intervention. When the sheriff of the civil district court undertook to levy upon the goods in question, and served the marshal with notice as garnishee holding actual possession of the property, the latter was in fact, as we have already seen, in possession illegally under a writ, which protected his official possession only so far as to prevent the property from being forcibly withdrawn from the jurisdiction of the circuit court by judicial process, that court having acquired jurisdiction, by virtue of the seizure under color of its authority, to decide all questions concerning it. That writ, though illegally issued and levied, was not void on its face. In a certain sense, therefore, the property was in custodia legis, and not subject to a levy under process which would have the effect of taking it out of his possession and control. But when, in the exercise of jurisdiction by the circuit court in the determination of the question raised by the petition of intervention, the nature of the marshal's title and possession came to be inquired into, it was made apparent that he held the property illegally as a trespasser, and in that forum could be treated as holding it in a private and not an official capacity. It was subject, therefore, in the view of that court, to the consequences of the notice served upon the marshal as garnishee. It was held by the marshal as if it had been a surplus arising from the sale of the property of a defendant on execution, which, as is well established, may be attached in his hands. Drake, Attachm. § 251. The case, therefore, stands thus: For the reasons growing out of the peculiar relation between federal and state courts, exercising co-ordinate jurisdiction over the same territory, the circuit court acquired the exclusive jurisdiction to dispose of the property brought into its custody under color of its authority, although by illegal means, and to decide all questions of conflicting right thereto; the plaintiff in error, having pursued his remedy by action against his debtor in the state court, to which alone, by reason of citizenship, he could resort, attempted the levy of his writ of attachment upon the goods in the possession of the marshal; not being allowed to withdraw from the marshal the actual possession of the property sought to be attached, he served upon the marshal notice of his writ as garnishee; not being able by this process to subject the marshal to answer personally to the state court, he made himself a party to the proceedings in the circuit court by its leave, and proceeded in that tribunal against its officer and the creditors for whom he had acted; on a regular trial it appeared as a fact that at the time of the notice the marshal was in possession of the property wrongfully as an officer, and therefore chargeable as an individual. It was competent for the circuit court, and, having the power, it was its duty, to hold the marshal liable as garnishee; and having in its custody the fund arising from the sale of the property, and all the parties interested in it before it, that court was bound to do complete justice between all the parties on the footing of these rights, and give to the plaintiff in error the priority over all other creditors, to which by virtue of his proceedings, and as prayed for in his petition of intervention, he was entitled. On these grounds, the judgment of the circuit court is reversed, and the cause remanded, with directions, upon the facts found in the circuit court, to award judgment in favor of the intervenor, Gumbel, in conformity with this opinion; and it is so ordered. DREYFUS et al. v. SEARLE. 1. PATENTS FOR INVENTIONS-NOVELTY-PROCESS-WINES. Letters patent No. 48,728 were granted John Searle, June 15, 1865, for an improved process of imparting age to wines, consisting in the introduction of heat by causing the heating medium to pass through metallic pipes or chambers on the inside of the cask, and within the body of the wine in the cask. Held that, it appearing by the evidence that the application of heat from outside the cask for such purpose long antedated the issue of this patent, and that the process now in question was identical in its effect with the other, it has no novelty as a patentable process. 2. SAME-NOVELTY-APPARATUS-WINES. Held that, it appearing by the evidence that a like apparatus had previously been used to heat other liquids in the same manner, there was no patentable invention in the apparatus thus applied to the heating of wine. Appeal from the Circuit Court of the United States for the District of California. Suit in equity by Sophia Searle, executrix of John Searle, deceased, against Benjamin Dreyfus, Emanuel Goldstein, Jacob Frowenfeld, and John J. Weglein, copartners under firm name of B. Dreyfus & Co., for infringement of letters patent granted to John Searle. After issue joined and proofs taken on both sides, the circuit court, May 22, 1883, issued an interlocutory decree, adjudging the patent to be valid, and defendants to have infringed upon it, and ordering reference to a master to state account, etc. Both parties excepted to the master's report. Exceptions were overruled; and final decree was entered August, 1884, in accordance with the master's report. From this decree the defendants have appealed. J. Hubley Ashton, for appellants. A. C. Bradley and W. J. Newton, for appellee. BLATCHFORD, J. This is a suit in equity, brought in the circuit court of the United States for the district of California by Sophia Searle, as executrix of the last will and testament of John Searle, deceased, against Benjamin Dreyfus, Emanuel Goldstein, Jacob Frowenfeld, and John J. Weglein, copartners under the firm name of B. Dreyfus & Co., for the infringement of letters patent of the United States, No. 48,728, granted to John Searle, July 11, 1865, for 17 years from June 15, 1865, for an "improved process of imparting age to wines." The bill was filed December 21, 1881. The specification and claim of the patent are in these words: "Be it known that I, John Searle, of the city and county of San Francisco, state of California, have invented a new and improved process for imparting age to wines and liquors;' and I do hereby declare that the within is a full and exact description of the same. The nature of my invention consists in providing a process for shortening the time that is now required for ripening wines and liquors to about one-half the period, without deteriorating their flavor by the use of steam. Madeira, sherry, port, teneriffe, and other wines have been prepared for many years, for imparting age, through the medium of estufas or large ovens, having flues by which they are heated. These estufas are filled with wines and spirits in casks or pipes, and are kept at a proper heat until the contents of the casks show the desired age through the staves. By this process the heat must necessarily be very great, (say 140°,) which impairs the flavor of the wine by imparting to it the taste of the cask; and oftentimes the casks have to be taken out and recoopered before the process can be completed. By the use of my process the following advantages are derived: First. There is a great saving of time and fuel, the building and air not being heated within as by the old process. Second. It can be effected in casks of the largest size, thereby insuring uniformity of quality in the wine. Third. The process can be carried on in any storehouse or cellar. Fourth. There is no injury to the casks, whereas by the old system they become damaged and require constant repairs. Fifth. The breakage and loss on the liquors is very much reduced, which is sometimes excessive in the estufas, by the falling to pieces of the heated and dried-up casks. Sixth. No bad taste is imparted to the liquors during my process, which is too often the case in the estufas, where the wine receives the heat through the sides of the cask. To enable others skilled in the art to make use of my improvement, I will proceed to describe my process and its operation. I use casks or tanks (as the case may be) for holding the wine; if casks, they may be placed on end. Through each of these casks or tanks, near the base, I pass an iron or metallic pipe, (copper is preferable,) of about one inch, and open at its end. These pipes connect with a main steam-pipe, and can be closed and the steam shut off, should the heat become too great for the wine, by means of a stop-cock attached to each of the pipes. The degree of heat which I use in the operation varies from 100° to 140°. The time required to perfect the operation of ripening wine by this process is about six weeks, yet, of course, it will be left to the knowledge and discretion of the keeper of the cellar to determine when the ripening process is completed. Having thus described my invention, what I claim and desire to secure by letters patent is, the introducing the heat by steam, or otherwise, to the wine itself, by means of metallic pipes or chambers passing through the casks or vessel, substantially as set forth." The answer of the defendants denied that the invention was new or useful, and alleged that it was in public use in San Francisco for more than two years prior to the date of the application by Searle for the patent, by two persons, named Wieland and Voorman. Issue being joined, proofs were taken on both sides, and on the twenty-second of May, 1883, the circuit court entered an interlocutory decree, adjudging the patent to be valid, that the defendants had infringed upon it by treating and aging wine by the process described and claimed in it, and ordering a reference to a master to take and report an account of profits from the infringement. He reported the amount of profits to have been $3,249.60. Both parties excepted to the report, but all the exceptions were overruled, and a final decree was entered in August, 1884, awarding a recovery to the plaintiff of $3,249.60, with interest from the date of the entry of the interlocutory decree, May 22, 1883, and costs. From this decree the defendants have appealed to this court. It is stated in the specification of the patent, that age had been imparted to wines, for many years, by placing them in casks in estufas, or large ovens, and keeping up a proper heat therein, on the outside of the casks, until the contents of the casks showed the desired age. The application of artificial heat to impart age to wines was, therefore, old. The heat was applied to the wine from the outside. The new process claimed in the patent is to introduce the heat by causing steam, or other heating medium, to pass through metallic pipes or chambers placed on the inside of the cask, and within the body of the wine in the cask. This is called in the patent a new process; but, so far as the action or effect of heat on the wine is concerned, in respect to ripening it or imparting to it what is called "age," or any other quality imparted to it by heat, the effect or result is the same as that produced by imparting the heat to the wine from the heated air, in the old-fashioned estufa or oven. It is shown by the evidence that the application of the heat to the wine from the inside of the cask has no different effect upon it from that of the heat as applied by the old process, and that no chemical or other change is produced in the wine different from that produced by the old process. There was no novelty in the process as a patentable process. Whatever novelty there could have been must have consisted wholly in the apparatus used for introducing the heat to the inside of the body of the wine. But it appears by the evidence that the apparatus, as a means of imparting heat from it to the body of the liquid inside of which it was placed, was not new. Wieland testifies that for 25 years prior to November, 1882, he had, in conducting his business as a brewer in San Francisco, heated water by means of a copper coil filled with exhaust steam, placed in the water, the water being in a closed tub containing 50 or 60 barrels, the copper pipe entering the tub on the side, near the bottom, and forming a coil inside, and then passing out through the top. It also appears that a like apparatus was used in the United States, prior to the issuing of the plaintiff's patent, for the purpose of heating high wines by means of steam in a copper coil, so as to evolve the alcoholic vapors. There was no patentable invention in applying to the heating of wine or any other liquor, from the inside of the cask, the apparatus which had been previously used to heat an other liquid in the same manner. The case falls directly within the decisions of this court in Pomace-Holder Co. v. Ferguson, 119 U. S. 335, 338, 7 Sup. Ct. Rep. 382, and the cases there collected, and in Heating Co. v. Burtis, 121 U. S. 286, 7 Sup. Ct. Rep. 1034. There having been, therefore, nothing new as a process in the operation or effect of the heat on the wine, and nothing patentable in the application of the old apparatus to the heating of the wine, the decree of the circuit court must be reversed, and the case be remanded to the circuit court for the Northern district of California, with a direction to dismiss the bill. ROBERTS et al. v. BENJAMIN. 1. DAMAGES-BREACH OF CONTRACT TO DELIVER. In an action for a breach of contract to deliver iron the plaintiff is entitled to recover the difference between the contract price and the market price at the date of the refusal to fulfill the contract. 2. SET-OFF AND COUNTER-CLAIM-BREACH OF CONTRACT-REOPENING EXECUTED CONTRACT. Plaintiff had purchased coal of defendants, and upon delivery had notified defendants of a shortage in the weight, whereupon defendants had allowed him credit for the shortage. Several years after, plaintiff brought suit against defendants for breach of a contract for the purchase of a cargo of iron. Held, that defendants could not reopen the allowance for shortage on the ground of fraud and plead it as a counter-claim in such action. 3. REFERENCE-REPORT-REVIEW ON APPEAL. Upon writ of error to the circuit court of the United States on a judgment en tered pursuant to the report of a referee, the facts found by the referee will be re garded as conclusive by the supreme court. 4. SAME. Where a cause has been tried in the circuit court by a referee, without any waiver in writing of trial by jury, the supreme court cannot, upon writ of error, review any of the exceptions taken to the admission in exclusion of evidence, nor to the findings of fact by the referee, nor his refusal to find facts as requested. In error to the circuit court of the United States for the northern district of New York. Jas. B. Perkins, for plaintiff in error. defendants in error. Matthew Hale and Esek Cowan, for BLATCHFORD, J. This is an action at law, brought in the circuit court of the United States for the Northern district of New York, by Henry M. Benjamin, a citizen of Wisconsin, against Henry C. Roberts and Archibald S. Clarke, citizens of New York, composing the firm of H. C. Roberts & Co., doing business at Rochester, New York, to recover damages for the alleged failure of the defendants to deliver to the plaintiff a quantity of iron, on a contract for its sale by the former to the latter. The complaint alleged that at the time of the breach of the contract by the defendants the market value of iron of the kind and quality agreed to be sold was much greater than the contract price of the iron, and that, if the iron had been delivered pursuant to the contract, the plaintiff could have sold it at a large profit. The defendants, in their answer, besides denying any liability to the plaintiff, set up by way of counter-claim (1) that the plaintiff was indebted to them in the sum of $796.99, for coal and iron sold and delivered by them to him, and that, as a part of the contract for the sale of the iron upon which the action was brought, it was a condition that the plaintiff should pay to the defendants the $796.99, which he had not done; (2) that, on the sale and delivery to the plaintiff by the defendants of certain coal, the plaintiff had claimed various items of shortage in the coal, for which the defendants had allowed to him $1,926.73; that they had afterwards ascertained that the statements of the plaintiff as to the shortage were untrue, and that they were ready to deliver the iron upon the payment to them by the plaintiff of the $1,926.73. The reply of the plaintiff admitted an indebtedness to the defendants of $112.73, on account of the item of $796.99 claimed in the answer, and, in regard to the $1,926.73, it alleged that the items of shortage had been allowed and agreed to by the defendants. After issue was joined, it was stipulated in writing by the parties, that the action be referred to a person named, "as sole referee, to hear, try, and determine the issues therein." Upon this stipulation, an order was entered by the court that the action be referred to such person, "to determine the issues therein." The referee filed his report as follows: "I, the undersigned, the referee to whom were referred the issues in the action above entitled, do respectfully report that I have heard the allegations and proofs of the respective parties, and the arguments of counsel thereon, and, after due deliberation, report the following as my findings of facts: First. The plaintiff is a citizen of the state of Wisconsin, and resides in the city of Milwaukee, in said state, and the defendants, on and prior to the seventeenth day of July, 1879, were, have since then continued to be, and now are, citizens of the state of New York, residing at Rochester, in said state, and partners in business in said city under the firm name of H. C. Roberts & Co. Second. On or about the seventeenth day of July, 1879, the plaintiff inquired of the said defendants, by telegraph, their lowest price for four hundred tons of number two iron and four hundred tons of number one iron, or one cargo of each, delivered afloat at Milwaukee; to which, on the twenty-second day of July, 1879, the said defendants replied by telegram, stating the price at nineteen dollars and fifty cents cash, per ton, for number one foundry iron delivered afloat at Milwaukee, and declining to put any price or to make any agreement for the sale of number two iron, and in a letter, written on the following day, promised and agreed to ship a cargo of the iron about the first day of September, 1879, if the plaintiff should accept the offer. On the twenty-fifth of July, 1879, the plaintiff, by letter, accepted the offer of a cargo of the iron, at $19.50 per ton afloat at Milwaukee; provided that the plaintiff should be allowed the deduction from the price per ton, if freight could be had for less than one dollar per ton; and also provided that the terms should be, instead of cash, a credit of four months, with interest at the rate of seven per cent. per annum after thirty days. The defendants, by letter dated July 28, 1879, accepted the modification of the terms and conditions of sale, and agreed to ship the iron about September 1, 1879, or as soon as they could manufacture it. Third. The term cargo,' employed in this correspondence, was understood by the plaintiff and the defendants to mean a cargo of four hundred tons. Fourth. The contract for the delivery of the cargo of iron had no relation to or connection with any other dealings between the parties, and the performance thereof by the defendants was not conditioned upon the performance of any act on the part of the plaintiff other than as stated in the preceding findings. Fifth. The defendants did not deliver the iron or any part of it to the plaintiff on or about the time specified in their offer, nor did they deliver it as soon as they had manufactured the required amount. They postponed the execution of the contract from time to time, and finally insisted, as a condition of the delivery of the iron that the plaintiff should pay certain outstanding indebtedness on other dealings, which the defendants claimed to be due to them from the plaintiff; and, also, as a further condition, that payment for the iron should be made upon delivery; that shipment should be by rail instead of by boat, and in installments of one hundred tons per month, instead of one cargo of the full amount; and that the plaintiff should pay, in addition to the contract price, one dollar per ton for extra freight. The plaintiff did not comply with these conditions, and the iron has never been delivered. Sixth. At the time when the letter containing these conditions was sent by the defendants to the plaintiff, November 7, 1879, the market value of number one foundry iron, of the |