6. The first claim in letters patent No. 259,700, issued June 20, 1882, to
Edward L. McClain for a pad for horse-collars, when construed in
accordance with these principles, is not infringed by the manufacture
and sale of sweat pads for horse-collars under letters patent No. 331,-
813, issued December 8, 1885. Ib.

7. Whether a variation from a previous state of an art involves anything
more than ordinary mechanical skill is a question which cannot be
answered by applying the test of any general definition. Ib.

8. The doctrine which prevails to some extent in England, that the utility
of a device is conclusively proven by the extent to which it has gone
into general use, cannot be applied here so as to control that language
of the statute which limits the benefit of the patent laws to things
which are new as well as useful. lb.

9. In a doubtful case the fact that a patented article has gone into general
use is evidence of its utility; but not conclusive of that, and still less
of its patentable novelty. Ib.

10. Letters patent No. 267,011, issued May 13, 1884, to E. L. McClain for
a pad fastening are void for want of novelty in the alleged inven-
tion. Ib.

11. On an accounting as to profits and damages, on a bill for the infringe-
ment of letters patent No. 58,294, granted to George W. Richardson,
September 25, 1866, for an improvement in steam safety-valves, the
Circuit Court, confirming the report of the master, allowed to the
plaintiff the entire profit made by the defendant from making and
selling safety-valves containing the patented improvement, and this
court affirmed the decree, on the ground that the entire commercial
value of the defendant's valves was to be attributed to the patented
improvement of Richardson. Crosby Valve Co. v. Safety Valve
Co., 441.

12. It was held that the plaintiff's valves of commerce all of them con-
tained the improvements covered by the patent of Richardson, and
that as the master had reported no damages, in addition to profits, the
amount of profits could not be affected by the question whether the
plaintiff did or did not use the patented invention. Ib.

13. It was proper not to make any allowance to the defendant for the value
of improvements covered by subsequent patents owned and used by
the defendant. Ib.

14. It was also proper not to allow to the defendant for valves made by the
defendant and destroyed by it before sale, or after a sale and in
exchange for other valves, which did not appear in the account on
either side. lb.

15. It was also proper not to allow a credit for the destroyed valves against
the profits realized by the defendant on other valves. Ib.

16. Interest from the date of the master's report was properly allowed on
the amount of profits reported by the master and decreed by the
court. Ib.

17. In estimating, in a suit for the infringement of letters patent, the
profits which the defendant has made by the use of the plaintiff's de-
vice, where such device is a mere improvement upon what was known
before and was open to the defendant to use, the plaintiff is limited
to such profits as have arisen from the use of the improvement over
what the defendant might have made by the use of that or other
devices without such improvement. McCreary v. Pennsylvania Canal
Co., 459.

18. An inventor took out letters patent for an invention intended to accom-
plish a certain result. Subsequently he took out a second patent, cov-
ering the invention protected by the first, and accomplishing the same
result by a further improvement. While holding both patents, he
sued to recover damages for the infringement of the second, without
claiming to recover damages for the infringement of the first. Held,
that he could recover only for the injuries resulting from use of the
further improvement covered by the second letters, and that if no such
injury were shown the defendant would be entitled to judgment. Ib.
19. The alleged invention protected by letters patent No. 50,591, granted
October 24, 1865, to John H. Irwin, was a combination of old devices,
each performing its old function and working out its own effect, with-
out producing anything novel as the result of the combination, and
was not patentable. Adams v. Bellaire Stamping Co., 539.

20. When the sole issue in an action for the infringement of a patent is as
to the patentable character of the alleged invention, it is not error to
decline to instruct the jury that the fact that the machine had practi-
cally superseded all others was strong evidence of its novelty. Ib.
21. Reissued letters patent No. 9616, granted to Rodmond Gibbons March
22, 1881, on the surrender of letters patent No. 178,287, for an im-
provement in pantaloons, are void for want of patentable novelty in
the invention claimed in it. Patent Clothing Co. v. Glover, 560.
22. Letters patent No. 208,258, granted September 24, 1878, to Henry M.
Myers for an "improvement in handle sockets for shovels, spades and
scoops" are void for want of novelty in the alleged invention covered
by them, that invention having been anticipated by the "Ames Cali-
fornia spade." Myers v. Groom Shovel Co., 674.

PAYMENT.

1. Where the facts clearly show that a certain sum is due from one person
to another, a release of the entire sum upon payment of part is with-
out consideration, and the creditor may still sue for and recover the
residue; but, if there be a bona fide dispute as to the amount due, that
dispute may be the subject of a compromise. Fire Insurance Associa-
tion v. Wickham, 564.

2. When a claim not yet due is prepaid in part by the debtor, such prepay-
ment may operate as a discharge of the whole claim if both parties in-

tended it to be a consideration for such discharge; and whether both parties so intended is a question for the jury. Ib.

See CONTRACT, 8;
EQUITY, 5;

EVIDENCE, 6.

PLEADING.

See EVIDENCE, 4;

JURISDICTION, A, 5; C, 1, 2, 3.

POST OFFICE.

See EVIDENCE, 3.

PRACTICE.

1. There having been some irregularity in the submission of this case on the 15th of December, 1890, the court allows a resubmissson, and an additional brief is filed at its request; and it now adheres to its former decision, 137 U. S. 692, dismissing the writ for want of jurisdiction. Caldwell v. Texas, 209.

2. It is irregular for counsel for an appellant to file, with a motion to dismiss, the appeal papers stating the grounds on which the motion is made. United States v. Griffith, 212.

3. It being apparent that the proceedings in this court were for delay, No. 356 is affirmed with ten per cent damages, and No. 357 is dismissed, the court being without jurisdiction. Gregory Consolidated Mining Co. v. Starr, 222.

4. In an action at law in a Circuit Court, judgment being rendered for the plaintiff, there was no bill of exception, no writ of error nor an allowance of appeal, but the defendant filed a supersedeas bond in which it was alleged that the defendant had "prosecuted an appeal or writ of error to the Supreme Court of the United States to reverse the judgment." The plaintiff moved for the revocation of the supersedeas created by the bond, which motion was denied. The motion in this court for leave to docket and dismiss the case was granted. Tuskaloosa Northern Railway Co. v. Gude, 244.

5. A decree in chancery in a Circuit Court having been brought up by writ of error instead of appeal, the defendant in error consented to the dismissal of the writ, and the court announced that if an appeal is seasonably taken the transcript of the record in this cause may be filed as part of return. Williams v. Passumpsic Savings Bank, 249. 6. An application by petition to a court of law, after its judgment has been reversed and a different judgment directed to be entered, to so change the record of the original judgment as to make a case materially different from that presented to the court of review, - there being no clerical mistake, and nothing having been omitted from the record of the original action which the court intended to make a matter of

record, was properly denied. Such a case does not come within the rule that a court, after the expiration of the term, may, by an order, nunc pro tunc, amend the record by inserting what had been omitted by the act of the clerk or of the court. Hickman v. Fort Scott, 415.

7. In a suit in equity for the foreclosure of a railroad mortgage this court holds, on appeal by the purchaser at the foreclosure sale from a decree declaring the claim of an intervenor to be a lien upon the property, that the record is too meagre for it to determine whether there was any error in the decree. Kneeland v. Luce, 437.

8. A stipulation in this case that "testimony heretofore taken and filed in this cause 99.66 may be used in any future litigation touching" the subject of the controversey in this suit is held not to import into the suit testimony from other records in this court; it not appearing by this record that such testimony was used by the appellant in the hearing below, or that the appellees were parties to the stipulation. Ib.

While adhering to the rule that any material change in a contract made by the principal without the assent of the surety, discharges the latter, the court is of opinion that the charges set up in this case as a reason for the discharge of the property of the surety were not material and did not operate to discharge it. Cross v. Allen, 528.

PROMISSORY NOTE.

See JURISDICTION, C, 1;
LOCAL LAW, 2.

PUBLIC LAND.

1. Congress, March 3, 1863, granted to Kansas every alternate section of land, designated by odd numbers for ten sections in width on each side, in aid of the construction of the following roads and each branch thereof: First, a railroad and telegraph from the city of Leavenworth, Kansas, by the way of Lawrence and the Ohio City crossing of the Osage River, to the Southern line of the State in the direction of Galveston Bay, in Texas, with a branch from Lawrence by the valley of the Wakarusa River to the point on the Atchison, Topeka and Santa Fé Rail

road, where that road intersects the Neosho River; Second, a railroad
from the city of Atchison, Kansas, via Topeka, to the western line
of that State, in the direction of Fort Union and Santa Fé, New
Mexico, with a branch where the latter road crosses the Neosho,
down said Neosho Valley to the point where the road, first named,
enters the Neosho Valley. The act provided that in the case of defi-
ciencies in place limits, it should "be the duty of the Secretary of the
Interior to cause to be selected, for the purposes aforesaid, from the
public lands of the United States nearest to tiers of sections above
specified, so much land, in alternate sections, or parts of sections, desig-
nated by odd numbers, as shall be equal to such lands as the United
States have sold, reserved or otherwise appropriated, or to which the
rights of preemption or homestead settlements have attached." The
act also provided that the "sections and parts of sections of land
which, by such grant, shall remain to the United States, within ten
miles on each side of said road and branches" [that is, the even-
numbered sections within the place or granted limits,] “shall not be
sold for less than double the minimum price of the public lands when
sold; nor shall any of said lands become subject to sale at private
entry until the same shall have been first offered at public sale to the
highest bidder, at or above the increased minimum price, as afore-
said: Provided, That actual and bona fide settlers, under the provisions
of the preemption and homestead laws of the United States, may, after
due proof of settlement, improvement, cultivation and occupation, as
now provided by law, purchase the same at the increased minimum
price aforesaid: And provided, also, That settlers on any of said re-
served sections, under the provisions of the homestead law, who
improve, occupy and cultivate the same for a period of five years and
comply with the several conditions and requirements of said act, shall
be entitled to patents for an amount not exceeding eighty acres each,
anything in this act to the contrary notwithstanding." By a subse-
quent act, July 16, 1866, for the benefit of the Union Pacific Railroad
Company, Southern Branch, there was granted to the State for the
ase of that company, "every alternate section of land or parts
thereof designated by odd numbers to the extent of five alternate sec-
tions per mile on each side of said road, and not exceeding in all ten
sections per mile; but in case it shall appear that the United States
have, when the line of said road is definitely located, sold any section
or any part thereof, granted as aforesaid, or that the right of pre-
emption or homestead settlement has attached to the same, or that
the same has been reserved by the United States for any purpose
whatever, then it shall be the duty of the Secretary of the Interior to
cause to be selected for the purposes aforesaid, from the public lands
of the United States nearest to the sections above specified, so much
land as shall be equal to the amount of such lands as the United
States has sold, reserved or otherwise appropriated, or to which the