United States v. James Whitaker. the payment of the money the title reverts to the mortgagor. But if it be a deed of trust, a reconveyance of the land is necessary. In either case, the land is a security for the money. But under the mortgage a sale would be necessary to perfect the title in the mortgagee or in any other person. But if the instrument be a deed of trust, the fee stands vested in the grantee, and no sale is necessary. The distinction between a deed of trust and a mortgage, is somewhat technical, and in many cases different minds might incline to the one character or the other of the same instrument. The parties in this case call the instrument a deed of trust, and provide that on the payment of the money, the title should be reconveyed to the grantor, free from all incumbrances. This is not the language of a mortgage, which provides that, on the payment of the money the conveyance should be of none effect. From expressed language of the parties, they would seem to have considered the instrument as a deed of trust. And as this kind of instrument best se cures the right of the grantee, we may presume the form was adopted with that view. Upon the whole, we think the instrument may be considered as a deed of trust, but we decide nothing more. Any equitable rights which the defendants may have, are neither shown nor considered in the case. UNITED STATES v. JAMES WHITAKER. Where a post-master is charged with abstracting a letter from the mail, containing money, to fix the charge it is usually necessary to examine the post-masters and assistant post-masters, between the office where the letter was deposited to be mailed, and the office to which it was directed. And at such office the clerks or persons who received and opened the mail should be examined. This testimony is especially necessary on the United States v. James Whitaker. part of the prosecution, where the accused proved an exemplary character during his whole life. Mr. Morton, District Attorney, for plaintiff. Mr. Joliffe for defendant. OPINION OF THE COURT. This is an indictment against the defendant, who acted as assistant post-master at post-office, for stealing a letter from the mail containing ninety-three dollars. The letter was proved to have been mailed at Withamsville, the money being counted and handed to the defendant to be enclosed in a letter and directed to Stephen Clark, Cincinnati, but was never received, as proved by Mr. Clark, nor did it appear to have been received by the account of mails received at the Cincinnati office. The defendant, sometime after the deposite of the money, called one or more witnesses to notice the fact that he enclosed the money in the letter, sealed it, but no one swears to the fact that it was mailed, but such were their impressions, as at the time of enclosing the money he was putting up the mail. A proposition was made to the defendant, if he would pay, or secure the payment of the money to Mr. Clark, the matter would not be prosecuted, which the defendant refused. The persons who usually opened the mail in the Cincinnati office were examined, but all the persons through whose hands the letters passed were not examined. In the defense it was shown that letters directed to Cincinnati, on the same route, west of the defendant's office had miscarried, and also, that letters directed to the Cincinnati office on other routes had never been received. It was proposed to prove that the assistant post-master at Mount Washington, the next office to the Witham office, on the route to Cincinnati, was suspected, and that at one time. Joseph W. Wayne v. T. Winter et. al. he had been charged with passing counterfeit money. But the Court overruled the testimony, on the ground that the person had not been examined as a witness, and that his general character could not be assailed. Some ten or twelve witnesses were then called, who proved the good character of the defendant. In the cross examination of one or two of the witnesses to the good character of the defendant, they were asked whether the defendant had not, at one time, been charged with passing counterfeit money. This was not objected to by the defendant, and was explained by showing of whom he had received the bank note, as good, on which the charge was founded. This circumstance, it was proved, had not in the least affected the fair character of the defendant in his neighborhood. The Court remarked to the jury that the exemplary character of the defendant, as proved, should have weight in their deliberations. That before the letter reached Cincinnati it passed through the office at Mount Washington, and one or two other offices before it reached Cincinnati, and at that office it passed through the hands of clerks, and there were others who had access to it. The defendant admitted the letter and the money were deposited in the office, to be forwarded in the mail. Upon the whole, the Court remarked, unless you come to the conclusion that the defendant is guilty, beyond reasonable doubt, you will acquit him. The jury found the defendant not guilty. JOSEPH W. WAYNE v. T. WINTER ET AL. Parol evidence is not admissible to show at what time a patent was applied for. The Patent-Office contains written evidence of the fact, and it must be proved by such evidence. Mr. Miner, for plaintiff. Messrs. Stanberry and McCormick, for defendant. Rochus Heinrich v. John Luther. OPINION OF THE COURT. The plaintiff introduced the patent under which he claimed a right to a washing machine, which the defendants were charged with infringing, dated 30th October, 1849. An assignment to the plaintiff by the patentee, on the 15th January, 1851, was shown, and which was recorded in the Patent-Office in 1853. The face of the wash board was covered with zinc, with numerous elevations, so as to make a rough surface on which the clothes, on being washed, are rubbed. The invention consists in extending the zinc plate with sharpened edges beyond the board on which it was laid, so that the zinc plate extended into the side pieces fastened to the board and made it firm. From the evidence it appears that this wash board had been in use more that two years before the date of the patent, which, it was contended, was a dedication of the improvement to the public. The counsel for the plaintiff offered parol evidence to show when the patent was applied for, but the Court overruled the testimony. A non suit was suffered, which was set aside on motion and payment of costs. ROCHUS HEINRICH v. JOHN LUTHER. A patent is prima facie evidence of the right of the patentee. Where the patentee claims three distinct improvements, he must show himself entitled to each, to sustain an action. Since shears were invented, some contrivance has been used to stop the handles, so as not to strain the joints of the cutting knives. This has been done by the enlargement of the handles so as to come in contact at the proper point. Several witnesses proved that a screw was used for this purpose, others have known wires to be used. The invention consists, not in avoiding the pressure of the joint of the shears, but in accomplishing that result by a new means. Rochus Heinrich v. John Luther. The beak which performs this office in the plaintiff's shears, was cast in the handles of the shears, and is as permanent as any other part of the handle. There is no special claim in writing that the beak should be so made, but the drawing shows how it was a part of the upper handle, and the drawing is a part of the specifications. Messrs. Stanberry and Parker, for plaintiff. OPINION OF THE COURT. This action is brought against the defendant, gentlemen of the jury, for infringing the plaintiff's patent. It was issued to secure to the plaintiff an improvement in tailors' shears. The patent bears date the 27th of February, 1839. The invention claimed, is, 1. The projection at the point of beak e, on the upper bow, as described. 2. The addition of the convex protuberance of, or swelling of ƒ and g, on the right side of the upper and lower bows, so as to fill the palm of the hand in using the shears. The third is the concave lip h, on the left side of the upper bow, for the thumb to rest upon as described. To entitle the plaintiff to recover, these three inventions as claimed, must be found to have been invented by him as claimed. Before the patent is granted, the invention claimed is examined by one or more examiners skilled in the arts, and compared with the patents which have been issued in this and other countries; and if the invention is found to be new and useful, and the applicant swears that he is the first and origi nal inventor, the patent is granted. And this gives to the patentee a prima facie right. In this case the patent has been issued for the improve ments above specified, so that if the plaintiff shall fail to establish his right to either of the things specified, he will not be entitled to your verdict. |