McClurg et al. v. Kingsland et al.

chased, constructed, or made the machine, &c., to which the invention is applied, from any liability to the patentee or his assignee. Second, to protect the rights, granted to the patentee, against any infringement by any other persons. This relieved him from the effects of former laws and their constructions by this court, unless in case of an abandonment of the invention, or a continued prior use for more than two years before the application for a patent, while it puts the person who has had such prior use on the same footing as if he had a special license from the inventor to use his invention; which, if given before the application for a patent, would justify the continued use after it issued without liability.

At the trial below, and here, the plaintiff's counsel have contended, that this act cannot apply to the present case, inasmuch. as the protection it affords to the person who had the prior use, is confined to the specific machine, &c., and does not extend to such use of the invention, or thing patented, if it does not consist of a machine, &c., as contradistinguished from the new mode or manner in which an old machine or its parts operates, so as to produce the desired effect; but we think that the law does not admit of such construction, whether we look at its words or its manifest objects, when taken in connection with former laws, and the decisions of this court in analogous cases.

The words "such invention" must be referred back to the preceding part of the sentence, in order to ascertain the subject-matter to which it relates, which is none other than the newly-invented machine, manufacture, or composition of matter constituting the thing patented; otherwise these words become senseless when the invention is not strictly of a machine, &c. Now, in the present case, we find the invention consists solely in the angular direction given to the tube through which the metal is conducted into the cylinder in which the roller is cast. Every part of the machinery is old, the roller itself is no part of the invention, and cannot be the machine, manufacture, or composition of matter contemplated by Congress, nor can the word "specific" have any practical effect unless it is applied to the thing patented, whatever it may be, without making a distinction between a machine, &c., and the mode of producing a useful result by the mere direction given to one of the parts of an old machine. Such a construction VOL. I.-27

8 2

McClurg et al. v. Kingsland et al.

is not justified by the language of the law, and would defeat both of its objects. If it does not embrace the case before us, the consequence would be that the use of the invention, under the circumstances in evidence, would, according to the decision in 2 Peters, 14, 15, invalidate the patent; for if the act operates to save the avoidance of the patent, it must, of consequence, protect the person who uses the invention before the application for a patent. Both objects must be effected, or both must fail, as both parts of the act refer to the same thing, and the same state of things, as affecting the person using the newly-invented machine, or the thing patented, as well as the inventor. Had the words "invention," or "thing patented," been used instead of machine, &c., there could have been no room for doubt of the application of the act to the present case; and by referring to the phraseology of the different acts of Congress denoting the invention, it is apparent that, though there is a difference in the words used, there is none as to their meaning or reference to the same thing. Thus we find in the 14th section of the act of 1836, relating to suits for using "the thing whereof the exclusive right is secured by any patent," in the 15th, "his invention, his discovery, the thing patented," "that which was in fact invented or discovered," "the invention or discovery for which the patent issued," "that of which he was the first inventor." In the 1st section of the act of 1837," any patent for any invention, discovery, or improvement,"inventions and discoveries;" in the 2d section, the invention;" in the 3d, "invention or discovery;" in the 4th, "patented inventions and improvements;" in the 5th, "the thing as originally invented." 4 Story, 2510, 2511, 2546.

We, therefore, feel bound to take the words "newly-invented machine, manufacture, or composition of matter" and "such invention," in the act of 1839, to mean the "invention patented," and the words "specific machine," to refer to "the thing as originally invented," whereof the right is secured by patent; but not to any newly-invented improvement on a thing once patented. The use of the invention before au application for a patent must be the specific improvement then invented and used by the person who had purchased, constructed, or used the machine to which the invention is applied: so construed, the objects of the act of 1839 are accomplished; a different construction would

Connor v. Bradley et ux.

make it necessary to carry into all former laws the same literal exposition of the various terms used to express the same thing,. and thereby changing the law according to every change of mere phraseology, make it a labyrinth of inextricable confusion.

We are, therefore, of opinion that there is no error in the charge of the court below, and that its judgment be affirmed.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the western district of Pennsylvania, and was argued by counsel. On consideration. whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed, with costs.

MARY ANN CONNOR, v. HENRY BRADLEY AND MARY, HIS WIFE.

In an action of ejectment, if the plaintiff count upon a lease to himself from a person whom the evidence shows to have been dead at the time, it is bad. It is a settled rule at common law, that where a right of re-entry. is claimed on the ground of forfeiture for nonpayment of rent, there must be proof of a demand of the precise sum due at a convenient time before sunset, on the day when the rent is due, upon the land, in the most notorious place of it, even though there be no person on the land to pay.

In proceeding under the statute of 4 Geo. 2, it must be alleged and proved, that there was no sufficient distress upon the premises on some day or period between the time at which the rent fell due and the day of the demise; and if the time when, according to the proofs, there was not a sufficient distress upon the premises, be subsequent to the day of the demise, it is bad.

THIS case was brought up by writ of error, to the Circuit Court of the United States for the District of Columbia and county of Washington.

'The case was this:

In 1807, William Prout, living in the city of Washington, and being the owner, in fee, of a lot in said city, made a lease of a part of it to Joseph B. Parsons, for the term of ninety-nine years, renewable forever. It was in the usual form and contained the usual covenants, (with the exception of the one hereafter

Connor v. Bradley et ux.

mentioned,) reserving an annual rent of thirty-five dollars, payable on the 13th day of March, clear of all taxes, charges, rates, or assessments whatsoever. There was a covenant that if the said yearly rent of thirty-five dollars should be unpaid at the expiration of sixty days after it was due, and no sufficient effects could be found upon the premises, whereon to levy the same, it should be lawful for Prout, his heirs or assigus, to re-enter and take possession of the leased premises.

The special covenant was to this effect, that if at any time or times thereafter, and before the expiration of the lease, Parsons, or his heirs, executors, &c., should pay to the said Prout, his heirs, executors, administrators or assigns, the sum of $196 871⁄2 cents over and above all rents for said piece of ground that might then be in arrear, that then the said Prout, his heirs, &c., should make and execute a good and sufficient deed of release in fee simple to the said Parsons, his heirs, &c., for the said piece or portion of ground.

In 1813, Parsons died, having occupied the leased property from the time that the lease was made.

In 1815, and prior thereto, the widow of Parsons, who con tinued in possession of the property, paid to Prout $100 on ac count of the purchase of the fee simple in the said lot.

In 1823, Prout died; Mary Bradley, one of the lessors of the plaintiff, being one of his surviving children. After Prout's death, the widow of Parsons gave possession of the property in question to Mary Ann Connor, the defendant in the ejectment, who for some time paid the taxes as they accrued, and also paid various sums of money on account of the rent due, and in arrear, and of the accruing rent.

In 1831, a partition of the estate of Prout was made, according to law, among his children, and the leased premises in question were assigned to Mary Bradley. After the partition, Mary Aun Connor made payments on account of the rent to Mary Bradley, and also paid the taxes to the corporation of the city of Washington, up to the year 1831, but omitted to pay the taxes for the years 1831, 1832, 1833, and 1834, amounting in all to $44 33 cents.

In 1835, George Adams, the collector of taxes for the corporation of Washington, after having advertised the property, set up to sale the leasehold interest in the said premises, but receiving

Connor v. Bradley et ux.

no bid for the same, immediately thereafter exposed to public sale the fee simple interest and estate, which was purchased by one Allison Nailor, for the sum of $49 83 cents, being the amount of taxes due thereon, together with the expense of selling the same. The property had been assessed on the books of the corporation of Washington, from 1813 to 1838, in the name of Joseph B. Parsons's heirs.

On the 2d of June, 1838, the corporation of Washington made a deed of the premises to Allison Nailor, and, in November following, he conveyed them to Mary Ann Connor.

In November, 1838, Henry Bradley, and Mary his wife, brought an ejectment against Mary Ann Connor, counting on two demises; one from William Prout, on the 1st day of January, 1827, and the other from Henry Bradley and Mary his wife, on the 1st day of January, 1838.

The judgment of the court below was for the plaintiffs. Two bills of exceptions were taken, the first of which it is only necessary to notice, and which is stated at large in the opinion of the

court.

Brent and Brent, for the plaintiff in error, and Bradley, for defendant. Only such parts of their arguments will be noted as bear upon the point upon which the court rested their judgment.

Brent, for plaintiff in error, contended, that, as to the first demise, laid on the 1st January, 1827, it was bad, because the evidence showed that Prout died in 1823. 3 Wend. 153.

The second demise is laid on the 1st January, 1838, and the lessor must show a right to re enter on that day;, and he cannot have such right unless there be insufficient distress 'upon the premises. 3 Harris and Johns. 19; 5 Harris and Johns. 175; Adams on Ejectment, 189; 1 Johns. Ca. 283; 6 Cowen, 149; 2 Leigh's N. P. 882, 883, 934; 4 Durnf. and East, 681; 6 Binn. 454; 3 Bibb, 297; 3 Marshall, 134; 3 Monr. 221. The evidence shows that there was not sufficient distress on the premises, on the day of October, 1838, but not how it was in January, 1838. Evans's Practice, 48; Adams on Ejectment, 150, reciting statute of Geo. 2; 7 Durnf. and East, 117, 120; 2 Leigh's N. P. 924; Doug. 485; 15 East, 286; 2 Chitty's Pleading, SSO, note K; 2 Maule and Selw. 529; 6 Cowen, 149.