council, for the first time does this duty arise. Then, for the first . time, is he who has been chosen placed under an obligation of performance; and then would the failure to perform, authorize and empower the court to compel performance by its mandamus j for nat until then could a demand for performance be made, nor could a refusal of such demand be interposed. This writ, therefore, plainly demands more than the relators are entitled to have awarded to them. In such case it is held, without exception, that the writ is bad upon demurrer, and that judgment must be given for the defendants; for the court cannot be called upon to distinguish and separate the good pleadfrom the bad, and treat the latter as mere surplusage, and of no weight 01' effect. On the contrary, the fault taints the whole writ, lind it must be set aside in its entirety. This conclusion makes it unnecessary to consider other objections to the wr.it which were urged upon the argument. But I think it proper to ·say that the effect of Judge NIXON'S opinion in Moran v. Oity of .Elizabeth, 9 'Fed. Rep. 72, was to adopt as the practice of this court in ·causes, similar to this, involving the collection ofjudgment debts frommti.nicipllicorporations, the practice which obtains in the of New JeIL sey, as prescribed by the act entitled 'f A supplement to an act entitled "An aetrespecting executions,'" approved March 27, 1878, (IJaws N.' J. ·1878; p. 182.) And, therefore, to entitle judgment creditors to' a:preemptory'writ of manda:nius to enforce thepaynHmt of their judgment, .the requirements of that act must be strictly complied with. Thede-fenda,nts.areentitled to judgment upon demurrer. .
In' re CORTis.
(C(reuitOourt, S. D. New York. April 17, 1890.)
Ex;'1'RADJlrION-EMBEZZLEMENT OF PUBLIO FUNDS.
Under the Penal Code of Cuba, art. 401, which makes it a crime for a public to take public furlds'of which he has charge by virtue of his offtce, a publlo Who,byfalsely invoices in which certain coupons are inclosa-d, obtains possession of moneyv.aid out by1;he Spanish bank, whicll couidnf,l.t pass .' tbebank's· to his own except 8S a consequence of h,is offtcia,l act, 1s gUllty of .. .
Application for Extradition. Olcott, Mestre &: Gonzales, for the Spanish Government. S. Mallet-Provost, for relator.
LACOMBE, J. If, when abstracted by the prisoner, the coupons were not perforated, but were in such condition that bonafide holtlers for value could recover on them, they were, undoubtedly, public funds. If they were canceled or imperfect when he took them, his subsequent action in preparing and certifying the invoices in which they were inclosed, and
in auditing the same as a claim against the Spanish government, cansed the intendant to indorse the same, and the Spanish bank to pay. The affixing of the prisoner's signature to his certificate or audit was an act done by virtue of his office, deriving its sole force from the confidence placed in it by other officials as the act of a public officer in the line of his official duty, By discharging, therefore, falsely, and with corrupt intent, the functions of his office, he got possession of certain moneys paid out' by the Spanish bank which could not have passed from the bank's possession to his own except as a consequence of his official action. Of these moneys, therefore, he obtained charge by virtue of his office, and thereupon converted them to his .own use. That the moneys thus paid out by the Spanish. bank were. public funds admits of no doubt. They were either moneys standing to the credit of the Spanish governmeptJ:>y reason of the circumstance that that government had theretofore or its equivalent with the bank, or if, under some condeposited tract, (referred to upon thenrgument, but not in proof,) they were advanced by, the Spanish bank from time to time upon drafts of the government,whiph, at the time such drafts were presented, had no moneys standing t.o its 'Credit in the bank, then, at the moment when the bank adyanced the. money to cash the draft, the money so advanced became cash, theprpceeds of a loan made by the bank to the government, and therefore pUblic funds. Defendant's acts, therefore, seem to be within the terms of article 401 of the Spanish Penal Code of CUba, which reads, accordingOio the translation submitted by prisoner's counsel, as follows: "Art. 401. A public employe who, having charge, by virtue of his office, of public funds or effects, takes, or allows others to take, the same, shall be punished," etc. Acts such as his are also made criminal by express statutes of the United States and of the state of New York. Rev. St. U. S. § 5438; Pen. Code, N. Y. § 165. It is true that the complaint does not refe,r to the moneys thus obtained from the bank, but, under the peculiar language of the eleventh and twelfth articles of the treaty, this court will look into the warrant of arrest issued in the country from which the prisoner has fled for a specific statement of the offense which it is ,claimed he has committed; and the prisoner can certainly not object that he is not sufficiently informed of the offense with which he is charged, when he is apprised of the contents of that document. The prisoner may be produced on Friday morning for further disposition.
GATES IRON-WORKS !I. FRASER.
GATES IRON-WORK!! V. FRASER
(Oircuit Oourt, N. D. Ilt1mof.B.
April 5, 1890.)
P"-TBNTS I'OR INVENTIONS-ExTENT OJ!' CLAIM-CRE-CRUSIlERS.
Aolaim for a mill constructed of a conical shape, and having an eccentrio motio. In the manner set forth, is not a broad claim for any mill having such shape and motion, irrespective of its other features of construction and operation. Words of limitation in claims are not to be disregarded, and claims cannot be broadened by eliminating or disregarding such words.
8.u4E-PATBNTABILITY-PRIOR STATE OJ!' ART-CIlILLED BE"-RINGS.
Chilling bearings and wearing parts are old in the arts, and it does not require invention to chill any known bearing. Gates did not make any invention in chilling Brown's bearings.
Bearings similar in construction and operation cannot be differentiated from each other by chilling one of them. '
SAME-COMBINATION-IMPROVEMENT OJ!' PARTS.
SAME-ExTBNT OJ!' CLAIM-BREA.K-Purs.
SA.ME-IsSUE OJ!' LBTTERS-AMENDMENT OJ!' CLAIMs.
Amendments made upon requirement of the pat6nt-oftlce, or in view of references, are not to be disregarded in construing claims.
In Equity. Final hearing. Sllit was brought for alleged infringement of eight patents, and proofs made as to seven, to-wit; Nos. 56,793, to H., Pierce; 201,646, to C. M. Brown; 243,343, 243,545, 246,608, 250,656, to l'. W. Gates, known in the record as Gates' patents Nos. 1, 2, 3, and 4, respectively, all of which were for improvements in stone or ore-crushers; Nos. 110,397, to J. H. Rusk, and 237,320, to G. & A. Raymond, for improvements in break-pins for grinding-mills. Coburn Thacher, for complainant. West Bond, for defendants. ·
GRESHAM, J. The single claim of the Pierce patent reads: "The construction of a conically shape<1crushing-mill, with an eccentric motion .as herein described, for the purposes and in the manner substantially set forth." The claim is not broadly for the construction of a conically shaped crushing-mill with. an eccentric' motion. The very language Of the claim limits it to a mill constructed in the manner substantially 81!1 set forth, and the claim, thus construed, describes a mill, or machine, v.42l':.no.1-4