Argument for the plaintiffs in erro: The statute of the State of Illinois does not take this case out of the common-law rule, that in an action ex contractu against several, the plaintiff at common law must prove a joint contract or liability. The act is expressly limited to actions "against two or more defendants as partners or joint obligors or payors." And the Supreme Court of Illinois, in construing the act, say: "When they are sued as partners they should be described as such in the declaration."* The mere fact that the plaintiffs have in the commencement of their declaration added to the names of the defendants the words "copartners doing business as C. & G. Cooper & Co.," does not amount to an averment that they contracted or promised as partners. It is descriptio personarum, mere surplusage, and has been so held by the Supreme Court of Illinois in a similar case arising under this same statute.† 2. Interest was not allowable. In Illinois the whole subject of interest is regulated by statute, and this statute has received a construction by the courts of Illinois in Sammis v. Clark et al., a case which was for goods sold. The Supreme Court of Illinois, after citing the statute, say: "It is a rule in the construction of statutes that the expression of one thing is the exclusion of another, and it may well be insisted, when the legislature has enumerated a variety of cases, in which creditors shall be allowed to receive interest, that it was not their intention to permit them to demand it in the cases not enumerated. "The claim of the plaintiff is on an open account, and it is manifest they are not entitled to interest under the statute unless it be under that clause which allows interest on money withheld by an unreasonable and vexatious delay of payment. "It follows from these positions that the simple forbearance * Petrie et al. v. Newell, 13 Illinois, 649. † Johnson impleaded, &c., v. Buell et al., 26 Illinois, 68; Neteler impleaded with Hurd v. Curlies et al., 18 Id. 188; Woodworth v. Fuller, 24 Id. 109, construing a similar statute relating to plaintiffs; Brent v. Shooks, 86 Id. 125. 18 Illinois, p. 544. Opinion of the court. of the plaintiffs to proceed in the collection of their debt, from 1845 to 1848, does not show anything vexatious on the part of the defendant, or such a case as will of itself entitle the plaintiffs to interest." Neither, in this case, can any "liquidating accounts between the parties and ascertaining the balance" be set up. Mr. O. K. A. Hutchinson, contra. Mr. Justice HUNT delivered the opinion of the court. The objections in this case are, none of them, serious in · their character. By the rules of common law it is certainly necessary that parties who sue as co-plaintiffs, alleging themselves to be partners, shall make proof of that allegation. The same is true of persons who are alleged to be copartners, and sued as such as defendants. By the statutes of Illinois the rule of law is changed in this respect unless a plea in abatement is interposed, or verified pleas are filed denying the execution of a writing set up. The statute rendered unnecessary in this case proof of the partnership or joint liability of either the plaintiffs or defendants.* The objection to the evidence of the witness, White, in stating the dates of delivery and the weight of the iron is not practical. If we suppose the evidence to be stricken out, as requested, the result of the case must necessarily be the same. It would then stand thus: The witness, White, testifies that he knows of the delivery to the defendants of certain plates of iron, forwarded by the Baltimore and Ohio Railroad Company, in January and February, 1870; that the freight bills were paid by the defendants, and that the defendants made no complaint that the amount of the iron was less than it should be. The plaintiffs then proved by other witnesses that the four bills of iron were shipped by them by the Baltimore and Ohio Railroad to the defendants * Statutes by Gross, vol. i, p. 270, ?? 11, 12; Warren v. Chandler, 12 Illinois, 124; McKinny v. Peck, 28 Id. 174. Opinion of the court. in pursuance of written orders from them, marked C. & J. Cooper & Co., a few days prior to the dates mentioned in White's deposition; that the bills of lading for the irou were mailed to the defendants, and that they never came back to the plaintiffs. This was prima facie evidence of the delivery of the iron as specified, and, no proof to the contrary being offered, it became conclusive. The plaintiffs' case is as well without White's evidence as with it. The defendants suffer no injury by its retention, and have, therefore, no legal cause of complaint.* The objection to the allowance of interest was not well taken. So far as the case shows, this was the only transaction that ever took place between the parties; and it is not pretended that any payments were made or articles furnished by the defendants which could give the transaction the character of a mutual account. It was simply the case of a bill of goods furnished upon a written order, and a bill of lading of the articles at once mailed to the defendants. No objection was made by the defendants to the articles or to the account. A draft was drawn upon the defendants for the amount, which they refused to accept. This was equivalent to a demand of payment. An account (assuming this to be such) draws interest after liquidation, and it is considered liquidated after it is rendered, if no objection is made.† A sale of goods without a term of credit given is liquidated when contracted, and after the account is presented and impliedly admitted, the defendants are in default and chargeable with interest. JUDGMENT AFFIRMED. * Shay . The People, 22 New York, 817; Sherman v. Johnson, 56 Barbour, 59; Weber v. Kingsland, 8 Bosworth, 415. † Patterson v. Choate, 7 Wendell, 441. 541. Been v. Reynolds, 11 New York, 97; Pollock v. Ehle, 2 E D. Smith, Statement of the case. SMITH V. NICHOLS. 1. Under the seventh and ninth sections of the Patent Act of 1887, which authorize a patentee, when by mistake, &c., he may have made his specification too broad, to make disclaimer of such parts of the thing patented as he does not claim under it, and to record his disclaimer in the Patent Office, &c., with various provisos as to its effect on suits pending, and as to unreasonable neglect and delay in entering the disclaimer at the Patent Office, the patentee may file a disclaimer as well after as before the commencement of a suit. It would, however, in case of its being filed after, be the duty of the court to see that the defendant was not injuriously taken by surprise, and to impose such terms as right and justice might require. The question of unreasonable delay would be open for the consideration of the court, and the complainant could recover no costs. 2. A mere carrying forward of an original conception patented-a new and more extended application of it-involving change only of form, proportions, or degree-the substitution of equivalents doing the same thing as did the original invention by substantially the same means with better effects-is not such invention as will sustain a patent. It is the invention of what is new, and not the arrival at comparative superiority or greater excellence in that which was already known, which the law pro tects as exclusive property and which it secures by patent. 8. Hence, where a textile fabric, having a certain substantial construction and possessing essential properties, has been long known and in use, a patent is void when all that distinguishes a new fabric is higher finish, greater beauty of surface, the result perhaps of greater tightness of weaving, and due to the observation or skill of the workman, or to the perfection of the machinery employed. APPEAL from the Circuit Court for the District of Massa chusetts. Smith, a holder of a patent from the United States, filed a bill, on the 19th of November, 1868, against Nichols, in the court below, to enforce and protect his rights as patentee. The subject-matter of the patent was an elastic woven fabric, especially adapted to use in forming gores for what are known as Congress or gaiter-boots, though applicable to other uses. On the 22d of January, 1870, he filed a disclaimer of right to certain matters included in his patent, and on the 27th of May, 1872, of certain other matters so included, both Statement of the case. being alleged to have been included through inadvertence and mistake. These disclaimers were made in virtue of the seventh and ninth sections of the Patent Act of 1837; sections which read thus: "SECTION 7. Whenever any patentee shall have through inadvertence, &c., made his specification of claim too broad, claiming more than that of which he was the original or first inventor, some material and substantial part of the thing patented being truly . . . his own, any such patentee . . . may make disclaimer of such parts of the thing patented as the disclaimant shall not claim to hold by virtue of the patent, &c., which disclaimer shall be in writing, &c., and recorded in the Patent Office. . . . But no such disclaimer shall affect any action pending at the time of its being filed except so far as may relate to the question of unreasonable neglect or delay in filing the same. "SECTION 9. Whenever by mistake, &c., any patentee shall have, in his specification, claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the first and original inventor or discoverer, . . . in every such case the patent shall be deemed good and valid for so much of the invention or discovery as shall be truly and bona fide his own. . . . And every such patentee, &c., shall be entitled to maintain a suit at law or in equity on such patent for any infringement of such part of the invention or discovery as shall be bonâ fide his own.... But in every such case in which a judgment or verdict shall be rendered for the plaintiff he shall not be entitled to recover costs against the defendant unless he shall have entered at the Patent Office, prior to the commencement of the suit, a disclaimer of all that part of the thing patented which was so claimed without right: Provided, however, that no person bringing any such suit shall be entitled to the provisions contained in this section, who shall have unreasonably neglected or delayed to enter at the Patent Office a disclaimer as aforesaid." The defendants, relying on Wyeth v. Stone,* a case decided by Story, J., set up that in consequence of these disclaimers being filed after the suit was brought, the suit could not be * 1 Story, 278; see also Reed v. Cutter et al., Ib. 600 |