems to me that it was anticipated by the patent of Lindsay of the year 1825.

He proposes to use wedge-shaped stone blocks, with the large end downwards, and fill in the wedge-shaped crevices with small wedges of stone, gravel and grout, thus accomplishing precisely the same end proposed by Cowing.

It seems to me that this is the proper construction of Cowing's claim. He lays no stress upon the use of wood. He says nothing about the filling being forced by ramming into the fibre of the wood, as does the witness for complainant. But finding the material actually in use or coming in use, but without special reference to that, he proceeds to invent, as he supposes, a novel mode of using it, so as to have a compact and durable street surface.

But if the second construction be the proper one, I should say that the substitution of a new material in a known device or arrangement or mode of construction of a street would not, according to the decisions of the Supreme Court, be a patentable novelty.

On these grounds, I feel constrained to hold that Cowing's patent cannot be sustained, and consequently the bill of complaint must be dismissed.

THOMAS SUNDERLAND AND C. J. HILLYER

VS.

HALLET KILBOURN, JAMES M. LATTA AND J. F. OLMSTEAD.

EQUITY. NO. 7,764.

Decided July 5, 1884.

{The CHIEF JUSTICE and Justices WYLIE and JAMES sitting.

1. One cannot be agent for the purchaser and agent for the seller at the same time. The duties are incompatible and a contract for such employment is utterly void.

2. A contract may be illegal and void in part as against public policy and yet good as to the residue.

3. K. & L., a firm of real estate agents, were employed by S. and H. to make purchases of real estate. Under the contract, if the property was accepted

paid a commission on the purbefore, entering into the conproperty at $40,000.

After

at the price submitted, K. & L. were to be chase price. At the time of, and some time tract, K. & L. held the refusal of a piece of the contract was entered into K. & L. took the money deposited with them by S. and H. and purchased it for themselves, and then, without making known to S. and H. that they were really the owners of the property, submitted it to them at $65,000. The latter accepted it at that price, and the conveyance was accordingly made. S. and H. subsequently discovered the real facts, and claimed the benefit of the purchase at $40,000. But it was held that K. & L. were under no obligations to give S. and H. the benefit of a contract of refusal entered into before their contract with them. That the remedy of the latter was to repudiate their contract if imposition had been practiced by a concealment of facts; but they could not retain the property and recover the $25,000 in addition. 4. And where in another transaction under the contract a return of part of the purchase money was claimed on the ground that K. & L. had defrauded the vendors of it, it was held that even if the vendors had been defrauded

as alleged, this fact did not entitle S. and H. to receive the benefit of it. 5. But where K. & L., acting under the contract, purchased a piece of property at 40 cents a foot and turned it over to S. and H. at 50 cents, at which price the letter agreed to take it, it was held that K. & L. were accountable to them for the difference.

6. Facts considered which entitle agents to compensation for the care and management of property in their charge, and the measure thereof fixed by the court in view of the circumstances of the case.

7. Cases of fraud, trust and account, are within the jurisdiction of courts of equity. Section 723 of the Revised Statutes, which declares that the courts of the United States shall not exercise jurisdiction where a remedy exists at law, only emphasizes a doctrine which existed before the passage of the statute.

BILL IN EQUITY for an account.

THE CASE is stated in the opinion.

J. H. RALSTON and JOHN SELDEN for complainants.

ENOCH TOTTEN and SHELLABARGER & WILSON for defendants:

First. In this case there is a plain, adequate and complete remedy at law. "Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law." R. S., sec. 723.

There is not one of the items of the claim in this bill which involves a question of trust, an unadjusted account, nor the necessity of a discovery. The entire controversy could be much more readily settled in an action at law than an equity proceeding. Heine vs. The Levee Com'rs, 1 Wood, 246; Fowle rs. Lawrason, 5 Pet., 503; Sadler vs. Robinson, 2 Stew., 520; Ins. Co. vs. Stanchfield, 1 Dill, 425; Russ vs. Wilson, 22 Me., 207; Crooker vs. Rogers, 58 Me., 339; Law vs. Thorndyke, 20 Pick., 317; Youngblood vs. Youngblood, 54 Ala., 486; Russell vs. Little, 28 Ala., 160; Woodman vs. Freeman, 25 Me., 531; Bridge Co. vs. Van Etten, 36 Mich., 210; Murphy vs. Barron, 1 H. & G., 258; Casey vs. Centiss, 3 How., 255; Ins. Co. vs. Hill, 60 Me., 183; Suter vs. Matthews, 115 Mass., 253; Grand Chute vs. Weninger, 16 Wall., 374; Moore vs. Middlebaum, 8 Mich., 433; Adair vs. Wariherta, 7 G. & J., 114; Ashley vs. Denton, 1

Lit., 86; Scott vs. R. R. Co., 34 N. J. Eq., 354; Wright vs. Butler, 6 Wend., 284; Cope vs. Wheeler, 41 N. J., 303.

Second. The complainants say that they made a bargain by which the defendants agreed to act as their agents and brokers, to purchase for the complainants real estate, and with the fraudulent provision that if they could not succeed in deluding their customers and other sellers into the belief that they, the defendants, were their agents, then in that event, these complainants would pay the defendants for their services rendered in that behalf. But if these sellers could be cheated into paying commissions then the complainants were to pay nothing. Such a contract is not only a gross violation of every rule of morality, but also of the plain rules of law, as they have been declared in judicial decisions from time immemorial.

The defendants, in their several answers and in their testimony, positively and absolutely deny that any such agreement was ever made or thought of by any one of them. But even if such contract was made it is void, because it is inconsistent with public policy. A double agency of a real estate agent or broker involves inconsistent duties, and it is clear, upon both principle and authority, that in case of such double employment, the contract is void. It has been doubted whether such double agency, made even with the consent of both buyer and seller, can be upheld on the ground of public policy. See Myer vs. Hanchett, 43 Wis., 246; Raisin vs. Clark, 41 Md., 158. That such double agencies are void when the employment is concealed from one of the principals, there can be no doubt. Story on Agency, secs. 9, 11, 195, 210, 241; Ringo vs. Binns, 10 Pet., 269. Am. Law Reg., 61 (January, 1876); Rupp vs. Sampson, 16 Gray, 398; Stewart s. Mather, 32 Wis., 355; Meyer rs. Hanchett, 39 Wis., 419; Farensworth vs. Hemmer, 1 Allen, 494; Walker vs. Osgood, 98 Mass., 348; Ballman vs. Loomis, 41 Coun., 581; Ernhart vs. Searle, 71 Pa. St., 256; Lloyd vs. Colston, 5 Bush., 587; Shirlaw vs. Monitor Iron Works, 41 Wis., 162; 1 Lead. Cases in Equity, 250, and authorities there cited; Marye vs. Strouse, 6 Sawyer, 204; Michaud vs.