376
FEDERAL REPORTER.
nation and inquiry, and to hold him to the equities existing between the original parties. The register's report must be corrected in accordance with the foregoing opinion. The exceptions filed by the assignees were not pressed, and are dismissed. '
UNITED STATES V. BAYAUD
and another. March 30, 1883.)
'Oircuit Oourt, S. D. New York. 1.
INDICTMENT FOR REMOVING STAMPS FROM VASKS CONTAINING DIS'l'ILLED SPIltITS-SECTION 3324, REV. ST.-DoMESTIC OR FOREIGN Spmrr's,
As the offense described in section 3324 of the Revised Statutes, as amended by the act of March 1, 1879, § 12, is committed by the removal, without destroying, of stamps from a cask containing distilled spirits,whether such spirits be foreign or domestic, it is not necessary in the indictment to describe the spirits as .Qomestic in order to charge an offense. 2. SAME"':"LICENSED OR lLLICrr DISTILLERY. What is forbidden is the removal of the stamp from a package of distilled spirits without, at the same time, destroying it, and the offense is committed whether the spirits in the cask be the product of " licensed or an illicit distillery, and without reference to the circumstances undel' which the stamp was affixed. 3. SAME-CAPACITY OF VASKS. It need not be alleged in the indictment that the casks contained more than five gallons, and were not" standing casks." 4. SAME-DESCRIPTION OF STAMPS. It iii not necessary in the indictment to set out the stamps removed verbatim. A description thereof by their statutory designation is sufficient. &. SAME-BILL OF PARTICULARS.
A hill of particulars cannot cure the omission of a material averment from an indictment; but when, as in this case, the indictment shows that the description of the stamps removed is all that was within the power of the grand jury to give, and such description is sufficient to show that an offense has been committed, and when it appears of record that further and full particulars were afterwards given under the order of the court, a bill of particulars so obtained is an answer to the suggestion that the accused will not be, able to identify by evidence the stamps to which the indictment rpfers, and plead an acquittal or conviction on such indictment in bal" of a wllsequent charge for the same offense. 6. SAME-OBJECTIONS AFTER PLEA OF GUILTY.
After a plea of guilty, the only objection that can be made to the indictment is that it fails to describe the various acts intended to be proved with that reasonable certainty which the law requires to constitute a valid indictment.
7.
SAME-CHAIWING INTENT.
As neither an intent to nse the stamps again, nor an intent to defraud the United nor any other particular intent, is made by the statute an ingredient of this offense, the indictment need not charge any such intent.
UNITED STATES V. BAYAUD.
877
8.
S.HIE-IMPERFECT AVERMENT CURED BY VERDICT-PLEA OF GUILTY.
The rule that where an averment, which is necessary for the support of the pleading, is imperfectly stated, and the verdict could not have been found with· out finding this imperfect aver1llent to have been proved in a sense adverse to the accused, then, after verdict, the defective averment, which might have been bad on demurrer, is cured by the verdict, applies with full force to a case Where, although thcre has been no verdict of guilty, there has been a plea of guilty. 9. SAME-KNOWLEDGE OF CONTENTS OF CASKS.
As, in this case, the statute bound the accused to know the facts and to obey the law at their peril, a conviction may be had without charging in the indictment knowledge of the contents of the casks from which the stamps were removed. 10. SAME-STATUTORY DESIGNATION OF STAMPS.
Although the statute designates the stamps respectively" distiller warehouse stamps" and" tax-paid stamps," a designation of such stamps in the indictment as "United States internal-revenue distillery warehouse stamps" and" United Statcs internal-revenue tax-paid stamps for distilled spirits," will be sufficient. 11. S.'ME-JOINDER OJ' DEFENDANTS.
As the nature of the offense charged in this case is 8uch that a joinder of offenders is permissible, the indictment is not bad because it joins two defendants. 12. SAME-SEPARATE OFFENSES-OBJECTION IN ARREST OF JUDGMENT.
An objection that an indictment charges two separate and distinct offenses, cannot be availed of on a motion in arrest of judgment.
On Motion in Arrest of Judgment. Before WALLACE, BENEDICT, and BROWN, JJ. BENEDICT, J. This case comes before the court u'pon a motion in arrest of judgment, upon a plea of guilty. The statute to which attention has been called in connection with the motion is as follows: "Every person * * * who removes any stamp, provided by law, from any cask or package containing, or which had contained, distilled spirits without defacing and uestroying the same at the time of such removal, or who aids or assists therein, * shall be deemed guilty of felony." Rev. St. § 3324.
The indictment contains several counts substantially alike. The first count charges that at a time and place stated the accused.. Did feloniously, knowingly, and fraudulently remove 36 United States internal-revenue stamps, provided and required by law of the United States for distilled spirits. to-wit, 18 United States internal-revenue distillery warehouse stamps for distilled spirits, and 18 United States internal-revenue tax-paid stamps for distilled spirits of the denomination of 40 gallons,-a more partioular and definite description of which said stamps being as yet to the jurors aforesaid unknown,-from 18 casks then and there containing distilled spirits, to-wit, ·gin,-a more particular and definite description of which said casks and distilled spirits being as yet to the jurors aforesaid Ullknown,-on which said
378
casks said stamps had theretofore been placed, as prOVided and required by law of the United States, as they. the said George D. Bayaud and Gustav F. Perrenaud then and there well knew, without defacing and destroying the sllid stamps at the time of the removal thereof as aforesaid."
To this count the first objection taken is that it charges no offense, because it omits to state that the spirits contained in the casks were of domestic manufacture. This objection is evidently bas,ed upon the supposition that the provision of the statute above quoted is applicable. to. casks containing domestic spirits only. This is a misa.pprehension. By the act of March 1, 1879, § 12, (20 St. at Large, 342,) the provision is made applicable to imported spirits as well. The offense is committed by the removal, without destroying, of stamps fr0tlla cask containing distilled spirits, whether such spirits be or domestic. It is not necessary, therefore, to describe the spirits as domestic in order to charge an offense. The next objection is that the count is defective because it does not show that the spirits contained in. the casks in question had been produced in a licensed distillery, and that the stamps had been affixed to the casks in pursuance of the requirements of law. Here the argument is that only spirits produced in a licensed distillery are required to be stamped, 'and the provision above quoted applies only to the removal, without destroying, of stamps lawfully affixed; wherefore it is said that there must be an allegation and proof that 'the spirits in ,tlJecasks had been produced in a licensed distillery j that a warehouse entry of them had been made; that the warehouse stamp referred to had been affixed to the casks in conformity with such entry j that the tax on the. sph;its described had been subsequently paid; and the tax-paid stamp referred to affixed after such payment. In order to sustain this position the statute must be understood as if it read, "any person who removes a stamp which has been affixed as required by law from any cask to which it was so affixed," etc. But the statute reads otherwise. It describes the stamp referred toby the words "any stamp provided by law," and it describes the cask as "any cask containing or which has contained distilled spirits," and it prohibits the removal without destroying of such a stamp from such a cask, and no words are used indicating an intention to limit the offense to removals without destroying of such stamps only as may have been affixed to the cask in question in the particular mode directed by law. Stamps of various kinds are provided by law for distilled spirits. and the object of the provision in question ·to prevent a second use of any such stamp after it has been once af'fi\:ed to,
879
a cask of distilled spirits. The removal of a governmental stamp from a cask of distilled spirits is not prohibited. What is forbidden is the removal of such a stamp from a package of distilled spirits without at the same time destroying it; and the offense is committed whether the spirits in the cask be the product of a licensed or illicit distillery. and without reference to the circumstances under which the stamp was affixed. So the ingredients of the offense created by the statute in question (aside from knowledge and intent. which will be adverted to hereafter) are: (1) A removal, without at the same time ing, of any stamp provided by law; (2) from any cask containing·or which had contained distilled spirits. These ingredients are not wanting in the present indictment. What has already been said disposes of the further point made, that it should appear on the face of the indictment that the casks contained more than five gallons, and were not "standing casks." The next objection to the indictment is that the stamps are not set out verbatim. Here reliance is first placed upon the rule that when words, whether written or spoken, form part of the gist of the offense they must be set out verbatim. This rule has no application to a case like this. Stamps of various kinds are provided by law and their form prescribed. One kind, having a designated form, is termed a "distillery warehouse stamp," (21 St. at Large, p. 147;) another is designated ·by the statute as a "tax.-paid stamp," and its form is prescribed, (section 3295, Rev. St.) To remove, without destroying, any stamp of either of these kinds from a cask containing distilled Bpirits is an offen,se, not because of the words printed on the face of the stamp, but because it is a stamp provided by law. The words upon the stamp form no part of the gist of the offense. That would be the same if the stamp exhibited a mere device without words. For the purposes of this statute the stamp is a mere emblem, and when it is described by its statutory designation such description brings the thing within the scope of the for every "distillery warehouse stamp" or "tax-paid stamp" is a stamp provided by law. In larceny, when a bank-note is the subject of the offense, it is needless to set forth the note. Archb. Crim. Pro & PI. 56. When the offense is selling a lottery ticket, the ticket is not required to be set forth. People V. Taylor, 3 Denio, 99; Freleigh V. State, 8 Mo. 6i3. The present case is analogous in principle. Again, it is said that the stamp must be set out to enable the court to see that it was an engraved stamp, and filled out according to law. Rev. St. § 3312. But setting out the stamp verbatim in the indictment
380
FEDERAL REPORTE&
would not show to the court that it was engraved, nor that it was filled out as ,the law required. Again, it is said a tax-paid stamp is a receipt for the tax on the spirits in the cask, and whether these stamps purported to be receipts for such tax can only be determined by the contents of the paper. But section 3324 nowhere says that the stamp referred to must be a. receipt. The words are, "any stamp provided by law;" and the removal, without destroying, of such a stamp from a cask containing spirits is forbidden, whether the stamp shows the receipt of the tax la.wfully charged on the spirits or not. Reference has been made to the, rule in respect to indictments for forgery, where the forged note must be set out to enable the court to see that the thing made or uttered is in the similitude of a thing capable of being forged. Here we have nothing to do with the similitude of a stamp, but with the stamp itself,-a thing having a statutOl'y name and form, which is therefore legally described by using the statutory designation. Again, it is said the stamp should be set out in order to inform the accused of the history of the casks to which they were affixed. But the accused can be informed of the act charged without furnishing a history of the casks. To require that would annul the statute. Still again, it is said the stamp should be set out to enable the accused to be prepared to show that the stamps removed were not genuine, or were removed by persons other than the defendants. But all this may be secured to the accused without setting out the stamps 'Verbatim. To require the setting out of the stamps verbatim is one thing; to require a description of the act charged sufficient to identify it is quite another; and whether the description of the act charged, furnished by this indictment, is suffitlient for that purpose, is the next question to be considered. The description given of the act intended to be proved against the accused is as follows, viz.: That at a certain time and place they did, from 18 casks containing gin, remove, without destroying, 36 United States internal-revenue stamps, prescribed and required by law for distilled spirits, to-wit, 18 United States internal-revenue distillery warehouse stamps for distilled spirits, and 18 United States internaltax-paid stamps for distilled spirits of the denomination of 40 gallons, a more particular and definite description of which said stamps is as yet to the jurors unknown. The act intended to be proved is removing, without destroying, certain stamps. If the case were larceny the act would be taking and carrying away certain stamps. An indictment for larceny, containing
UNITED Sl'ATES V. BAYAUD.
381
a description of the property taken, such as this indictment affords, would be good according to many authorities; as, for instance, 2 Hale, 283, where the description given is "20 sheep;" Reg v. Gallears, 1 Denison, C. C. 501, where the description is "one ham;" Rex v. Johnson, 3 Maule & S. 540, where the description is "nine bank· notes." Considering the analogy between the act of removing and the act of taking and carrying away, it is not seen why any greater particularity in describing the property should be required in the one case than in the other. Certainly too much is olaimed when it is asked that the indictment indieate the evidenoe by which the government intends to support the charge that the accused removed these stamps. The degree of certainty required in an indictment depends upon the charaoter of the offense. Complete oertainty is not, in all oases, required. What is sufficient certainty in any case depends on the nature of the offense and the circumstances of the case. The description here is carried so far as to point out that the stamps removed were 18 United States in,ternal-revenue distillery warehouse stamps, aud 18 United States internal-revenue tax-paid stamps for distilled spirits of the denomination of 40 gallons, and that they were removed from caskS, and that such casks contained gin. Moreover, the grand jury say that these are all the padiculars known to them. No doubt each of these stamps at some time displayed other distinguishing characteristics besidesthose stated in the indictment; but it does not follow, as contended by counsel, that such other partic'ulars must have been known to the 'grand jury. The stamps may have 'been accidentally defaced since f..hci.r removal from the casks and before exhibition to the grand jury, so as to disclose no more than is stated in the indictment, or they may have been lost and so never exhibited to the grand jury, or they may been beyond the reach of the grand jury, and no more of their contents recollected by witnesses of the removal than the indictment disoloses, and still their removal may have been proved. It has never been supposed necessary to produce the subject of a larceny before the grand jury, and it is entirely possible to give legal proof of the removal of those stamps at the time and place stated without producing the stamps themselves. It is by no means correct, therefore, to say that "this indictment is either a. fraud upon the court, and its presentation a , perversion of justice, or else the allegation in it is untrue." But it is again contended that the contents of the stamps, so far as printed in the statutes, might have been given. Certainly; but
382
without any benefit to the accused. The stamps are described by their statutory designation, and the accused is thereby most oertainly informed of their contents, so far as printed in the statutes, for no stamp oan oome within the designation of the statute unless in the statutory form. Again, it is contended that the stamps should be set out to enable the accused to plead an acquittal or oonviction in bar of a subsequent charge for the same offense; and it is said more. than 100 stamps -are alleged to have been removed, and if the acoused are again indicted for removing any of these it will be impossible for them to show by the record or by evidence that the subject of such new indiotment is one of those referred to in this indictment. Here is not the place to object to the indictment because of the number of oharges it contains. The accused, without objection, have plead guilty to each oharge made. After such plea the only objection open to them on this score is that the indictment fails to describe the various acts intended to be proved with that reasonable certainty which the law requires to consti· tute a valid indictment. Suoh a degree of certainty in an indictment as will preclude the necessity of any evidenoe to identify the subjectmatter is not required. "There must be some parol evidence in all cases to show what it was that he was tried for before." Reg. v. Mansfield, 1 Car. & M. 140. In the present case, if the accused believed themselves to be exposed to the danger of a second. prosecution in respect to any of the stamps forming the subject of this indictment, because not possessed of evidence to identify the stampfl, it was open to them, before pleading guilty, to provide themselves with suoh evidence by means of a bill of particulars. And the record presented on this motion shows that this precaution was not omitted. A bill of particulars cannot cure the omission of a material averment from an indictment; but when, as here, the indictment shows that the description of the stamps removed is all that was within the power of the grand jury to give, and such description is sufficient to show that an offense has been committed, and when it appears of record that further and full pfl.rticulars were afterwards given under the order of the court, a bill of particulars so obtained is an answer to the suggestion that the accused will not be able to identify by evi· dence the stamps to which the indictment refers. Here it should also be remarked that in point of fact the indictment has proved sufficient to enable the accused to identify the acts charged, for it enabled them to say to the court in them6st solemn manner, by their plea of guilty, that they had committed the acts I
UNITED STATEBV. BAYAUD.
383
charged. It would hardly do, therefore, to permit them, after ac· knowledging their guilt, to escape punishment upon the theory that are not informed by the indictment as to what they say by their :plea they were thereby informed. _ In U. S. v. Schimer, 5 Biss. 195, _an indiotment was upheld where the act was described as "removing five kegs of lager beer without affixing and canceling a stamp denoting the tax on Baid beer," .and the cited here, for this case, like that, is one arising out;of !II revenue la.w and purely £Itatutory. The circumstance that the statutfJ under consideration declare!,! the offense a felony of the reason of the rule applied in Schi. does not ta.ke the case mer' 8 Case, for it will be observed that this statute, like the statute considered. by the supreme court inlU. S. v. Staats, 8 How. 46, does not make a .felonious intent part. of the description of the offense, but refers to felony ,QD.1y in; 13onnection ,with the punishment. The.next pomUo be that the indictment does not pse the £Itamps aga.in"or an intent to defraud the charge an Unite4States. ,4- ;sufl:i,cient answer to this objection..is that neither an inteJ;l,t to use. tllfl,stamps a.gp,in, nor an intent to defraud the United States, no):'. any Qtb,er particular intent,.is made by the. statute an inof the offense, and there is: nothing in the nature of the of. fense, or in the used to describe it, that enables the court to fix upon any pa.rticular intent as intended to ·be implied. Two particular intents are.suggested in the objection as made. How is the,m ? It is to be borne in mind that the the court to select general criminal intent, the wicked mind, (which being absent-as, for instance, in cases of· removing stamps by mistake or by order of court, etc.-may take such cases out of the scope of the statute,) is a different thing from the particular intent here sought to have- inserted in the statute by the court. A general criminal intent is charged in this. indictment by the word "feloniously." Upon this point the greatly-considered case of Queen v. Aspinall, L. R. 2 Q. B. Div. 48, as to which see remarks of BRE'fT, J., in Bradlaugh v. The Queen, 3 Q. B. Div. 626, is a direct adjudication. But if the particular intent to defraud the United States is to he grafted into this statute by the COUl't, still the objection under considerationcannot avail, for here is to be applied the rule that where an averment which is necessary for the support of the pleading is imperfectly stated, and the verdict could not have been found without find· ingthis imperfect averment to have been proved in a sense- adverse to the accused,then after verdict the defective averment, which might
384
have been bad on demurrer, is cured by the verdict. Heymann v. Reg. L. R. 8 Q. B. 102...;.105; The Queen v. Aspinall, supra; Wills v. Claflin, 92 U. S. 141. In this case, although there has been nD verdict of guilty, there has been a plea of guilty, and the rule cited applies with full force. So that if, as contended, the particular intent to defraud the United States is an ingredient of the offense, to be averred and proved, then the charge which the indictment con· tains, that the accused "fraudulently" removed the stamps, is now to be taken in the only sense in which it could be material in a description of the offense in question, viz., as meaning "with intent to defraud the United States." The case is one of an imperfect averment cured by the plea of guilty. It is next objected that the indictment is fatally defective because it omits to allege that the accused knew that the casks contained distilled spirits. In regard to this point it is first to be remarked that it depends upon the proper construction to be given the statute above quoted. Looking at the words employed as indicating the intent of the law, it is seen that the statutemontions certain ingredients as necessary to constitute the offense, and makes no allusion to knowledge that the casks contained or had contained distilled spirits. It would have been so easy and so natural to have designated such knowledge among the other ingredients, if it had been intended to make such knowledge an ingredient of the offense, that the omission of any ex· pression to that effect goes far of itself, considering the object of the statute, (see A Quantity of Distilled Spirits, 8 Ben. 558,) to repel the presumption of such an intention. The argument in support of such a presumption assumes that knowledge of the contents of the casks must be proved in order to render the act of removing stamps punishable as a crime. But no such assumption can be indulged in. Statutory crimes where knowledge or intent are not ingredients of the offense are common. 'The rule applied in such cases is that where a statute forbids the doing of a certain act under certain circumstances without reference to knowledge or intent, any person doing the act mentioned is charged with the duty to see that the circumstauces attending this act are such alO to make it lawful; and under such statutes a conviction may be had upon proof of doing the forbidden act, without proof of knowledge by the accused of the circumstances specified in the statute. The books contain many cases where such a rule has been applied. For instauce, Barnes v. State, 19 Conn. 399, where the act charged was selling liquor to a common c1ru111mrd 1 in which case the court
385
refers to cases of enticing a female under 21 years of age, and of adultery, (see Fox v. Stale, 3 Tex.Ct. App. 329,) as within the rule; Com. v. Waite, 5 Mass. 264, where the· aot oharged was seIling adulterated milk; 2 Allen, 160, where selling liquor that was intoxicating was the offense; State v. Heck, 23 Minn. 549, where selling liquor to an habitual drunkard was charged; 1 Russ. Crimes, 93, where the crim-e charged is induoing a. soldier to desert; Reg. v. Rob. ins, 1 Car. & K. 456, where the crime was abducting an unmarried girl under 16 years of age. Also, Beg. v. Olijier, 10 Cox, C. C. 402; Fitzpatrick::v. Kelly, L. R. 8 Q. B. 337, where the charge was selling adulterated butter; Reg. v. Woodrow, 15 Mees. & W. 404, where the offense was having in possession adulterated tobaooo, and where it was found as a fact that the accused believed the tobacco to be unadulterated. See, also, Halsted v. State, 12 Vroom, 552. In all these cases a point similar to the one under consideration was made without avail. No reason has been suggested why the rule above stated should not be applied in the present case. By the statute under consideration a certain act is made criminal when done under certain cir. cumstances, without reference to knowledge or intent. The act described is removing from a package to which it is affixed a stamp provided by law, without at the same time destroying the stamp. This aot is forbidden under oertain circumstances; namely, where the stamp is affixed to a package oontaining, or which had contained, distilled npirits. The accused were under no obligation so to remove such sta,mps from the cases to which they were affixed without in· forming themselves in respect to the contents of the casks,-as to which the stamps themselves were probably legal notice; but, if not, they were certainly sufficient to provoke inquiry. When sllch stamps were so removed from the casks, at the time containing distilled spirits, the act made criminal by the statute was done. In such a case a conviction may be had without oharging in the indictment knowledge of the contents of the casks, for the statute bound the accused to know the facts and to obey the law at their peril. 3 Ev. p. 21, § 21. But if the law were otherwise, and an averment of knowledge be requisite, still the present indictment does not fall, for the reason that the pos"ession by the accused of knowledge that the casks contained distilled spirits is necessarily implied in the averment of the indictment, where it is said: "On which said casks said stamps had v.16,no.3-25
386
I
theretofore been placed, as provided and reqnirerl by law of the United States, as they, the said ,George D. Bayaud and Gustav F. Perrenaudthen and there well knew." The knowledge thus imputed to the accused could not be possessed by them without their knowing that the casks contained or had contained distilled spirits. Certainty' toa certain extent, in general, is the most that is required in an indiotment; and any fact by necessary implication included in what isaUeged is sufficiently averred to uphold a. conviction. Archb. Crim.Pr. & PI. (17th Eng. Ed.) 54. Still, again, it is objected that the stamps referred to are not described by their statutory designation, because the statute designates 'them respectively "distillery warehouse stamps" and a "tax-paid stamp," while the indictment uses the words "United States internaland "United States internal. revenue distillery warehouse reveime ta'x.-paidstamps for distilled spirits." But there is no mistaking the description given. The plain reference is to the statutory "distillery warehouse stamp"and the statutory "tax,,;paid stamp," and that is sufficient. The next point made in behalf of the accused is that the indictment is bad because it joins two defendants, when the nature of the offense is such that no joinder of defendants is permissible. The rule of the common law is that all present at the time of committing the offense are principals, although only one acts, if they are confederates and en. gaged in a common design of which the offense is a part. This rule applies as well in statutory offenses. Prentiss, Crim. Proc. 14. Nothing is discovered in the nature of the offense in question to prevent one of the defendants being principal in the first degree and the other a principal in the second degree. If so, their joinder is permissible.' Lastly, it is sought to have judgment arrested because the indict· ment chargeB in each count at least two separate and distinct offenses. Whether such be the fact it is unnecessary here to decide, for, assuming the defect to exist, it cannot be availed of on a motion in arrest of judgment. All the grounds urged in support of the motion to arrest the judgment have now been considered, and. none of them being found tenable, the motion must be denied.
"THE
OASES."
887
"THE DRIVEN-WELL ANDREWS
and others v.
HOVEY.·
(Oircuit Oourt, 8. D. Iowa, (J. D. May, 1883.) 1. PATENTS-DRIVEN WELL-ORIGOUL PATENT 4,372, VOID-DEDICATION TO PUBLIC-PuBLIC
No. 73,425,
AND REISSU1ll
No..
As the evidence in this case shows that in 1861 Nelson W. Green,who was· at that time the colonel of a regiment. in order to supply his men with pure water, devised and put in operation a method of driving wells; that he did not at that time contemplate procuring a· patent for his invention, but intended simply to benefit his regiment; that his invention was in open and public seu, with his acquiescence and for more than four years before he applied for a patent; and that this method of driVing wells was known and resorted to by certain other persons in Milwaukee, Wisconsin, in 1849 and 1850, and in Independence, Iowa, in 1851,-the reissued letters patent No. 4,372, granted to said Green under date of May 9, 1871, and the original patent N" 73,425, dated January 14, 1868, for an "improved met,hod of constructing artesian wells," must be held invalid and void. . 2. SAME-REIsSUE VOID,
When the original invention did not embrace the idea of creating a vacuum in the lining of the well for the purpose of utilizing the pressure of the atmosphere, nor the original patent, expressly or impliedly, cover or describe the application of this principle; the enlargement of the claims in a reissue for the purpose of covering this idea of atmospheric pressure caused by a vacuum in an air-t.ight tube will render such reissue void. 3. SAME-REISSUE MAY EMBRACE, WHAT.
A reissue can be validly granted only for the same invention which was "rigina1ly patented. A reissue that goes beyond this, and covers other and different inventions or improvements suggested by the use of the original invention,' will be void. . 4. SAME-PRIOR USE-CONSENT OF INVENTOR-AOT.1839-SECTION 4886, ST.
The two-years' limitation was intended in the act of 1839, as it unquestionably is in section 4886 of the Revised Statutes, to be and it applies to all cases in which the invention has been in public use or on sale for more than two years prior to the application, whether with or without the consent or allowance of the inventor. Per LOVE, J., concurring. NELSON, J., tlissents.
In Equity. This suit, with a large number of others agaInst other detend.ants now pending in this court, is based upon reissued letters patent No. 4,372, granted to Nelson W. Green, 0 neof the complainants, under date of May 9, 1871; the original patent, No. 73,425, bearing date January 14, 1868, and having been issued for an "improved method an infringement on the of constrncting artesian wells." The bill part of the defendant, and prays for an injunction, accounting, damages, and further relief. The answer, in substance, denies that Green ·Affirmed. See 8 Sup. ct. Rep. 101.
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