Opinion of the Court.

shafts, the shafts extending back toward the rear of the machine. At their rear ends are bevel gears which mesh with pinions on cross-shafts, and there is a hand-wheel on each crossshaft to turn it. There is also a band-wheel on each cross-shaft, which is embraced by a friction band or band-brake. The band is connected to a spring-treadle so that the operator can loosen it by putting his foot on the treadle. The hand-wheels are small wheels comparatively, similar to those used on carbrakes, and are certainly much too light to act as fly-wheels or momentum-wheels against such a weight as that of the scraper and turn-table and attachments. Besides this, the strain on this weight is a constant one, always acting in the same direction upon the hand-wheels. The scraper is moved forward by means similar to ordinary plow-beams, which are connected with the turn-table, the turn-table being connected with the front of the machine, or rather to the king bolt by a draft-ring and link. There is no device for acting with a thrust upon the scraper-wheel."

Without subjecting the evidence to critical examination, it is enough that it is admitted that these hand-wheels are smaller and lighter than those of appellant, and that to make out infringement it is requisite to construe the patent in suit as covering all wheels whose momentum can be utilized in operating a roadmaking machine.

On the one hand it is contended that appellee's hand-wheels are not momentum wheels at all and that the continued motion of the blade is due to earth pressure and not to momentum; while, on the other, this is denied, and it is insisted that these wheels are to be treated as momentum wheels because they will store up "a useful amount of energy to make them continue their further movement, when the hand of the operator is taken therefrom," provided "the operator shall give to the wheel a rapid and vigorous pull, moving it while his hand is upon it at a greater speed than it afterwards maintains."

We can hardly doubt that similar manipulation of many of the old wheels would produce the same result, and if there could be infringement if this were not so, there would be anticipation if it were.

Opinion of the Court.

But the decision of the Circuit Court rested on the want of invention, and in that conclusion we concur.

"The whole essence of the Taft invention," says appellant's counsel, is the application of momentum to carry the wheel along "sufficiently to enable the operator to take a new grasp, (as explained by Mr. Brevoort,) without clamping the wheel to prevent its running backward."

Did increasing the weight of the hand-wheels in this class. of road machines, in order to correct the tendency of smaller wheels to reverse, involve patentable novelty?

We do not think so. The use of hand-wheels as a substitute for straight levers in this class of machinery was old, and, whether the wheels were light or heavy, (and heavy wheels were old,) they alike performed the service of rotary levers.

The patentee had acquiesced in the rejection of his claim for a road machine with a blade that was elevated or depressed by a hand-wheel operating through suitable gearing, and could not claim the benefit thereof, or of an equivalent construction of the claims allowed. To make the hand-wheels heavier was to increase their capacity, but the same end was accomplished by substantially the same means. The means were old, and their enlargement by a common method to attain a better. result in the particular instance merely carried forward the original idea, and was nothing more than would occur to the experienced mechanic.

It appears to us that, it being seen that the tendency to reverse would prove objectionable in the proposed machine, the suggestion that the hand-wheels should be made heavier in order, by greater momentum, to correct that tendency, as it was well known increase in weight coupled with adequate rotative force would, sprang naturally from the expected skill of the maker's calling, and that this use of the heavier wheel did not make the mechanism in any proper sense a new thing evolved by the inventive faculty.

The substitution of the heavier wheel was not the product of a creative mental conception, but merely the result of the exercise "of the ordinary faculties of reasoning upon the materials supplied by a special knowledge, and the facility

Statement of the Case.

of manipulation which results from its habitual and intelligent practice."

Decree affirmed.

UNITED STATES v. GILLIAT.

APPEAL FROM THE COURT OF CLAIMS.

No. 535. Submitted October 18, 1896.

Decided October 26, 1896.

It was the intention of Congress, by the language used in the act of August 23, 1894, c. 307, 28 Stat. 424, 487, to refer to the Court of Claims simply the ascertainment of the proper person to be paid the sum which it had already acknowledged to be due to the representatives of the original sufferers from the spoliation, and not that the decision which the Court of Claims might arrive at should be the subject of an appeal to this court; and that when such fact had been ascertained by the Court of Claims, upon evidence sufficient to satisfy that court, it was to be certifled by the court to the Secretary of the Treasury, and such certificate was to be final and conclusive.

THIS was one of the claims originating in the depredations. committed by French cruisers upon the commerce of American citizens prior to the year 1800, commonly called French Spoliation Claims. Pursuant to the provisions of the act of January 20, 1885, c. 25, 23 Stat. 283, the claim mentioned in this proceeding (among many others of a like nature) was presented to the Court of Claims, and that court made an award, advising the payment of the claim, which was reported to Congress, pursuant to the act above mentioned, and Congress, by the act of March 3, 1891, c. 540, § 4, 26 Stat. 862, 897, 900, appropriated money" to pay the findings of the Court of Claims on the following claims for indemnity for spoliations by the French prior to July 31, 1301," (among others, on page 900,) "on the ship Hannah, Richard Fryer, master, namely, to John A. Brimmer, administrator of John Gilliat, deceased, $35,840.44." By the last clause in the act (page 908) Congress added a proviso as a condition to the payment of the awards mentioned

Statement of the Case.

therein, which reads as follows: "Provided, That in all cases where the original sufferers were adjudicated bankrupts the awards shall be made on behalf of the next of kin instead of to assignees in bankruptcy, and the awards in the cases of individual claimants shall not be paid until the Court of Claims shall certify to the Secretary of the Treasury that the personal representatives on whose behalf the award is made represent the next of kin, and the courts which granted the administrations, respectively, shall have certified that the legal representatives have given adequate security for the legal disbursement of the awards."

John A. Brimmer, the administrator to whom, by the act of 1891, the appropriation was ordered to be paid upon the condition above recited, was unable to comply with the same, and Congress by the act of August 23, 1894, c. 307, 28 Stat. 424, 487, enacted "that the sum of $35,840.44, appropriated to be paid to John A. Brimmer, Jr., administrator of John Gilliat, deceased, in the act entitled 'An act making appropriations to supply deficiencies in the appropriations for the fiscal year ending June 30, 1891, and for prior years and for other purposes,' be paid to the person or persons entitled to recover and receive the same, to be ascertained by the Court of Claims upon sufficient evidence and certified to the Secretary of the Treasury." Proceeding under the above enactment, Charles G. Gilliat, the appellee, presented his petition to the Court of Claims for the payment of one third of the sum named, on the ground that he was a grandson of one of the three original sufferers by reason of the seizure of the ship Hannah, above mentioned, and had been duly appointed administrator de bonis non of the estate of his grandfather by the chancery court of the city of Richmond and State of Virginia. The Attorney General answered the petition of the claimant, denied the allegations therein, and asked judgment. that the petition be dismissed.

Upon the hearing the Court of Claims decided that the petitioner was the administrator of the estate of Thomas Gilliat, who was one of the three members of the firm of Gilliat & Taylor, the original sufferers, and that the peti

Opinion of the Court.

tioner represented the descendants and next of kin of the above-mentioned Thomas Gilliat, and the court certified to the Secretary of the Treasury for payment to such administrator to the extent of one third of the sum of $35,840.44, appropriated by the act of March 3, 1891, being the sum of $11,946.81, which was the extent of the interest of Thomas Gilliat in the partnership of Gilliat & Taylor. The Attorney General in his notice of appeal described the certificate of the Court of Claims, which it made to the Secretary of the Treasury, pursuant to the above act of March 3, 1891, as a judgment, and as such assumed to appeal therefrom to the Supreme Court of the United States. The notice of appeal was filed and allowed in open court by the Chief Justice of the Court of Claims, and the record being before this court, a motion was made to dismiss the appeal.

Mr. Frank W. Hackett for the motion.

Mr. Assistant Attorney General Dodge and Mr. Charles W. Russell opposing.

MR. JUSTICE PECKHAM, after stating the case, delivered the opinion of the court.

The appellee moves to dismiss the appeal in this proceeding on the ground that the action of the Court of Claims was conclusive under the special statute of August 23, 1894, c. 307, 28 Stat. 424, 487, providing for the hearing of the question of fact by the court as to what person was entitled to recover and receive the amount appropriated to be paid to John A. Brimmer, Jr., under the act of March 3, 1891, c. 540, § 4. 26 Stat. 862, 900.

We think the appeal should be dismissed. The original act of Congress of January 20, 1885, by which the claimants in the spoliation cases were referred to the Court of Claims, gave no power to that court to enter judgment upon its finding. By section 6 of that act, the finding and report of the court were to be taken merely as advisory as to the law and facts