the court below states the case somewhat more fully than the opinion of this court:

and the other being the one upon which this bill is brought, dated December 31, 1867.

Bank, according to the instrument first mentioned, with all the privileges relating thereto which the assignor would have had if the as- This is a bill in equity, brought by the comsignment had not been made. The declaration plainants, who are assignees of Isaac A. Sergeant, contained several counts, setting out the instru- for infringement of division No. 2829 of letters ment as inducement and averring the utter patent for an improvement in clothes-wringers. falsity of its recitals. The common money Said letters patent were originally granted to counts were added. The defendant admitted Isaac A. Sergeant July 27, 1858, and were rethe receipt of the $7,060.18, stated in the assign-issued in two divisions, one dated June 18, 1867, ment, as the consideration for making it, but gave no evidence tending to prove that the recitals in the instrument to which the assign- The machine described in the original patent ment related were true. Both parties submit- belongs to that class of clothes-wringers generted prayers for instructions. Both sets were really known as twist wringers, in the use of which fused. Those of the defendant sought to defeat clothes were wrung and the water expelled by the action because it had not been brought upon twisting the clothes into a rope in the same the written instrument and the assignment. manner as clothes are wrung by hand. The court instructed the jury in effect, with full and proper explanations, that if the trans-frame of U form, which yoke frame had a pair action on the part of the defendant had been a fraud, and there had been an entire failure of consideration, the plaintiff was entitled to re

cover.

The defendant excepted to these instructions, and to the refusal to give those which he had asked to be given. The former were correct in point of law.

Wearer v. Bentley, 1 Cai, 47; Gillet v. May nard, 5 Johns., 85; D' Utricht v. Melchor, 1 Dall., 428; Wilson v. Jordan, 3 Stew. & P., 92; Eumes v. Savage, 14 Mass., 425; Lyon v. Annable, 4 Conn., 350; Pipkin v. James, 1 Humph., 325: 1 Swift, Dig., 400.

The instructions given covered the whole case. It was not, therefore, the duty of the learned judge to give others suggested by either party. If wrong, they were inadmissible, and if otherwise, unnecessary.

Laber v. Cooper, 7 Wall., 565 [74 U. S., XIX., 151].

We are satisfied with the charge as it appears in the record.

The judgment of the Circuit Court is affirmed.

Mr. Justice Bradley did not sit on the argument of this cause and took no part in the decision.

Cited 38 N. J. L., 44; 95 Ill., 99.

The original Sergeant machine had a yoke of jaws and a clamp wedge for securing the frame to the side of a common wash-tub. This portion of the original machine constituted that part of the invention which is embraced in the division of the re-issued patent numbered 2829.

To the yoke frame a hinged frame was attached, which, when in position, is at right angles with the yoke frame. A cross-bar unites the two sides of the hinged frame. In the center of the cross-bar is set a 'hitching pin, around which the clothes to be wrung are partially wound and held fast by the left hand of the operator while the right hand turns a rotary clamp which is set in the yoke frame and which gives the clothes a twist necessary to expel the water.' More minute description of this rotary clamp is unnecessary, as it has little, if any, connection with any questions at issue in this case, the peculiarities of the wringing mechanism not forming any part of the mechanism recited in the claims of the re-issued patent numbered 2829.

After the death of Isaac A. Sergeant, his administratrix, on account of a defective specification, surrendered the original patent, and on two corrected specifications two new patents were re-issued to one Walker, to whom the administratrix and the heirs at law had assigned the patent. Walker duly assigned to complainants all his interest in the patent and in any divisions or re issues thereof.

The claims in the re-issued patent No. 2829 are for, first, the employment or use of a portable frame or yoke, B, with uprights, S S, or their equivalents, for supporting a clothes wringing mechanism in position on one side of a common wash-tub for the purposes set forth; second the application of an adjustable clamping device when employed to attach a clotheswringer to one side only of a wash-tub, in the manner described and for the purposes set forth.

In the re-issued patent, division 2, No. 2829, by a separation of the invention by the patentee, the yoke frame, in combination with its device for being clamped to one side of a common wash-tub, is claimed as a separate struct

ure, without regard to the structure of the wringing mechanism used with such supporting and connecting apparatus.'

The answer of the defendants alleges in defense, first, that the re-issued letters patent are fraudulent and void, because they were sought to be procured for the purpose of embracing therein more than was the invention of the said

Isaac A. Sergeant; that they were obtained for | issued to H. W. Sabin, August 16, 1845. In the purpose of endeavoring to embarrass these his machine, a common twist wringer was sup defendants and other parties manufacturing ported by a standard furnished with jaws and wringing-machines, by the assertion of a color- a clamp screw, the two forming a clamping deable claim to a subject of invention, which, if vice, such as is in common use in all wringers at construed by the court as broadly as the com- the present time; but the standard was not a U plainants by their assertions claim that it should formed yoke frame, simply a support for the be, would prevent the manufacture of any wring- journal of a shaft, although the standard had ing-machine that was detachable from a tub. jaws and a clamping instrument adapted to seIf it appears upon the face of the re-issued cure the standard to the sides of a wash-tub. patent, that it is not for the same invention as Unless the U form of the yoke frame in the that embraced or secured in the original patent, Sergeant mechanism is to be considered as an then it would be the duty of the court, as a essential part of the Sergeant invention, as dismatter of law, to declare the re-issued patent | tinguished from the standard in Sabin's mainvalid; for such a state of facts, apparent upon chine, which is simply a support for a journal, a comparison of the two instruments as con- it is difficult to perceive the novelty of the Serstrued by the court, would show that the Com-geant invention. The experts examined in bemissioner of Patents, in granting the re-issue, had half of the complainants testify that, in their exceeded his authority, and that there was such opinion, the said (Sabin) standard is simply a a repugnancy between the old and the new pat- support for the journal of a shaft, and is not ent that it must be held, as a matter of legal a yoke frame such as is described in the re-issued construction, that the new patent is not for the patent, nor the equivalent of one, by reason of same invention as that embraced and secured the differences above referred to.' in the original patent. Matters of construction arising upon the face of the patent are open questions to be decided by the court, but all matters of fact connected with the surrender and re-issue are now held to be closed by the decision of the commissioner in granting the re-issued patent.

Seymour v. Osborne, 11 Wall., 516 (78 U. S., XX., 33).

This disposes of the first objection in the answer to the validity of the re-issued patent, for there does not appear to be any ground upon which it could with reason be contended that the invention claimed in the re-issued patent, was not described or substantially indicated in the original patent; and the other questions of fact are closed by the decision of the commissioner.

The defendants also set up in their answer the anticipation and prior knowledge of the alleged invention of the complainants by various parties, patentees and rejected applicants for patents, whose names and the dates of whose applications and inventions appear in the answer and the amendments thereto.

In view of this defense it becomes necessary to consider the state of the art prior to the date of the alleged invention by Sergeant, and to define the construction and the limitations of the claims in the re-issued patent under which complainants claim.

But when they compare the yoke frame in the re-issued patent with the apparatus for supporting the wringing mechanism in the defendant's machine, which has two upright standard supporting journals for the pressure rollers, the two upright standards being connected by a cross-bar at the bottom, they testify that not only the two upright standards connected by cross bar at the bottom, form the yoke described in the patent, as seen from the inside of the tub, but that all the parts are duplicated, and the face of the machine presented to the outside of the tub has also two uprights and a connection which corresponds to the yoke in the patent.

Applying the same reasoning, it is not very easy to see why each standard which supports the journals, as viewed from the sides, is not to be considered also as a separate yoke frame with two uprights and a cross-piece, so that it would be as correct to say that the yoke frame of the complainants is quadruplicated, as to say that it was duplicated. This would seem to be the necessary result of making the U shaped yoke frame include any form of a journal supporting standard, and it would seem to prove, if correct, that the Sabin patent anticipated the Sergeant invention.

The U form of the yoke frame in the Sergeant machine was necessary as a device for supporting a clothes-wringing mechanism, in the manner and for the purposes set forth. The manner Without going into a detailed description of of support was a semi-circular shape at the botwringing-machines existing anterior to the date tom of the U formed yoke frame which conof Sergeant's invention, it will be sufficient for stituted of itself a journal box, and the peculiar the purposes of this case to observe that wring- form of that standard which was new, when coming-machines were in use in many different bined with any wringing mechanism which was forms of more or less practical utility. Clamp-old and well known, and a wedge screw or ing devices were also old and well known means of attaching machines of various descriptions to benches, tables or other articles with which they were used; reels for thread, viscs, eyeletmachines, fluting-machines, egg-beaters, and small mills had been attached to benches and tables by clamping devices similar in principle to the one described in Sergeant's patent. A clamping device identical with the one used by the defendants, and comprehended in the issued patent 2829, was applied to a wringing machine before the Sergeant invention. Letters patent for a washing machine were

other well known and equivalent clamping device which was old, constituted the only invention which, in the state of the art at the date of the Sergeant invention, could be embraced and protected in that division of the re-issued patent. This combination of such a yoke frame, with uprights or their equivalents, for supporting a wringing mechanism in position on one side of a common wash-tub with an adjustable clamping re-device, all substantially in the manner and for the purposes set forth in the patent, is all that can be sustained as new in this division of the re-issued patent.

Fig.1.

To attempt to make the claims in this division | opinion of this court. Fig. 2 is the correspondof the re-issued patent sufficiently broad to ing drawing in the description of the original cover any form of portable standard for sup- patent. porting a journal of any form of wringer in combination with a wedge, or helical wedge or screw, or other clamping device, for securing the frame to the side of a tub, would be fatal to the patent, as it would clearly embrace what was old, both in the separate parts and in the parts in combination.

The two upright standards in the defendant's machine connected with the cross-bar may in one sense be said to be the equivalent of the U shaped yoke frame of Sargeant's. But the upright standards each support, independently of the other, their respective journal boxes, in the same manner substantially that Sabin's standard supported a journal for clothes-wringing mechanism. There is no significance in any similarity or supposed similarity to a U shaped yoke frame, constituting a journal box of itself, and requiring that exact semi-circular or substantially semi-circular form, to form of itself the journal box. The re-issued patent in controversy in this case is, as construed by the court, only for a combination. Upon no other construction could it be sustained.

The first claim refers to peculiarities in the construction of the U shaped yoke frame for the support of the wringing mechanism, the second to the combination of this peculiarly constructed yoke frame with reference to the purposes of the peculiar form of construction with an adjustable clamping device, when employed to attach a clothes-wringer to one side only of a wash-tub.

The standards or uprights in the defendant's machine can, with no more propriety, be considered as the equivalents of the U shaped yoke frame in the complainant's, than can Sabin's standard be considered as a yoke frame, because it supported a journal box. If the two standards in the defendant's machine, with their connecting cross-bar, is to be claimed as the equivalent of the complainant's yoke frame, then any frame of any kind, supporting any wringing mechanism, must be considered an equivalent, for there cannot be any form of frame constructed, supporting a journal, which could not be dissected into a yoke frame or a U shaped yoke frame by an elimination of parts not indispensable. The defendants do not use a U shaped yoke frame, with any such peculiarity of construction in the form of a frame for the same purpose and in the same manner in which it is used in the complainant's combination. If the defendant's frame and standards, either separately or in combination, are the equivalent of the complainant's yoke frame, then the complainant's yoke frame, when combined with the clamping device and wringing mechanism, is the equivalent of Sabin's journal supporting standard in a similar combination.

As the defendants, in the view taken by the court of the Sergeant invention, do not use all the elements of his combination, when Sergeant is confined within the exact limits of his invention, and is allowed the full benefit of his invention, so far as it was novel, they are not liable as infringers, and the bill must be dismissed with costs.'

Figure 1 is the drawing referred to in the

Mr. Justice Strong delivered the opinion of the court:

The bill in this case was filed to restrain an alleged infringement of a patent, dated Dec. 31, 1867, and numbered 2829, one of the divisions of a re-issue. The original was granted on the 27th of July, 1858, to Isaac A. Sergeant, for an improved clothes-wringer, and the re-issue has by sundry assignments become the property of the complainants. At the trial in the circuit court several matters were in contest, which it is unnecessary to consider, for the only question presented by this appeal is whether the reissued patent has been infringed by the defendants. To a correct determination of this ques

tion it is indispensable to understand precisely | the wash-tub and others detachable. Their prior what the patent covers. existence is recognized in this patentee's specifiThe mechanism described in the specification cation. Clamping devices of many varieties is not claimed to be a complete clothes-wringer. It is rather a device for suspending a wringer over a common wash-tub, a portable frame which may be attached to one side of the tub, and detached at pleasure. In the description of the drawings accompanying the specification, and a part thereof, it is called a frame for supporting the wringing mechanism of the machine as attached to one side of a common wash-tub by means of a clamping device, and the first part of the invention is said to consist of a portable machine which may be temporarily attached to one side of a common wash-tub or readily disconnected therefrom whenever desired, and is especially adapted to wringing clothes.

66

were also old and well known means of fastening machines or supports for machines to chairs, benches, platforms, tables and other articles. Apple paring machines, coffee-grinders, threadreels, and smith and carpenter's vises had been supported and held in position by devices like in principle to the clamping arrangement described in the complainant's patent. And it is in proof that letters patent for a washing-machine were granted to Harvey W. Sabin, on the 16th of August, 1845, in which a clamping device for attaching the support of a wringingmachine to the side of a tub, and in combination with the support was employed; a device consisting of jaws at the lower extremity of the support, with a screw for compression, identical in principle with that claimed by the complainants. It is very obvious, therefore, if their patent can be sustained at all, it cannot be construed as claiming all forms of a portable frame or support for a washing-machine, nor a combination of a clamping device with any and every kind of such support or frame.

It may well be doubted whether a frame with no distinctive peculiarities, intended for the support of a wringing-machine and sufficient for such a use, though so constructed as to be capable of being attached by projecting jaws to the top of a wash-tub, could be regarded as patentable. Such a mode of attachment has been known and employed time out of mind, and if. before the Sergeant patent was granted, it had not been used in connection with, or as part of a frame or standard for the support of a wringing-machine, the new application, without any novel and useful result, could hardly be considered invention. It would be but a case of double use. Besides, to this extent the Sabin machine had reached years before the Sergeant patent was granted and, therefore, unless the complainants' patent is limited to some distinct

The second part of the invention, as described in the specification, consists in a portable frame employed for supporting the wringing mechanism of the machine upon one side of a common wash-tub by means of a clamping device, which is made to gripe one side of a wash-tub for the purpose of attaching and sustaining temporarily the entire wringing mechanism of the machine in a firm and expeditious manner, regardless of the diameter of the tub. Such is the language of the patentee. The specification then refers to the drawings, in which what is called the first part of the invention is represented as a yoke whose inner margin is of a U form, the sides of which extend upwards, forming uprights. From the lower end of the yoke extend two jaws, one of which con tains within a dovetail groove a wedge or key whose exposed side is made slightly concave. The office of the jaws and wedge is to hold the above described frame or yoke for supporting the wringing mechanism of the machine in position for use on one side of a common washtub, in a permanent manner, temporarily, regardless of the diameter of the tub, or the thickness of its rim, in reference to which service they are termed collectively, the vise.'"ive feature other than the jaws at the bottom of Then follows the claims of the patent, the first of which is "the employment of a portable frame or yoke B (which in the drawings is represented as a U shaped upright frame), with uprights, S, S (the sides of the yoke), or their equivalents, for supporting a clothes wringing mechanism in position on one side of a common wash-tub, for the purposes set forth.'

The second claim is the application of an adjustable clamping device, when employed to attach a clothes-wringer to one side only of a wash-tub, substantially in the manner described and for the purposes set forth."

the yoke or frame, it must fail for want of novelty if not for want of invention. And this we do not understand to be seriously questioned. We do not understand the complainants as contending that either of the claims of their patent should not be construed as embracing only the peculiarly constructed frame or yoke described in the specification.

What, then, are the distinctive features of the frame, and what are the proposed offices of these features? Manifestly the thing sought to be secured by the peculiarity of form described was not merely a support for a wringing-machine, Regarding these two claims as descriptive of not merely a standard to hold the machine in two distinct things, the first must refer to the position, but a manner of support. And beU shaped yoke or frame for supporting a wring-yond all doubt the U form of the frame is essening-machine, as exhibited in the drawings, and explained in the specification, and the second to a combination of a yoke with a clamping device, when employed to hold a clothes-wringer to the side of a tub. It need hardly be said that the claims are to be construed with reference to the state of the art at the time when the alleged invention was made. The case shows that clothes-wringers of many kinds were known and in use before the original patent was granted to Sergeant. These all had frames for holding them in position, some attached permanently to

tial. Indeed, it is the only form exhibited in the drawings and described in the specification. The purpose of the frame is also avowed to be to support the clothes-wringer, and the frame exhibits no means of support except the semicircular bottom of the U, which forms a journal bearer, on which the journal of the wringer may rest, while the uprights serve to keep it in position. By themselves the uprights serve no other purpose, and they are no more esssential than is the curvilinear space between them, the bottom of the U in the interior of the yoke. It

contested the claim, and when further contest was to the entry of the judgment, and a formal judgunavailing, the attorney for the receivers consented ment was entered.

2. If the corporation was in existence so that it could appear in a suit, it was concluded by the appearance of its attorney. 3. If it was not in existence, the receivers repre

is true a clothes-wringer might be attached to them by the aid of additional devices, but no such devices are disclosed in the drawings or in the specification, and had they been added the frame would have been substantially different from the one patented. It would have been capable of a new use. Equally well could ad-senting the corporation and its creditors, were ditional devices have fitted the Sabin standard bound by the appearance of their attorneys. for use in a manner different from that in which equivalent to a personal service of process upon 4. The appearance by authorized attorneys was it was employed. those parties. [No. 300.]

Argued Apr. 21, 1874.

· Decided May 4, 1874.

IN ERROR to the Supreme Judicial Court of

the State of Massachusetts.

In April, 1869, Folger, the defendant in error, obtained a judgment in the Superior Court of Suffolk County, Massachusetts, against the Columbia Insurance Company, a corporation of the State of New York, and against the plaintiffs in error and others, as trustee for divers sums due to him by that company.

Discarding, then, the jaws and the wedge, or other clamping device, as neither patentable by themselves nor patentable in combination with a wringing machine supporter or frame, in view of the state of the art when this patent was issued, unless the structure of the frame was such as to obtain a novel and useful result it be comes evident that the shape of the frame must be regarded as one of its most important elements. And if this be so, the novelty of the frame does not consist in its having two uprights standing apart from each other without regard to the figure of the intervening space. On these judgments, writs of scire facias were As we have seen, if the semi-circular shape of issued. The answer of the plaintiffs in error what in the specification is called the inner mar- set up that the judgment was invalid, because, gin of the yoke, that is, of the space between before it was recovered, the insurance company the uprights, is not a necessary constituent, the was dissolved by decree of the Supreme Court yoke cannot accomplish the results claimed for of the State of New York. A portion of the it, and no manner of support for a wringer is record of the judgment in New York was inexhibited. Surely a frame shaped like an introduced. declaring that the company be disverted M (), though it would have two up-solved. The Superior Court, however, rendered rights separated by a space and connected at the bottom, would be essentially different from that claimed in this patent, because incapable of the same use. It could not support a clothes wringer in the manner described in the drawings annexed to the patent. A space bounded by right lines is not substantially the same as one bounded by a curve, and unless we throw out of the specification and the claims all that is said respecting the configuration of the interval between the uprights, we must hold that the defendants, in the use of their device, have not been guilty of any infringement of the complainants' rights. They have used a portable support for a wringing mechanism which has some of the features of that of the complain ants, but it has not the U formed yoke, which is essential to the patented combination.

The decree of the Circuit Court is affirmed.

judgment upon the scire facias proceedings in favor of the plaintiff, Folger. This decree was affirmed in the Supreme Court of the State, and the case was brought to this court by writ of error.

Mr. Dudley Field, for plaintiffs in error:

The only errors relied upon are, that the court erred in holding that the Columbian Insurance Company was not dissolved, and that, the company being dissolved, it had no right to enter judgment against it or the trustees. The courts of Massachusetts had not the right to question the validity of the judgment of dissolution rendered by the Supreme Court of New York. That court had jurisdiction over the parties and the cause, and the record is, therefore, conclusive in Massachusetts.

Judkins v. Mut. Fire Ins. Co., 37 N. H., 470; Bissell v. Wheelock, 11 Cush. (6) Mass.) 279; Buffum v. Stimpson, 87 Mass., 591.

The Supreme Court of New York was authorized to declare the corporation dissolved.

2 N. Y. R. S., 464; Mann v. Pentz, 3 N. Y.,

EDWARD HABICH ET AL., Plffs. in Err., 420; Howe v. Deuel, 43 Barb., 508; Slee v. Bloom,

v.

19 Johns., 456.

When a corporation is dissolved, no action can be maintained against it.

Greeley v. Smith, 3 Story, 657; Mumma v. Potomac Co., 8 Pet., 281; Read v. Frankfort Bank, 23 Me., 318; Merrill v. Suffolk Bank, 31 Me., 57; Ang. & Ames, Corp., ch. 5, p. 128; Duke v. Fuller, 9 N. H., 536.

Messrs. John C. Dodge and G. F. McLellan, for defendant in error:

Even supposing the decree of the court in New York to intend the extinction of a corporation, and to be a valid decree, there is still no error in the judgment.

2 Kent, Com., 406; Booth v. Clark, 17 How., 336 (58 U. S., XV., 169); Willitts v. Waite, 25 N. Y., 577; Taylor v. Columbian Ins. Co., 96 Mass., 353; Mumma v. Potomac Co., 8 Pct., 281;