There are two classes of combinations recognized by the patent laws, which are properly the subject of a patent.

Lee v. Blandy, 2 Fish. Pat. Cas. 93.

A combination patent is one in which all the elements enter into it so as to qualify every other.

Hailes v. Van Wormer, 87 U. S. 20 Wall. 368 (22:248); Pickering v. McCullough, 104 U. S. 310 (26:749); Reckendorfer v. Faber, 92 U. S. 357 (23:723); Webster Loom Co. v. Higgins, 105 U. S. 591 (26:1181); Gage v. Herring, 107 U. S. 640 (27:601).

Messrs. I. D. Leggett and Joseph A. Osborne, for appellee:

None of the features found in appellant's device perform any different functions from what they did in earlier honey frames, and none of them perform any joint function.

dentated, and angular grooves cut across it at those points which are to form the corners. These blanks, after being thus prepared, may be packed solidly in boxes, or otherwise, for transportation, and, when required for use, are bent into the square forms, and their ends united at one of the corners, by means of the interlocking notches or teeth, thus forming a complete frame ready for use. In the drawings, Fig. 1 is a plan of one of the blanks, showing the various recesses and grooves with which it is supplied. Fig. 2 is an edge view of the blank, and shows the form and depth of the angular grooves which form the corners of the frame. Fig. 3 shows the blank bent into a square form, with the ends united, making a complete frame ready for use. Fig. 4 shows a modification of the groove, or miter, c, Fig. 2. The blanks for these frames are preferably formed from some light, tasteless, and compa

Curt. Pat. § 111 c; Walker, Pat. § 32; Hailes v. Van Wormer, 87 U. S. 20 Wall. 353, 354, 368 (22: 241, 248); Reckendorfer v. Faber, 92 U. S. 847, 357 (23: 719, 723); Pickering v. McCullough, 104 U. S. 310, 318 (26: 749, 751).

The most liberal construction the court can give the patent is that it is for a combination. Curt. Pat. § 249; Neilson v. Harford, 1 Web. Pat. Cas. 317.

The patentee, by the restricted form of his claim, made the groove a material part of his device, and the court cannot declare that it is immaterial.

U. S. Rev. Stat. § 4888; Union Water-Meter Co. v. Desper, 101 U. S. 332, 337 (25:1024, 1026); Gage v. Herring, 107 U. S. 640, 648 (27:601, 604.)

Mr. Justice Blatchford delivered the opinion of the court:

This is a suit in equity, brought in the Circuit Court of the United States for the Northern District of Ohio, by James Forncrook against Amos I. Root, for the infringement of letters patent of the United States No. 243,674, granted to the plaintiff, June 28, 1881, for an "improvement in sectional honey frames," on an application filed May 13, 1879.

The specification, claim, and drawings of the patent are as follows:

"Be it known that I, James Forncrook, of Watertown, in the County of Jefferson and State of Wisconsin, have invented certain new and useful improvements in sectional honey frames, and I do hereby declare the following to be a full, clear, and exact description of the invention, such as will enable others skilled in the art to which it appertains to make and use the same, reference being had to the accompanying drawings, and to letters of reference marked thereon, which form a part of this specification. This invention relates to an improvement in sectional honey frames, the object being to so construct them that they shall be stronger and in a more portable form than the frames now used for such purposes; and the invention consists essentially in forming the frames from a single blank or piece of material having all the necessary grooves and recesses required to form a complete frame cut

corners without steaming or boiling, such as basswood or whitewood, the material being produced by cutting it from the log in the form of a thick veneer, or by sawing into thin stuff and then planing both surfaces. The blanks A are then cut from this material, of the proper width and length, the ends dentated, as shown at a a, by means of a series of circular saws placed close together upon an arbor or other suitable tool, so that they will interlock when brought together. The recesses bb are then formed in its edges, at such points in its length as will bring them at the top and bottom of the frames when set up in the hive. These recesses form openings which allow space for the passage of the bees between the frame, and for the ventilation of this part of the hive. Three triangular grooves, c c c, are then cut across the blank at such points in its length as will divide it into four nearly equal parts, each of which forms one side of the frame after the blank is bent into a quadrangular shape. These triangular grooves are cut nearly through the blank, sufficient wood only being left to hold the parts firmly together. As the sides of the grooves c are inclined toward each other at a right angle, it follows that, when the blank is bent into the form of a frame, these grooves make perfectly fitting interjoints at three of its corners, the fourth corner being that at which the ends of the blank are united to each other by means of the interlocking teeth formed thereon. In one of these spaces, between two of the grooves c, and preferably that which will form the top of the frame when placed in the hive, is formed a longitudinal groove, d, for the guide-strip, which makes a secure point of attachment for the comb, when the bees begin to build in the frames set side by side in the hive, with the parts of the frame containing the recesses bb at top. These frames meet a want long felt by beekeepers, as those in common use are either dovetailed or nailed together at the corners, and, if set up at the manufactory, form a large bulk for transportation, and are very liable to breakage in handling; but, if sold to the user in pieces, to be put together by him, the numerous joints to be made cause loss of time and produce a very fragile article when fin ished, which loses its rectangular shape with

The answer sets up as defenses noninfringement and want of novelty. After issue joined, proofs were taken on both sides, and the circuit court, on a hearing, dismissed the bill. Its decision is reported in 21 Fed. Rep. 328.

The plaintiff does not carry his invention further back than the summer or late spring of 1877. The answer sets up that the same invention as that patented was known to Alexander Fiddes, who resides at Centralia, in the State of Illinois, as early as May or June, 1873.

The circuit court, in its decision, said that if the patentee was entitled to claim the blank for honey frames as a new and useful device, it was because it is a constituent of the frame or section into which it is formed by bending, no matter who bends it, whether the maker or purchaser for use; and that, if the state of the art at the date of the alleged invention was such that the patentee could not claim as his invention the honey frame or section when formed by bending and uniting the ends of such a frame, he, for the same reason, could not claim as his invention such a blank for the purpose of forming it into a frame or a section. The opinion then proceeded: "The question, therefore, is whether, upon the evidence, at the date of the alleged invention, the manufacture of honey frames or sections, by bending and uniting the ends of a blank consisting of a single piece, substantially as described in this patent, was a patentable novelty. Upon a careful comparison and consideration of all the evidence this question must be answered in the negative. Alexander Fiddes testifies to making and using honey sections formed from a single piece, grooved, bent, and united at the ends, as early as 1872 and 1873, some of which he sold to others for use; and if those now made by the complainant under his patent are superior in any respect to the first specimens of

In addition to this, the claim of the patent is as follows: "As a new article of manufacture, a blank for honey frames, formed of a single piece of wood, having transverse angular grooves c, longitudinal groove d, and recesses b, all arranged in the manner shown and described." The description in the specification states that "the invention consists, essentially, in forming the frame from a single blank or piece of material having all the necessary grooves and recesses required to form a com. plete frame cut in it." It also says that "in the drawings Fig. 1 is a plan of one of the blanks, showing the various recesses and grooves with which it is supplied." One of those grooves is the longitudinal groove d. The description further says: "In one of these spaces, between two of the grooves c, is formed a longitudinal groove, d, for the guide strip, which makes a secure point of attachment for the comb when the bees begin to build in the frames, set side by side in the hive, with the parts of the frame containing the recesses bb at the top." Thus the longitudinal groove d is made by the patentee a necessary element in the structure. The defendant's structure has no longitudinal groove, and no substitute or equivalent for it. Fay v. Cordesman, 109 U. S. 408 [27: 979]; Yale Lock Mfg. Co. v. Sargent, 117 U. S. 373 [29: 950]; Dryfoos v. Wiese, 124 U. S. 32 [ante, 362].

It is urged by the plaintiff that it is shown that the defendant's section is to be used with the comb foundation or attachment made by the putting, by the user, of pieces of wax on the section. But this is not a mechanical equiva lent in the blank for the longitudinal groove, any more than, in Gage v. Herring, 107 U. S. 640, 648 [27: 601, 604], the person who shoveled or swept up, by manual labor, the meal deposited upon the floor of the dust-room, was a mechanical equivalent, in the sense of the pa tent law, for the automatic conveyer-shaft in the dust-room.

The decree of the Circuit Court is affirmed.

certain claims to the court of claims for adjudica1. The Act of Congress of July 8, 1886, referring tion, authorizes that court to give a final judgment against the United States.

2. The reference made by such statute is limited to a judgment for property taken and impressed into the service, and for property sold to the Gov

Porter were used indiscriminately with the army cattle to haul the army wagons. In this service many of them died and many were abandoned, exhausted from overwork and want of forage; many were killed and eaten by the army, and for these I understand the claimants have been already paid under this law. I am unable to see any distinction between the cattle that were eaten and those that were worked in the army trains and lost, for both were certainly impressed within the meaning of the statute. Nor do I see how any distinction can be made between the cattle that actually died when in the army trains and those that may have been lost between South Pass and Fort Scott; for, when they had been once used with the army cattle to haul the trains, they were actually employed in the service of the United States, being under military control and liable to be applied to that work when needed. It is too rigid a construction to say that 'actual service' means only the time employed in labor. Possession and the power to use the animal, Judge Black says in Oldham's Case (Man's Op. No. 59), is the test of employment within the meaning of the statute, and these General Johnston undoubtedly had."

The amount found due to the Porters by the accounting officers of the treasury was appropriated by Congress by the Act of February 7, 1887, heretofore referred to. The facts relied upon by the attorney-general, as justifying the payment in their case, of actual service in the employment of the United States, do not appear in the present cases.

Neither does the conclusion of the court of claims derive support from anything said or decided by this court in the case of Mitchell v. Harmony, 54 U. S. 13 How. 115 [14: 75]. There the plaintiff was forced, against his will, to accompany the American troops with his wagons, mules, and goods in a hazardous expedition, and for the purpose of strengthening their military force. His wagons and mules

were used in the public service in the battle of Sacramento, and on the march afterwards; when the place was evacuated they were left behind unavoidably, as nearly all of his mules had been lost in the march and battle; and when the Mexican authorities regained possession of the place, his goods were seized and confiscated and totally lost to him. The jury found, from the evidence, that there was an actual seizure of the plaintiff's property by the officer; and, in speaking to that point, the court says, p. 136 [84]: "We do not see any evidence in the record from which the jury could have found otherwise. From the moment they were taken possession of at San Elisario, they were under the control of Colonel Doniphan, and held subject to his order. They were no longer in the possession or control of the plaintiff, and the loss which happened was the immediate and necessary consequence of the coercion which compelled him to accompany the troops. It is true the plaintiff remained with his goods, and took care of them so far as he could during the march, but whatever he did in that respect was by the orders or permission of the military authorities. He had no independent control over them."

used to aid in hauling government trains, and thus did extra work on insufficient food," there is perhaps ground for a recovery to some extent, under the terms of the Act, for property taken and impressed into the service of the United States; but we are unable, from the findings, to determine the amount properly allowable on that account. It becomes necessary, therefore, to reverse the judgments in both cases, and remand them to the court of claims for more definite and specific findings; and inasmuch as we have determined that the facts as found by the court of claims in the present record do not enable us to determine what property of the plaintiffs was taken and impressed into the service of the United States by Colonel Johnston, the cases may be opened for further proofs on that point.

The judgments are therefore reversed, and the causes remanded to the Court of Claims for further proceedings in accordance with this opinion; and it is so ordered.

ATTERSON W. RUCKER, Piff. in Err.,

v.

JEROME B. WHEELER.

(See S. C. Reporter's ed. 85-96). Charge to jury-expression of opinion.

1. A judge of a court of the United States, in submitting a case to the jury, may, in his discretion, express his opinion upon the facts; and when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, such expression of opinion is not reviewable on writ of error.

to the jury fairly submitted to the jury the question 2. Heid, also, in this case, that the judge's charge as to the existence of the agreement upon which the plaintiff relied; and that there was no error in the charge.

Submitted Jan. 9, 1888. Decided April 16,1888. [No. 1306.]

Ied States for the District of Colorado, to re

N ERROR to the Circuit Court of the Unit

view a judgment in favor of defendant in a suit to recover for the services of plaintiff. Affirmed.

Statement by Mr. Justice Harlan:

The cause of action set out in the first count of the complaint is that the defendant in error, who was the defendant below, agreed with the plaintiff in error that if the latter assisted the former and his agents in purchasing the interest of Julia Webber in the Emma lode mining claim at a price not exceeding $40,000, he should receive for his services the sum of $10,000, but only $5,000 if the defendant was compelled to pay more than $40,000 for said interest. The complaint alleges that, in consequence of services rendered by the plaintiff under that agreement, the defendant was, on the 22d of November, 1884, enabled to buy said in terest at a sum exceeding $40,000, whereby the latter became indebted to plaintiff in the sum of $5,000.

The defendant in his answer denies that he made any such agreement as that alleged, or that he was enabled to purchase the interest of Julia Webber by reason of any services ren