paratus as above outlined, feeds the machine by bringing the pelt forward, at the same time actuating the knives, in practically one operation. This seems to us to be a distinct mechanical departure, as well as an advance upon the Sutton machine, when considered in view of the results accomplished.

Moreover, if infringement could be otherwise sustained, the decree must be affirmed, because the eighth claim has made the stationary card, shown at "E" in the drawing, an essential part of the mechanism described. It may be that this card is unnecessary, and that it was dropped from the later patents issued to Sutton, but it is in this claim, and as was said by Judge Wallace in his dissenting opinion in Cimiotti Unhairing Co. v. Nearseal Unhairing Co., 115 Fed. Rep. 507, 510, "the patent industriously makes the stationary card, substantially as described, an element of the claim." Of this card the inventor said:

"Immediately above the stretcher-bar B is arranged a stationary card, E, which is attached to the ends of the stretcherbar B by means of thumb-screws. (Not shown in the drawings.) The points of the teeth of the card E are close to but do not touch the surface of the skin, so that the hair and fur are both straightened as the skin is fed forward. The teeth of the card E hold down the fine fur, but permit the stiff hairs to stand up between the teeth, owing to the slow forward movement of the skin, which gives the hairs sufficient time to so adjust themselves."

He also says: "The card is set back from the edge of the stretcher-bar to a distance a little more than one-half of the length of the fur, for the purpose of holding the fur and preventing it from moving forward until the forward motion of the skin takes place."

While it is said that the card does not touch the surface of the skin so that the hair and fur are both straightened as the skin is fed forward, it is true that the teeth of the card in some measure hold down the fine fur, and it is insisted that the mechanical equivalent of this card is found in respondents'

machine in the compression bar, which also acts to hold down the fur before it is carried to the separating brush. But this bar has no carding feature to it, and cannot be made to perform the functions of a card; it has no separate teeth, and is not a card or the mechanical equivalent of one shown and described and made a part of the eighth claim.

We think the Circuit Court of Appeals was right in the conclusion that the mechanism of the respondents was so materially different from the Sutton patent as to avoid the infringement alleged; and that an essential element of the eighth claim of the Sutton patent was not used by the respondents.

Decree affirmed.

LEONARD v. VICKSBURG, SHREVEPORT AND PACIFIC RAILROAD COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.

No. 233. Argued April 26, 27, 1905.-Decided May 29, 1905.

The rule reiterated that persons may by their acts, or omissions to act, waive rights which they might otherwise have under the Constitution and laws of the United States; and the question whether they have or have not lost such rights by their failure to act, or by their action, is not a Federal question.

The judgment in this case rested on grounds broad enough to sustain it independent of any Federal question.

THIS was an action of ejectment brought, in 1896, by the Vicksburg, Shreveport and Pacific Railroad Company in the First Judicial District Court, Caddo Parish, Louisiana, against certain possessors, for whom Smith, Leonard and others were substituted as defendants, to recover 178.80 acres of land in that parish less 35.18 acres theretofore recovered by Smith and others in another action.

Defendants, both by plea and answer, set up that they, being either the heirs of W. W. Smith, or parties privy, brought suit in the Circuit Court of the United States for the Western

District of Louisiana against one Turner, asserting ownership to the entire tract, and praying to be restored to possession of about forty acres thereof, alleged to be illegally held by Turner. That Turner disclaimed title and averred that he was a tenant of the Vicksburg, Shreveport and Pacific Railroad Company, and thereupon the railroad company answered, claiming possession and ownership of the entire tract known as Silver Lake.

That a judgment was rendered in said suit in favor of the heirs of W. W. Smith (in 1886), decreeing them to be the owners of the parcel of land possession of which was sought in that suit, and they were put in possession of the same; and that the judgment was final and had the force and effect of res judicata, as against all parties to that suit, and as against the claims of plaintiffs in this suit.

The copy of complaint in Smith v. Turner, attached, showed that diversity of citizenship was set up as the ground of jurisdiction.

And answering, defendants averred that the State of Louisiana sold to W. W. Smith, on the fourteenth of May, 1853, the tract of land claimed by plaintiff, for the price of $1.25 per acre, which was paid into the treasury of the State by Smith, and was never returned to him; that, on the twenty-fourth of February, 1855, the State of Louisiana, through its constituted authorities, issued a patent to said tract of land to Smith;

That the State of Louisiana claimed and acquired the said tract of land as swamp and overflowed land, granted to the State of Louisiana by the acts of Congress of 1849 and 1850, known as the swamp land grants, and that the State sold the lands to Smith as swamp and overflowed lands;

That all sales of land in Louisiana made as swamp and overflowed land, whether made by the United States or by the State of Louisiana, and whether the land sold was of that character or not, were confirmed by the act of Congress approved March 2, 1855, entitled "An act for the relief of purchasers and locators of swamp and overflowed lands;"

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That that act of Congress was extended so as to protect sales after its passage, by the act of Congress of March 3, 1857, to confirm all selections of swamp and overflowed lands by the several States under the acts of Congress of 1849 and 1850; That the act of March 2, 1855, confirmed the title of the said W. W. Smith to the tract of land, whether it belonged to the State of Louisiana, under the swamp land grant of Congress, or whether it belonged to the United States, and that Smith thus acquired title to the land, both by purchase from the State of Louisiana and by confirmation by Congress.

Thereupon J. H. McCormick, receiver for the Vicksburg, Shreveport and Pacific Railroad Company, filed his plea and exception of res judicata to defendants' answer and plea therein of ownership of the said lands, averring that, in a suit entitled State of Louisiana v. W. W. Smith et al., brought in 1857 in the District Court of Caddo Parish, Louisiana, defendant Smith put at issue the validity and legality of his title to the land, and, upon final hearing, a judgment was rendered in that suit decreeing the certificate and patent under which Smith claimed to be null and void, and directing their cancellation, and that they be delivered to the State of Louisiana. That defendants appealed to the Supreme Court, which appeal was thereafterwards dismissed; and that said judgment is res judicata, and a perpetual bar to defendants' right of action.

The Caddo District Court, Watkins, J., found that on the trial of the cause of Smith v. Turner, in the Circuit Court, in which case recovery of only 35.18 acres out of the tract of 178.80 acres, known as "Silver Lake," was sought, though title to the entire tract was asserted on one side and denied on the other, the railroad company had offered to prove the value of the whole tract at ten thousand dollars, but that Smith had objected on the ground that only the possession of 35.18 acres was in issue, and the Circuit Court had, therefore, declined to admit the evidence, and that, the case having gone to judgment, a writ of error from the Supreme Court of the United States was dismissed on motion of defendants in

error, because the possession of the 35.18 acres was not worth over $2,000. 135 U. S. 195.

The District Court held that as the same parties, who now contended that the judgment in Smith v. Turner constituted the thing adjudged as to the entire tract, had successfully insisted in that case that nothing was therein in issue except the right of possession of 35.18 acres, the court was not required to adjudge that the legal effect of that judgment extended to cover the entire tract. As to the judgment in favor of the State, in State v. Smith, the court recapitulated the facts, finding that the return of the money paid by Smith to obtain the patent was lawfully tendered December 3, 1857; the grounds on which the judgment proceeded; that this judgment was rendered November 24, 1860, in favor of the State, cancelling the Smith entry; that Smith prosecuted an appeal, which, after delay by reason of the Civil War, was dismissed by the state Supreme Court, August 11, 1869; and that because of defective certificates, the Circuit Court was led to believe in Smith v. Turner, that the case of State v. Smith had not been disposed of. The District Court further found for reasons given that the title of the railroad company in and to the land was perfect. The court gave judgment in favor of the railroad company and the case was carried to the Supreme Court of Louisiana. 112 Louisiana, 51.

Dealing with defendants' pleas of res judicata and estoppel, the Supreme Court held that the general rule that a judgment as to the ownership of a portion of a tract of land is conclusive between the same parties, claiming under the same titles, as to the ownership of the whole tract, should not be applied in the circumstances detailed, which in its opinion operated to confine the effect of the judgment to the particular parcel for which recovery was sought Those pleas were overruled as to all of the tract except 35.18 acres, but the court sustained plaintiff's plea of res judicata predicated on the judgment in State v. Smith, and thus continued:

"This conclusion disposes of the contention that W. W.