Statement of the Case.

upper part of which is of the usual shape, and has attached to it the movable jaw B, and the lower part of which is of convenient form to receive upon it the wooden handle; a screwrod C, parallel to the main bar; a rosette D, at the lower end of the screw-rod, by means of which the movable jaw is worked; a ferrule or step E, having a hole through it for the admission of the bar, and a recess in its upper face as a bearing for the lower end of the screw-rod; a nut F, screwed on a thread in the bar, under the step, and having a recess in its under face to receive the top of the wooden handle G; and the wooden handle secured at its lower end to the main bar by a nut in the usual way.

"Both the original patent and the reissue state that the object of the invention is to make the strain come upon the nut F instead of coming upon the wooden handle. The original patent states that the nut F is, and the reissue states that it may be, screwed up firmly against the step E. The reissue affirms and repeats that the distinguishing characteristic of the invention is that the step can be readily removed and replaced at pleasure. There is no hint of such a distinction in the original patent.

"The first claim of the original patent is for 'the step E, made substantially as described, and for the purpose set forth.' The corresponding claim in the reissue is for 'the step, combined with the wrench-bar, and supported by the nut F, or its equivalent, at the place where the step is connected with the bar, in such manner that the step can be removed from the bar without cutting or abrasion of parts.'

“The parallel screw-rod, with a rosette thereon to work the movable jaw, and resting upon a ferrule or step, had been introduced in the original Coes wrench, patented in 1841; and, long before the issue of the patent to Jordan and Smith in 1865, large numbers of the Hewitt or Dixie wrench had been made and sold, in which there was no separate screw-rod, and the screw that worked the movable jaw revolved on the main bar, but that screw rested on a ferrule or step, which was secured sometimes by driving it on under heavy pressure, and sometimes by a nut screwed under it on the bar.

VOL. CXXX-5

Opinion of the Court.

"The application to the bar of the Coes wrench, for the purpose of securing and supporting the step, and resisting the strain, of a nut already in use for the same purpose, on the Hewitt or Dixie wrench, lacks the novelty of invention requisite to support a patent, within the decisions of the Supreme Court at the last term, which have, in effect, overruled the earlier decision of this court in the suit of this complainant against Loring Coes and others, reported in 5 Bann. & Ard. Pat. Cas. 548. Pennsylvania Railroad v. Locomotive Engine Safety Truck Co., 110 U. S. 490; Bussey v. Excelsior Manuf. Co., 110 U. S. 131; Double-Pointed Tack Co. v. Two Rivers Manuf. Co., 109 U. S. 117; Phillips v. Detroit, 111 U. S. 604.

"The complainant's patent being void for want of novelty, it becomes unnecessary to consider the other defences. "Bill dismissed, with costs."

Mr. William Edgar Simonds for appellant.

Mr. George L. Roberts for appellees.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

We concur with the Circuit Court in its disposition of this case and the grounds upon which it rested its decision.

The wrench-bar, the fixed jaw upon its upper end, the movable jaw sliding upon the wrench-bar, the screw-rod parallel with the wrench-bar, the rosette upon the lower end of the screw-rod, the step-plate surrounding the wrench-bar, the wooden handle secured by the nut at its extreme lower end, are all described in the patent to Coes; and the nut screwed upon the wrench-bar just below the step-plate, and provided with a recess for the purpose of forming a ferrule for the top of the wooden handle, which is not in the Coes patent, but is in complainant's reissue, had already been in use in the Hewitt or Dixie wrench for the same purposes. The disclaimer conceded that "the nut F, combined with the wrench-bar, and

Opinion of the Court.

interiorly recessed at d, for the purpose set forth" was an old device; but it is claimed that the device is new when the recessed nut and wrench-bar are in combination with the handle, the step, the screw-rod and the movable jaw. The handle, the step, the screw-rod and the jaw are all to be found in the Coes and Dixie wrenches, and the recessed nut of the Dixie wrench constituted, by the shoulder which it made at its upper end, a step upon which the screw rested, and served every purpose designated in the reissued patent in suit as intended to be secured by such recessed nut. This in itself justified the finding that "the application to the bar of the Coes wrench, for the purpose of securing and supporting the step and resisting the strain, of a nut already in use, for the same purpose, on the Hewitt or Dixie wrench, lacks the novelty of invention requisite to support a patent." This conclusion is not affected by the fact that in complainant's wrench the screw-rod of the Coes wrench is availed of instead of the screw-sleeve of the Dixie wrench.

Complainant's first claim is as follows: "1. The step, combined with the wrench-bar and supported by the nut F, or its equivalent, at the place where the step is connected with the bar, in such manner that the step can be removed from the bar without cutting or abrasion of parts." The specification says: "On the bar A, just below the step E, is cut the screw thread i, on which screws the nut F, forming a projection from the wrench-bar, on which rests the step E, and thus transmits the back pressure put upon the step directly to the wrench-bar at the place of connection therewith, and thus relieves the wooden handle therefrom, the connection of the step with the bar being made in such manner that the step may be removed or taken off the bar without any cutting or abrasion of parts." The elements of this combination are the support of the step by the nut F, the transmission of back pressure directly to the wrench-bar through that nut, and the removability of the step without cutting or abrasion of parts. Now the Dixie wrench contained the nut F, screwed on the wrench-bar, and transmitting the back pressure directly to it, and removable without cutting or abrasion, by being simply unscrewed.

Opinion of the Court.

The second claim is: "The nut F, combined with the wrenchbar, and interiorly recessed at d, for the purpose set forth." This, as so stated, was disclaimed, except when said recessed nut and wrench-bar are in combination with the handle, the step, the screw-rod and the movable jaw.

It was said in Hailes v. Albany Stove Company, 123 U. S. 582, 587, the court speaking through Mr. Justice Bradley: "A disclaimer is usually and properly employed for the surrender of a separate claim in a patent, or some other distinct and separable matter, which can be exscinded without mutilating or changing what is left standing. Perhaps it may be used to limit a claim to a particular class of objects, or even to change the form of a claim which is too broad in its terms; but certainly it cannot be used to change the character of the invention. And if it requires an amended specification or supplemental description to make an altered claim intelligible or relevant, whilst it may possibly present a case for a surrender and reissue, it is clearly not adapted to a disclaimer."

The complainant's qualified disclaimer is an admission that the second claim of the patent is void for want of novelty, which is true, even if the qualification were effectual, since, as we have seen, the screw-rod and movable jaw of the patent have no different effect from the screw-sleeve and movable jaw of the prior Dixie wrench, upon the other parts of the combination.

The other claim is: "3. The nut F, combined with the threaded bar, and performing the office of supporting the step, and also of rigidly fastening it to the bar, for the purpose set forth." The specification says: "The nut not only supports the step, but can be made to rigidly fasten the step to the bar by screwing it firmly up against the step, so as to gripe it between itself and the shoulder b, thus giving the nut, so to speak, a double office, viz., that of supporting the step, and, also, that of fastening it rigidly to the bar. The nut is interiorly recessed at d, for the purpose of forming a ferrule for the top of the wooden handle." The purpose of supporting the step by the nut F, and fastening the step rigidly to the wrench-bar by means of that nut, is the relief of the wooden

Syllabus.

handle from the strain of back pressure. In the Dixie wrench the step and nut were made of one and the same piece of metal, thereby fully attaining the object of holding the stepplate rigidly fastened in position. In the Coes wrench the step was rigidly fastened to the bar by being griped between a shoulder above it and upon the bar and the handle below it, which was backed up by the nut screwed upon the lower extremity of the bar. Dispensing with a washer between a nut and that upon which it acts, makes no change in the office of the nut. The action of the nut M of the Coes wrench in griping the step-plate is the same as that of the nut F of the patent. This third claim is also void for want of novelty.

The decree of the Circuit Court is affirmed.

ARKANSAS VALLEY LAND AND CATTLE COMPANY v. MANN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.

No. 147. Argued January 4, 7, 1889. Decided March 5, 1889.

If the trial court makes the decision of a motion for a new trial depend upon a remission of the larger part of the verdict, this is not a re-examination by the court of facts tried by the jury in a mode not known at the common law; and is no violation of the Seventh Article of Amendment to the Constitution.

An order overruling a motion for a new trial after the plaintiff, by leave of court, has remitted a part of the verdict, is not subject to review by this court upon a writ of error sued out by the party against whom the verdict is rendered.

A recital in an instrument between two parties that one party, the owner of a great number of cattle, had, on the day of its execution, "sold" the cattle to the other party, followed by clauses guaranteeing the title, and providing the mode in which the buyer was to make payment, contains all the elements of an actual sale, as distinguished from an executory contract.

A provision in a bill of sale of cattle, that the seller shall retain possession