Opinion of the court. for changing it. The control which the courts can always exercise over unsatisfactory verdicts will enable them to prevent any wrong or injustice arising from the action of juries; whereas, if the courts themselves were compellable to decide on these often recondite and difficult questions, without the aid of scientific persons familiar with the subjects of the inventions in question, they might be led into irremediable errors, which would produce great injustice to suitors. We are disposed to think that the practice adopted by our courts is, on the whole, the safest and most conducive to justice. It may be objected to this view that it is the province of the court, and not the jury, to construe the meaning of documentary evidence. This is true. But the specifications of patents for inventions are documents of a peculiar kind. They profess to describe mechanisms and complicated machinery, chemical compositions and other manufactured products, which have their existence in pais, outside of the documents themselves; and which are commonly described by terms of the art or mystery to which they respectively belong; and these descriptions and terms of art often require peculiar knowledge and education to understand them aright; and slight verbal variations, scarcely noticeable to a common reader, would be detected by an expert in the art, as indicating an important variation in the invention. deed, the whole subject-matter of a patent is an embodied conception outside of the patent itself, which, to the mind of those expert in the art, stands out in clear and distinct relief, whilst it is often unperceived, or but dimly perceived, by the uninitiated. This outward embodiment of the terms contained in the patent is the thing invented, and is to be properly sought, like the explanation of all latent ambiguities arising from the description of external things, by evidence in pais. In We are, therefore, of opinion that the Circuit Court was justified in refusing to give the instructions demanded by the plaintiffs, and in giving that which was asked by the defendant. The precise question has recently undergone considerable Opinion of the court. discussion in England, and has finally resulted in the same conclusion to which we have arrived. The cases will be found collected in the last edition of Curtis on Patents.* It was at first decided in the cases of Bovill v. Pimm,† Betts v. Menzies, and Bush v. Fox,§ that it was the province and duty of the court to compare the documents and decide on the identity or diversity of the inventions. But in 1862, Lord Westbury, in two very elaborate judgments, one of which was delivered in the House of Lords on occasion of overruling the decision in Betts v. Menzies, held that it belonged to the province of evidence, and not that of construction, to determine this question. "In all cases, therefore," he concludes, "where the two documents profess to describe an external thing, the identity of signification between the two documents containing the same description, must belong to the province of evidence, and not that of construction." Lord Westbury very justly remarks, that two documents using the same words, if of different dates, may intend very diverse things, as, indeed, was actually decided by this court in the case of The Bridge Proprietors v. The Hoboken Company. The court, in that case, said: "It does not follow that when a newly invented or discovered thing is called by some familiar word, which comes nearest to expressing the new idea, that the thing so styled is really the thing formerly meant by the familiar word." And the decision was that the word "bridge," in an old bridge law, passed in 1790, did not mean the same thing as the same word meant when applied to the modern structure of a railroad bridge. This view of the case is not intended to, and does not, trench upon the doctrine that the construction of written instruments is the province of the court alone. It is not the construction of the instrument, but the character of the thing in. vented, which is sought in questions of identity and diversity of inventions. * 8 446. 1 Ellis & Ellis, Q. B. 999. JUDGMENT AFfirmed. 36 English Law and Equity, 441. INDEX. ABANDONED AND CAPTURED PROPERTY ACT. See Rebellion, 1. where he has purchased in good faith, prove the loyalty of the person 2. The vendor is a competent witness to support the claimant's case, if he 8. In a claim under this act, the Court of Claims may render judgment 4. Claimants under the act are not deprived of its bencfits because of aid 6. But voluntarily executing, even through motives of personal friendship, 6. The mere taking possession of a city by the government forces was not ACCEPTANCE. Of work not performed according to contract. What amounts to. Swain ADMINISTRATOR. See Foreign Administrator; Pleading, 2, 3, 7. 1. Where a lien exists by the maritime law of foreign jurisdictions, our 2. The English "Admiralty Court Act" (24th and 25th Victoria), con- 3. Liens for repairs and supplies, whether express or implied, how far and 4. Steamers navigating crowded harbors or channels, or entering ports in VOL. IX. 52 ADMIRALTY (continued). can see. In all such cases they must conform strictly to the rules of navigation. The rule applied in various cases. The Corsica, 630; The Johnson, 146; City of Paris, C34; The Portsmouth, 682; The Syracuse, 672; The Suffolk County, 651. 5. Those having no tows, bound to regard with care those having them. The Alleghany, 522; The Syracuse, 672. 6. If either one of two vessels colliding have departed from the rules of navigation established by Congress, it must show cause for such its departure. The Corsica, 630. 7. The case set up by a libelled vessel is not necessarily made out by the libellant's proving, as respects his own vessel, a case somewhat different from the one which his libel alleged. The Suffolk County, 651. 8. A neglect by one vessel, on approaching another in the night, to show proper lights, or her showing a wrong one, does not absolve such other vessel, under the act of Congress of April 29th, 1864, prescribing the lights which sailing vessels shall carry, from obligation to observe the usual laws of navigation, or such reasonable and practicable precautions generally as the circumstances allow. The Gray Eagle, 505. 9. A loss equally divided between two vessels, both being in fault. Ib. 10. Positive and direct oral testimony, in a collision case, not controlled by the shape of the wound on the injured vessel. The Fairbanks, 420. AFFIRMANCE. By a Superior Court of a judicial decrce in a lower one, does not enlarge the operation of the latter. The effect of it considered. In the matters of Howard, 175. AGENCY. See Principal and Agent; Ratification, 1, 2. 1. Where a partnership is in the habit of indorsing negotiable paper, having blanks left for the date, and gives the paper so indorsed to a person to use-he to fill the blank when he wishes to use it-the firm is liable on the paper with the date filled in, when, thus complete, it is held by innocent bonâ fide holders for value. Michigan Bank v. Eldred, 544. 2. The power to fill the blanks for dates implies, in favor of such holders, a power in the person trusted to change the date, after the note has been written, and before it is negotiated. Ib. 8. An authority to buy cotton, having in view not merely a single transaction, or a number of specified transactions, but a class of purchasers and a department of business-makes a general agency to buy cotton; and if the agent, holding himself out as the general agent, purchase there under his power, he may bind his principal in violation of special instructions not communicated to his vendors, and of which they had neither knowledge nor reason to suspect the existence. Butler v. Maples, 766 APPEAL. See Practice, 1, 7, 11-14, 18, 19; Court of Claims, 4. Where an act of Congress gives, as part of the general system of organization of a court, an appeal from any final judgment or decree which APPEAL (continued). may thereafter be rendered by it, an appeal lies from a judgment rendered under an act which gives the court jurisdiction to pass, in the usual way, and not by any special proceedings, upon a class of cases additional to those of which it already had jurisdiction, even though nothing be said in such act about an appeal. Ex parte Zellner, 244. APPOINTMENT. See Feme Covert. APPURTENANCE. A right not connected with the enjoyment or use of a parcel of land cannot be annexed as an incident to that land so as to become appurtenant to it. Linthicum v. Ray, 241. ARBITRATION AND AWARD. See Pleading, 8, 9. 1. A submission to two arbitrators named, and "an umpire if needful," is an authority to the arbitrators to appoint the umpire. Smith v. Morse, 76. 2. A submission to arbitration implies an agreement to submit to the award. Ib. ARMY OFFICERS. Under the Act of July 13th, 1866, amendatory of the 4th section of the Act of March 3d, 1865, an officer in the regular army, who during the rebellion accepted a commission of colonel of volunteers, is not entitled to the three months' pay given by those acts to officers of that grade on being honorably discharged under the terms of the act from "military service;" he resuming his duty and rank in the regular army, and being still in the said service. United States v. Merrill, 614. ASSISTANT QUARTERMASTER. See War Department. AVERAGE. 1. Where a ship has sustained injuries, owing to a voluntary stranding, and undergone repairs, her contributory value, in general average, is her worth before such repairs were made. In the absence of other proof on this point, her value in the policy of insurance at the port of departure is competent evidence; just deduction being made for deterioration. Star of Hope, 203. 2. Sacrifices of part of the cargo necessarily made to raise means to prosecute a voyage from a distant port, are the subject of general average. Ib. 8. The expenses of an ex parte adjustment made by charterers at the port of delivery are not chargeable in admiralty on the ship or freight, unless the results were adopted and used in the court below by the commissioner who stated the adjustment made under order of the court. Ib. BANKRUPT. See Practice, 21. BARGES. The special obligation of the owners of, on our Western rivers, to keep them strong, in reference to the new modes of carrying grain,-that is to say, of carrying it in bulk instead of in sacks, a consequence of |