mon·law offense of larceny. True, it is an aggravated larceny, because committed by bne in a place of trust, but still it is larceny. To constitute the offense of larceny, according to all definitions, there must be at least a wrongful taking of the property of another, with a. felonious intent. Neither of these elements is found in the words of the statute. The thing to be stolen or taken out, so far as the words of the statute go, need not be the property of anyone, nor is any intent, wrongful, fraudulent, felonious, or otherwise, referred to in the statute, unless it is to be found in the word "steal." The words of the statute, therefore, do not specifically set forth all the elements necessary to constitute the offense intended to be punished, and there. fore an indictment which merely follows the words of the statute is insufficient. See U. S. v. Carll, supra, and cases there cited. In the presebt case, as the indictment does not lay the thing alleged to have been stolen as the property of anyone, nor allege any wrongful in. tent, it is not good and sufficient. From this it follows that the judgment of the district court was ere roneous, and should be reversed, and a. judgment to that effect will be entered.
V. SUPERIOR NAIL
Co. and others.1
(Oircuit Oourt, N. D. Blinou.
PATENTS FOR INVENTIONS-CONSTRUCTION OF CLAIMS.
In view of the state of the prior art as disclosed by older patents, and of the patentee's acceptance of restricted claims after the rejection of broad ones, patent No. 92,355, of July 16, 1869, to T. H. Fuller, assignee of A. M. Polsev, for an improved manufacture of horse-nails. must be strictly construed, and confined to the making of nails by punching or cutting from hotrolled ribbed bars of metal a headed blank, and the subsequent cold rolling, as an entire process.
2. SAME. This patent cannot be made to cover the process of the older art of hot rolling the blanks from rods, and finishing the nails by cold rolling. 3. SAME. This patent may possibly be sustained when limited to the special proceSlJ of producing blanks from a ribbed strip of metal, and finishing them by cold rolling.
This patent as thus construed not infringed by defendant's method, which consisted in forging blanks from hot rods, slightly rolling them while cold to straighten and smooth them, and then shearing them to give the shank the required taper.
5. SAME-ApPLICATION-WHAT CONSIDERED DATE OF, WHEN SUBSTITUTED SPEC-
Where, in an application for a patent, a substituted specification was filed, which was so different from the original as to cover a different invention, held, that the application must be considered as filed as of the date of such substituted specification.
IFICATION IS FILED.
by Charles C. Linthicum, Esq., of the Chicago bar.
GLOBE NAIL CO. V. SUPERIOR NAIL CO.
For the purpose of determining ;whether the term ofa United States patent was limited by a foreign patent for the same invention, it was held that the date of an amendment which substituted. for the invention described in the original application, the invention covered by the patent as granted, must be taken as the date of filing the application.
Bill for injunction and accounting under letters patent No. 92,355, granted to T. H. Fuller, assignee of A. M. Polsey, July 16, 1869, for an "Improved Ml\nufacture of Nails." The. patent describes the manner of making horseshoe-nails by first rolling from the end of a bar while hot a strip so as to form a rib or raised portion at one end, and the remainder of which was made thinner, and from the sides or edges of this ribbed strip the blanks for the nails were to be cut or punched off, whereby the rib or the strip formed the head, and the thinner portion the shank of the nail, which was to be finished by cold rolling the shanks. Defendants made horse-nails by forging their blanks upon the end of a hot rod or strip of metal, the form and length being given by rolling and The nails were then passed through a machine whereby they were slightly compressed or cold rolled, and were finished by means of shearing dies. The original application for this patent was filed August 27, 1866, and the claim was for "a nail having a cut head and drawn point, as a new article of manufacture." This application was rejected in November, 1866, and laid dormant until June 23, 1869, when it was amended by striking out all but the signature of the inventor, and by insert· ing the present specification and claims, upon which the patent was granted July 16, 1869. The specification and claim originally filed differed materially from the specification and claims on which the patent was granted. On the communication of Poisey, the inventor, an English patent was obtained in December, 1866, for the same in vention covered by the United States patent. Defendants contendeo that Polsey's amendment of June 23, 1869, presented a different invention from that specified in his application filed August 27, 1866, and that, therefore, in considering the question as to the effect of the English patent upon the United States patent, the application for the latter must be taken as filed June 23, 1869. The other defenses were that the patent was void for want of novelty, and that defendants did not infringe. Thomas H. Pease, George L. Roberts, and William M. Richardson, for complainant. Offield, Towle d; Phelps, for defendants.
BLODGETT, J. This is a suit for an injunction and accounting by reason of the alleged infringement of letters patent No. 92,355, granteil to T. H. Fuller, assignee of A. M. Polsey, on the sixteenth day of July, 1869, for "An Improved Manufacture of Nails." In the specifications of the patent the inventor says:
"This invention consists in a metallic nail, as a new article of manufacture, in which the head is left in that condition of softness produced by hot-work. ing a plate or strip of metal, and in that condition of form which results from the combined operation of hot working or rolling said plate and of punching or cutting a blank therefrom, while the shank is left in that condition of hardness, smoothness, and freedom from scale and rigidity which is produced by rolling the cut shank, substantially throughout, while cold, from the junction of the shank with the head to the point; such nails being superior for use with the shoes and hoofs of animals to any others ever before produced, in that the whole shank or body of the nail is hardened in a constantly increasing ratio from the head to the point; the rigidity of the nail, however, remaining nearly uniform throughout the shank, because the cross-section of the nail beyond the head is diminished in area about as the hardness and density of the metal are increased by cold rolling." The mode of manufacture by which the nails covered by this patent are to be produced is to, first, roll from the end of a bar while hot a strip so as to form a rib or raised portion at one end, and the remainder of which is made much thinner, and from the sides or edges of this ribbed strip the blanks for the nails are to be cut or punched off, whereby the rib of the strip forms the head, and the thinner portion forms the shank, of the nail, and then to finish the nail by cold rolling the shank. The claim of the patent is: ".A. nail made by punching or cutting from hot-rolled ribbed bars of metal a headed blank, substantialjy as described, and by elongating, hardening, and compressing the shanks of such blank by cold rolling from the head to the puint, thereby giving to all parts of the nail so prodnced the superior qualities specified." The defenses are (1) that this patent had expired at the time this suit was commenced by reason of the expiration of an English patent granted December 18, 1866, to Robert Lake, on a communication from Polsey, the inventor of the patent in suit, whereby equity had no juriSdiction of the controversy; (2) that the patent is void for want of novelty; (3) that defendants do not infringe. With the view I take of the construction which must be given this patent, I shall only consider the question of infringement. The defendants make horse.nails by forging their blanks upon the end of a hot rod or strip of metal about the size of the head of a horse-nail. The head of the nail, and the general form and length of the shank, are shaped from the hot rod by means of rollers and swages, the shank being drawn down substantially to its required length and thickness. It is then passed through a machine where one side of the shank is held against a smooth surface, while a roller presses the other side, whereby the metal is somewhat compressed while cold, and the required curvature given to the shank, and the end pressed so as to' form a bevel. It is then carried to the shearing die, where the sur· plus iron upon the edges is cut away or sheared off, so as to give the shank the required taper. It was conceded upon the trial that the defendant's method of producing its blank is substantially like that