"If, however, a new declaration and complaint is filed, setting up a new cause of action. the statute runs until such new declaration is filed, and may be pleaded thereto." See also Buswell on Limitations, p. 515. In Mohr v. Lemle, 69 Ala. 180, the Alabama court thus speaks: EDWARD S. RICHARDS, Appt., [299 V. THE CHASE ELEVATOR COMPANY. (See S. C. Reporter's ed. 299-303.) Demurrer in patent case-want of noveltymultiplicity of elements-void patent. 1. If a patent is manifestly invalid upon its face. the point may be raised on demurrer, and the case determined upon the issue so formed. 2. A patent may be declared invalid for want of novelty, through no such defense be set up in the 3. "The latitude of amendment allowed the plaintiff cannot be permitted to work injustice to the defendant, or to deprive him of any just and rightful defense. The plaintiff may introduce a new cause of action by amendment; but such amendment cannot have relation to the commencement of the suit, so as to avoid the bar of the statute of limitations, if the statute would operate a bar to a new suit commenced for that cause of action, at the time of making the amendment. The whole doctrine of rela-4. tion rests in a fiction of law, adopted to sub298]serve,*and not to defeat right and justice. When the amendment introduces a new right, or new matter, not within the lis pendens, and the issue between the parties; if at the time of its introduction, as to such new right or matter, the statute of limitations has operated a Argued April 25, 1895. Decided May 20, 1895. APPEAL from a decree of the Circuit Court bar, the defendant may insist upon the benda of the United States for the Northern Disof the statute, and to him it is as available, as trict of Illinois, dismissing on demurrer a suit if the amendment were a new and independ-in equity for the infringement of letters patent ent suit." So again in the same state, in one of the cases, already cited, the court said: "While a new cause of action may be introduced by amendment, the established limitation on the operation of its relation to the commencement of the suit is, that if the amendment introduces a new matter or a dif ferent cause of action not within the lis pendens, as to which the statute of limitations has operated a bar at the time of making the amendment, it is as available as if the amend ment were a new and independent suit." Alabama G. 8. R. Co. v. Smith, 81 Ala. 229. No. 308,095 issued November 18th, 1884, to Edward S. Richards for a grain transferring apparatus, the suit having been brought by said Richards against the Chase Elevator Company. Affirmed. See the same case below, 40 Fed. Rep. 165. Statement by Mr. Justice Brown: This was a bill in equity for the infringement of letters patent No. 308,095, issued November 18, 1884, to the plaintiff Richards, for a grain transferring apparatus. The purpose of the invention, as stated by the patentee, was "to provide improved means for transferring and weighing grain without mixing different lots or loads with each other, Other applications of the doctrine may be found in the following cases. Toby v. Allen, 3 Kan. 399; Hiatt v. Auld, 11 Kan. 176; North Chicago Rolling Mill Co. v. Monka, 107 Ill 340; Crofford v. Cothran, 2 Sneed, 492; Flatley v. Memphis & C. R. Co. 9 Heisk. 230; Dudley v. Price, 10 B. Mon. 84; Buntin v. Chicago, R. I. Thompson v. Boisselier, 29: 76, and Corning v. Bur & P. R. Co. 41 Fed. Rep. 744; Atlantic & P. R. Co. v. Laird, 58 Fed. Rep. 760. Nor do we think this question is in any way affected by the fact that the second amended petition was filed by consent. The consent covered the right to file it, but did not waive the defenses thereto when filed. If the interruption to the running of the statute created by the first summons applied only to the cause of action therein set out, it would have required an express renunciation of the benefit of the statute, which had fully operated upon the new cause of action set out in the amended petition-when that petition was filed. In Sicard's case, supra, although the amendment had been filed by leave of court, and was, therefore, a bar of the pleadings, it was held that the bar of the statute applied to the new cause of action alleged in the amendment, and the rule there enforced is followed in the other cases cited. Judgment reversed. NOTE.-For what patents are granted; when declared void, see note to Evans v. Eaton, 4: 433. As to patentability of inventions, see notes to den, 14: 683. As to abandonment of invention, see note to Pennock v. Dialogue, 7: 327. As to distinction between inventions of mechanism, articles or products and processes; when latter patented, see note to Corning v. Burden, 14: 683. As to including process and product in same patent; separate patents therefor, see note to Evans v. Eaton, 4: 433. As to what reissue may cover, see note to O'Reilly v. Morse, 14: 601. As to assignment, before issuing and reissuing pat ent; recording; when assignment transfers extended terms, see note to Gayler v. Wilder, 13: 504. As to when assignee must sue for infringement; when patentee must; when they must join, see note to Wilson v. Rousseau, 11: 1141. As to damages for infringement of patent; treble damages, see note to Hogg v. Emerson, 13: 824. As to patentability of inventions; patentable subject-matter: utility: what constitutes invention; patentable novelty: combinations: foreign patents and their effects, see note to Grant v. Walter, 37: 553. As to what constitutes infringement of patent; simlarity of devices: designs; combinations: machines; construction of patent, see note to Royer v. Coupe, 36: 1073. thus preserving the identity of each lot while it is being transferred from one car to another." The device in question was substantially one for shifting grain from one car to another through an elevator, by means of which the grain is raised from one car to a hopper in the elevator, where it is weighed and discharged into another car. The device is illustrated in the following drawings: The patentee thus explained the operation of his device: "The car to be unloaded-for example, the car B-is drawn upon the track F and allowed to stand in such position that the door will be directly opposite the chute J. If the grain is to be transferred to a car opposite, or about opposite, the car B-for example, to the car D-I close the door of valve Land open the valve K. The grain is then shoveled from the car by means of a steam shovel, or otherwise, into chute J, from which it passes into the elevator leg, through which the buckets move upwards. The grain is thus elevated and discharged into the hopper of the hopper scales, located for discharging its contents into the car D. That hopper has its valve 300] *closed while being filled, but when filled the grain therein is weighed and discharged into the car intended to receive it.” The patentee further explains that if the cars are not opposite to each other, he closes the valve K and opens the valve L, through which, by a similar method, the grain is carried, lifted, and discharged into the other car. The claims of the patent were as follows: "1. The combination of a fixed or stationary building, the tracks F and G, an elevator apparatus, and elevator hopper scales having a fixed or stationary hopper provided with a valve or slide in its bottom, and a discharge spout, P, adapted and arranged for discharging the grain directly from the said hopper into a car, substantially as specified and for the purposes set forth. Fig. 2. and described, with relation to each other and for the purposes set forth." A demurrer was interposed to the bill to the effect that the patent and both claims thereof were wholly void upon their face, for the want of patentable novelty and invention. This demurrer was sustained, and the bill dismissed. Richards v. Michigan Cent. R. Co. 40 Fed. Rep. 165. Thereupon plaintiff appealed to this court. Mr. C. K. Offield for appellant. Messrs. John W. Munday, Geo. S. Payson, and Edmund Adcock for appellees. Mr. Justice Brown delivered the opinion of the court: While patent cases are usually disposed of upon bill, answer and proof, there is no objection, if the patent be manifestly invalid upon its face, to the point being raised on demurrer, and the case being determined upon the issue so formed. We have repeatedly held that a patent may be declared invalid for want of novelty, though no such defense be set up in the answer. Dunbar v. Meyers, 94 U. S. 187 [24: 34]; Slawson v. Grand Street, P. & F. R. Co. 107 U. S. 649 [27: 576]; Brown v. Piper, 91 U. S 37 [23: 200]. "2. The combination of a fixed stationary building, the tracks F and G, two or more elevating apparatus, a series of two or more elevator hopper scales having fixed or stationary hoppers, each having a valve or slide in its bottom, the discharge spouts P P, adapted and arranged for discharging the grain directly The patent in question is for the combinafrom said hoppers, respectively, into a corre- tion of, (1) a fixed or stationary building; (2) spondingly arranged car, a horizontal convey-two railway tracks; (3) an elevating apparatus; 301]or, the chutes *J J, having therein the doors and valves K and L, and the slides or doors O O, all arranged substantially as shown (4) elevator hopper scales, having a fixed or stationary hopper, provided with a valve or slide in its bottom; (5) a discharge spout, ar ranged for discharging the grain directly from the hopper into a car. The second claim has the same combination duplicated, with the addition of a horizontal conveyor; the chutes J J having therein doors or valves, and the slides or doors O O. In fact, the combination claimed is a pure aggregation, and the decree of the court dis missing the bill is therefore, affirmed. THE BEACONSFIELD. (See S. C. Reporter's ed. 303-312.) Right to enter a decree for damages-liabilities of sureties in admiralty-suit by carriersuit by owner of cargo. 1. The failure of the bailee of the cargo, the master of the vessel to appeal from a decree dismissing his libel against his own vessel which he had been forced to file in the same suit by him against another vessel for a collision, will not prejudice the owner of the cargo in his right after the reversal of the decree to be substituted as libelant and to enter a decree for a moiety of the damages against the former vessel in pursuance of a decision of this court that both vessels were in fault and that the damages be divided. 302] *It is not claimed that there is any novelty in any one of the elements of the above combination. They are all perfectly well known, and if not known in the combination described, they are known in combinations so analogous that the court is at liberty to judge of itself whether there be any invention in using them in the exact combination claimed. We do not feel compelled to shut our eyes to a fact so well known as that elevators have, for many years, been used for transferring grain from railway cars to vessels lying alongside, and that this method involves the use of a railway track, entering a fixed or stationary building; an elevator apparatus; elevator hopper scales for weighing the grain; and a discharge spout for discharging the grain into the vessel. There is certainly no novelty in using two railway tracks instead of one, or in discharging the grain into a second car, instead of a storage bin or a vessel. Unless the combination accomplishes some new result, the mere multiplicity of elements does not make it patentable. So long as each element performs some old and well known function, the result is not a patentable combination, but an aggregation of elements. Indeed, the multiplicity of elements may go on. indefinitely without creating a patentable combination, unless by their collocation a new result be produced. Thus, nothing would have been added to the legal aspect of the combination in question by introducing as new elements the car from which the transfer was made; the engine that drew such car; the Submitted April 22, 1895. Decided May 20,1895. steam shovel; the engine that operated the shovel and the elevator; as well as the locomotive which drew the loaded car from the building, though these are all indispensable features, since each of them is an old and well known device, and performs a well understood duty. Suppose, for instance, it were old to run a railroad track into a station or depot for the reception and discharge of passengers, it certainly would not be patentable to locate such station between two railroad tracks for the reception of passengers on both sides, and to add to the accommodations a ticket office, a newspaper stand, a restaurant, and cigar stand or the thousand and one things that are found 303jin buildings of *that character. It might as well be claimed that the man who first introduced an elevator into a private house, it having been previously used in public buildings, was entitled to a patent for a new combination. Not a new function or result is suggested by the combination in question. The cars run into the building on railway tracks, as they have done ever since railways were invented. The building is fixed and stationary, as buildings usually are. It is no novelty that it should contain an elevating device, and that the latter should raise the grain to the hopper scale, and should discharge it either into a bin or a vessel, or into another car. In principle it makes no difference which. 2. A mere change in the name of the libelant by substituting the real party in interest for a nominal party, will not avoid a stipulation in admiralty as against the sureties, if the cause of action remains the same, but they cannot be held for a new cause of action. The carrier may sue in his own name, at common law or in admiralty, for a trespass upon or injury to the property carried. If a cargo be damaged by collision between two vessels, the owner may pursue both vessels, or either, or the owner of both, or either; and if he proceeds against one only, and both are held in fault, he may recover his entire damages of the one sued. [No. 943.] CERTIFICATE from the Circuit Court fying to this court for its decision certain questions in a suit in admiralty in regard to entering the final decree in this case. Questions answered in the affirmative. Statement by Mr. Justice Brown: This case, which is an outgrowth of that of The Britannia v. Cleugh, 153 U. S. 130 [38: 660], arose upon a certificate of the circuit court of appeals touching the liability of the Beaconsfield to respond for a moiety of the loss upon her cargo, by reason of her collision with the Britannia. The questions certified NOTE.-As to collision, rules for avoiding; steamer meeting steamer, see note to Williamson v. Barrett, 14: 68. As to rights of steam and sailing vessels with reference to each other and in passing and meeting, see note to St. John v. Paine, 13: 537. As to vessel overtaking another, see note to The Abbotsford v. Johnson, 25: 168. As to measure of damages for collision, see notes to Smith v. Condry, 11: 35 and The Amiable Nancy, 4: As to damages where two vessels are at fault, for v. Rideout, 24: 930. As to collision; rules of navigation; steam vessel and sail vessel meeting; speed: liability for collision, see note to The E. A. Packer v. New Jersey Ligh erage Co. 35: 453 are based upon the finding of facts printed in the margin.* 305] *Upon this state of facts, the court of appeals certified to this court, for its decision, the following questions: 306] *1. Whether, in entering said final decree, condemning each vessel in a moiety of said damages, the circuit court obeyed the mandate of the Supreme Court. 2. Whether, upon the above statement of facts, the libelant, Albert W. Sanbern, was entitled to a final decree condemning the steamship Beaconsfield, her engines, tackle, apparel, and furniture, in a moiety of the cargo dam *STATEMENT OF FACTS. 1. On December 21, 1886, John Lucas Cotton, master, and George Cleugh, owner of the Beaconsfield, as bailees of her cargo, filed an amended libel against the Britannia in the District Court of the Southern District of New York, to recover the sum of $45.000 damage to such cargo by reason of her collision with the Britannia, for which the latter was charged to have been solely in fault. 2. On January 7, 1887, the Compagnie Francaise de Navigation & Vapeur, owner of the Britannia, answered this libel, claiming the collision to have been caused solely by the fault of the Beaconsfield. 3. On the same day it also filed a petition against the Beaconsfield, reciting the former proceedings, averring the collision to have been caused wholly or partly by the fault of the Beaconsfield, that she ought to be proceeded against in the same suit for the damage to her cargo, and prayed for process against her to the end that she might be condemned for such damage. 4. The Beaconsfield was arrested under process issued upon this petition, and was released from custody upon her claimant, Cleugh, filing a stipulation for value in the sum of $23,000, with William Libbey and George C. Magoun as sureties. 5. Subsequently George Cleugh, owner of the Beaconstield, answered this petition, denying the liability of the Beaconsfield, and excepting to the jurisdiction of the court to enforce any liability against her, by reason of the proceedings taken under this petition. John Lucas Cotton, and George Cleugh, as libelants, also answered this petition, denying liability on the part of the Beaconsfield. 6. The case came on to be tried in the district court upon these pleadings, and also upon crosslibels by the owners of the Britannia and Beaconsfield, against each vessel, respectively, for damages sustained by the vessels themselves. The district court found both vessels to have been in fault, and divided the damages. The case is reported in 34 Fed. Rep. 546. 7. A final decree was entered in the district court July 9, 1889, in favor of Cotton and Cleugh, libelants. against the steamship Britannia and the steamship Beaconsfield in the sum of $50.249.26, and condemning each vessel in a moiety of said sum, amounting to $25,124.63. 8. Cross-appeals from this decree were taken in the circuit court by George Cleugh, claimant of the Beaconsfield, and the Compagnie Francaise, claimant of the Britannia. 9. Pending these appeals, and on October 3, 1890, Elizabeth Cleugh was substituted as claimant of the Beaconsfield, in place of George Cleugh, deceased, and the libel of John Lucas Cotton and George Cleugh against the Britannia was continued in the name of Cotton alone. 10. Upon hearing in the circuit court upon the cross-appeals, the decree of the district court was reversed, and the Britannia found to have been solely in fault for the collision. 42 Fed. Fep. 67; 43 Fed. Rep.96. A decree was thereupon entered in favor of Cotton, as bailee of the cargo of wheat laden on the Beaconsfield, against the Britannia in the sum of $53.907.11. 11. From this decree the Compagnie Francaise appealed to the Supreme Court October 8, 1890. John Lucas Cotton, libelant, did not appeal from the decree of the district court. 12. The appeal of the Compagnie Francaise came on to be heard in the Supreme Court with the appeals of the Britannia from the decree dismissing her libel against the Beaconsfield, for damage sustained by the vessel itself, and from the decree age, amounting to $31,526.64, as adjudged in the said final decree. 3. Whether, upon the above statement of facts, the libelant, Albert W. Sanbern, was entitled to judgment againt William Libbey, surety, in the sum of $23,000, as directed by the said order of June 12, 1894, aud as adjudged in the said judgment *entered [307 pursuant to the said order, and filed June 12, 1894. Mr. J. Parker Kirlin for appellants. Messrs. Wm. G. Choate and Sidney Chubb for appellee. sustaining the libel of the Beaconsfield against her for like damage sustained in the collision. 13. In the Supreme Court both vessels were found to have been in fault, and a mandate issued directing the decree of the circuit court to be reversed, and the cause to be remanded with directions to enter a decree in accordance with the opinion of such court, and for further proceedings in conformity, etc. 14. Upon the further proceedings so ordered, an affidavit was filed showing that a telegram had been received from the owners of the Beaconsfield as follows: "You must not consent to any decree in our names, except against Britannia for half damages. We only agreed to be libelants as bailees of cargo against Britannia; we forbid our names being used in any decree against Beaconsfield for loss of cargo. Please do needful to give effect to this. (Signed) Cleugh, Cotton." A like telegram was addressed by libelant Cotton to his own counsel. 15. Iibelant then moved, June 1. 1894, that the libel be amended by substituting the name of Albert W. Sanbern, owner of the cargo of the Beaconsfield, as sole libelant in the place of John Lucas Cotton, and for the entry of a final decree in the name of Sanbern. This motion was opposed by Elizabeth Cleugh, claimant of the Beaconsfield, and by the sureties, but was granted by order of June 4, 1894, and on the same day, a decree was entered in favor of Sanbern, as owner of the cargo, against the Britannia and Beaconstield for the sum of $63,053.28, and condemning each vessel for one balf of this amount, namely, $31, 526.64. By this decree, the stipulators on the part of both steamships were ordered to show cause why execution should not issue against them for the amount of their stipulations. 16. The sureties upon the stipulation of the Beaconsfield made return to the order to show cause, alleging the filing of the libel by Cotton, master, and Cleugh, owner of the Beaconsfield, as bailees of the cargo; that there was no allegation of fault on the part of the Beaconsfield in this libel, or in their answer to the petition of the Compagnie Francaise; that the question of liability between the Beaconsfield and the libelants was never actually litigated, and the bills of lading under which the goods were carried bad never been interposed by way of defense; that at the time the stipulation was given, Cotton and Cleugh were the parties libelant, and continued to be such until after the final decree in the district court, when the libel was amended by dropping the name of George Cleugh, who had died, and continuing it in the name of Cotton alone, although Elizabeth Cleugh, as administratrix of the co-libelant, was substituted in George Cleugh's place as claimant; that after the mandate was handed down, the libel was again amended by substituting the name of Sanbern, as owner of the cargo, in place of Cottou, one of the bailees. By reason of these matters, Libbey, the surviving surety, claimed to be exonerated from his liability on the stipulation of value of January 10, 1887. An order was, however, entered directing judgment and execution against Libbey, in the amount of his stipulation, $23.000 and judgment was accordingly entered against him. 17. Thereupon Elizabeth Cleugh, claimant of the Beaconsfield, appealed from the decree against the steamer, and William Libbey, surety, appealed from the judgment against him, to the court of appeals, each assigning separate errors, and bringing up the matters aforesaid for review by such court. Meantime the decree against the Britannia for a moiety of the damages had been paid. Mr. Justice Brown delivered the opinion of the court: Stripped of its complication of libels and cross libels, this case is by no means dificult to understand. The Beaconsfield having been sunk in a collision with the Britannia, her master and owner, as bailees of her cargo, proceeded against the Britannia for damages done to such cargo. This they had a right to do. If is perfectly well settled that the carrier is so far the representative of the owner that he may sue in his own name, either at common law or in admiralty, for a trespass upon or injury to the property carried. If a cargo be damaged by collision between two vessels, the owner may pursue both vessels, or either, or the owner of both or either; and in case he proceed against one only, and both are held in fault, he may recover his entire damages of the one sued. A person who has suffered injury by the joint action of two or more wrongdoers, may have his remedy against all or either, subject, however, to the condition that satisfaction once obtained is a bar to any further proceeding. Phoenix Ins. Co. v. The Atlas, 93 U. S. 302, 315 [23: 863, 886]: Lovejoy v. Murray, 70 C. S. 3 Wall. 1 [18: 129]. Did the case rest here, there could be no doubt of the right of the libelant to recover the whole damage to the cargo of the Britannia although, as owner of the Beaconsfield herself, Cleugh could recover only a moiety of his damage to the vessel, in case the collision were adjudged to be the mutual fault of both vessels. By general admirality rule 59, however it is provided that "in a suit for damage by collision, if the claimant of any vessel proceeded against... shall, by petition, on oath, showing fault or negligence in any other vessel 308] contributing to the same collision, and the particulars thereof, and that such other vessel, or any other party, ought to be proceeded against in the same suit for such damage, pray that process be issued against such vessel or party to that end, such process may be issued, and if duly served, such suit shall proceed as if such vessel or party had been originally proceeded against." Pursuant to this rule the French company, owner of the Britannia, filed its petition, alleg. ing fault on the part of the Beaconsfield, and praying that she might be proceeded against in the same suit for such damage. This was done, and the litigation resulted in a decree of the district court dividing the damages. A moiety of the decree was really against the libelants, as owner and master of the Beaconsfield, or rather against Libbey and Magoun, sureties, upon their stipulation. Both parties appealed to the circuit court, which reversed the decree of the district court, and adjudged the Britannia to be solely in fault. The owner of the Britannia appealed, but Cotton, master of the Beaconsfield, who in the meantime had become sole libelant, did not appeal from the decree dismissing his libel against his own vessel, for the obvious reason that his position as libelant of his own vessel for damage to her cargo was forced upon him by the act of the French company, and conflicted with his interest as representing the owner of the Beaconsfield. In this court, the decree of the circuit court was reversed, and the case remanded for further proceedings in conformity with the opinion. This opinion stated that the conclusion reached in this court was the same as that arrived at in the district court, "and accordingly, we reverse the three decrees, and remand the cause to the circuit court, with directions to enter decrees in accordance with this opinion, that both vessels were in fault, and that the damages should be divided." 153 U. S. 144 [38: 665]. The result of this was virtually a restoration of the decree of the district court dividing the damages and awarding to Cotton, master of the Beaconsfield, and bailee of her cargo, a decree against the Beaconsfield for one half the damages. *In this juncture, the proctors for [309 Elizabeth Cleugh, administratrix (who in the mean time had become owner of the Beaconsfield) and Cotton, were instructed by their clients not to consent to any decree against the Beaconsfield upon the ground that they, Cotton and Cleugh, had only consented to the libelants, as bailees of the cargo, against the Britannia, and they (the proctors) were forbidden to use their names for any decree against the Beaconsfield. Upon libelant's motion, Sanbern, the owner of the cargo, was then substituted as libelant in the place of Cotton, and a final decree entered against the Beaconsfield in the circuit court for a moiety of the damages and the sureties ordered to show cause why execution should not issue against them. We know of no reason why this decree should not have been granted. Sanbern had a right to suppose that his interest as owner of the cargo would be protected by Cotton, who was suing as his bailee. Had he sued in person, he could, and probably would, have libeled both vessels, and ought not to be prejudiced by the fact that Cotton assuming to act for him, libeled but one. When the Beaconsfield was drawn into the litigation by the petition of the French company, and his own vessel thus made to respond to his libel. Cotton should have either withdrawn from the suit, and asked that Sanbern be substituted, or in his answer to the petition of the French company, should at least have set up any defense he might have had against the owner of the cargo, arising under the bill of lading or from any other cause. If the attention of the court had then been drawn to the fact that Cotton was occupying inconsistent positions, it would doubtless have ordered the owner of the cargo to be substituted for him as libelant. Had no petition been filed against the Beanconsfield by the French company, the case would have stood quite diffierently, as there would have been no suit against the Beaconsfield upon which a decree could have been rendered. The failure of Cotton to call the attention of the court to the inconsistent positions occupied by him, or in answering the petition of the French company, to claim any defense arising upon the bill of lading or otherwise, was ample authority for the court to enter a decree for a moiety [310 of damages against the Beaconsfield. The failure of Cotton, acting as bailee of the cargo, to appeal from the decree of the circuit court dismissing his libel as against his own vessel, is a technical defense which ought no to prejudice the owner of the cargo. If |