ment is best determined by a comparison of the machine made by the respondent with the mechanism described in the complainant's patent or patents, where more than one is embraced in the same suit. Blanchard v. Putnam, 8 Wall. 426, 19 L. ed. 435. Comparisons of the kind have been carefully made by the court, aided by the evidence of the expert witnesses, as exhibited in the record, and the court is of the opinion that the several inventions of the complainants, excepting the claims pointed out as not infringed, are embodied in the machines made and sold by the respondents. Two of the expert witnesses testify to that effect without qualification, and the reasons which they assign for that conclusion are, in the opinion of the court, decisive of the question. Some attempt was made in the cross-examination of those witnesses to elicit an answer that the sweep rake employed by the respond ents operated differently from the correspond ing device of the complainants in the several reissued patents, but the attempt was wholly unsuccessful, and called forth explanations which confirm the conclusion that the two devices have substantially the same operation. 560*] *Special reference is made in the opinion of the district judge to the means employed by the respondents in supporting the reel as showing that the machines which they have made and sold do not infringe the second claim of the original patent. His view is that their machines do not infringe that claim because they do not employ but one reel post instead of two, as shown in the complainants' patent, but it is so obvious that the one post with the frame attached to the upper end is substantially the same thing that it is not deemed necessary to pursue the argument. For these reasons we are all of the opinion that the complainants are entitled to a decree that their several patents are valid, and for an account and for a perpetual injunction, except as to such, if any, as have expired. Decree reversed with costs, and the cause remanded for further proceedings, in conformity to the opinion of the court. missing the bill, the complainants took an appeal to this court. A statement of the case appears in the opinion of the court. Messrs. John B. Baldwin and H. Stanbery for plaintiff in error. Messrs. J. W. Robinson and T. W. Lawrence for defendants in error. Mr. Justice Clifford delivered the opinion of the court: Volunteer forces for the public service in the war of the Revolution were, in many instances, furnished by the States, and all such, as well as the regular forces, were paid for their services to a large extent in continental money, which so depreciated in a short time as to become almost valueless. Troops for that service were raised by the state of Virginia, known as the Virginia line on continental establishment, and they also were paid for their services in that currency; and in order to afford relief for the loss which the troops sustained in that way, the legislature of the state, at the November session, 1781, passed an act directing the auditor of public accounts to settle and adjust the pay and accounts of the officers and soldiers of that line, so as to make their claims for pay and subsistence equal to specie, such adjustment to cover the period from the first day of January, 1777, to the last day of December, 1781; and the directions to the auditor were that he should issue printed certificates to the respective applicants for the balance found due to them in such adjustment, payable on or before the first day of January, 1785, with interest at the rate of six per centum per annum. 10 Hen. Stat. (Va.) 462. Directions were also given to the auditor in the same act that he should in like manner settle and adjust the accounts *of all of [*384 ficers and soldiers of the said line who have fallen or died in the service during that period, and the provision was that their representatives should be entitled to such certificates, and all other benefits and advantages therein granted to the officers and soldiers in the line at the date of the act. Ibid. 463. None of these matters are the subject of controversy, and it is also alleged and admitted that William Rickman, of Charles City, Virginia, was a deputy director-general in the Virginia line on continental establishment; that he served three years or more as such director, and military bounty lands. that he thereby became entitled also to Virginia On the 7th of August, 1778, William Rickman made and published his last will and testament, by which he gave and bequeathed to his wife, Elizabeth Rickman, all his estate both real and personal, in fee simple, and appointed his wife, together with Benjamin Harrison, her father and her brother, Benjamin Harrison, Jr., the executors of his will so made and published. Three years afterwards the testator died, leaving the said last will and testament unrevoked and in full force, and the same was subsequently duly proved and admitted to rec The bill in this case was filed in the court be low, by the appellants, to obtain title to certain lands. That court having entered a decree disord. NOTE. Interpretation of wills; intention of testator to govern--see note to Pray v. Belt, 7 L. ed. T. S. 309. Application in behalf of Elizabeth Rickman, as the widow and executrix of her deceased husband, was afterwards made to the auditor of public accounts to settle and adjust the pay and subsistence accounts of the testator as an officer in the Virginia line on continental establishment, and on the 28th of February, 1784, the requested adjustment was made. By that adjustment the auditor of public accounts found that there was a balance due to the deceased, or to his legal representatives, of one thousand seven hundred and twenty-two pounds nineteen Shillings and two pence, and the record shows that the evidence of the indebtedness of the state to the deceased for that amount was delivered to B. Liarrison on the same day the adjustment was made. 385*] *Prior to that adjustment, to wit, on the 29th of November, 1783, the House of Delegates of Virginia passed two resolutions which it becomes important to notice: 1. That the petition of Elizabeth Rickman praying that the auditor of public accounts should settle and adjust the pay and accounts of her late husband was reasonable, showing satisfactorily that the adjustment was largely influenced by the Legislature. 2. That Elizabeth Rickman, widow of William Rickman, be allowed such a portion of land as the rank and service of the deceased merit. Pursuant to the second resolution the governor of the state, Benjamin Harrison, on the 12th of January, 1784, executed a certificate that Elizabeth Rickman, widow and executrix of William Rickman, director-general, is entitled to the proportion of land allowed a colonel in the continental line who has served three years, and on the following day a warrant for six thousand six hundred and sixty-six and two thirds acres was issued to her, signed by the register of the state land office. Five years later she intermarried with John Edmondson, and they afterwards, during the succeeding year, united in executing a deed of trust or post-nuptial agreement to her brother, Carter B. Harrison, of all her estate, real and personal, or to which she was entitled under the will of her former husband, for her separate use and advartage, her heirs, executors and administrators, the husband stipulating therein that she might dispose of the same by her last will and testament as she should see fit to do. On the 3d of May, 1790, Elizabeth Edmondson made her last will and testament, which was olographic, and on the first day of January, 1791, she died, leaving her will in full force, and on the twentieth of the same month the will was proved and admitted to record in the county where she resided at her decease. Absolute title to the lands embraced in the warrant signed by the land register is claimed by the complainants, upon the ground that the Same were devised in fee simple by Elizabeth 386] *Edmondson to her husband, John Edmondson, by her last will and testament; but the respondents deny that her will, when properly construed, contains any such devise; and insist that the will, if it made any disposition of those lands, only devised to the husband a life estate in the same; and that the fee simple title to the same, inasmuch as the testatrix died without issue, descended to her brothers and sis ters, under whom they claim, as alleged in the answer. Unless the course of descent was broken by the will of the testatrix, it is clear that her brothers and sisters became the owners of the lands embraced in that warrant, as it is conceded that she died without issue. Afterwards, in the year 1795, the said John Edmondson married again, and the record shows that he had three children by the second wife, one of whom died before the father without issue, leaving John and Elizabeth, the latter having since intermarried with Littleton Waddell, the other complainant and appellant in the case before the court. Before his decease, John Edmondson, the father of the two appellants, John and Elizabeth, also made a will and devised all his property to his three children, one of whom, as before stated, died during the lifetime of the father. His will bears date on the 3d of October, 1802, and the pleadings show that he died on the first day of December following, leaving the two children before named as his principal devisees and sole heirs at law. They, together with the husband of Elizabeth, claim the lands in controversy upon the ground that the same were devised to the father of John and Elizabeth by the will of his first wife. Defenses of various kinds are set up in the answer, but in the view taken of the case it is not necessary to enter into those details, as the court is of the opinion that the decision of the case must turn upon the construction of the will of Elizabeth Edmondson, deceased, it being conceded that she held the title to the lands in controversy under the warrant granted to her for the same by the state. Proofs were introduced by both parties, but the circuit court was of the opinion that the complainants were not *entitled to re- [*387 cover, and entered a decree dismissing the bill of complaint. Whereupon the complainants appealed to this court, but the appeal was dismissed, it appearing on the face of the record that the transcript was not filed in this court during the term next succeeding the allowance of the appeal. Edmonson v. Bloomshire, 7 Wall. 306, 19 L. ed. 91. Since that time a new appeal has been allowed to the complainants and they have removed the cause into this court, seeking to reverse the same decree from which the first appeal was taken. Pending the present appeal, a motion to dismiss was filed by the respondents, which was heard at the same time with the merits; but the questions involved in the motion will not be decided, as the court is of the opinion that the decree of the circuit court, dismissing the bill of complaint for the want of equity, is correct. Motions of the kind are usually determined before proceeding to examine the merits of the controversy, but the court deems, it proper to adopt a different course on the present occasion for the following reasons, among others which might be mentioned: (1) Because differences of opinion exist in the court as to the proper disposition to be made of the motion, irrespective of the fact that the case has been twice heard upon the merits; (2) because the respondents, when the case was here before, went to final hearing without making any objections to the regularity of the appeal. Affirmative relief, it is true, could not be granted to the complainants without first disposing of some of the questions involved in the motion, but inasmuch as an affirmance of the decree of the circuit court will effect substan- | as the legal foundation of the land-warrant, tially the same result as a dismissal of the ap- where it has ever since remained. peal, the court is not inclined to decide the preliminary questions. Most of the introductory allegations of the bill of complaint are admitted by the respondents. They also admit that Elizabeth Rickman, before her marriage with John Edmondson, obtained the certificates for the balance due her first husband for pay and subsistence as director-general in the continental line, and also for the interest due on the same, and that she also obtained the warrant for the lands in controversy, but they utterly deny that the word "certificates," as used in the clause of the will under which the complainants claim, means or intends the warrant in question or the lands described in the pleadings. office, and the register, upon the filing of that certificate, was required to grant the warrant. 11 Hen. Stat. 83; Swan's Land Laws, 118. Letters of administration on the estate of Elizabeth Edmondson were granted to John Edmondson, the husband of the deceased, as no executor was named in the will. Several be quests to the husband were made by the testa388*] trix in the will which need not be noticed, as they furnish no aid in the solution of the question presented for decision. Those clauses relate to certain articles of personal property which she gave to her husband forever, and to certain slaves which she gave to him "to dispose of as he may think proper." Preceding the clause disposing of the articles of personal Persons having claims to bounty lands were property the will contains the following devise: required at that time, by the laws of that state, "I give to my dear husband, John Edmondson, to exhibit their vouchers to the executive, and all the land I possess, during his life," but the if found to be correct and the claim was allowed, will contains no residuary clause of a general it was the duty of the governor to issue a cernature. Enough appears to show that the testificate to that effect to the register of the land tatrix owned real estate, as she devised the house and land where she lived, at the death of her husband, to one of her brothers, and to another brother she gave, at the decease of her husband, a certain other tract described in the will as having been purchased by her first husband, but the will does not, in terms, make any ultimate disposition of the lands devised to her husband during his life except those two parcels, and the complainants do not controvert the proposition that the lands in question, if they were devised to the husband under that clause of the will, descended at his decease to the brothers and sisters of the testatrix, as contended by the respondents. They deny, however, that the lands in controversy or any portion of the same were devised to him by that clause. On the contrary, they rely upon another clause in the will as the foundation of their claim, which follows the bequests before mentioned to her husband, and certain other bequests of like kind to her brothers and sisters and other relatives, specifying in each of the several bequests the name of the legatee. Having devised all the land she possessed to her husband during his life, and made those bequests, the testatrix provides as follows: "My certificates that are in the hands of my brother Ben, 1 desire may be given to my husband, to dispose of as he may think proper." Founded on that clause in the will, the theory, of the complainants is, that the warrant signed by the land agent for the six thousand six hundred and sixty-six and two thirds acres of bounty lands was devised to their father, and that at 389*] the decease of the testatrix *he became the owner in fee simple of the lands surveyed and located under that warrant, and that they, as the devisees in his will and his sole heirs at law, are the lawful owners of the lands in controversy. Support to that theory is attempted to be drawn from the fact that the governor, before the warrant was signed, granted a certificate in which he certificed that the widow and executrix of the deceased claimant was entitled to the proportion of land allowed to a colonel of the continental line who had served three years, but the decisive answer to any such attempt is, at the certificate of the governor was, on the following day, deposited in the proper office More than six years before the testatrix made her last will and testament in which she uses the phrase "my certificates that are in the hands of my brother Ben," the certificate as [*390 to the bounty lands had been surrendered to the register of the land office, and the land-warrant in question had been issued in its place, and there is no evidence that the land warrant or the certificate which preceded it was ever in the hands of any one of the brothers of the testatrix. Undoubtedly the certificate for the balance due for pay and the subsistence accounts arising from the depreciation of the currency in which the original claimant was paid and the certificates for the interest on the same did pass by that clause in the will to the husband of the testatrix, and the proofs are satisfactory that those certificates were in the hands of her brother Benjamin at the date of the will. Those certificates bear date on the 28th of February, 1784, and they were immediately delivered to the brother named in the will as having them in his hands, where they remained to the date of the will of the testatrix and to the time of her death. Certified copies of the certificate signed by the governor as the foundation for the land-warrant are exhibited in the record as given by the register of the land office, which shows that it could not have been in the hands of her brother at the date of the will, as it had been in the register's office more than six years before the will was executed. Suppose, however, that it appeared that the land-warrant had been in the possession of her brother, from its date to the time when the testatrix died, still it would be difficult, if not impossible, to hold that the sig nification of the word "certificates," as used in the will, is sufficiently comprehensive to include that instrument, as the word "certificate" seems to have an appropriate and direct reference to the instruments of evidence issued to the testatrix for the back pay and subsistence accounts of her former husband, as before explained. Attempt is made in argument to show that the words "certificate" and "warrant" are sometimes used in the statutes of the state as words of equivalent import, but the examples put do Is the rule different when applied to appeals? In the case of Owings v. Kincannon, 7 Pet. 399, this court says: "The appeal was given by the act of 1803, and this declares that such appeals shall be subject to the same rules, regulations and restrictions as are prescribed by law in cases of writs of error." We have then a libel filed by William A. Freeborn, James F. Freeborn, and Henry P. Gardner, decree against them as the libelants, and an appeal from that decree in the name of William A. Freeborn & Company. not relate to the same subject, and if they did | In the case of the "heirs of Wilson," already cited, the Chief Justice says: "In both of the cases referred to it appears that the motions to dismiss were not made at the term, or at the time of appearance in this court; but each of the cases had been pending here for two years before the motion was made. The rule of this court, therefore, is: that where there is a substantial defect in the appeal or writ of error, the objection may be taken at any time before judgment, on the ground that the case is not legally before us, and that we have no jurisdiction to try it." Messrs. J. Pyne, S. F. Blount, and J. M. Carlisle, for appellants: The record in this cause was filed in this court Oct. 29, 1869. A motion was made at the December term, 1870, to dismiss the appeal in this cause, because it was taken after the lapse of five years from the date of the decree rendered 82*] *WILLIAM A. FREEBORN et al., as W. in the court below. A. Freeborn & Company, Appts., v. This motion was denied. At the present term of this court, the present. THE SHIP PROTECTOR, Her Tackle, etc., motion is filed to dismiss this cause for the James C. Bell, Claimant. (See S. C. "The Protector," 11 Wall. 82-88.) Defect in names of parties, when fatal to appeal. Where the titles of the parties in the appeal as allowed is, William A. Freeborn & Co. v. The Ship Protector and Owners, this defect is fatal to the jurisdiction of the court. The writ cannot be amended. Argued Jan. 27, 1871. Decided Jan. 30, 1871. Motion to dismiss. The libel in this case was filed in the district court of the United States for the southern district of Alabama, to recover the cost of certain repairs and supplies. A decree having been entered in that court dismissing the libel, the libelants took an appeal to the circuit court, by which the said decree was affirmed, whereupon the said libelants took a further appeal to this court. The case is sufficiently stated by the court. Messrs. P. Philips and P. Hamilton, for appellees: That it is necessary that the names of all the appellants and appellees should be set forth is decided by the following cases: Dencale v. Archer, 8 Pet. 528; Wilson's Heirs v. Ins. Co. 12 Pet. 140; Smyth v. Strader, 12 How. 327; Adams v. Law, 16 How. 144. In all these, as well as in subsequent cases, the writ of error has been dismissed, because the names of all the appellants or all the appellees were not given in the writ. reason that the proceedings on appeal do not set forth the names of the parties appellant. been made at the first term of this court, to It is answered that this motion should have which the said proceedings were returnable, and is now too late. Carroll v. Dorsey, 20 How. 207 (15 L. ed. 804); Chaffee v. Hayward, 20 How. 209, 15 L. ed. 805; The Commander-in-Chief, Wall. 43, 17 L. ed. 609; Bk. v. Seton, 1 Pet. 299. The proceedings on appeal may be amended by the record and proceedings in the cause. In admiralty, amendments are freely allowed. It is the settled practice in admiralty proceedings, where merits appear upon the record, but the libel is defective, to allow the party to assert his rights in a new allegation. The Adeline, 9 Cranch, 244; The Caroline, 7 Cranch, 496; The Divina Pastora, 4 Wheat. 52; The Mary Ann, 8 Wheat. 380. In Smith v. Jackson, 1 Paine (C. C.) 486, in commenting upon the 33d section of the Act of 1789, the court says: The statute gives to the circuit courts, on appeal from the district court, power to allow any amendments of defects of form occurring in the court below, which could have been amended there, or to disregard them in giving judgment. In Tibbs v. Parrot, 1 Cranch (C. C.) 177, the court says: "A declaration in the name of a firm may be amended by leave of the court, by inserting the names of the members of the firm. This does not touch the nature of the cause of action. In the case of The Venus, 1 Wheat. it is decided that, "On an appeal to the Supreme Court The whole record and proceedings being then before this court, and the trial being de novo, all the parties in the court below, whose names are in the records and proceedings, are before the court, the libel setting forth the names of the individuals composing the firm of William A. Freeborn & Co. Penhallow v. Doane, 3 Dall. 54. All the decisions cited by the counsel of appellee were upon writs of error and, therefore, governed by the rules of the common law. By the 24th rule of this court, regulating the practice in courts of admiralty, it is among other things, provided as follows: "And new counts may be filed, and amendments in matters of substance may be made upon motion at any time before the final decree, upon such terms as the court shall impose." See, also, Weaver v. Thompson, 1 Wall. Jr. But in an admiralty case, the cause is before that | appeal appears to us to require that it should court, as if in the inferior court." be prosecuted by the same parties who would have been necessary in a writ of error." the case of Smith v. Clark, 12 How. 21, is more direct to the point before us. It was a motion to docket and dismiss in the case of an appeal, under the 43d rules of the court. The certificate of the clerk, upon which it was founded, described the parties as in the title above. Chief Justice Taney, in giving the opinion of the court, stated that the certificate conformed tothe rule in all respects but one, and that was in the statement of the parties. The respondentswere stated to be Joseph W. Clark and others, from which it appeared that there were other respondents, parties to the suit, who were not named in the certificate. He then referred to the case of a writ of error (Deneale v. Archer, 8 Pet. 526), where it was held that all the parties must be named in the writ, and the name of one or more of them, and others, were not a sufficient description; and, also, to the case of Holliday v. Batson, 4 How. 645, where the same principle was applied to a writ of error docketed under the 43d rule, and observed the same reason for requiring all the parties whose interests were to be affected by the judgment, to be named in the writ of error, applied. with equal force to the case of an appeal from a decree. And the motion to docket and dismiss for the above defect was overruled. opinion of the court in the present case is, that no distinction in respect to the question [*88 before us can be made between the case of an appeal under the act of 1803 (2 Stat. at L. 244) and of a writ of error; and that the decisions. referred to directing the dismissal of the latter from the docket for want of jurisdiction, apply with equal force to the former. This result disposes of the motions on the part of the appellant bond, and also the motion to amend the libel. to amend the petition of appeal, citation and 343. Mr. Justice Nelson delivered the opinion of the court: This is an appeal from the circuit court of the United States for the southern district of Ala bama. The suit was a libel against the ship for supplies and repairs. It was dismissed in the district court upon the pleadings and proofs, and the decree of dismissal affirmed on appeal, by the circuit court. It is now here on appeal from that decree. A motion has been made by the appellees to dismiss the case on the docket for want of jurisdiction. The motion is grounded upon a defect of the title of the parties in the appeal as allowed. The title is, "William A. Freeborn & Co. v. The Ship Protector and owners." This defect in a writ of error has been held fatal to the juris The The motion to dismiss for want of jurisdic tion granted. Mr. Justice Swayne, dissenting: I dissent from the conclusions announced by the court in this case. The defect objected to section of the judiciary act of 1789 (1 Stat. at is, in my judgment, amendable under the 32d L. 73), and I think an amendment should be permitted to be made. diction of the court since the case of Deneale v. Archer, 8 Pet. 526, down to the present time. Smyth v. Strader, 12 How. 327; Wilson v. Ins. Co. 12 Pet. 140; Davenport v. Fletcher, 16 How. 142. Nor can the writ be amended, according to repeated decisions of this court. Porter v Foley, 21 How. 393, 16 L. ed. 154; Hodge v. Williams, 22 How. 87, 16 L. ed. 237. The only question before us is, whether the same rule applies to appeals in admiralty. Originally, decrees in equity and admiralty were brought here for re-examination by a writ of error, under the 22d section of the judiciary act (1 U. S. Laws. 84). This was changed by the act of March 3, 1803, by which appeals were substituted in place of the writs of error in cases of FRANKLIN PARMALEE et al., Plffs. in Err., equity, admiralty, and prize; but the act 87*] *provides "that the appeals shall be subject to the same rules, regulations and restrictions as are prescribed in law in cases of writs of error." 2 Stat. at L. 244. In Owings v. Kincannon, 7 Pet. 403, the appeal was dismissed because all the parties to the decree below had not joined in it. Chief Justice Marshall, in delivering the opinion of the court, referred to the case of Williams v. Bk. of U. S. 11 Wheat. 414, which was a writ of error. where it was held that all the defendants must join, and applied the same rule to the case of an appeal. He cited the Act of 1803, and observed that "the language of the act which gives the Bradley concurs in this dissent. v. DANIEL LAWRENCE. See S. C. 11 Wall. 36-39.) Jurisdiction over state judgments, in what cases -certificate of state supreme court insufficient to confer jurisdiction. The conflict of the state law with the Constitution of the United States. and a decision by a state court in favor of its validity must appear on the face of the record before it can be re-examined in this court. It must be that such a question was necessarily involved in the decision, and that the state court NOTE. What the record must show upon writ of error to a state court--see notes, 63 L. R. A. 329. 471. |