850
FEDERAL REPORTER.
all the copartners; and to sustain this defence there has been produced in evidence the record of a suit in a state court, commenced by the present defendant, Durant, as plaintiff, against Griffith, Wundrum and Abendl'Oth, since the adjudication and appointment of the assignee in this matter, which record, it is claimed, estops the plaintiff in this action to deny that he, together with Griffith and Wundrum, constituted the firm. The suit was on promissory notes of the firm of Griffith &; Wundrum. The complaint alleged that Abendroth, Griffith & Wundrum constituted the firm. Abendroth alone appeared and defended the action. In his answer he denied that he was a general partner in the firm of Griffith & Wundrum, and alleged that said firm was a limited partnership, under the laws of New York, and that he was the special partner. It does not appear by the record that the defendants Griffith & Wundrum were served with process, but it is recited that they made default. The issue raised by the answer was tried and determined in favor of the plaintiff in that suit. The finding of the court was that Abendroth was a general part. ner, and the plaintiff had judgment, which was affirmed by the court of appeals. It is contended on the part of the defendant that this adjudication in the state court, being on the precise question as to whether Abendroth was a general partner, I1nd being later in time than the adjudication of the bankruptcy court that the firm was composed of Griffith & Wundrum alone, is conclusive against Abendroth, so that he cannot dispute or question the fact so found against hini. But it is a complete answer to this alleged estoppel that the present suit is not brought by Abendroth individually, but by him in his representative capacity, as assignee in bankruptcy. A judgment estops only the parties to the suit, nominal or real, and their privies; and the plaintiff in this suit is not the same person or party who was defendant in the suit in the state court. Abendroth sues here as representing the estate of the bankrupts. He is suing merely as trustee, or as an officer of the court, and his rights, as such trustee or officer, are the rights
DELAWARE COAL 1& lOB CO. V. PAOKER.
an
of the creditors of the bankrupts. It is a mere accident that he and not another happens to be the assignee, who by virtue of his office must sue, and the rights of the estate he represents cannot be affected by his being personally estopped, as against this defendant, to deny that he was a member of the firm, if such is the fact. The judgment in the state court was against Abendroth alone. It cannot, therefore, be said to be a conclusive determination against Griffith & Wundrum, named as defendants in the summons and complaint, and against Abendroth, as being in privity with them. Nor could a judgment by default against them operate as an estoppel against their successor in interest, in a suit in another cause of action. "A judgment by default only admits, for the purpose of the action the legality of the demand or claim in suit; it does not make the allegations of the declaration or complaint evidence in an action upon a different claim." Cromwell v. County oj Sac, 94 U. S. 356. It is unnecessary, therefore, to determine what effect as an estoppel the judgment in the state court might have against Abendroth in any possible proceedings between him individually and this defendant, with reference to their rights as 'Creditors or debtors of this bankrupt estate, or to consider the other points raised and argued at the trial. Judgment for plaintiff, with costs.
TaB DELAWARE COA.L & IOE COMPANY
V. PAOKER.
(Circuit Court, D. New Jf!l'sey. April 13, 1880.) PATENT-NEW CoMBINATION OF OLD ELEMENTS-OMISSION OF
CLAnr., .A. distinct claim for each of the constituents of a new combination of old elements will not protect such combination where there has been no specific claim for the same.
Infringement of Patent. F. Kingman, for complainant. Judge Buchanan, for defendant.
859 NIXON,
J. The complainants are owners of certain letters
patent, numbered 73,684, and dated January 21, 1868, issued to John Henry Wood, for "improvements on wagons for unloading coal," and have brought their suit against the defendant for infringing on the same. The defendant, in his answer, denies (1) the novelty and usefulness of the patent, and (2) the alleged infringement. The complainant's patent is for a mechanism to accomplish a certain result, to-wit: the unloading of coal, or other material, from wagons. The inventor, in his specifications, calls it an improvement upon old devices for the same object, and he is entitled to have the benefit of all original devices or combinations that accomplish new and better results than existing organizations, but only for such. Whatever he has incorporated into his patent from the common property of the public, at the date of his invention, still belongs to the public. Railway Co. v. Sayles, 7 Otto, (97 U. S.) 554. The first inquiry, then, will be, what is claimed as new in the complainant's patent? The patentee says, in the schedules, that the nature of his invention consists in the funnel-shaped 'mouth, attached to the cart or wagon, in combination with the chute and valve. He claims (1) the attachment of a funnel-shaped or inclined mouth, D, of any material, to the rear or side of a cart or wagon, as herein described, and for the purpose set forth; (2) the valve or gate, E, at the end of the mouth, D, or in the chute or tube, G, when combined as herein described and for the purpose set forth; (3) the hinges or sliding chutes or tubes, H. when attached to an open mouth, or the end or side of a. (lart or wagon, for the purpose herein set forth. He is presumed to know what he invented, and he tells us with sufficient clearness. He must stand here upon his elaims; for the thing patented is what the inventor claims, and not what he shows. If he states these too narrowly, the law authorizes him to surrender the patent, and re-issue the same with ampler statements; but, until this is done, the -courts cannot give him more than he asks for. C01tSe If Blood v. Johnson, Black fi Co. 16 Off. Gaz. 719. He says the patent
