idea would be to declare the legislative power | as this proceeding was based upon the adverse of the state incompetent to vest in an alien even a defeasible estate.

"That an alien can take by deed, and can 510] hold until office *found, must now be regarded as a positive rule of law, so well established, that the reason of the rule is little more than a subject for the antiquary."

claim of Wulff to the application of Moses Manuel for a patent, the objection of alicnage was properly made, but this was as in right and on behalf of the government, and naturalization removed the infirmity before judgment was rendered.

In Re Krogstad, 4 U. S. Land Dec. 564, Mr. Justice Lamar, when Secretary of the Interior, ruled that an alien, having made homestead become a citizen, the alienage at time of entry, in the absence of an adverse claim, would not defeat the right of purchase. Jackson v. Beach, 1 Johns. Cas. 399; Doe v. Robertson, 24 U. S. 11 Wheat. 332 [6: 488]; and Osterman v. Baldwin, 73 U. S. 6 Wall. 116 [18: 730], were cited to the point that naturalization has a retroactive effect, so as to be deemed a waiver of all liability to forfeiture and a confirmation of title. This seems to have long been the settled rule in the Land Department, Mann v. Huk, 3 U. S. Land Dec. 452; Lord v. Perrin, 8 U. S. Land Dec. 536; so if there had been no adverse claim in the land office, Moses Manuel's application, which appears, in respect of this question, to have been made in good faith, would not have been rejected on the mere ground of alienage when he made it. And as Moses Manuel was the grantee of a qualified locator, and became naturalized before the order, we conclude that there was error in the direction of a non-suit.

The objection here rests, however, on the assumption that Congress has not intended to confer any estate in respect of claims of this char-entry and subsequently filed his intention to acter because the right of purchase and the right of possession are indivisible, and the valid ity of the location is destroyed on the transfer of the claim to a person not authorized to keep the location alive. Tibbitts v. Ah Tong, 4 Mont. 536. Of course, the same qualification required in those who may purchase is required as to those who may possess, but that, in our judgment, does not render possessory rights any the less property susceptible of distinct ownership, nor involve the consequence that their transfer to unqualified persons would operate a forfeiture eo instanti as for a violation of a continuing condition precedent so that the removal of the disqualification would not cure the defect. If it could be properly held that the qualification of his grantee should be regarded as at all a condition annexed to the ownership of the qualified locator, such condition would be a condition subsequent, and governed by the rule laid down in Schulen berg v. Harriman, 88 U. S. 21 Wall. 44 [22: 551].

The judgment of the supreme court of Montana Section 2319 of the Revised Statutes is as is reversed, and the cause remanded with a di follows: "All valuable minerals deposits in rection to reverse the *judgment of the [512 lands belonging to the United States, both sur-court below and for further proceedings in conveyed and unsurveyed, are hereby declared to formity with this opinion. be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by the citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the

Mr. Justice White not having been a member of the court when this case was considered, took no part in its decision.

local customs or rules of miners in the several THE CITY NATIONAL BANK OF FORT

mining districts, so far as the same are applicable and not inconsistent with the laws of the United States."

And by section 2322, it is provided that when such qualified persons have made discovery of mineral lands and complied with the law, they shall have the exclusive right to possession and enjoyment of the same. It has, therefore, been repeatedly held that mining claims are property in the fullest sense of the word, and may be sold, transferred, mortgaged, 511]and *inherited without infringing the title of the United States, and that when a location is perfected, it has the effect of a grant by the United States of the right of present and exclusive possession. Forbes v. Gracey, 94 U. S. 762 [24: 313]; Belk v. Meagher, 104 U. S. 279 [26: 735]; Gwillim v. Donnellan, 115 U. S. 45 [29: 348]: Noyes v. Mantle, 127 U. S. 348 [32: 168].

This being so, we are of opinion on this record that, as Alfred Manuel was a citizen, if his location were valid, his claim passed to his grantee, not by operation of law, but by virtue of his conveyance, and that the incapacity of the latter to take and hold by reason of alienage was, under the circumstances, open to question by the government only. Inasmuch

WORTH, Appt.,

V.

R. D. HUNTER ET AL.

(See S. C. Reporter's ed. 512-516.

Appeal from decree of court below entered upon mandate of this court-mandamus — jurisdictional amount-costs-appeal.

1. If the decree of this court has been misunder

NOTE. As to amount nocessary to give jurisdiction

in circuit court cases prior to Act of 1875; amount necessary since Act of 1875; amount in dispute, see note to Schunk v. Moline M. & S. Co. 37: 256.

As to jurisdiction in the United States Supreme Court where Federal question arises, or where are drawn in question statutes, treaty, or Constitution, see notes to Martin v. Hunter, 4: 97. Matthews v. Zane, 2: 654, and Williams v. Norris, 6: 571.

As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state con

stitution: to revise decrees of state courts as to construction of state laws, see note to Hart v. Lamphire. 7: 679, and to Commercial Bank of Cincinnati v. Buckingham, 12: 169.

As to when mandamus will issue, see note to

M'Cluny v. Silliman, 4: 263.

As to mandamus to control inferior courts; discretion, see note to Ex parte Morgan, 29: 135.

3. While compliance with a mandate of this court which simply requires the execution of its decree, may be enforced by mandamus, without regard to the value of the matter in dispute, yet this court cannot entertain an appeal, if the value of the matter in dispute upon such an appeal is less taan $5000.

4. If the sum in dispute on appeal is sufficient to give this court jurisdiction it can consider the question of costs involved, but where the appeal in respect to interest must be dismissed for want of jurisdiction, the appeal, in respect to costs, must also be dismissed.

5. No appeal lies from a mere decree for costs.

[No. 264.]

& G. R. Co. 140 U. S. 92 (35: 340, and the
others of long standing.

The Santa Maria, 23 U. S. 10 W Leat. 431(6: 359);
Himely v. Rose, 9 U. S. 5 Cranch, 313 (3: 111);
Boyce v. Grundy, 35 U. S. 9 Pet. 975 (9: 127).

with a national bank, and the question of
This is now a controversy solely and alone
amount as to jurisdiction, for or against, is of
no importance or significance.

Spear, Federal Judiciary, 219, cl. 10, and cases there cited.

This fiscal agent, or financial instrument of the government, on the account of which this case went out of the state court to the United States court, cannot be hampered as to the amount in controversy.

The general law, regardless of the peculiarity of this deposit, would forbid any demand for interest of this mere general deposit.

Submitted March 8, 1894. Decided March 19, v. Farmers & M. Bank, 26 Vt. 100; Duncan Foley v. Hill, 2 H. L. Cas. 39, 40; Haswell

1894.

v. Magette, 25 Tex. 245; First Nat. Bank of Carlisle v. Graham, 100 U. S. 699 (25: 750);

APPEAL from a decree of the Circuit Court National Bank of the Commonwealth ! He

of the United States for the Northern District of Texas, entered upon the mandate of this court. Dismissed.

See same case 129 U. S. 557, 579 (32: 752, 760.)

Statement by Mr. Justice Harlan :

chanics Nat. Bank, 94 U. S. 437 (24: 176); Newmark, Bank Deposits, § 114, Boone, Corp. § 219, 220.

Mr. H. M. Pollard, for appellee:

The circuit court committed no error in awarding interest on plaintiffs' pro rata against the defendant bank; the bank was a trustee and above its pro rata, from the Dawson note, as to plaintiffs, of all funds received by it over and having used plaintiffs' share of said funds in its business, it is liable for interest.

Trustees, 338-343; Hill, Trustees, 374; 7 Am. Perry, Tr. § 429, 430; Lewin, Trusts & & Eng. Enc. Law, 395; Kerr v. Laird, 27 Miss. 544; Lewis v. Bradford, 8 Ala. 632.

duty of the bank to pay the same, and its After demand made by plaintiffs, it was the failure and refusal to do so made it liable for interest or damages as a trustee de son tort.

Under these circumstances it would have been be the legal rate of interest, for withholding the liable for damages, the measure of which would had and received to use of plaintiffs. same from plaintiffs, in an action for money

In City National Bank of Fort Worth v. Hunter, 129 U. S. 557, 579 [32: 752, 760] will be found a full history of the litigation between the parties to the present appeal. The final decree was reversed, with costs, and the case was remanded with directions to proceed in conformity with the opinion of this court. After the mandate and opinion of this court had been filed in the court below, the cause was again beard, and it was, among other things, adjudged: That said complainants, R. D. Hunter, A. G. Evans, and R. P. Buel, do have and recover of and from the defend. ants, the City National Bank of Fort Worth the sum of twelve thousand nine hundred and eighty four and ($12,984.85) dollars, together with interest thereon from this date at the rate of eight per cent per annum. It is further ordered, adjudged, and decreed that all costs accrued in this cause up to September 30, 1881, be, and the same are, hereby adjudged against said complainants, R. D. Hunter, A. G. Evans, and R. P. Buel, and for which let exe 513]cution issue; and, as the costs of the supreme court have been allowed against said far as it included interest in favor of the ap1. It is conten-led that the decree below, so complainants, all other costs incurred herein pellees, was not in conformity with the opin which have not been otherwise adjudged be.ion of this court, and, for that reason, should and the same are hereby, adjudged against said defendant, the City National Bank of Fort Worth."

85

From this decree the present appeal was prosecuted by the bank. The errors assigned re: 1. The court gave interest on the plaintiffs' portion of the fund to be divided. 2. Costs were awarded against the defendant

bank.

Messrs. A. H. Garland and H. J. May, for appellant:

1 Ala. 452; lease v. Barber,3 Cai. 265; Marvin
Close v. Fields, 13 Tex. 624; Porter v. Nash,
v. McRae, 1 Cheves L. 61.

of the court:
Mr. Justice Harlan delivered the opinion

be reversed. The claim is that such interest was "nearly or quite $4000." In that view, has this court jurisdiction, upon appeal, to review the last decree?

upon Perkins v. Fourniquet, 55 U. S. 14 How. In support of our jurisdiction, counsel rely 328 [14: 441]. In that case, it was claimed that the decree appealed from exceeded what was allowed upon a previous appeal, by a sum larger than was necessary to give this court jurisdiction. And the question arose whether This case comes plainly under the ruling in the alleged error could be reached by an ap. Perkins v. Fourniquet, 55 U. S. 14 How. 328 peal from the last decree. Chief Justice Taney, (14: 441); and reconciles any apparent conflict speaking for this court, said: "This objec there may be between the case Re Washingtontion to the form of proceeding involves noth

1.

JOSEPH B. SARGENT ET AL., Appts.,

V.

JAMES C. COVERT.

Invalid patent.

(See S. C. Reporter's ed. 516-520.)

The patent to James C. Covert, of April 6, 1875. No. 161,757, for an improvement in clasps or thimbles for hitching devices, is invalid, for want of invention.

[No. 298.]

ing more than a question of practice. The mandate from this court left nothing to the judg 515jment and discretion of the *circuit court, but directed it to carry into execution the de cree of this court, which was recited in the mandate. And if the decree of this court has been misunderstood or misconstrued by the court below, to the injury of either party, we see no valid objection to an appeal to this court in order to have the error corrected. The question is merely as to the form of proceeding which this court should adopt to enforce the execution of its own mandate in the court below. The subject might, without doubt, Argued March 19, 1894. Decided April 2, 1894. be brought before us upon motion, and a mandamus issued to compel its execution. But an appeal from the decision of the court below is equally convenient and suitable; and, perhaps, more so in some cases, as it gives the adverse party notice that the question will be brought before this court, and affords him the opportunity of being prepared to meet it at an early day of the term.' This principle was affirmed in Milwaukee & M. R. Co. v. Soutter, 69 U. S. 2 Wall. 440, 443 [17: 860, 861] and recognized in Re Washington & G. R. Co. 140 U. S. 92, 95 [35: 340, 341].

The case cited would sustain the present appeal as an appropriate mode for raising the question above stated, if the amount now in dispute was sufficient to give this court jurisdiction to review the last decree. Under the statutes regulating the jurisdiction of this court at the date of the decision in Perkins v. Fourniquet, the amount there in dispute was sufficient for an appeal. But that case does not sustain the broad proposition that, without reference to the value of the matter in dispute, an appeal will lie from a decree, simply upon the ground that it is in violation of or a departure from the mandate of this court. While compliance with a mandate of this court, which leaves nothing to the judgment or discretion of the court below, and simply requires the execution of our decree, may be enforced by mandamus, without regard to the value of the matter in dispute, we cannot entertain an appeal, if the value of the matter in dispute upon such appeal is less than $5000. Nashua & L. R. Corp. v. Boston & L. R. Corp. 5 U. S. App. 97. 100.

2. If the sum in dispute on this appeal was sufficient to give us jurisdiction, we could con516]sider the question of costs *referred to in the second assignment of error. But as the арpeal in respect to interest must be dismissed for want of jurisdiction, the appeal, in respect to costs, must also be dismissed. No appeal lies from a mere decree for costs. Canter v. American Ins. Co. 28 U. S. 3 Pet. 307, 319 [7: 688, 692]; Wood v. Weimar, 104 U. S. 786 [26: 779]; Union Paper Bag Mach. Co. v. Nixon Paper Bag Cases, 105 U. S. 766 [26: 959].

The appeal is dismissed.

Mr. Justice White not having been a member of the court when this case was argued, took no part in its decision.

APPEAL from a decree of the Circuit Court

of the United States for the Southern District of New York, in favor of James C. Covert, plaintiff, against Joseph B. and George H. Sargent, for infringement of letters patent No. 161,757, issued April 6, 1875, for an improvement in clasps or thimbles for hitching devices and for the recovery of damages and costs. | Reversed, with directions to dismiss the suit.

Statement by Mr. Chief Justice Fuller: This was a bill filed by James C. Covert against Joseph B. and George H. Sargent in the Circuit Court of the United States for the Southern District of New York for infringe ment of letters patent No. 161,757, dated April 6, 1875, issued to complainant for "improvement in clasps or thimbles for hitching devices," upon which a final decree was entered adjudging the patent to be good and valid; that the defendants had infringed the same; and that complainant should recover of the defendant Joseph B. Sargent the sum of $750, and of the defendant George H. Sargent. $250, and costs. From this decree an appeal was taken to this court.

As to distinction between inventions of mechanism, articles, or products and processes; when latter patented, see note to Corning v. Burden, 14: 683.

As to including process and product in same patent; separate patents therefor, see note to Evans v. Eaton, 4:433.

As to what reissue may cover, see note to O'Reilly v. Morse, 14: 601.

As to assignment before issuing and reissuing patent; recording; when assignment transfers extended terms, see note to Gayler v. Wilder, 13: 504.

As to when assignee may sue for infringement; when patentee must; when they must join, see note to Wilson v. Rousseau, 11: 1141.

As to damages for infringement of patent; treble damages, see note to Hogg v. Emerson, 13: 824

sharp pointed screw is fitted to pass through to pass freely over the rope, as in Fig. 1, an ! the projection at right angles to the bore of in one side of which is fitted a thrumb screw, the tube so as to enter the rope and hold the C, so that when the said thumb screw, is tube fast in any given position upon it. This turned hard down upon the rope, the socket set screw is provided with an eye for the re-will be held firmly in that position, and may be ception of a snap hook on the end of the hitch-adjusted to different positions on the rope by ing rope whereby a loop may be formed to loosening the screw, and sliding the socket pass around the neck or other part of the ani-accordingly. The head of the thumb screw mal; the size of the loop being determined by C is constructed with a hole, D, at each end, the position of the thimble or tube on the rope. so as to form a means of attachment of the The specification is accompanied by a draw end of the rope thereto." ing, in which figure one is a perspective view, and figure two, a longitudinal section, of the alleged invention, figure 2 being as follows:

A

Comparing these two figures, it will be seen that they are alike except that the end of the screw in the patent sued on is sharpened and the screw has but one eye, where as the end of the screw in the Wiard patent is blunt and it is provided with two eyes. And these are the particular differences pointed out by complainant's expert, who also testified on cross-examination that if the end of the screw in the Wiard socket were made substantially like the sharpened point of the *Covert patent, that would be, in his [519 opinion, an infringement. According to his view, the most essential advantage of the invention in suit was that which resulted from hiv ing the end of the screw sharpened instead of flat, though, he added, "there are advantages in

double one;" but, nevertheless, that he did not "think the use of a double eye instead of a single one would evade the charge of infringement."

This is thus described in the specification: "A represents a thimble of any suitable dimen-having a single eye to the screw, instead of a sions provided on one side with a nut or enlarge ment, a, having a hole through it with female screw threads. The thimble A is fastened on the rope B at any desired place by means of a sharp pointed screw, Cr, which passes through the thimble at the nut a and the rope. This screw is provided with a round eye, D, for the reception of a snap book."

The advantages resulting from sharpening the point of the screw were stated by him to be "a sharp pointed screw will enter the material of which the rope is composed and hold The claim is: The combination of the tube the thimble in a positive manner, and this is A, having the projection a, with interior screw true even if the screw becomes slightly slackthreads cast therewith, and the screw C, havened; a flat ended screw simply holds by fricing the eye D and the sharp point x, for entering into the rope, all constructed as and for the purposes set forth."

tional contact, and if the screw is slightly slackened does not prevent the thimble from being slipped out of place."

The tile wrapper and contents showed that It appeared that the Wiard socket as actu518 the original *claim was: The combi-ally made and sold had a convex end; that nation of the thimble A, rope B, and sharp conical pointed screws were in common use pointed screw C, provided with the eye D, subprior to the patent in suit; that complainant stantially as, and for the purposes herein set was acquainted with prior devices, including forth;" but the projection a in the claim allow-that of Wiard, and sought to improve upon ed was not an essential qualification, and com-them; and that the sales of his device were plainant insists that the words "cast therewith" large. do not refer to the "interior screw threads," Reference was made on the argument to and only appear to do so through erroneous testimony adduced on behalf of complainant punctuation. Defendants' screw threads were tending to show an essential mechanical differmade with a tap in the ordinary way. ence between the two devices in the use of one In support of the defense of invalidity, de-eye centrally located in the one, and the use fendants introduced a patent i-sued to John Ward, June 9, 1868, for an "improvement in cattle tie," in the drawings accompanying which, figure two represented "the adjustable socket of the halter," as follows:

B

This was described in the specification in these words: "B is a socket, constructed so as 152 U. S. U. S., Book 38.

of two eyes, each placed one side of the center, in the other, and it was contended that the former was superior in that the latter was more exposed to being struck and unscrewed, and also exposed to the liability of the attaching hook being snapped "into the wrong eye, especially at night and in the dark, which is constantly the case during the winter months, when much of the caring for stock is done after nightfall."

But be this as it may, the claim of the patent was not limited to the use of a single eye, and it is apparent that the only material difference between the patented thimble and the Wiard socket to be considered is that the screw of the one had a rounded end and theother a sharpened point, while the *difference of operation [520 34

537

ERROR to the Circuit of

is manifestly that a sharpened point will enter | IN ERd Dates for the Southern District he

than a rounded point. We cannot perceive in New York, to review a judgment for defendthe recognition of the fact that facility of ant William H. Robertson, Collector, in an acpenetration is greater in a sharpened point tion brought by Henry Herrman et al., plainthan in a blunt one, any such evidence of in-tiffs, for the recovery of duties paid under vention as is sufficient to sustain this patent. protest. Affirmed. Moreover, the Wiard screw, which is rounded at its end, is shown to enter the rope when screwed down hard, and in respect of the engagement between the rope and the socket or thimble to operate in the same way as the patented thimble. In other words it holds by something more than frictional contact. Each of these screws compresses the rope within the socket, but the Covert screw, being sharpened, penetrates further than the other. The change is in degree and not in function.

We think the evidence fails to show that the Wiard socket was not a practicable and successful article, and agree with the remark of Judge Wallace in his opinion overruling the exceptions to the master's report (Covert v. Sargent, 38 Fed. Rep. 237, 235) that: "The patented articles are not so superior to the other fastening devices as to give rise to any cogent presumption that those who purchased them of the defendants would have bought them of the plaintiff in preference to the other devices, and without reference to the difference in price, if they could not have bought them elsewhere."

We are of opinion upon this record that the alleged improvements was such a one as would have occurred to any one practically interested in the subject, and that it did not involve such an exercise of the inventive fac ulty as entitled it to protection.

The decree is reversed and the cause remanded with a direction to dismiss the bill.

Mr. Justice Jackson did not hear the argument, and took no part in the decision of this case.

Statement by Mr. Chief Justice Fuller: Action to recover duties paid under protest. Trial by jury, and bill of exceptions as follows: "This action was brought to recover the difference in duty between 35 per cent ad valorem and various higher rates of duty assessed and paid upon certain goods imported by plaintiffs at the port of New York in the year 1881.

"Duties were paid to defendant under protest as follows: Against defendant's liquidation claiming 'The goods in question are liqui dated by you as being liable to a duty of 50 cents per pound and 35 per cent ad val.

"We claim the goods are composed of hair and cotton only, and as such should pay a duty of 35 per cent ad val. as a nonenumerated article under the second half of section 2499, Rev. Stat., being the highest rate of duty which any of the component material pays.' "Plaintiffs thereafter, in due time, appealed and brought this suit.

"Further to maintain the issues on their part, plaintiffs introduced samples of the [522 goods in question and evidence tending to show from an analysis their component material to be calf hair and cotton exclusively. Among other evidence on this point a report as to these samples from Prof. Torrey, an expert witness, was verified by him, and on this point was as follows:

"The sample marked 'C 386' by the Republic, August 12, 1887, found to contain 87.4 calf hair and 12.6 cotton by weight.

"The next sample, "292,' Arizona, Aug. 20, 1887, 86.6 calf hair and 13.4 cotton.

"Sample 760, Alaska, Dec., 1887, 88.5 calf hair and 11.5 cotton.

"'H. T. 2680, 85.6 calf hair and 14.4 cotton. H. T. 2759, 86.1 calf hair and 13.9 cotton. "The above samples were all composed of

WILLIAM H. ROBERTSON, Collector of calf hair and cotton, with no admixture of

the Port of New York.

[No. 280.]

wool that could be detected by the aid of the microscope.

(Signed H. G. Torrey, government examiner of textile fabrics).'

"There was no admixture of wool in the goods.

"It further appeared that the goods in question were a low grade of calf hair goods. It further appeared that they cost less than forty cents per pound, the foreign value per running yard being from one shilling and ten pence to two pence.

"Plaintiffs having rested, counsel for defendant, without introducing any evidence, moved the court to direct a verdict for the defendant; which motion was granted and the counsel for the plaintiffs then and there duly excepted, and the exception was allowed."

Argued March 14, 1894. Decided April 2, 1894. NOTE.-A8 to lien of United States for duties, see note to United States v. 350 Chests of Tea, 6: 702, The verdict having been returned as directed As to action to recover back duties paid under and judgment been entered thereon, plaintiffs protest; protest, how made, and its effect, see note to brought the case to this court on writ of Greely v. Thompson, 13: 397.

error.