See Baker's Case, 2 Strange, 1152; Ex parte Parker, 3 Ves. 554; and the decisions hereinafter cited.

In McWilliams' Case, 1 Schoales & L. 169, a defendant in contempt for not paying a legacy into the court of chancery in obedience to its order was attached while attending the commissioner to be examined as a bankrupt. His arrest was lawful, if the contempt was a criminal offense. That very learned chancery lawyer, Lord REDESDALE, said that it was merely a mode of enforcing a debt; that if it were not so he had no right to make the original order; that the substance and not the form of the proceeding must govern, and its substance was not criminal. The petitioner was discharged. The same point was decided in the same way in Ex parte Jeyes, 3 Dea. & Ch. 764; and Ex parte Bury, 3 Mont. D. & D. 309.

The remark of the lord chancellor in McWilliams' Case, that he had no right to make an order of this sort for the benefit of a private person, excepting as a civil remedy, is highly pertinent to this case. Where a person had been committed to prison for nine months for contempt in not paying money into a county court, sitting in bankruptcy, JAMES, L. J., said: "The order, on the face of it, is wrong, for it is an absolute order of commitment for contempt of court for nonpayment of money. This is a penal sentence. The court of chancery never made an order in this form." And again: "The order of commitment was such as had never been made in the court of chancery, and was justly characterized by the chief judge as novel and surprising." Ex parte Hooson, L. R. 8 Ch. 231. This distinction is preserved in our Revised Statutes. The courts have power to punish for contempt, (section 725;) but all forms and modes of proceeding which are usual in equity may be followed in cases in equity. Section 913. By virtue of section 725 the district court may punish contempts. Like power is given the district judge when sitting in chambers in bankruptcy, by section 4973; and the cognate but distinct power of enforcing his decrees "by process of contempt, and other remedial' process," is recognized by section 4975. See In re Chiles, 22 Wall. 157. Some of the older cases hold that in contempt in civil cases at common law, the proceedings, after the order of attachment, should be on the crown side of the court; that is, in the name of the sovereign. The King v. Sheriff of Middlesex, 3 Term R. 133; Same v. Same, 7 Term R. 439; Folger v. Hoogland, 5 Johns: 235. This is still the better practice, or, at least, a good practice, if punishment is asked for. Cartwright's Case, 114 Mass. 230; Durant v. Sup'rs, 1 Woolw. 377; U. S. ex rel. v. A., T. & S. F. Ry. Co. 16 FED. REP. 853. If this was ever the rule of chancery, it has long since ceased to be so, when the sole purpose of the attachment is to enforce a decree or order, such, for instance, as to sign an answer, to make a conveyance, to pay money, etc. All such orders may be waived or condoned by the private person interested in them, and are civil and remedial. Ex parte Hooson, supra; Ex parte Eicke, 1 Glyn.

& J. 261; Wall v. Atkinson, 2 Rose, 196; Wyllie v. Green, 1 De Gex & J. 410; Buffum's Case, 13 N. H. 14; People v. Craft, 7 Paige, 325; Jackson v. Billiags, 1 Caines, 252; Anon. 2 P. Wms. 481; Const v. Ebers, 1 Mad. 530; Smith v. Blofield, 2 Ves. & B. 100; Brown v. Andrews, 1 Barb. 227; Ex parte Muirhead, 2 Ch. Div. 22; Lees v. Newton, L. R. 1 C. P. 658; Re Rawlins, 12 Law T. (N. S.) 57.

In patent cases it has been usual to embrace in one proceeding the public and the private remedy-to punish the defendant if found worthy of punishment, and, at the same time, or as an alternative, to assess damages and costs for the benefit of the plaintiff, as is seen by the cases cited in the beginning of this opinion. A course analogous to this has been said, obiter, to be proper, by MILLER, J., in Re Chiles, 22 Wall. 157, 168. "The exercise of this power has a twofold aspect, namely,-First, the proper punishment of the guilty party for his disrespect of the court and its order; and, the second, to compel his performance of some act or duty required of him by the court which he refuses to perform," citing Stimpson v. Putnam, 41 Vt. 238, where a defendant was, at the same time, fined $50 for the benefit of the state, and $1,170 and interest and costs for that of the party injured by breach of an injunction. The chancellor in that case said: "This proceeding for contempt is instituted not only to punish the guilty party, but also, and perhaps chiefly, to cause restitution to the party injured." Such, we repeat, has been the practice in patent causes. It is used in other cases, as in the familiar one of a witness neglecting to answer a summons, who may be fined for his disobedience, and also be required to testify.

If the proceedings should be criminal in form it would make no difference. A criminal sentence, for the benefit of a private person, is to be treated as civil to all intents and purposes. It is beyond the king's pardon, and within the equitable jurisdiction of the court at all times. 4 Bl. Comm. 285. At this place the author, speaking of disobedience to any rule or order of court, of the. sort we are considering, says:

"Indeed, the attachment for most part of this species of contempts, and especially for non-payment of costs and non-performance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court. And therefore it hath been held that such contempts, and the process thereon, being properly the civil remedy of an individual for a private injury, are not released or affected by the general act of pardon."

Where a defendant had been convicted of an offense against the laws prohibiting lotteries, and had been sentenced to a term of imprisonment, which had expired, and to pay costs for the use of the prosecutor, and had not paid them, he was discharged from custody under the lord's act, which was an early insolvent law, like our poordebtor laws, so far as the discharge of the person is concerned. Rex

v. Stokes, Cowp. 136. ASTON, J., after saying that an attachment is an execution for a civil debt, and that the public offense had been purged by the imprisonment, added: "This stage of the cause, therefore, is merely of a civil nature, and a matter solely between party and party, unconnected with the offense itself;" that it comes within the insolvent debtor's act: "If not, the consequence must be imprisonment for life; for a general pardon would not extend to him;” that is, would not release him from costs due a private person, or from imprisonment on account of them, "as was agreed in Rex v. Stokes, 23 Geo. II." So, where a penalty was inflicted by a criminal proceeding, but for the benefit of a private person, and an attachment was issued for want of a sufficient distress, BULLER, J., said that the proceeding was like a civil action, and that Ex parte Whitchurch, 1 Atk. 54, where attachment for not performing an award was held to be criminal, was no longer law. It was held, therefore, that the defendant could not be attached on Sunday. The King v. Myers, 1 Term. R. 265. We do not mean to be understood that the court has a general discretion to annul orders passed for the benefit of a party to the suit; but that where inability is shown to comply with the order, as, for instance, insanity, if the decree requires an act to be done, or poverty, if the decree is for the payment of money,—it is according to the course of the court, and of all courts, to discharge the imprisonment, of which the end is proved to be unattainable. See, besides the cases already cited, Wall v. Court of Wardens, 1 Bay, 434; Re Sweatman, 1 Cow. 144; Kane v. Haywood, 66 N. C. 1; Galland v. Galland, 44 Cal. 478; Pinckard v. Pinckard, 23 Ga. 286.

Where an attorney of any court fails to pay over money to his client, the court may, after due proceedings, commit him for a contempt. This was formerly considered to be criminal, and is fully explained in 2 Hawk. P. C. 218 et seq. But it has long since been settled that it is of a civil character. Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 Barn. & C. 652. The lord chief justice in the latter case said that it had "always" been held that attachments for non-payment of money were in the nature of civil process.

In Reg. v. Thornton, 4 Exch. 820, and The Queen v. Hills, 2 El. & Bl. 175, costs in a criminal case were in question, and the defendant was discharged-in one, because the prosecutor had proved for the amount in bankruptcy, and thus waived the attachment, and in the other, because the defendant had been discharged as an insolvent. In the former of these cases, it was said by PASHLEY, arguendo, that the courts had exercised the power to discharge a defendant in such a case, on account of poverty, as early as 29 Edw. I.

It was admitted, in argument, in the case before us, that the court would not have been justified in imposing a pecuniary fine upon the defendant if he had proved his poverty before the order was made, but that afterwards it was too late. We are of opinion that no such

distinction can be maintained, but that the defendant should be released from imprisonment in such a case, though his evidence is produced while the order is in process of enforcement against him. Petition denied.

See In re Cary, 10 FED. REP. 622, and note, 629.-[Ed.

SEARLS v. MERRIAM and another.

(Circuit Court, 8. D. New York. January 30, 1882.)

PATENTS FOR INVENTIONS-PATENT NO. 221,482-INVENTION.

Patent No. 221,482, granted to Anson Searls, as assignee of John M. Underwood, the inventor, November 11, 1879, for an improvement in whip-sockets, is void for want of invention.

BLATCHFORD, J. This suit is brought on letters patent No. 221,482, granted to the plaintiff, as assignee of John M. Underwood, the inventor, November 11, 1879, for an "improvement in whip-sockets." The whip-socket is formed of a hollow cylinder, the upper open end of which is provided with a flexible elastic ring of India rubber or analogous material, for the purpose of holding the whip-stock upright by the pressure between it and the interior of the ring. The ring fits in a recess or annular groove in the upper open end of the socket, so as to be retained therein by its own elastic expansive force. The inner edge of the ring is corrugated, or provided with projections formed on and extending from the inner edge of the body of the ring, inwards towards its center. These projections are entirely separated from each other, with spaces between them, so that they will not be pressed into contact with one another, by the insertion of the butt of the whip-stock in the socket. The extreme inner faces of the projections form a circle and support the stock by pressing against it, while they yield to permit it to be pushed in or drawn out, and the. ring, though disturbed in place by those movements, will readjust itself in the recess when the stock is removed, because it is held therein by its elastic force alone. The patent has two claims:

"(1) The combination with a whip-socket having an annular recess in it, of a flexible elastic ring, which may be held in such recess by its own elastic force, and which is provided on its inner edge with non-contiguous projections, separated so that they cannot be pressed into contact with one another by the insertion of the whip-stock into the ring. (2) The ring composed of a body, with such projections."

The specification sets forth that "a simple rubber ring, without projections, had been used, held in an annular recess in the mouth of the socket, the interior of the ring being made small enough to grasp the whip-stock, and such a ring has been held in place in the recess in the socket by its own expansive force;" also, that radial slits have been cut in the inner edge of the ring without removing any of the rubber. The point of the new arrangement is stated to be, that "the separated projections, while they are rigid enough to hold the whip upright and prevent it from wabbling, will yet so easily give way to the pressure of the stock as to allow the stock to be readily inserted and removed."

It is obvious that a plain ring, or a ring with radial slits, has the same action in combination with an annular recess, in which it is held by its elastic force alone, so far as regards its readjustment in the recess when disturbed, that a ring with inward non-contiguous projections has. The co-action between the recess and the part of the ring in it, when the part of the ring out of it and next the stock is disturbed, is the same in all three cases. Therefore, if the ring with inward non-contiguous projections existed before, even though without the annular recess, there was no patentable invention in using such ring with the old annular recess with which the plain ring had been used.

The date of the Underwood invention was May, 1878. The rubber disk, defendants' Exhibit C, with non-contiguous projections, existed in 1873. The number of projections and the number and size of the openings between the projections depended then, and depends now, on the thickness of the rubber. That fact was then known. It was also then known that the capacity of the rubber to exert the expansive force necessary to maintain its place in the annular recess depended on its substance and thickness. In view of the use in an annular recess of a plain ring of sufficient substance and thickness to maintain its place in the annular recess, the fact that defendants' Exhibit C was not used in an annular recess, but was clamped between the end of the socket and a cap, is not sufficient to make it a patentable invention to use in an annular recess a rubber thicker than defendants' Exhibit C, with the same character of non-contiguous projections. The action of the inner part of the ring against the stock, so far as the non-contiguous projections are concerned, is the same whether the outer part of the ring is held in an annular recess, or is clamped between the end of the socket and a cap. It is quite apparent, as is stated by the expert for the plaintiff, that the number, or size, or shape of the openings between the projections does not constitute a substantial difference, so long as they are of sufficient size and of a proper shape to permit the stock to pass through the ring without forcing the edges of the projections in contact with each other, and the smaller portions of the projections are extended towards the center. These conditions are found in defendants' Exhibit C.