But there is another view, of some force, upon this branch of the case. The original contract of subscription by the county prescribed, as one of the conditions precedent to the delivery of the bonds, that the work of construction shall have been paid for. The arrangement which the Receiver made with the county was, by its terms, subject to the terms and conditions of the contract of subscription. It is not, therefore, at all clear that the equities of the case are with the Receiver as against the judgment creditors whose debts were for the construction of the road.

Nor, in view of the construction which we have placed upon the mortgage, is it at all essential, on this appeal, to examine into the regularity or validity, as to the Receiver, of the proceedings in the state court. If, as we have ruled, the mortgage did not cover the bonds in question, it is of no interest to the Receiver, in this case and upon the issues made by him, to inquire whether the state court transcended its jurisdiction when, in the actions at law, against the railway company, it subjected the bonds in the hands of the trustee, McCullough, to the demands of the judgment creditors of the railway company.

legal or equitable, absolute or contingent, as | ing, completing and equipping the unfinished the railway company acquired, under or by portion of the Linneus Branch. But he obtained virtue of the subscription made by Sullivan no authority from the court appointing him to County, to the bonds placed in the hands of contract for municipal aid in the construction McCullough. But we are all of opinion that such by him, as Receiver, of the unfinished portion a construction of the mortgage is not imperative- of the branch road. His action, in that regard, ly demanded by the terms employed in describ- was never approved or ratified by the court from ing the property mortgaged, nor, as we think, which he derived his authority. He can, therewould that construction be consistent with the fore, take nothing by his unauthorized contract intention of the parties. Had the draughtsman with the county court. of the instrument stopped, in his description of the mortgaged property, with the general words, All the present and in future to be acquired property of, or in any manner pertaining to, the Linneus Branch, *** and all the right, title, and interest *** therein," there would be more force in the position taken by the appellant. But the rules established for the interpretation of written instruments will not justify us in detaching these general words from those of an explanatory character which immediately follow in the same sentence. The subsequent phrase "that is to say," followed by a detailed description of the different kinds of property which are embraced by the general words quoted, indicates that the mortgage was not intended to embrace every conceivable possession and right belonging to the railway company, but only the road and its adjuncts and appurtenances. It specifies different kinds of property, some of which would enter into the construction of the branch road, and some of which would be necessarily employed in its maintenance after completion. The “rights, privileges and franchises" mortgaged were, it seems to us, only such as had direct connection with the management and operation of the road after it was constructed and put in use as a public highway. There was no purpose, we think, to pass to the mortgagee any interest whatever in municipal subscriptions which had been previously obtained and accepted by the company for the purpose of raising money to build the road. The bonds which Sullivan County placed in the hands of McCullough for delivery to the company as the work progressed were certainly more valuable and could have been more readily utilized for purposes of construction than a like number of bonds issued by the railway company. We ought not to presume, from the general language used, that the railway company intended to cripple itself in the use of salable municipal securities in order to place upon the market its own bonds of less value. Our conclusion is that the mortgage was not intended to deprive the mortgagor of the privilege of using, in any way it desired, bonds or other securities to which it had an absolute or contingent right and which it had obtained for the purpose of being used in building and equipping the road. What has been said renders it unnecessary to Scope of letters patent—extent of claim-infringeconsider the claim of the appellant based upon the alleged arrangement with the county court, 1. The scope of letters patent is limited to the infurther than to say that his action, in that re-vention covered by the claim. Although the claim gard, was outside of his functions as Receiver. may be illustrated, it cannot be enlarged, by the Notwithstanding the broad terms of the order language used in other parts of the specification. 2. A patentee cannot go beyond what he has appointing him, we are satisfied that the court claimed and insist that his patent covers something had no purpose to appoint him Receiver of any not claimed, merely because it is to be found in the property except that covered by the mortgage. descriptive part of the specification. He was given express authority to borrow the ment, it must be shown by satisfactory proof; it 3. Where the answer, under oath, denies infringesum of $200,000 upon Receiver's certificates of cannot be presumed. indebtedness, to be expended under the direc[No. 21.] tions of the court, or of a special master, in build- Argued Oct. 12, 1881.

In one of the printed briefs before us some argument is made to show that the County of Sullivan has been injuriously affected by the decree in the circuit court. It is sufficient to say that the county has not appealed from the decree, and we need not consider any of the sug gestions made in its behalf.

Perceiving no error in the decree, it is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

LEHIGH VALLEY RAILROAD COMPANY
AND ASA PACKER, PRESIDENT OF SAID
COMPANY, Appts.,

v.

EDWARD MELLON ET AL.

(See S. C., 14 Otto, 112-119.)

ment.

Decided Oct. 25, 1881.

A

PPEAL from the Circuit Court of the United | a manner that said flange, in connection with the States for the Eastern District of Pennsyl- usual flange on the tire, will keep the latter on

vania.

The case is stated by the court.

A

A

B

Fig. 2.

Fig. 1.

From Mellon's specifications.

BDC

A

A

Fig. 2.

Fig. 3.

CDB

From specification of N. Hodge, Nov. 18, 1851.

Messrs. James E Gowen, Andrew McCallum, Alex. D. Campbell, Edward N. Dickerson and Edward N. Dickerson Jr., for appel

lants.

the wheel. The invention also consists in constructing the tire with a rounded edge at one side of its inner surface in order to prevent said edge from indenting and sinking into the periphery of the wheel, a contingency which would otherwise occur in consequence of the tire becoming stretched by use.

A represents a locomotive wheel which may be constructed in the usual or any proper manner, and B is the tire fitted thereon. The periphery of the wheel A is provided at the inner edge with a flange a, as shown in figures 1 and 2.

The tire B is shrunk on the periphery of the wheel A, as usual, and it will be seen that the flange a prevents the tire, should it become loose on the wheel A, from slipping off at the inner side of the wheel, and the flange b of the tire will of course prevent the latter from slipping off at the outer side of the wheel.

By this arrangement no bolts or set screws are required to aid in fastening the tire on the wheel, for it is impossible for the tire to leave the wheel either at the right or left side thereof.

The same result may be attained by having the surface of the tire at its outer edge provided with a flange, a', as shown at the upper part of figure 2.

The inner surface of the tire at its inner edge is rounded, as shown at c, in all the figures, in order to prevent said edge from indenting or sinking into the periphery of the wheel. The tires of locomotive wheels are, under the jars, concussions and wear to which they are subjected, considerably stretched, and they invariably become concave at their inner surface (see figure 3), the edges spreading over the sides of the wheel, and forming in a lock, in some cases, so as to render the cutting of the tire necessary, in order to detach it from the wheel. With my improvement the flange a would cause the inner edge of the inner surface of the tire to indent the periphery of the wheel, or form a

Messrs. Hector T. Fenton and Furman Shep-crease in it if the edge c were not rounded. pard, for appellees.

Mr. Justice Woods delivered the opinion of the court:

On October 2, 1866, letters patent No. 58,447 were granted to Edward Mellon for an improvement in the mode of attaching tires to the wheels of locomotives. For the purpose of illustration, three figures, numbered, respectively, 1, 2 and 3, were appended to the specifications on which the application for the patent was based. The specifications were as follows: "Figures 1 and 2 are central sections of a locomotive wheel having a tire applied to it according to my invention. Figure 3, a section of a portion of a locomotive wheel having its tire affected by wear, drawn with a view of showing the advantage of one feature of my invention. Similar letters of reference indicate like parts.

This invention has for its object the securing of tires on the wheels of locomotives without the aid of bolts, and in such a manner that the tire, in case of becoming loose, cannot casually slip off from the wheel.

The invention consists in having the wheel, or the tire which is to be fitted on the same, provided with a single flange, arranged in such

The great feature in this invention is, that I retain the tire on the wheel without the employment of bolts, rivets, keys or other like attachments. I heat my tire until it has expanded sufficiently to be slipped over the periphery of the wheel; it then cools and contracts, and holds or binds the wheel firmly.

After the wheel, as completed, has been in use a certain length of time, the tire will stretch and thus become loose on the wheel; then the pressure of the resistance against the rail will bear or force the tire inward against the flange a of the wheel.

Now, it is not intended to run the engine unnecessarily with a loose tire, but should this tire become loose while on the road, there is sufficient safety in running the engine until the depot is reached or until it will be convenient to repair or replace it by a new one.

The tire can be readily slipped off, there being no rivets or other fastenings to undo, and the convenience and utility of my improvement is apparent.

I am aware of the invention described in patent to N. Hodge, November 18, 1851, but I wish it to be understood that I do not claim the invention therein described, viz.: the angular flange upon the inner edge of the wheel and the

The invention of the complainant Mellon re- The Act of July 4, 1836, sec. 6, 5 Stat. at L., lates solely to a method of fastening tires upon 117, under which this patent was issued, relocomotive wheel-centers. It appears from the quires that an applicant for a patent shall not record that there are two ways, generally speak- only "deliver a written description of his ining, of fastening these tires upon their wheel-vention or discovery," but "Shall also particucenters; one by making the tire a little smaller in diameter than the wheel-center, then heating it so that it will expand somewhat more than the difference between its diameter and the diameter of the wheel-center, and in that condition slipping it on the center and allowing it to cool, thus following the method of a blacksmith in shrinking a wagon tire upon a wooden wheel. Another method is to fasten the tire cold upon the wheel-center by means of screws or bolts.

[XXV., 738]. See, also, Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S., 278 [XXV., 345]. In view, therefore, of the statute, the practice of the Patent Office, and the decisions of this court, we think that the scope of letters patent should be limited to the invention covered by

equity action to an arbitrator, coupled with the
agreement that his award should be made the basis
of a decree, is a waiver of the objection that the
remedy was at law and not in equity.
[Nos. 18, 19.]

Submitted Oct. 12, 1881. Decided Oct. 25, 1881.

the claim, and that though the claim may be il-A District of Columbia.

PPEALS from the Supreme Court of the

lustrated, it cannot be enlarged by the language used in other parts of the specifications.

We are, therefore, justified in looking at the "claim" with which the specifications of the appellee's invention conclude, to determine what is covered by his letters patent.

The claim, so far from covering an angular flange upon the wheel, expressly excludes such a flange and claims only a flange with a curved or rounded corner.

In this case the description of the appellee's invention is much broader than his claim. It seems quite clear, from the present form of appellee's specifications, and from the fact that his application for a patent was twice rejected, that he was compelled by the Patent Office to narrow his claim to its present limits before the commissioner would grant him a patent. In doing this he neglected to amend the descriptive part of his specifications. He cannot go beyond what he has claimed and insist that his patent covers something not claimed, merely because it is to be found in the descriptive part of the specifications.

The appellee is, therefore, precluded from claiming relief against the appellant for the use of a flange with a square corner. He is,consequently, driven to the second branch of his alleged invention, as set out in his bill of complaint, as the basis of any relief against appellant. This, as is clear from his claim, consists simply in rounding off that corner of the inner side of the tire which fits into the re-entrant corner made by the flange upon the rim of the wheel-center, so as to prevent the corner of the tire from indenting and sinking into the periphery of the wheel-center.

The charge in the bill, of infringement of this part of appellee's alleged invention, is not sustained by the proof. The answer, which is under oath, denies infringement. Infringement must, therefore, be shown by satisfactory proof; it cannot be presumed. The evidence for the appellee entirely fails to establish this part of his case. On the contrary, the proof adduced by the appellant is not only persuasive but conclusive to show that it never made or used the flange with the rounded corner.

We are of opinion, therefore, that the record discloses no case against the appellant.

The decree of the Circuit Court must, therefore, be reversed and the cause remanded with instructions to dismiss the bill; and it is so ordered. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

SAMUEL STRONG, Appt.,

v.

CHARLES F. WILLEY,

SAME v. SAME.

The case is sufficiently stated by the court. Messrs. Nathaniel Wilson and Enoch Totten, for appellant.

Messrs. L. G. Hine and S. T. Thomas, for appellee.

Mr. Chief Justice Waite delivered the opinion of the court:

These are bills of review to correct alleged errors of law apparent on the face of a decree. The two original suits were in reality but one. They were considered and decided together, and both are included in the same decree. They relate to controversies growing out of a single contract between the parties. The nature of these controversies is fully disclosed in the pleadings. The case of the appellee against the appellant is so stated as to admit of alternative re lief. The object of the appellee evidently was to have the amount due him ascertained, and to preserve his securities. His contract called for payment in a certain class of orders on the Board of Public Works of the District of Columbia, but if for any cause he could not get valid orders, or if, by the wrongful acts of the appellant, the payment of orders actually drawn was refused when presented, compensation might be decreed to him in money, under the prayer for general relief.

In the progress of the litigation the parties agreed to refer all the matters of difference included in their respective bills to the arbitrament of William B. Webb, whose decision was to be final and conclusive, and his award was to be made the basis of the decree of the court. Pursuant to this agreement the reference was formally ordered. The arbitrator, after hearing, decided that the sum of $15,413.21 was due the appellee from the appellant. To this award the appellant filed in court certain exceptions. What these exceptions were does not appear from the record, but it does appear that they were overruled, and a decree entered against the appellant for the sum named, to be collected by execution, as at law.

It is now contended that this decree is erroneous, because, 1, it does not dispose of the issues raised by the pleadings; and 2, it is for a sum in excess of that claimed by the appellee in his original bill. In our opinion neither of these objections is good. By decreeing the payment of money the court has, in effect, found, either that the appellant had no fund in the hands of the district authorities on which he could draw, or that the appellant, by his improper interference to prevent the payment of the orders he drew, made himself liable personally for money.

It is not true that the amount of the decree is greater than the demand of the appellee in his original bill, if the orders theretofore issued to him were not paid. He expressly averred in the original bill that there was due him $27,670 under the contract, if his orders were not paid; and in his answer to the bill of the appellant, The reference of the matter in dispute in an the amount is stated to be $16,899.93. It was

(See S. C., 14 Otto, 512-515.)

Reference of equity action.

only in the event of his holding the orders and getling payment thereon, that the balance was stated at a less sum.

The reference of the matter in dispute to the arbitrator, coupled with the agreement that his award should be made the basis of a decree in the suits, is clearly a waiver of the objection that the remedy was at law and not in equity, if any such objection in fact existed, which we are by no means inclined to admit.

The case is to be decided upon the face of the original record, and not upon the averment of new facts in the bills of review.

The decree of the court below is affirmed in each

case.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

BALTIMORE AND

OHIO RAILROAD

COMPANY, Plff. in Err.,

v.

GEORGE W. KOONTZ, Admr. of WILLIAM
A. WEIGHTMAN, Deceased.

SAME
v.

MONROE FUNKHOUSER, Admr. of
CHARLES L. NOEL, Deceased.

SAME
v.

Mr. Chief Justice Waite delivered the opinion of the court:

These cases are substantially alike and present the following facts:

The Baltimore and Ohio Railroad Company was incorporated by the State of Maryland on the 28th of February, 1827, to build and operate a railroad from Baltimore, in Maryland, to some suitable point on the Ohio River. By the terms of the charter the annual elections of directors were to be held in Baltimore. On the 2d of March following, the State of Virginia granted the Company the same rights and privileges in Virginia that had been granted to it in Maryland, except that no lateral road could be built in Virginia without the consent of the Legislature, and the road was not to strike the Ohio at a point lower than the mouth of the Little Kanawha. Under this authority from the two States a road was built from Baltimore to Wheel

MONROE FUNKHOUSER, Admr. of REUBEN ing, in Virginia. When the State of West Vir

E. HAMMOND, Deceased.

(See S. C., 14 Otto, 5-18.)

ginia was formed, it took from Virginia all the territory occupied by the road in that State, and from that time no part of the original line has Residence of corporations-lease of railroad-re-been within the present State of Virginia. moval of cause-effect of-proceeding in State Court-writ of error-entering and docketing

the cause.

1. Corporations do not change their citizenship by doing business away from their legal residence; but simply extend the field of their operations.

2. A Maryland corporation, by taking from a Virginia corporation with the assent of Virginia, a lease of a railroad in Virginia, did not make itself a Corporation of that State.

Court.

3. When sued in a State Court of Virginia by a citizen of that State, it could, as a corporation of Maryland, remove the cause to the U. S. Circuit 4. The State Court loses its jurisdiction and must stop proceedings in a case when the petition for removal and security are presented, and the Circuit Court must go on when the record is entered there. 5. If the State Court refuses to let go its jurisdiction, the petitioning party need not, in order to prevent his appearance from operating as a waiver, show to the State Court that he has entered the record and docketed the cause in the Circuit Court on the first day of the next term following the removal.

6. Whether a case is made for removal, is a federal question. If, after a case is made, the State Court forces the petitioning party to trial and judgment, and the highest court of the State sustains the judgment, he is entitled to his writ of error to this court if he saves the question on the record; or he may enter the record in the Circuit Court and require the adverse party to litigate with him there, even while

the State Court is going on.

On the 20th of August, 1873, the Baltimore and Ohio Company took a lease from the Washington City, Virginia Midland and Great Southern Railroad Company, a Virginia Corporation, of all the railroad of the last named company lying between Strasburg and Harrisonburg, in Virginia. Under this lease the Baltimore and Ohio Company took the exclusive possession of and operated the leased property, using for that purpose the powers and franchises of the Virginia corporation. While so operating the leased road an accident happened to one of the passenger trains, by which the several persons whose administrators are defendants in error in these cases lost their lives. These suits were brought in a State Court of Virginia, under a statute of that State, to recover damages for the deaths of the persons named by the alleged wrongful acts of the Company. Each of the administrators suing was a citizen of Virginia.

On the 2d of September, 1876, which is conceded to have been in time, the Company filed its petitions in the State Court for the removal of the cases to the Circuit Court of the United States for the Western District of Virginia, the proper district, on the ground that the Company was a citizen of Maryland and the several plaintiffs, citizens of Virginia. The plaintiffs answered the petition in each case, denying that the Company was a citizen of Maryland, and claiming 8. If the petitioning party is kept in the State Court that for all the purposes of these suits it was a by his adversary, against his will, he may, after hav-citizen of Virginia. After hearing, the State

7. If the petitioner fails to enter the record and docket the cause in the Circuit Court on the first day of the next term, the jurisdiction of that court is not lost; the court may allow it to be entered on a subsequent day, if good cause is shown.