[230]

and the power and functions of the guardian | and the capacity to throw five streams of water
ceased, that a committee to take charge of his
person and estate was needed.

The bill in this case was filed by the appellees
to perpetually enjoin the appellant, its officers
and employés, from interfering with the com-
plainants in maintaining, operating and repair-
ing a system of water works in the City of Jo-ion of the court:
liet, Illinois, to which the complainants derive
title as successors of one Jesse W. Starr, Jr.,
who held under certain contracts with said
City. The court below held that the com-
plainants by virtue of certain foreclosure pro-
ceedings had succeeded to all the rights of said
Starr, and the City of Joliet Water Works Com-
pany, including all of the rights acquired by
said Starr under the original contract and the
supplemental contracts with the City of Joliet;
that said system of water works was completed
in substantial compliance with the requirements
of said contracts, except as to the covenants of
Baid Starr concerning the sinking of artesian
wells, the construction of a receiving reservoir,

a fuel magazine or feeder within the said cyl.
inder, and an opening through which the said
magazine can be fed from above. The object
of this part of my invention is to increase the
capacity of the fuel magazine; secondly, of a
base burning fireplace stove or heater in which
the magazine or feeder is extended to the feed
opening of the outer casing, so that there may
be no open space across which to project the
fuel on feeding the magazine; thirdly, in the
combination, with a fireplace stove or heater,
of a feeder or magazine projecting above the
top of the heater, so as to increase the capacity
of the said magazine.

"Figure 1 is a front view of my improved [288] fireplace heater; Fig. 2, a vertical section of the same; Fig. 3, a sectional plan; Fig. 4, a plan view with part of the mantel removed; Fig. 5, a view of the "slicer" or plate to be introduced into the fire pot under the "feeder," for the purpose of holding up the coal which is unconsumed when the clinkers, ashes, etc., in the lower part of the fireplace have to be removed; Fig. 6 is a plan view of the grate, and Fig. 7 an edge view of the grate.'

Fig. 1.

relate especially to the top feeding arrange [289]
ments of a fireplace stove or heater. I will now
refer more particularly to these improvements.
"In constructing my improved heater I have
so combined three elements or features as to
produce an important result. These features
are as follows: First, a cylinder or body of the
heater projecting outward from the frame or
mantel; second, a feeder or fuel magazine with-
in the cylinder; and, thirdly, an opening through
which the said magazine can be fed from above.
"While fireplace stoves or heaters with pro-
tuberant cylinders and feeders or magazines
were known prior to the date of my invention,
I am not aware that the above combination of
three features above referred to—namely, a top
feeding arrangement, a protuberant cylinder
permitting such an arrangement, and a maga-
zine within the cylinder-has ever been known
or used prior to my invention of the same.

"It has been the practice to so construct base-
burning fireplace stoves or heaters that the fuel
had to be introduced into the feeder or maga-
zine through a doorway in front; hence the
magazine was of a very limited capacity. By
Fig. 5.

The specification then proceeds to describe in detail the various parts and arrangements of the heater, but as that portion is not material to a determination of the questions arising in the case it is omitted. The specification then proceeds as follows:

so arranging the feed hole, however, that the
fuel can be introduced into the magazine from
above, the capacity of the magazine is increased

a result which I especially aimed at in adopt-
ing the first part of my invention; namely, the
above mentioned combination, and in the pro-
duction of my top-feeding, base-burning fire-

"A more minute description of my improved
heater than that given above will be unneces-place stove.
sary, as several of the parts described and illus- "The second part of my
trated in the drawings form the subjects of in extending the feeder or
other patents, and my present improvements feed hole of fireplace stoves.

invention consists
magazine to the
This not only in.

creases the capacity of the magazine to some
extent, but an uninterrupted passage or guide
is afforded for the introduction of fuel into the
magazine through the opening in the outer
casing.

"The capacity of the magazine is still fur-
ther increased, in the present instance, by car-
rying the feeder up above the top of the heater,
by placing thereon a movable section, o, fur-
nished with a cover, o1, which has to be lifted
off when coal has to be introduced into the
magazine."

The first and second claims, which are alone involved in this controversy, are as follows:

"1. A base burning, fireplace stove, in which are combined the following elements; namely, a cylinder or body projecting outward from the mantel or frame, a fuel magazine or feeder [290] within the cylinder, and an opening through which the said magazine can be fed from above.

"2. A fireplace stove or heater, in which the magazine is extended to the feed opening of the outer casing."

The case turned in the circuit court on the question of the validity of the patent on the ground of want of novelty in the invention in view of the state of the art at its date. In passing upon this question on final hearing, Judge Wallace, in his opinion, stated the grounds of his decree dismissing the bill, as follows:

advantages which resided before separately in
several structures. The new heater is, there
fore, a better heater than any which preceded
it, but it does not present a patentable combi-
nation, irrespective of the means employed to
adjust the several parts into efficient relations
to each other.

"As, concededly, the claims of the patent
are not to be limited to any such combination,
they must be held void for want of patentable
novelty." 12 Fed. Rep. 569.

On this appeal, counsel for the appellants con-
test the accuracy of the positions of the circuit
court on which its decree is founded, and in
opposition thereto contend: First. That it was
sufficient to support the patent that Thatcher
found out that the fuel magazine was useful in
its new situation, and that its use in this new
situation was not obvious to those skilled in
the art; in other words, that Thatcher having
succeeded in making a better fireplace heater
than any that had gone before it, by doing
something that was not obvious to those skilled
in the art, what he did involved invention
as distinguished from mere mechanical skill.
Second. That as regards fireplace heaters, the
fuel magazine did perform a new function, be-
cause its use was never before known in such
structures. Third. That the parts of the com-
bination stated in the claims did not constitute
a mere aggregation, but co-operated to pro-
duce a new result. This new result, it is
"It is conceded that these claims are to be claimed, consisted in securing in fireplace heat-
construed broadly, so as to cover the combina-ers a uniform and steady heat that could be
tion of a fireplace heater having a body pro-regulated for their own purposes by the occu-
jecting outwards from the mantel or frame,
and a furnace like portion in the chimney be-
hind the mantel, with a fuel receptacle within
the cylinder of the heater, which will preserve
a supply of unignited coal while the heater is
in operation, and an opening through which
the magazine can be fed from above, the mag-
azine extending to this opening. Inasmuch as
the heater was old, and the fuel receptacle
with the described opening was old when lo-
cated within an ordinary coal stove, what
Thatcher accomplished was merely the advan-
tageous location of the fuel receptacle within
the fireplace heater. As the complainants' ex-
pert, Mr. Brevoort, states: "The problem
Thatcher had before him was to place the fuel
magazine within the Bibb & Augee heater.'

"It must be conceded that it was not obvious that such a fuel magazine could be advantageously employed in such a heater. Attempts had been made by others to do the same thing without satisfactory result, but Thatcher's organization was a success, and immediately commended itself to the public But Thatcher's broad claims cannot be sustained. There may have been patentable novelty in the means he employed to adjust the parts in the new organization, but there was none in merely bring ing those parts together. They did not perform any new function in the new arrange[291] ment. The fuel magazine does just the same work in the new structure it did in the ordinary coal stove. All the other parts of the fireplace heater operate precisely as they would if the ordinary fuel pot were used instead of the substituted magazine. The parts do not co-operate to produce a new result. By their aggregation the new structure contains all the

pants of the upper rooms, heated by means of
furnace registers, at the same time furnishing
heat for the room in which it was situated by
means of a heater that did not require frequent
attention. The result of the contention on
these points as claimed is that the fireplace
heater of the patent, containing a magazine ex-
tending to the outer casing of the heater, capa
ble of holding a supply of unignited coal, and
feeding the same to the fire, was patentable as
a new article of manufacture.

Mr. Brevoort, the principal expert on behalf
of the appellants, states the case on their part
in his testimony as follows:

"The problem which Thatcher had before him was to place the magazine of his patent within the Bibb & Augee fireplace heater, or rather, his invention may be said to have consisted in the conception of the idea of taking out the fuel chamber or pot of the Bibb & Augee device, and substituting therefor a magazine of the kind shown in the Thatcher patent, the execution of which conception, if successful, had for its object to confer upon the fireplace heater the regularity and steadiness of action which alone could be secured by the use of a magazine standing ready always to automatically feed the fire whenever it may become necessary. Now, it was not at all an obvious thing that this large mass of unignited coal could be put within the comparatively limited compass necessary for the ordinary fireplace heater in place of the incandescent coal contained in the pot or fuel chamber of the Bibb & Augee heater, and still leave a heater which would be successful. Indeed, one of the defendants' witnesses in this case placed a magazine in a fireplace heater, tried it, and

[292]

abandoned it as useless and as a positive in- | the same as the fuel magazine when placed in jury, rather than, as future experiments have the fireplace heater according to Thatcher's shown, a great benefit, to the structure. An- patent. It is admitted that what Thatcher did, other witness seems to have introduced a mag- and all that he did, was to transfer this well azine into one of his fireplace heaters at about known fuel magazine from its use in an outthe date of Thatcher's patent. This witness standing base burning stove to a fireplace heatsays that he did not think it was important, er, equally well known and in common use as but says that had he known. anything of its to its arrangement, construction, position, and importance he would have got a patent for it. mode of operation. When this fuel magazine These two witnesses clearly show that the was thus transferred from one kind of stove putting of a magazine into a fireplace heater to another, in its new situation it performed was not obviously a good method of improving precisely the same function, with respect to the old Bibb & Augee heater, and that even the fuel and the fire, as it had always been acafter a magazine had been introduced, that its customed to perform in its old place, and the utility was not manifest without experiment fireplace heater into which it was thus newly and careful trial, and this testimony is given placed, so far as the generation and transmisby men who apparently were thoroughly skilled sion of heat and heated air are concerned, opin the art and had had much and long experi- erated precisely as it had habitually done beence in the fireplace heater business. A con- fore. sideration of the old Nott structure, if it ever It is true that such a fireplace heater, by rea[293] existed, as testified to, would have deterred son of the fuel magazine, was a better heater rather than encouraged anyone from intro- than before, just as the outstanding stove with ducing such a fuel receptacle as was there its similar fuel magazine was a better heater shown into a fireplace heater which was re- than a similar stove without such a fuel magaquired to heat rooms above and below simul- zine. But the improvement in the fireplace taneously. For the reasons above given I heater was the result merely of the single think that it required invention to introduce a change produced by the introduction of the magazine extending to the top or outer casing fuel magazine, but one element in the combiof the stove into a fireplace heater having a nation. The new and improved result in the protuberant front for heating the room in utility of a fireplace heater cannot be said to which the heater stood, and a furnace like back be due to anything in the combination of the for heating the air for the rooms above. Most elements which compose it, in any other sense assuredly, the parts referred to in the first and than that it arises from bringing together old second claims of the Thatcher patent coact and well known separate elements, which, when in action in the production of the result when thus brought together, operate separatedesired. The protuberant body heats the low-ly, each in its own old way. There is no speer room. The mantel or frame separates one portion of the heater from the other, so that the protuberant body may perform its function while the furnace like back may perform its function. The fuel magazine holds the fuel in readiness to supply the fire which is to heat If, however, to adapt these separate elements both back and front alike with steadiness and to each other, so that they can act together in uniformity, the magazine being fed through one organization, required the use of means a hole in the outer casing directly, thus obvi- not within the range of mere mechanical skill, ating the opening of any doors into the com- then it would be true that the invention of bustion chamber when the fire is to be fed and such means for effecting a mutual arrangethe consequent cooling off of the heater by ad- ment of the parts would be patentable. If, in mitting fresh air into the device above the the present case, owing to the necessary form, grate. By the bringing together of these parts size, structure and situation of a fireplace and their joint action one with the other a fire-heater as ordinarily made and used, there were place heater is formed having advantages over any heater that went before, and which form of heater has gone so extensively and largely into use that it has practically superseded all other forms, as I am informed."

cific quality of the result which cannot be defi
nitely assigned to the independent action of a
single element. There is, therefore, no patent-
able novelty in the aggregation of the several
elements, considered in itself.

ascertained difficulties in uniting such a fuel magazine as Thatcher adopted from its known use in outstanding base burning stoves, and those difficulties were overcome by something more than mere mechanical ingenuity, he might have been entitled to a patent, not for the combination, however made, of the fuel magazine and the fireplace heater, but for the means which he had invented for effecting it. Nothing of that, however, appears in this case. The invention described is not of any such device for effecting the combination; no claim is made Thatcher of that character. The claim made is for the makes no claim in his patent for the fuel mag-combination, no matter how or by what means azine, as long prior to the date of his applica- it is, or may be effected. 294] tion, such a magazine was in common use in

This statement must be considered in connection with the well established and admitted facts in respect to the prior use of fuel magazines in base burning outstanding stoves, so classified as stoves standing detached in the room to be heated, to distinguish them from fireplace stoves or heaters which are partially enclosed by the chimney-piece.

what are known as base burning stoves. In
construction and in position, with relation both
to the burning mass in the pit of the stove and
to the outer casing through which it opened,
either on the top or at the side of the stove itself,
the fuel magazine of the outstanding stove is

In this view of the case, it is impossible to distinguish it, so far as the rule of decision is concerned, from the cases of Hailes v. Van Wormer, 20 Wall. 87 U. 8. 353 [22: 241]; Heald v. Rice, 104 U. S. 737, 754 [26: 910, 9161; Penn. R. R. Co. v. Locomotive etc. Truck Co. 110 U 8. 490 [28: 222]; Morris v. McMillin, 112 U. S

[295]

[278]

1279]

244 [28: 702]; Hollister v. Benedict Mfg. Co. 113|
U. S. 59 [28: 901]; Thompson v. Boisselier, 114
U. S. 1 [29: 76]; Beecher Mfg. Co. v. Atwater
Mfg. Co. 114 U. S. 523 [29: 232]; Gardner v.
Herz, 118 U. S. 180 [ante, 158].

There is no escape, we think, from the con-
clusions reached by the Circuit Court. Its de-
cree is therefore affirmed.
True copy. Test:

5. If the provisions of chapter 4, title 28 of the Revised Statutes are not rendered nugatory by section 5596, to what locality do they apply?

The important inquiry is whether the Red Lake and Pembina Indian Reservation has been "Indian country" within the meaning of section 2139 since the Revised Statutes went [280] into effect. That section is a re-enactment in James H. McKenney, Clerk, Sup. Court, U. 8. part of section 20 of the Act of June 30, 1834,

UNITED STATES, P.,

v.

BAPTISTE LE BRIS.

(See S. C. Reporter's ed. 278-280.)

chap. 161, 4 Stat. at L. 732, as amended by the
Act of March 15, 1864, chap. 33, 13 Stat. at L.
29; and it was decided by this court in United
States v. 43 Gallons Whisky, 93 U. S. 188 [23:
846], and 108 U. S. 491 [27: 803], that this
Reservation was "Indian country" before the

Indian Country-introduction_of_liquors into revision of the statutes. At that time section
Indian Reservation-Revised Statutes-con-1
struction of.

1. The Reservation of the Red Lake and Pembina Indians, in Polk County, Minnesota, is Indian country within the meaning of section 2139, R. S., prohibiting trade with the Indians in the Indian country without authority.

2. Sections of a statute which are re-enacted in
the Revised Statutes are to be given the same
meaning they had in the original, unless a contrary
intention is clearly manifested. The repeal of a
section which defines a term does not of itself
change the meaning of the term when found else-
where in the original connection, and the section
so repealed may be referred to to determine the
meaning of the term.

[No. 205.]
Submitted April 7, 1887. Decided April 18, 1887.
Na certificate of division in opinion between

United States for the District of Minnesota.
The history and facts of the case appear in
the opinion of the court.

Mr. William A. Maury, Assist. Atty-
Gen., for plaintiff.

No counsel appeared for defendant.

Mr. Chief Justice Waite delivered the opin

ion of the court:

This is an information against Baptiste Le Bris under section 2139 of the Revised Statutes, for introducing spirituous liquors, from some place and territory outside of the Indian country, into the Indian country; to wit, into that part thereof lying and being in the County of Polk in said district, and being and known as the Red Lake and Pembina Indian Reservation." Le Bris demurred to the information, and the judges holding the circuit court have certified to us that, upon the hearing of the sues of law thus presented, their opinions were opposed upon the following questions:

of the Act of June 30, 1834, supra, was in force, which defined the Indian country as follows:

"That all that part of the United States west of the Mississippi, and not within the States of Missouri and Louisiana, or the Territory of Arkansas, and also that part of the United States east of the Mississippi River, and not within any State to which the Indian title has not been extinguished, for the purposes of this Act, be taken and deemed to be the Indian country."

This section was not re-enacted in the Revised Statutes, though other parts of the statute were. Consequently the section was repealed by section 5596 of the revision; but still we

in Ex parte Crow

[27: 1030, 1032], that it might be referred to
for the purpose of determining what was
meant by the term "Indian country," when
found in sections of the Revised Statutes which
were re-enactments of other sections of this
statute. That decision was made since this
case was heard below, and upon its authority
we answer the first question certified in the af-
firmative. The repeal of this section does not
of itself change the meaning of the term it de-
fines when found elsewhere in the original con-
nection. The re-enacted sections are to be giv-
en the same meaning they had in the original
statute, unless a contrary intention is plainly
manifested.

As the answer to the first question in the af-
firmative necessarily covers all that is material
in the others, they need not be further referred
to, and it is consequently ordered that it be cer
is-tified to the court below that the first question is
answered in the affirmative, and that a further
answer to the others is deemed unnecessary.
True copy. Test:

1. Is the Reservation of the Red Lake and Pembina Indians in Polk County, Minnesota, Indian country, within the meaning of section

James H. McKenney, Clerk, Sup. Court, U. 8.

2139 of the Revised Statutes of the United WILLIAM W. DUGGER ET AL., Piffs. if [286] States?

2. What is meant by Indian country in the heading of chapter 4, title 28, of the Revised Statutes, and in the sections in that chapter

Err.,

which define crimes committed in Indian HOBART C. DUGGER ET AL., Plffs. in Err.
country?

3. Does section 5596 of the Revised Statutes repeal and abolish the definition of Indian country found in section 1 of the Trade and Intercourse Act of June 30, 1834, 4 Stat. at L.729?

4. If it does, are all the provisions of chapter 4, title 28, for punishment of crime in Indian country, nugatory?

v.

SAME.

(See S. C. Reporter's ed. 286.)

Practice-affirmance, for want of prosecution of
writs of error

This court affirms the judgments of the court be-
low under section 4 of Rule 21 for want of due