Statement of the Case.

"1. An envelope having a flap, C, provided with a reinforced hole, c', and having a similar hole, c, in the front ply of its body, and the said holes constructed to register or coincide when the flap C is folded down, whereby the end of the back ply, b, of the envelope body, which extends entirely across the latter, is clamped and removably secured, substantially as shown and described.

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"2. A mailing and tag envelope having a flap, C, folded over and secured down to the inner face of the front ply of the body, the said flap being also constructed to take over the free end of the back ply of the body, as shown, whereby the mouth of the envelope covered by the said flap C is secured against accidental opening, substantially as and for the purposes

set forth.'

"In view of what was known when the patent was applied for, a broad construction of these claims is out of the question. A construction which would include the defendant's envelope would render the claims void for lack of novelty, for the general features of the patented envelope are shown in the patent No. 81,962, September 8, 1868, to Sigmund Ullman, and in other prior structures. If the claims are limited to the peculiar construction shown in the specification and drawings, the defendant does not infringe. In the defendant's envelope one eyelet is used, which aids the gum in fastening the flap down permanently upon the back ply of the envelope.

"A large number of exhibits have been introduced, showing the defendant's envelope. These have been changed and mutilated by the witnesses in illustrating opposing theories. But both sides apparently agree that the envelopes made by the defendant since the date of this patent are constructed with the eyeletted flap securely fastened. The complainant's brief contains this statement: After defendant put its tag envelope on the market, it changed the construction several times, until it finally adopted the form introduced in evidence as the infringing specimen. See complainant's Exhibit Taylor and Mayo, which was received in 1883, and also has the eyeletholes, with washers only; also complainant's Exhibit John S.

Statement of the Case.

Smith, which was received in 1884, and has the washers reinforced with a short metallic eyelet, with the eyeletted end tightly gummed down; also Exhibit Alonzo B. Smith, received in 1886, with printed advertisement on front, which had the eyeletted end tightly gummed, with washers reinforced by short metallic eyelets.'

"Evidently it is not intended that the defendant's envelope shall be opened and the contents removed at the end thus securely fastened. The bill or invoice is inserted at the opposite end; the flap at that end is then fastened down, in the well-known manner, by moistening the gum by which it is provided, or the flap may be tucked in between the plies. In other words, the defendant takes an ordinary envelope with the opening at one end; and at the other end, which is never intended to be opened, he puts an eyelet reinforced by washers through the front ply, a portion of the back ply, and the flap of the envelope. The sole object of the eyelet is to provide a suitable hole into which the cord or hook which fastens the envelope to the merchandise may be introduced. The effect of the eyelet and washers is to prevent the back ply from being left free at this end. The defendant has not the object of the patent in view, and does not adopt the patented device.

"In complainant's envelope, according to the theory of his expert witness, 'the leading idea or principle of the invention is the holding down of the back ply of the envelope by the overlapping of the flap thereon, and the omission of any permanent or secure attachment of the flap to said back ply.

The claims are limited to this end of the back ply being left free.' This feature is entirely wanting in defendant's envelope. Instead of omitting the secure attachment, he has added the metallic eyelet and washers to the gum of the ordinary envelope. The claims must be restricted to the form and description of the patent, and thus construed they are not infringed.

"It is unnecessary to examine the other defences presented. The bill is dismissed." 40 Fed. Rep. 667.

From the decree of the Circuit Court dismissing the bill the plaintiff appealed to this court.

Opinion of the Court.

Mr. Charles G. Coe, (with whom was Mr. Arthur S. Browne on the brief,) for appellant.

Mr. W. W. Swan for appellee.

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

The facts of this case, and the reasons against maintaining the suit, are so clearly and fully stated in the opinion delivered in the Circuit Court, that there is no occasion for extended discussion.

The patent of May 8, 1883, was expressly and distinctly, both in the specification and in the claims, limited to an envelope, with an opening at one end; with a flap, attached to the envelope at that end, of sufficient size to cover the whole of that side of the envelope in which the opening was; and with an eyelet in the flap, resting on an eyelet in the opposite end of the envelope, through which eyelets the flap could be secured to the envelope, and both flap and envelope be fastened to the object to be carried. The patentee thus gave the public to understand that an envelope, the flap of which did not cover its whole length, would not come within his patent, and might rightfully be made by any one. After the defendant had made envelopes with a short flap of semi-circular shape and covering little more than the opening of the envelope, (which, it is admitted, did not infringe the plaintiff's patent as originally issued,) the plaintiff obtained a reissue, enlarging the claims, and altering the specification throughout, so as to include an envelope with a flap of any size or shape, and to make the invention consist, not, as in the leading words of the description in the original patent, of an envelope with an end flap covering its side," but in "a tag provided with means for attaching it to the merchandise, and with an envelope or pocket to receive a bill or invoice of the merchandise." The words of the description in the original patent were neither technical nor complicated; but they were of the simplest kind, and their meaning and scope could

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Statement of the Case.

not have been misunderstood by any one who read them with the slightest attention, least of all by the patentee. To uphold such a reissue under such circumstances would be to grant a new and distinct privilege to the patentee at the expense of innocent parties, and would be inconsistent with the whole course of recent decisions in this court. Miller v. Brass Co., 104 U. S. 350; Mahn v. Harwood, 112 U. S. 354; Coon v. Wilson, 113 U. S. 268; Topliff v. Topliff, 145 U. S. 156; Huber v. Nelson Co., 148 U. S. 270; Leggett v. Standard Oil Co., 149 U. S. 287; Corbin Co. v. Eagle Co., 150 U. S. 38.

The patent of November 24, 1885, has clearly not been infringed by the defendant; for the peculiar feature of this patent consists in the flap being constructed so that it can be opened, and the contents taken out, without tearing the envelope or removing or breaking the fastenings; whereas in the defendant's envelope that flap is fastened down so that it cannot be opened without injury to it or to the envelope, and the contents are taken out by opening a flap, no more firmly secured than with gum, at the opposite end of the envelope.

Upon these grounds, without considering the questions of lack of novelty and invention in the several patents, the entry must be

Decree affirmed.

MORRISON v. WATSON.

ERROR TO THE SUPREME COURT OF THE STATE OF NORTH

CAROLINA.

No. 177. Argued December 20, 1893. -Decided May 26, 1894.

This court has no jurisdiction to review by writ of error a judgment of the highest court of a State, as against a right under the Constitution of the United States, if the right was not claimed in any form before judgment in that court.

THIS was an action, in the nature of ejectment, brought April 11, 1883, in the superior court of Richmond county in

Statement of the Case.

the State of North Carolina, to recover one hundred acres of land in that county.

The case certified by that court to the Supreme Court of the State began as follows:

"The plaintiff claimed title to the land described in the complaint by virtue of an execution sale and sheriff's deed made pursuant thereto. The defendant denied that the plaintiff was the owner of the land or that he wrongfully withheld possession thereof. He admitted being in the possession.

"The following issues were, without objection, submitted to the jury 1st. Is the plaintiff the owner and entitled to the immediate possession of the land described in the complaint? 2nd. Did the defendant at the time of the bringing of this action unlawfully withhold possession thereof? 3rd. What damages is the plaintiff entitled to recover?"

The case then stated that the plaintiff gave in evidence a deed of the land from the sheriff to himself, pursuant to a sale thereof, for the price of $40, on June 9, 1879, under an execution duly issued April 5, 1879, upon a judgment rendered May 17, 1870, against the defendant, for $35, and interest from November 13, 1864, and costs, on a promissory note shown by the judgment roll to have been payable at the date last mentioned; and that the plaintiff also gave in evidence the execution, and the officer's return thereon, stating that he levied it upon this land. The case also stated that "no homestead was ever allotted to the defendant."

The case then stated that "the plaintiff, for the purpose of showing that the lands of the defendant were, in June, 1879, worth less than $1000 and the amount of the judgment," introduced, "after objection by defendant and exception to its admission," evidence tending to show that fact; that the defendant also introduced evidence upon the question of the value of the land; and set forth the testimony introduced by either party; did not show that any evidence admitted was objected to by the plaintiff; and continued and concluded as follows:

"The defendant duly objected to all of the testimony in regard to the value of the land, when it was offered, for that the defendant's right to a homestead and the value of his land