control the opening and closing of the ports at the lower end of the cylinder, because the initial action of the valve sends the piston upon its downward stroke, and thus the prior movement of the valve makes the piston effective and causes the introduction of live air below it. The complainant's expert states his point as follows: In the sense of indirect actuation, the valve of the defendant's tool clearly does control the inlet and exhaust for the lower end of the piston-chamber, since, although the stem carried by the piston directly opens and closes such inlet and exhaust ports, the movement it must necessarily have for effecting this result is impressed upon it by the prior movement of the valve itself; and, without such prior movement of the valve, the piston would be wholly ineffective for opening and closing such ports. The objection to this form of statement is that it gives to the word "controlling" a meaning which is too vague and general. The action of the piston in closing and uncovering ports is its own act, and the initial action of the valve in starting the piston is too indirectly connected with the office which the piston subsequently performs to be properly characterized as "controlling" the piston. The complainant says also, and says truly, that the Boyer valve does intervene to enable the piston to take its upward stroke, because it opens the exhaust-port at the upper end of the piston-chamber, which is as essential to the upward movement of the piston as that air should be admitted on its lower side, for if the valve did not, prior to the upstroke, move to the proper position for opening the exhaust at the upper end, the piston could not move upward, even though air were admitted below it. This, however, though it shows the kindred character of the Bates and Boyer valves, does not answer the question whether the require ments of the Bates specification do not demand that its valve must so act as to admit air at each end of the cylinder. The quoted requirement that, wherever located, it must operate to admit air at either (which must here mean at each) end of the cylinder, as set forth seems to assert that the valve must have, as its appropriate function, the admission of air at the forward end of the piston-chamber. Another clause of the specification is as follows: All the ports and channels which feed live air to the different ports of the tool communication with valve-chamber D', and by the action of valve J the proper ports are alternately opened and closed, or alternately opened to the live-air chamber and to the exhaust-ports for the purpose of reciprocating said valve and the piston B. We are aware that this paragraph does not in terms compel the direct communication of live air from all the live-air ports to the valvechamber, so that they must be opened and closed by the action of the valve; yet it gives some color to a conclusion which is more directly stated in the other quoted clause of the specification. Our conclusion is that the doubts in regard to infringement which arise from that difference in the mode of operation of the respective valves which has been stated are such as to require a denial of the motion and a postponement of a definite decision until the respective theories of the parties have been subjected to the test of more stringent investigation than can be made by the aid of affidavits. The order of the Circuit Court is reversed, without costs of this court. [U. S. Circuit Court of Appeals-Second Circuit.] NEWTON v. BUCK. Decided December 8, 1896. 1. ASSIGNMENT OF PATENT-TITLE. When in a written instrument intended to effect the transfer of patents one such patent is inadvertently, as shown by competent evidence, omitted, the assignee has equitable title. 2. POWERS OF RECEIVer under NEW YORK LAWS. A receiver under the laws of New York becomes, in proceedings supplementary to execution, invested with the title to all the debtor's property, equitable as well as legal, and a court may compel such debtor to appropriate his property and transfer it to a receiver. APPEAL from the Circuit Court of the United States for the Northern District of New York. Mr. George A. Mosher for the appellant. Messrs. Ward & Cameron (Mr. Walter E. Ward, of counsel) for the appellee. STATEMENT OF THE CASE. This was a suit in equity by Addie Newton against James A. Buck for alleged infringement of Letters Patent No. 301,087, issued July 1, 1884, to the defendant. Plaintiff's claim to the patent was founded on certain assignments, as shown more fully in the opinion delivered in the Circuit Court. (C. D., 1896, 343; 75 O. G., 673; 72 Fed. Rep., 777.) The decree in that court was for complainant, and the defendant has appealed. Before LACOMBE and SHIPMAN, Judges. PER CURIAM: The bill was filed to restrain the infringement of a patent by the defendant and for an injunction and accounting. The complainant's title is founded upon an agreement made in March, 1889, between the defendant and the firm of A. H. Newton & Co., by which the defendant transferred to that firm a number of patents of which he was the owner. The bill alleges that by a mutual mistake of the parties to the instrument and by the mistake of the draftsman the patent in suit was omitted from the enumeration of those intended to be transferred. The rights acquired under that agreement by the firm of Newton & Co. were assigned by them, in August, 1889, to Alfred H. Newton, and by him, in March, 1893, to James J. Dooley, and by Dooley, in February, 1894, to the complainant. Previous to the assignment from Alfred H. Newton to Dooley, and in December, 1891, a receiver of all the property and effects of said Newton was duly appointed by the Supreme Court of the State of New York in proceedings supplementary to execution, founded upon a judg ment obtained in that court against him. The receiver duly qualified, and on the 13th day of April, 1891, pursuant to the order of the court authorizing him to do so, sold and conveyed to one Vermilyea all the right, title, and interest of Alfred H. Newton in the patent in suit. May 5, 1895, Vermilyea sold and assigned all his right, title, and interest in the patent to the defendant. The present bill was filed in January, 1895. The evidence is overwhelming that it was the purpose of both parties to the agreement of March, 1889, to include among the patents transferred the patent in suit, and that it was omitted by inadvertence from the list of those mentioned in the agreement. The obstacle in the way of the complainant consists in her want of title to the patent. The proceedings supplementary to execution, as authorized by the laws of New York, are a substitute for and in all respects have the same force and effect as an ordinary creditor's bill. The receiver in such proceedings becomes invested with the title to all the property, equitable as well as legal, belonging to the judgment debtor at the time of their institution, and the court has the powers of a court of equity in such a suit to compel him to appropriate his property, including that out of the State, (see Fenner v. Sanborn, 37 Barb., 610,) and transfer it to the receiver toward the satisfaction of the judgment. In Ager v. Murray (C. D., 1882, 188; 21 O. G., 1197; 105 U. S., 126) it was decided that notwithstanding a patent cannot be seized and sold on execution it can be reached by a creditor's bill and applied to satisfy a judgment against the owner and a transfer by him be compelled for that purpose by the court. Although in the present case the court did not, as it might have done, compel Newton to make a written transfer to the receiver of his title to the patent, it is entirely clear that any equitable title which he may have had vested in the receiver, and passed by the sale to Vermilyea, and from Vermilyea to the defendant, by the assigment from Vermilyea. Newton never acquired anything but an equitable title to the patent-the right to compel a reformation of the agreement of March 6, 1889. He did not acquire the legal title, because without an assignment such as the statute requires to effect the transfer of a patent interest that title remained in the prior owner, the present defendant. (Wilder v. Gayler, 10 How., 498.) As that equitable title had at the date of his assignment to Dooley passed to the receiver, and the complainant's title is derived through that assignment, she took nothing by the instrument. The decree is reversed, with costs to the appellant, and with instructions to the Circuit Court to dismiss the bill. [U. S. Circuit Court-Southern District of Ohio, Western Division.] Decided November 23, 1896. 80 O. G., 186. 1. POTTS-CLAY-DISINTEGRATOR-VOID. Letters Patent No. 322,393, granted July 14, 1885, and No. 368,898 granted August 23, 1887, both to C. & A. Potts, examined and in view of the prior art Held void for want of novelty. 2. INVENTION-ADAPTATION TO NEW USE. Where the disintegration and shredding of clay had been accomplished by means of bars running across the face of rollers, Held that no invention was involved in adapting a mill for grinding or grating apples to the purpose of disintegrating and shredding clay, where the only change required was the of bars of steel running across the face of the roller, parallel with the axis, in place of rows of thick steel knives. ON REHEARING. Mr. Chester Bradford and Mr. E. W. Bradford for Potts. STATEMENT OF THE CASE. This is a suit in equity by C. & A. Potts & Co. against Frank F. Creager and others for alleged infringement of Patents No. 322,393, issued July 14, 1885, and No. 368,898, issued August 23, 1887, both to C. & A. Potts, for improvements in clay-disintegrating machines. This court originally entered a decree dismissing the bill, (44 Fed. Rep., 680;) but, on appeal to the Supreme Court, the decree was reversed and the cause remanded, with directions for further proceedings in accordance with the opinion there rendered. (C. D., 1895, 143; 70 O. G., 494; 15 Sup. Ct., 194; 155 U. S., 597.) On the coming down of the mandate this court entered an interlocutory decree awarding an injunction and an accounting. Thereafter complainants filed a petition for leave to file a supplemental bill to bring in newly-discovered evidence and for a rehearing. The petition for rehearing was granted, (71 Fed. Rep., 574,) and the cause has been accordingly reheard upon new evidence. SAGE, J.: The question for decision upon rehearing is whether the prior patents and prior uses which are now for the first time presented to the court anticipate the complainants' patent. The only question which the court is at liberty to consider is whether the new evidence makes it clearly apparent that if it had been in the record when the case was before the Supreme Court the decision of the lower court dismissing the bill would have been affirmed. The testimony will be considered, keeping in mind that in granting the motion for rehearing the court said: The opinion of the Supreme Court will, of course, be recognized as the law of the case; and unless the defendants, upon the matters suggested in the application for rehearing, can make a case radically different from that presented to the Supreme Court the rehearing will not avail. With this understanding and qualification the petition for rehearing will be allowed. Considering, first, the alleged prior uses in the order in which they appear in the brief for the defendants, the Moore disintegrator was used at Elizabethport, N. J., in 1878, and for five years thereafter to grind clay for brick-making. It was provided with two sectional rolls of equal size. Each section had a set of teeth along the entire circumference, equidistant from the sides, and had also a smooth surface. The width of the teeth was one-half the width of the section, the remaining portion of which constituted the smooth surface. The teeth of each roll meshed against the smooth surface of the other roll, leaving a space of three-eighths of an inch between the snooth surface and the end of the teeth. These rolls were on shafts provided each with a gear wheel, one of which was smaller than the other in order to obtain a differential speed of the two rolls. The clay was fed as it came from the clay-bank, and by being passed through the machine was cut in shreds about an inch wide and three-eighths of an inch thick and about two inches long. The clay then went through a pug-mill and from the pug-mill into the brick-machine. The capacity of each machine was one hundred tons of clay per day. This disintegrator establishes that the inventors of the complainants' patent were not pioneers in the art of disintegrating clay, as distinguished from crushing and grinding. The witness, Rossi, who testifies to the Moore disintegrator, states also that while at the Elizabethport factory—that is, between 1878 and 1883-he had a disintegrator constructed. They had in use at the factory a pair of smooth rollers to grind the clay, and the lumps did not feed through. The engineer, by direction of the witness, who was superintendent of the manufacturing company, cut grooves on the face of each roller and inserted steel bars, so that as they struck the lumps of clay they kept them from sliding back. There were three bars for each roll. The rolls were fourteen inches in diameter and eleven and twelve inches long. The grooves were so cut that the bars were extended spirally across the face of the roller. These bars fed the clay through. The clay was cut into shreds, and from the rolls it went into the pug-mill. It was not treated any after it was taken from the bank and before it was passed through the rolls, which were in use about six months. When the company failed, they were disposed of with the machinery, which was sold at auction. "The most of it went for old iron." The witness states that the arming of the smooth rolls with the square steel bars was suggested to him by the fact that when he was a young man his father owned a cider-mill, and the apples were ground by a |