the part preserving the right to an account in this suit after establishing their right at law, but the motion was denied by Mr. Justice Field. 3 Saw., 422. The defendant, therefore, can have no ground of complaint on the score of the large amount recovered, provided it be fairly the result of the use of complainants' duly patented inventions.

I am not satisfied from the large mass of evidence, which seems to cover the entire field of quicksilver mining and furnaces, that at the time of issuing the patents held by complainants it had been demonstrated by actual experiments that any furnace then known would profitably reduce quicksilver-ores of the grades now advantageously worked by com. plainants' and the Green furnaces. It is apparent to one, from the evidence, that complainants' furnace was the first to practically and profitably reduce low-grade quicksilver-ores, and that these furnaces of complainants and defendant are still superior to any others in use, and are capable of profitably reducing ores that cannot be worked with profit in other furnaces not embodying substantially the same elements and combinations. The Luckhardt furnace is the one apparently most confidently relied on by the defendant as being practicable and most nearly approaching in usefulness those used by complainants and the defendant. Defendant erected and used for a time one of them at its mine, and, although its testimony is to the effect that it was a success, but of too small capacity, the significant fact remains that it was torn down, and, when demolished, defendant did not build another Luckhardt furnace of larger capacity, but did erect in its place a Green furnace, which was afterward followed by another, notwithstanding the pending litigation and the risk of being called upon to account for a large amount of profits resulting from its use in case of failure to defeat the pending actions.

Besides, other mine-owners pay the large royalty established by the complainants for the use of their inventions, which they would not be likely to do if there were other furnaces equally good, or nearly so, open to public use or to be had at a smaller royalty. These facts of themselves speak volumes in favor of the superiority of the furnaces of complainants, and those constructed and used by defendant, over the Luckhardt or any other furnace. The testimony, all considered, leaves no doubt on my mind that the furnaces used by complainants and defendant, and those embodying the same elements and combinations and operating upon the same principles, are greatly superior to any others in use for reducing quicksilver ores. And it also seems clear to me that the Green furnace and the modified Green furnace embody the elements and combinations found in complainants' furnace.

This suit was commenced in October, 1874. Upon the application of defendant, the proceedings were stayed and the complainants required to bring their action at law to establish their rights under their patents, which was accordingly done. After a laborious trial the jury, under instructions of the court as to the law applicable to the case, found the patents held ¡by plaintiffs to be valid and the Green furnace to be an

infringement, the verdict being special upon each claim by itself. The verdict was set aside upon some of the subordinate claims, but confirmed by the court on the other and principal claims. Judgment was entered in February 1876, and a writ of error to the Supreme Court perfected February 4, 1878. The validity of the complainants' patents and their infringement having been established in the action at law, nothing was left to be done except for complainants to apply for their injunction and accounting in the equity suit which had in the mean time been stayed. The accounting resulted in the master's report now under consideration. If there is any error in these proceedings, in my judgment, it is not in the accounting, but it will be found in my construction of the patents in the action at law. Upon that point, as counsel were informed at the time, and again upon the decision of the motion for new trial, my mind was not wholly free from doubt-not that a better furnace for reducing quicksilver ores had been constructed by complainants than was ever before in use, but whether the claims in the patents were sufficient to secure the valuable features combined in the furnace. Defendants took their exceptions, and, a bill of exceptions having been duly settled, the construction adopted is now before the Supreme Court for review. If the judgment in the action at law should be affirmed, I can perceive no error in the accounting. If reversed, of course, the basis of the accounting will be withdrawn. I regret that the final decision of the action at law could not have been had before passing upon the master's report.

Let the exceptions to the master's report be overruled, the report be confirmed, and a final decree entered for complainants in accordance therewith.

[United States Circuit Court-District of Massachusetts.]

THE AMERICAN WHIP COMPANY v. LOMBARD.

(O. G., vol. xiv, p. 900.)

Decided October 9, 1878.

1. Patent No. 53,003, to L. Hull, for gage-lathe, and reissue of same, No. 7,262, construed and sustained. It is now well settled that the patentee or owner of a patent for a combination is as much entitled to equivalents as the patentee or owner of any other class of inventions. By an equivalent in such a case it is meant that the element or ingredient substituted for the one withdrawn performs the same function as the other, and that it was well known at the date of the patent in question as a proper substitute for the one omitted in the patented combination.

2. The invention, consisting chiefly in the combination, in a machine for shaping whipstocks, of a holding and feeding mechanism with revolving cutters having their axis of rotation at right angles, or nearly so, to the axis of the stocks, and of guides for directing and controlling the action of the cutters, as described in the specification and shown in the drawings, is infringed by a machine in which numerous blades are substituted, for the burrs of the patentee, and where a formal change merely is made in the clamping and advancing mechanism by combining the two in one apparatus instead of performing the operation by two separate devices.

Mr. Solomon J. Gordon and Mr. Thomas L. Livermore for complainants. Defendant pro se.

CLIFFORD, J.:

Power to grant letters patent is conferred by an act of Congress, and when that power has been lawfully exercised, and a patent has been duly granted, it is of itself prima facie evidence that the patentee is the original and first inventor of that which is therein described and secured to him as his invention. Defective patents may in certain cases be surrendered and reissued for the same invention in a corrected form, and when that is done in conformity with the requirements of law, the same prima facie presumption arises in favor of the patentee as that which arose in his favor from the original patent before it was surrendered. Sufficient appears to show that the assignor of the complainants became and was the inventor of a new and useful improvement in gage-lathes, and that letters patent were granted to him as such inventor for the same; that the patentee, for due cause shown, surrendered the original patent, and that a new patent, with an amended specification, was subsequently issued to the complainants for the same invention, which is the subject of the present controversy. respondent appeared and filed an answer. pressed at the argument will be noticed, of most material:

Service was made, and the Such defenses only as were which the following are the

First. That the assignor of the complainants was not the original and first inventor of the patented improvement.

Second. That the charge of infringement is not proved; that the respondent never made, used, or sold the patented improvement, and never in any way infringed the rights of the complainants under their patent. Applicants for a patent are required by the patent act to give a short title or description of the invention or discovery, correctly indicating its nature and design, and, pursuant to that requirement, the original patentee stated in the specification that he had invented a new and useful machine for dressing whip handles or stocks, or other articles of a like nature, adding thereto that the object of his invention was to properly round and shape the handles or stocks of whips and other articles of like character.

Important explanations are superadded, substantially as follows: That to accomplish the work correctly the stock must travel longitudinally toward the cutting devices, or vice versa, in order that the material removed from the stock may be stripped or cut lengthwise of the same, instead of around it or transversely, so that the surface of the stock will be left smooth; and he adds that the proper form or shape must be given to the stock at the same time that its surface is being finished, and consequently that the cutting apparatus must be controlled by a guide corresponding to the taper or form of the stock or handle of the whip. Preceding, as those explanations do, the statement of the claims of the patentee, they show in concise terms the true nature and charac

ter of the organized machine, and it is obvious that he intended by those explanations to illustrate in a general way the mode of operation by which the several devices, when combined, will accomplish the described new and useful result.

Decisive support to that proposition is found in the paragraph which follows those explanations, in which the patentee states that the invention consists chiefly in the combination of a holding and feeding mechanism and revolving cutters having their axis of rotation at right angles, or nearly so, to the axis of the stock (meaning the whip-handle) to be rounded and shaped, and the described guides for controlling the action of the cutters (meaning the described cutting apparatus of the machine) as fully explained in the specification and drawings. Machines of the kind must of course have a frame of a suitable form to support the other parts of the machine, as shown in the drawings. The machine in this case has a carriage mounted upon the frame, the carriage being arranged to travel on guides or rails, for the purpose of giving a longitudinal motion to the stock. Standards are also mounted upon the carriage for supporting the mandrels which hold the stock in proper position to be guided to the cutters.

Devices of the kind for holding the stock are indispensable, and the specification shows that they are rotated by suitable gearing in such a manner as to keep the stock constantly revolving while it is under the action of the cutting apparatus. Means of attaching the stock to the mandrels are also shown, which is accomplished by clasping each end between a pair of levers, pivoted on a device called a "head," mounted on the inner ends of the mandrels, which serves as a fulcrum to the levers, and also causes them to revolve. Between the outer end of each pair of the levers there is arranged a cone, which can be longitudinally adjusted by a screw formed on the mandrels in a way to spread or release the outer ends of the levers, so as to close or open their inner ends, between which the opposite ends of the stock are held in proper position to the cutters. Suffice it to say, without entering further into the details, that every element of the machine and its mode of operation are given in the specification, confirming the remarks previously made that the invention consists in the combination of the described mechanism for rounding and shaping stocks or handles for whips, or other articles of a like nature, including the described holding and feeding mechanism, together with the cutting apparatus, having its axis of rotation at right angles, or nearly so, to the axis of the stock, with the described guides for controlling and regulating the action of the cutters with their entire apparatus, as shown in the specification and drawings.

Five claims are annexed to the specification, the first two of which only will be reproduced, as it is not now claimed that the other three have been infringed:

1. The combination, in a machine for shaping whip-stocks, of two rotating and adjustable clamps for holding the whip-stock, with revolving cutters, whose axis of

rotation is at right angles to the axis of the stock, substantially as described, for the object set forth.

2. The combination, in a machine for shaping whip-stocks, of revolving cutters, the adjustable and rotating clamps for holding and revolving whip-stocks, and the guides through which the stock is passed for firmly holding the stock while being dressed by the cutters, as described.

Whip handles or stocks are constructed in the rough before they are in a suitable condition to be dressed and smoothed, or rounded and shaped, by the machine described in the complainants' patent, which is true also of the whip-stocks manufactured by the respondent.

Undressed whip.stocks of the kind in controversy are described by the respondent as composed of eleven pieces, as follows:

I. A middle piece of wood or rattan, called a wedge, to which is attached a spike at one end and a piece of whalebone at the other.

II. On this central core or wedge are laid four other pieces of rattan, called sidings, which are half round, with one edge planed off so as to allow them to fit the wedge or center piece.

III. Then there are four other pieces of rattan, called chinks, shaped so as to fit the pieces of siding, to fill up the crevices between the siding pieces and make the handle large enough for a whip-stock.

IV. All these pieces being thus prepared, they are then glued or cemented together before the stock is in a suitable condition to be dressed and finished in the machine.

Stocks of the kind are composed of rattan, whalebone, and glue, besides the spike at butt-end. When constructed in the rough they are not fit for the market.

Four things are required of the machine in order to dress the rough stock and make it salable as a finished article:

First. It must have means for holding the stock during the operation of dressing the article.

Second. It must have means of advancing and rotating the article at the same time.

Third. Means of guiding the rough article must be furnished, so as to preserve its shape during the operation.

Fourth. It must have a cutting apparatus to reduce the circumference of the rough article from butt to tip as it is advanced and rotated.

By referring to the specification, it appears that the patentee adopted for holding devices two standards to support two mandrels having a pair of levers, which clasp each end of the whip-stock. Having devised means to hold the article, his next step was to provide an apparatus to advance the stock and cause it to rotate at the same time, which he accomplishes by a carriage traveling on rails and by a gearing causing the mandrels to revolve as the apparatus advances. Two notched plates are provided for guiding devices, sliding upon each other, so that when the stock is in the notches of the plates and between them, "they close upon the stock and steady it under the cutting action." Two upright revolving steel burr-cylinders are provided as reducing devices, and it