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Opinion of the Court.

rejected, the patentee abandoned his broad claim for a notched plate, and claimed only a plate in combination with the other features of his bolster, which was finally allowed. His acquiescence in the rulings of the Patent Office in this particular indicates very clearly that he should be restricted to the combination claimed, and that the case is not one calling for a liberal construction.

In view of these limitations upon the McCarty patent, was there any infringement in defendant's device? This device contained the bars F and G, and the pillars H of the McCarty patent, but instead of having the flanges Q upon the ends of the lower bar, and the guide plates P, there was substituted a cap shown in the patent to Montz, of which the following is a drawing:

This cap contains a recess, i, for the reception of the ends of the bolster bar, which are thereby maintained in proper position with respect to each other, and is secured to the ends of the bolster bar by means of two bolts passing vertically through them. The cap, which fits between the posts of the side frame and rests upon a spring, is provided at each side with flanges, i, which embrace the outer and inner faces of the posts, and prevent a longitudinal motion of the bolster, while permitting the same to move freely in a vertical direction. Now, as in view of the Naugatuck truck, there was nothing which could be called novel in the third and fourth claims of the McCarty patent, except the guide plates P, which were used to adapt this bolster to the purposes of a floating bolster by resting its ends on springs; and as the cap in question is an obvious de

Opinion of the Court.

parture from the device in this particular, we cannot say that it is an infringement, although it accomplishes practically the same purpose as the flanges Q and plate P of the McCarty patent. Had it been wholly novel to rest the ends of the bolster upon springs, by means of guide plates, it is possible we might have been able to hold this cap to be an infringement; but as the novelty consists, not in resting the ends of bolsters generally upon springs by means of a guide plate, but in so locating the ends of a bolster of a particular construction, we think the employment of a different means of locating it avoids the charge of infringement.

It is further claimed that the defendant is estopped to question the novelty of the McCarty patent and its priority of invention by the interference proceedings in the Patent Office. Aside from the fact that the issues in those proceedings included the truss rods, which are not used by the defendant, the evidence that the defendant was a party in privity to Montz's application for the patent which was awarded to him, or that he made his application in their interest, is too inconclusive to justify us in holding that the company was bound by the result of this proceeding. It practically rests upon Montz's reply to the question why he did not proceed with the interference, that he had no orders from his superior officers of the road. This we think is insufficient, in the absence of affirmative evidence that the company had knowledge of the proceeding, and assented to the action taken by Montz. There is not that certainty to every intent, which Lord Coke held necessary to constitute an estoppel, and as observed by this court in Russell v. Place, 94 U. S. 606, 610, "If upon the face of a record anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence."

The decree of the court below dismissing the bill is, therefore,

Affirmed.

Statement of the Case.

FOLSOM v. UNITED STATES.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 550. Argued and submitted November 19, 1895. Decided December 2, 1895.

Circuit Courts of Appeals have no jurisdiction over the judgments of territorial courts in capital cases, and in cases of infamous crimes. This construction of the statute is imperative from its language, and is not affected by the fact that convictions for minor offences are reviewable on a second appeal, while convictions for capital and infamous crimes are not so reviewable.

THIS was a certificate from the United States Circuit Court of Appeals for the Eighth Circuit, which, omitting the formal parts, reads as follows:

"First. At a regular term of the District Court of the Second Judicial District of the Territory of New Mexico, sitting for the trial of causes arising under the Constitution and laws of the United States, held at Albuquerque, in said district, the plaintiff in error, Stephen M. Folsom, was, on - the 15th day of March, 1894, indicted by the grand jury in said court for making certain false entries in violation of the provisions of section 5209 of the Revised Statutes of the United States.

"Second. He was thereafter arraigned. He pleaded not guilty. He was tried by the said District Court and a jury, was found guilty of making certain of the false entries charged in said indictments in violation of the provisions of section 5209, and was thereafter, on the 14th day of April, 1894, ordered and adjudged by the said court to be confined at hard labor in the territorial penitentiary at Santa Fé, New Mexico, for the term and period of five years upon each of the seven separate and distinct offences as laid and charged in the fourteen counts of the indictments upon which the jury had theretofore returned a verdict of guilty; and it was further ordered and adjudged by the said court that said term

Statement of the Case.

upon each of the said offences should run concurrently each with the others, and that the defendant pay the costs to be taxed, and that execution issue therefor.

"Third. The said Stephen M. Folsom then appealed from said judgment to the Supreme Court of the Territory of New Mexico, and his case upon said appeal was heard and tried by the said Supreme Court August 27, 28, and 29, 1894; was on the latter day submitted to and taken under advisement by said court, which, on September 4, 1894, adjudged that the judgment of the District Court of the Second Judicial District aforesaid be affirmed, and that said Folsom be confined in the New Mexico penitentiary at Santa Fé, New Mexico, for the full term of five years, pursuant to the said judgment of the District Court.

"Fourth. On the 9th day of November, 1894, a writ of error was duly issued out of the United States Circuit Court of Appeals for the Eighth Judicial Circuit to the Supreme Court of the Territory of New Mexico, commanding the said court to send the records and proceedings and the judgment in said case between the United States of America, plaintiff and appellee, and Stephen M. Folsom, defendant and appellant in said Supreme Court, with all things concerning the same, to this Circuit Court of Appeals for the Eighth Circuit, together with said writ, so that the same should be filed in the office of the clerk of this court on or before the first day of January, 1895, to the end that, the records and proceedings aforesaid being inspected, the United States Circuit Court of Appeals for the Eighth Circuit might cause further to be done therein to correct the error of which the said Folsom had complained what of right and according to the law and custom of the United States should be done, and pursuant to that writ the clerk of the Supreme Court of the Territory of New Mexico made due return and transmitted to this court a true copy of the record, bill of exceptions, assignment of errors, and of all proceedings in said case before January 1, 1895, and the said case is now pending in this court.

"Fifth. January 7, 1895, the United States of America filed a motion to dismiss the writ of error, on the ground

Opinion of the Court.

that this Circuit Court of Appeals has no jurisdiction to hear and determine the issue raised thereby or to review the said judgment of the Supreme Court of the Territory of New Mexico, and the said motion has been argued and submitted. to this court for decision.

"Sixth. The errors in the judgment and proceedings of the Supreme Court of the Territory of New Mexico which are assigned by Stephen M. Folsom, the plaintiff in error, in his complaint, upon which the said writ of error was issued from this court, are such that if upon due consideration upon the merits they should be sustained the judgment of the said Supreme Court ought to be reversed.

"And the said United States Circuit Court of Appeals further certifies that, to the end that it may properly decide this and other questions arising in this case which are duly presented by exceptions and assignments of error properly taken and filed, the said court desires the instruction of the Supreme Court of the United States upon the following question:

"Has the United States Circuit Court of Appeals for the Eighth Judicial Circuit any jurisdiction to hear and determine the issue presented by said writ of error, and to review the judgment and proceedings of the Supreme Court of the Territory of New Mexico?"

Mr. Charles A. Willard for plaintiff in error. Mr. Neill B. Field and Mr. F. W. Clancy were with him on the brief.

Mr. Solicitor General submitted on his brief.

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

The offence denounced by section 5209 of the Revised Statutes is punishable by imprisonment not less than five nor more than ten years, and is therefore an infamous crime. In re Claassen, 140 U. S. 200, and cases cited.

The question then is whether the Circuit Court of Appeals for the Eighth Circuit has jurisdiction of a writ of error to

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