Volume 90 — United States Reports

A company in New York, called the New York Harbor Protection Company, and whose business was the aiding, protecting, and saving vessels in the port of New York, when wrecked or in distress — including the rendering of aid, protection, and safety to such vessels on fire or threatened with conflagration — was the owner of a steam-tug called the Clarita.

<p>Appeal from a decree of the Circuit Court for the District of Louisiana, which court, on appeal from the District Court sitting in admiralty, had dismissed a libel filed by the steamer Cleona against the steamer Great Republic, for a collision.</p> <p>The case was thus:</p> <p>At about five o’clock on the afternoon of the 28th of August, 1869, the Cleona, a small stern-wheel steamer of one hundred and eighteen tons, and whose speed was about seven miles an hour, left New Orleans bound up the Mississippi to Donaldsonville (a place seventy-five miles above New Orleans), with an assorted cargo of merchandise for various plantations on the two banks of the river. In a little more than half an hour afterwards the steamer Great Republic, a heavy side-wheel vessel of two thousand two hundred tons, running at the rate of twelve or fourteen miles an hour, and therefore one of the fastest on the Mississippi, set off' up the river bound on a voyage to St. Louis. The Cleona, as she went up the river, had been, all the time, and was now, in her full view.</p> <p>Sailing up the stream the Cleona had now twice made landings; first at what is known as the Stock-wharf, in the upper part of New Orleans, and afterwards at a point known as the Nine-mile Point, a point above the city on the opposite or western bank of the river.</p> <p>Having made this second landing she steered for the other or eastern bank — the stream being in all this part of it about half a mile wide — and then after straightening up and running for some time parallel with the eastern bank and within about forty-five yards of it — turned somewhat shortly to cross to a place called Waggaman’s Landing, on the western side, at which she wanted to discharge a part of her cargo. She was now perhaps two miles above tbe Nine-mile Point.</p> <p>The Republic, from, the time that she began to overtake the Cleona, had followed much in her. course — this liue perhaps being the one indicated more or less by the channel— and was so following when the Cleona steered from the Nine-mile Point to the eastern bank. Of course the Republic was rapidly gaining on the Cleona, and if no catastrophe had occurred, would have passed her.</p> <p>By the rules of navigation on the Mississippi one whistle from the steam pipe indicates that a. steamer wishes to pass on the starboard or right side; two, that she wishes to pass on the larboard or left, and three or more, that she is going to cross and land.</p> <p>How far the Republic was behind the Cleona when the latter turned from the eastern bank to cross to Waggaman’s Landing, was a matter about which the testimony was widely discrepant; the witnesses in behalf of the Cleona asserting that it was from six hundred to seven hundred and fifty yards, while those of the Republic fixed it, some of them, so low as forty yards, while all brought it within three hundred.</p> <p>The river, as already said, was in this part of it a half a mile wide. There were no obstructions in it. Dusk was supervening, but it was not dark; objects being visible to both vessels, alike on the shores and on each other.</p> <p>When the Cleona turned to cross from the eastern bank to Waggaman’s Landing, the captain of the Republic, whose watch it was, was on the lower deck of the steamer conversing with a passenger. The passenger saw the Cleona turning, and said to the captain, “Why, she is taking a sheer.” The pilot of the Republic was of the same impression. Instead, therefore, of keeping his own course, he followed the Cleona’s. He perceived, however, before very long his mistake, as did all on both vessels very soon that a catastrophe was impending.</p> <p>What signals were given in this state of things was, as usual in cases of collision, a matter where the evidence conflicted. But the result of the conjoint courses of the two vessels, and action on board of them — that is to say, on the one hand, of the Cleona’s turning short to cross when the Republic was so near behind, and on the other, of the Republic’s supposing that the Cleona still meant to go up the river, and attempting to follow her — and either of improper signals or inattention to right signals on one or other of the vessels, or on both — was a collision, bj^ which the Cleona was careened, her stern end cut ofl‘, and two persons thrown off her into the river and drowned; a catastrophe the more deplorable since the evidence made it plain that if the boats had had fifteen seconds more time — if one of them had been ten feet further on, or the other ten feet further off — all misfortune would have been avoided; and that even five feet in the change of their positions would have prevented any serious injury.</p> <p>We have already said that the testimony was discrepant.</p> <p>The pilot of the Republic testified thus:</p> <p>“When I arrived below the Twelve-mile Point I saw the Cleona sheer to the larboard. She gave no signal when she thus started. After she had been running out about half a minute she gave the signal — two blasts of her steam whistle, which were given just as fast as a man can blow them on a steamboat — and continued her course out. As soon as I saw her sheer to the larboard, I, too, pulled to the larboard and was so swung —all helm — thinking that she was running off from the shore. When she started off to the larboard, I was below her in the current from two hundred and fifty to three hundred yards, and to the larboard of her about the same distance. Immediately after she sheered I pulled my boat, as I have said, to the larboard, rang, first, both stopping-bells, and then the backing-bells. I then told the boat’s clerk who was in the pilot-house at the time, to halloo through the trumpet on the larboard to the engineer to ‘ back hard.’ I hallooed the same thing through the starboard trumpet. The engineer on that side hallooed to me that the boat was backing as hard as she could. I cannot say how long the Republic had been backing when she struck the Cleona. The Republic being a low-pressure boat, it is impossible for the pilot to tell when she is backing until he feels the vibration of the wheels. It was, I suppose, about half a minute from the time the backing bells were rung until the collision occurred; not over half a minute. From the vibration of the boat, I was certain that the Republic was backing before she struck the Cleona.”</p> <p>The engineer of the Republic testified thus:</p> <p>“ The bells on both sides were rung to stop both engines. The engines were stopped immediately. Then the check bells, one on each side. This was a notice to us to prepare to back. The engines were checked immediately. Then the backing bells rang on both sides. Both engines backed immediately. No time was lost in obeying these orders. My assistants were very good assistants, and handled tbe engines very well.</p> <p>“I did not see the collision nor feel the jar of it. I knew nothing of it until some time after it had occurred. I therefore don’t know how far the Republic was from the Cleona at the time the bells were rung, nor what length of time elapsed between the first ringing of the bells and the collision ; but weioere alongside of the Cleona before the larboard engine was stopped. 1 saw her from the engine-room. The Great Republic, if going up stream at twelve or fourteen miles an hour, can be stopped dead in seventy-five yards. We can stop her in this way because she is a low-pressure boat.”</p> <p>Witnesses, including the pilot from the Cleona, testified, on the other hand, that as the Cleona’s head was directed aci’oss the stream, one blast of the whistle was blown as an indication for the Republic to keep to the right, which, had she done it, would have prevented all injury; that the Republic not minding that signal, the signal was repeated in about one minute and a half afterwards; that the Republic neither answered nor obeyed the signals, but kept running on; that the pilot of the Cleona seeing a collision impending, and one which, if the two vessels kept their then courses, would cut the Cleona in two, ordered on all head of steam and headed his vessel down stream, so as that the blow, if inevitable, might cut her wheel off, or cut off" only an edge of her stern; that by this manoeuvre the injurious effect of the collision was mitigated; that, notwithstanding this, the Republic came upon the stern extremity of the Cleona with tremendous force, causing her to turn partially over, and throwing, as already stated, two persons overboard, wTho were drowned, and wholly disabling the Cleona, whose surviving passengers sought safety on the Republic.</p> <p>A witness who had been a passenger on the Republic also testified to the bad actiou of her pilot, aud to other unfavorable matters. He said:</p> <p>“I am a pilot by profession, and have been for sixteen years. "When the Cleona swung round to cross, Mr. Fulkerson, one of the pilots of the Republic (not at the time in charge of the wheel), with whom I was conversing, said: ‘Look at that fellow. What is he going to do V I replied, ‘ I suppose that he is going over the river to land.’ I think that it was prudent for the Cleona to have attempted to cross the river where she did if she had business on the other side. She was then from three hundred to five hundred yards ahead of us. I do not think that at that time the Republic could have passed between the Cleona and the shore. The Cleona blew two whistles; two distinct blowings. Had not the Republic changed her course there would have been no collision. A little before the collision, and when the Republic.was about one hundred yards from the Cleona, Mr. Fulkerson remarked to me that if his partner (that is to say, the pilot then in charge of the wheel) did not stop the Republic,. she would be into the Cleona. I do not know whether her wheels were stopped at all before the blow. The Republic gave no signal. Properly it was her duty to give the first signal, stating which side she would take, as she was gaining on the Cleona.”</p> <p>Testimony was brought in behalf of the Cleona to show that, when “ ashore,” the pilot of the Republic was addicted to drinking spirituous liquor, and had been drunk on shore, though the witness “ had never seen him at the wheel in an intoxicated state.”</p> <p>The pilot himself, on cross-examination, said:</p> <p>“I sometimes drink spirituous liquors. I took none for six hours before the Republic left port on that day. I could not say how many drinks I took. I did not keep any account of them.”</p> <p>The court below (herein affirming the decree of the District Court) considered that the Cleona had crossed the river without proper signalling, too much under the bow of the Republic, and in the current, and that this was the cause of the disaster.</p> <p>Its view was thus expressed:</p> <p>“ The act of crossing the bow of a boat when in close prox.imity is forbidden by the rules of navigation, and is a most dangerous and reprehensible action at any time. No prudent pilot will attempt it. In the case of the Cleona, it was doubly dangerous, as the Republic was gaining on her so rapidly that a collision was probable, especially as the weight of proof seems, to show that the signal of the Cleona was two blows of her whistle, which signal the pilot of the Republic was bound to interpret as an order to pass to the larboard, which he did.</p> <p>“When the Cleona first started out from the shore she gave no signal to indicate her course, as she ought to have done; and when, in response to the two blows of the Cleona, the Republic pulled to the larboard, prudence should have dictated to the pilot of the Cleona to have stopped his boat at once and to have backed her heavily, instead of ringing bis bell to crack on all steam and cross at all hazards. The pilot of the Republic was indeed guilty of a deviation from the rules and observances of navigation in not answering the signal of the Cleona; and though he acted promptly in letting his boat fall off to the larboard, he ought, in strict duty, to have answered the signal; but this omission had nothing to do with the collision, for his course was fully observed by apparently all on board the Cleona, and the pilot of the Cleona, if he thought that there vvas a misconstruction of his signal, should at once have stopjied his engines and reversed. If this had been done a collision would not have taken place.”</p> <p>From a decree of dismissal of the libel, made on this view, the present appeal was taken.</p> <p>By the act of Congress of April 29th, 1864, entitled “An act fixing certain rules and regulations for preventing collisions on the water,”* it is enacted:</p> <p>“Article 16. Every steamship, when approaching another ship, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse.</p> <p>“ Article 17. Every vessel overtaking any other vessel, shall keep out of the way of the said last-mentioned vessel.”</p>

<p>Under the Abandoned and Captured Property Act, which gives to “ the owner ” of any such property a right, after it has been sold by the government, to recover the proceeds of it in the Treasury of the United States, a factor who has merely made advances on the property — there being another person who has the legal interest in the proceeds — is not to be regarded as “ the owner;” at least not to be so regarded beyond the extent of his lien.</p>

<p>1. "Where a survey begins “on the bank of a river” and is carried thence “to a point in the river,” the river-bank being straight and running according to this line, the tract surveyed is bounded by the river. It is even more plainly so when it begins at a post “on the bank of the river, thence north 5 degrees east up the river and binding therewith.”</p> <p>2. Alluvion means an addition to riparian land, gradually and imperceptibly made, through causes either natural or artificial, by the water to which the land is contiguous.</p> <p>3. The test of what is gradual and imperceptible is that, though the wit- . nesses may see from time to time that progress has been made, they could not perceive it while the process was going on.</p> <p>4. It matters not whether the addition be on streams which do overflow their banks or those that do not. In each case it is alluvion.</p>

The adjudication, therefore, ministers nothing to juridical science. The case, as it was assumed in both the courts below, and in this, upon the contradictory testimony adverted to, was thus: On the night of November 17th, 1870 — the night being clear and the moon shining brightly — the schooner Julia was sailing up Chesapeake Bay. The schooner Dexter was sailing down it.

Held: in a case of collision, to be equally in fault for running at full speed in a very dark and foggy night, after they had learned by signals from each other of their respective existences in the river, and while they were in doubt as to what respectively were their courses and manoeuvres.

Held: that owing to the change of terms in the policy from those contemplated by A., the applicant, the acceptance by the company was a qualified acceptance which A. was not bound to accept; that there having been no evidence that he did accept it the company was not bound.

Paul Railway Company, to recover a lot in Minneapolis used by the company for a station. The cause was heard by the court without the intervention of a jury. It was admitted that Hiram Osborne and Ovid Pinney, under whom Secombe, by deeds of quitclaim made in 1870, claimed, had once been owners of the lot.

The case was thus: A statute of limitation in Arkansas, passed January 4th, 1851,* enacts that no suit at law or in equity for the recovery of real estate shall be brought after the lapse of seven years from the time when the cause of action accrued.

The case was thus: The first section of the Bankrupt Act enacts: “ That the several District Courts be and hereby are constituted courts of bankruptcy. . . .

Held: that the power of attorney was validated by the curative act, which the court, adverting to the fact that the husband had received the purchase-money for the tract, and that it had become part of his estate, and that the whole of it on his death passed to the wife, declares had a strong natural equity at its root, and accomplished that which a court of equity would have failed to decree against the wife, only…

Held: that the mortgage never took effect, and decreed accordingly in favor of the assignee iu bankruptcy.

Cross-appeal from the decree of the Circuit Court for the District of Maryland, dividing equally the damages arising from a collision at sea, between the schooner Sarah and the steamer Sea Gull, on the theory that each was equally in fault. The case was thus: A statute of the United States — the act of 29th April, 1864 — thus enacts: “Article 16.

G. W. Brown filed two separate bills in equity in the court below, against Bergen and Sisson, in the one case, and against Selby and others in the other case, charging them respectively with infringement of certain letters-pateut granted to him, Brown, for improvements in corn-planting machines, being reissues of previous patents, and praying for an account of profits, for injunctions, and for general relief.

Held: accordingly, that the Director of the Mint having estimated the value of the franc of France at nineteen cents and three mills, and the Secretary of the Treasury having on the 1st of January, 1864, proclaimed it as of that value accordingly, goods invoiced in French francs and entered in a custom-house here in March of that year, were to be charged at the new valuation of the franc.

Held: to be unimportant that the form of his journal-bearing arm was unlike that of the complainant’s, or that its mode of attachment was different, so long as it performed the same function in substantially the same way. *262 3.

This was a petition for rebearing, made in behalf of Whipple, the appellee, in an appeal from a chancery decree, in which a judgment of reversal and remand had been given in this court against him, at an earlier part of this term.* The original case was thus : Whipple, of the city of Washington, D. C., had formed a partnership in the year 1869, with a man of the name of Ambler, the purpose of the partnership being to generate gas from petroleum by a new process which Ambler…

On motion to dismiss an appeal from the Circuit Court for the Southern District of Mississippi. The case was thus: In May, 1874, Wooldridge, of Kentucky, got a judgment in the Circuit Court just named, against Thomas & Co., of Mississippi, for $4800. In June following, one Hedric, of Louisiana, a creditor of Wooldridge, attached in a State court of Mississippi, the judgment which Wooldridge had thus got, and summoned Thomas & Co. as garnishees.

On motion by Mr. W. T. Olio, to dismiss, for want of jurisdiction, an appeal from the Circuit Court for the Southern District of Illinois; the case being thus: By the Bankrupt Act it is thus in effect enacted: “Section 1. That the several District Courts be . . . courts of bankruptcy, and shall have original jurisdiction in their respective districts in all matters and proceedings in bankruptcy. . . .

On motion to dismiss, for want of jurisdiction, a writ of error to the Corporation Court of Alexandria, Virginia.

, upon dividends which had been de dared and made payable by the banks, during the last five months of the year 1870; which taxes Blake as collector had demanded, and which the banks had paid on compulsion and under protest.

Tucker & Co., partners, sued, in the said court, Slack, collector of internal revenue in the city of Boston, to recover the amount of certain taxes paid by them under protest, and which they alleged to have been illegally assessed. The court, having tried the cause without a jury, held the tax illegal and a recovery was had. This writ of error was brought by the collector to reverse the judgment.

Held: as a matter of law, that on the statutes governing the case and immediately hereinafter cited the defendant was entitled to judgment, and judgment was entered accordingly. The assignment of errors was thus made on the brief of the plaintiff' in error: “The sole question in the.case is, was the plaintiff liable to a succession tax upon this property ?

The Patent Act of 1870, thus enacts: “ Section 53. Whenever a patent is inoperative or invalid by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new: if the error has arisen by inadvertence ... the commissioner shall on the surrender of such patent, . . . cause a new patent for the same invention, and in accordance with the corrected specification, to be issued…

On motion to dismiss, for want of jurisdiction, a writ of error to the Supreme Court of the State of Illinois; the ease being thus: An act of Congress of February lltb, 1847, providing for raising a military force for a limited time, enacted that a bounty in the form of one hundred and sixty acres of land, to be located by the warrantee, should be given to soldiers honorably discharged, but provided “ that all sales, mortgages, powers, or other instruments of writing going…

<p>Under the Tariff Act of July 30th, 1864 (13 Stat. at Large, 210), “silk ties” are chargeable with a duty of 50 per cent, ad valorem. They fall under the closing words of the eighth section of that act which enacts “ that on all manufactures of silk, or of which silk is the component material of chief value, not otherwise ¡provided for, 50 per cent, ad valorem,” shall be charged. The words “ not otherwise provided for,” mean not otherwise provided for by previous parts of the section of which they make the closing words; and so exclude reference to the acts of 1861 and 1862, which laid a duty of but 35 per cent, on “ articles worn by men, women, or children, of whatever material made.”</p>

Donovan was surveyor of the port of St. Louis, “ performing the duties of collector,” from January, 1860, to May, 1861. In the settlement of his accounts with the government he retained $6000 per year as his official compensation, claiming that sum as his legal allowance. The Treasury Department was willing to allow him $5000, but no more. And to get the $1000 in dispute the United States sued him on his official bond.

On motion to dismiss, for want of jurisdiction, as not “final,” an appeal from the Circuit Court for the Eastern. District of North Carolina. The case was thus: The State of North Carolina by acts of her legislature passed in January, 1849, and 1855, subscribed for stock in the North Carolina Railroad Compauy, of the par value of $3,000,000.

The case was thus: An act of March 3d, 1863,† relating to the government of the army, enacts— “ That any officer absent from duty with leave, except for sickness or wounds, shall, during his absence, receive half of the pay and allowances prescribed by law and no more.” This statute being in force, Williamson was commissioned as a captain in the Forty-second Infantry to rank from January 22d, 1867; and served as captain in that regiment until it was consolidated with the…

On motion to dismiss, for want of jurisdiction, a writ of error to the Supreme Court of Louisiana. The case was thus: Frank, a citizen of New Orleans, having a mortgage on property in New Orleans of Fashnacht, a citizen of the Republic of Switzerland, obtained an order in the Fifth District Court for the Parish of New Orleans, for the seizure and sale of it.

Held: That no “final decree” in the sense of the statute which authorized appeals from the Circuit Court to this court in the case of final decrees in equity was made in 1853, nor indeed before 1872; and that the decree then entered brought up the whole case; that is to say, brought up the question of paneellation, the question of specific performance, and the question of return of purchasb-money. 2. "Where the…

He there mortgaged her to Stewart and Eoss; and employed her in running between certain towns at the upper and lower parts of Mobile Bay; he, Williams, and not the mortgagees having possession. While she was thus employed, Otis and others, in November, 1867, libelled her in the District Court for Alabama for repairs.

<p>Appeal from the Circuit Court for Louisiana.</p> <p>In March, 1863, Anderson, alleging himself to be a creditor to the extent of $8840 of one Cocks, filed a petition in the “Provisional Court of New Orleans” — a court established by proclamation of President Lincoln during the rebellion (while New Orleans was occupied by the troops of the United States), and of which a full account is given in preceding cases* — that Cocks, then absent from the State, and a certain Hyllested, who the petition alleged was the proper agent of Cocks in the matter of a proceeding like the one embraced by the petition, might be cited to appear, and after proceedings had, be condemned to pay the amount for which Anderson, as already said, alleged himself to be a creditor.</p> <p>The Provisional Court gave judgment by default for Anderson, and execution having issued, two houses and lots, the property of Cocks, were sold to a certain Izard, to whom possession, which he still had, was delivered by the marshal of the court.</p> <p>Hereupon — Anderson having died and administration having been granted on his estate — the rebellion also being ended and the regular courts of the United States re-established — Cocks filed, A.D. 1866, a bill in equity in the court below against Izard, praying that the defendant might be decreed to execute in favor of the complainant a deed for the property on receiving the price paid by the defendant for the same.</p> <p>The relief was prayed for on the grounds—</p> <p>1. That the Provisional Court was a nullity and its judgment against Cocks void.</p> <p>2. That no service of process had been made upon Cocks; that no sufficient service had been made upon Hyllested, the agent of Cocks, and that Hyllested was not such an agent as that valid service could be made upon him.</p> <p>3. That Izard was guilty of a gross fraud touching the sale of the property by the marshal; that he professed to be the friend of Cocks, and to intend to buy in the property for him; that he thus deterred others from bidding and himself bought the property at a sacrifice; that subsequently he acknowledged to Cocks his fiduciary relation to the property, and expressed a willingness to surrender it, but that finally his cupidity got the better of his integrity, and.impelled him to deny that Cocks had any right whatever to the property, and that he now claimed it as his own.</p> <p>The bill tendered back the purchase-money paid to Izard with interest.</p> <p>Izard answered and denied all the material allegations of the bill. He also set up that he bad mortgaged the property to Lewis; that it had been seized and sold under that mortgage; that Lewis became the purchaser, and that his, Izard’s, entire title had thus become divested out of him and vested in Lewis.</p> <p>Lewis also answered, setting up the same facts as to his title as had been stated by Cocks, and making the same denials as to the averments of the bill. He was accordingly substituted as defendant.</p> <p>On the hearing, the great weight of evidence appeared to show that the fraud alleged against Izard had not been committed by him.</p> <p>The Circuit Court, however, decreed in favor of the complainant, and Lewis took this appeal.</p>

Held: 1st. That notwithstanding the clause in the contract about “liquidated damages,” P. & S. were entitled to the actual damages sustained by them. 2d. .That the measure of such damages (in view of the fact that there was no market for the purchase of coal at the place of delivery but that of the company itself) was the price which P. & S. would have had to pay for coal of the sort in the quantities in which they were…

The case was thus: An act of Congress of February 10th, 1868, relating to the taxation by States of shares in the National banks, thus enacts: * “ The legislature of each State may determine and direct the manner and place of taxing all the shares of National banks located within said State, subject to the restriction that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State.” An act of…

The case was thus: Thomas Green, by deed dated January 15th, 1867, conveyed certain d estate in Georgetown, D. C., to James Green, in fee in trust.

Held: (u.) That it was not allowable to show by oral testimony that the expression “ steamboat debts” was a well-known term among steamboat men *493 and merchants in the port where the vessel was, and meant “ debts that made a lien on the bout for supplies and material,” though only for six months; and that when a debt could not be enforced by any of the conservatory processes allowed by the laws of the State, it ceased…

On petition for mandamus. The case was thus: Medway had filed a petition in the Court of Claims for the recovery, under the Abandoned and Captured Property Acts, of the proceeds of ninety-four bales of cotton, of which he alleged himself to have been the owner, and which he alleged had been seized and sold by the United States, who now had the net proceeds, $17,386.20, in their treasury.

On motion to dismiss a writ of error to the Circuit Court for the Southern District of Illinois. The case was this: Wiswall, a citizen of Illinois, sued, in one of the inferior State courts of the State just named, the Chicago and Alton Railroad Company.

Held: that a report which did not report investigation of facts and the apparent causes, nor state whether the loss was attributable to neglect or the want of care on the part of the contractor or to causes beyond his control, but which merely on its face found the deficiency and charged it accordingly would be supported; the contractor not having at the time objected either as to the form or the substance of the report,…

Held: i. That in the ascertainment of profits made by them from sales of the organs with the tremolo attachment, it was proper to let them prove the general expenses of their business in effecting sales of organs generally, and deduct a ratable proportion from the profits made by the tremolo attachment. ii.

Held: that a reissue thereof which describes a paper other than parchment-paper, or one prepared with animal sizing, and which does not require cither side of the collars to be coated with a varnish of bleached shellac for any purpose, the claim being for ‘‘a collar made of long-fibre paper, substantially such as is above described,” is for a different invention from that embodied in the original patent. 4.

Held: did not affect their liability for the use of a final process which was substantially the same as that claimed in the Mellier patent.