Supreme Court of United States.
*590 Mr. Hector T. Fenton for appellant.
Mr. Joshua Pusey for appellees.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is a bill in equity filed in the Circuit Court of the United States for the Eastern District of Pennsylvania, by Isaac W. Heysinger, Christian H. Hershey, and J. Loren Heysinger, against James P. Crawford, founded on the alleged infringement of reissued letters-patent No. 9803, granted July 12, 1881, to George W. Heyl, assignee of Henry R. Heyl, the inventor, for an "improvement in devices for inserting metallic staples," the application for the reissue having been filed May 10, 1881, and the original patent, No. 195,603, having been granted to Henry R. Heyl, September 25, 1877, on an application filed September 20, 1877. Henry R. Heyl assigned the original patent to George W. Heyl, March 20, 1878, and George W. Heyl assigned the reissued patent to the plaintiffs, November 23, 1881. This bill was filed June 9, 1883. The answer of the defendant sets up as defences the invalidity of the reissue, want of novelty, and non-infringement. After issue joined, proofs were taken, and the Circuit Court, in November, 1883, entered *591 an interlocutory decree, adjudging the reissued patent to be valid as respects claims 1 and 2, and that those claims had been infringed by the defendant, and awarding a perpetual injunction, and referring it to a master to take an account of profits and damages. On his report, a final decree was entered, in May, 1884, in favor of the plaintiffs, for $225.75 damages and for costs.
In order to consider any question involved as to the reissue, it is necessary to compare the specifications of the original and reissued patents. They are here placed in parallel columns, the parts of each which are not found in the other being in italics, the drawings in the two being substantially alike, with only immaterial differences in the lettering:
Original. Reissue.
"To all whom it may concern: "To all whom it may concern:
Be it known that I, Be it known that I,
Henry R. Heyl, of the city Henry R. Heyl, of the city
and county of Philadelphia and county of Philadelphia
and State of Pennsylvania, and State of Pennsylvania.
have invented a new and useful have invented a new and useful
improvement in paper-fastenders, improvement in paper-fasteners,
which improvement is which improvement is
fully set forth in the following fully set forth in the following
specification and accompanying specification and accompanying
drawings, in which Figures drawings, in which Figures
1 and 5 are side elevations of 1 and 5 are side elevations of
the fastener embodying my the fastener embodying my
invention. Fig. 2 is a vertical invention. Fig. 2 is a vertical
section in line x x, Fig. 1. Fig. section in line x x, Fig. 1. Fig.
3 is a side elevation, partly sectional. 3 is a side elevation, partly sectional.
Fig. 4 is a horizontal Fig. 4 is a horizontal
section in line y y, Fig. 1. section in line y y, Fig. 1.
Similar letters of reference Similar letters of reference
indicate corresponding parts indicate corresponding parts
in the several figures. in the several figures.
"My invention consists of "My invention consists of
an implement of the form of an implement of the form of
*592
*593
a hand-stamp, by which metallic a hand-stamp, by which metallic
staples may be forced staples may be forced
through sheets of paper documents, through sheets of paper or
and secured by clinching documents, and secured by
the legs on the reverse clinching the legs on the reverse
side. side.
"Referring to the drawings, "Referring to the drawings,
A represents a stationary anvil, A' represents a stationary anvil,
which is secured to or which is secured to or
formed with an arm rising formed with an arm rising
from a suitable stand of convenient from a suitable stand of convenient
form for use upon a form for use upon a
writing-desk; and B represents writing-desk; and B represents
a sliding guide-block a sliding guide-block
fitted to the anvil A by a fitted to the anvil A' by a
sliding joint, and having sliding joint, and having
grooves C C, which match grooves C C, which match
with the tongue of the anvil, with the tongue of the anvil,
the upper face of the block the upper face of the block
being flat. The normal position being flat. The normal position
of the guide B is elevated, of the guide B is elevated,
and, in order to keep it in this and, in order to keep it in this
position, or from dropping position, or from dropping
prematurely, I employ a prematurely, I employ a
spring, D, which may press spring, D, which may press
up under the guide, or a up under the guide, or a
spring, D', which may press spring, D', which may press
against it, and thus produce against it, and thus produce
the necessary friction. E represents the necessary friction. E represents
a reciprocating driver, a reciprocating driver,
whose under face is flat, and whose under face is flat, and
in the same is a concave recess, in the same is a concave recess,
F, said driver having a F, said driver having a
knob, G, for receiving the knob, G, for receiving the
blows of the hand, and provided blows of the hand, and provided
with a spring, H, for with a spring, H, for
causing the return or elevation causing the return or elevation
of the driver. of the driver.
*594
"The operation is as follows: "The operation is as follows:
A staple is placed within the A staple is placed within the
grooves C C, with its crown grooves C C, with its crown
resting on the anvil A, the resting on the anvil A', the
points thus being upward. points thus being turned toward
The papers to be united are the bending recess F.
now placed upon the face of The papers to be united are
the guide B over the staple-points, now placed beneath the driver,
and, by a sharp blow and, by a sharp blow of the
of the hand upon the knob G, hand upon the knob G, the
the driver is forced downward driver is forced downward
upon the papers. The guide upon the papers. The staple-legs
B gives way, and the staple-legs come through the papers
come up through the papers into the recess F, where they
into the recess F, where are bent over by the slanting
they are bent over preparatory ends thereof.
to the final clinching. The
hand is now released from the
knob of the driver, the latter
then rising, and the papers
are drawn somewhat forward,
until the staple-crown rests
upon the face of the guide B,
when another blow is imparted
to the driver, and the flat portion
of its face descends forcibly
on the staple-legs, so as to
bend the latter close to the paper,
thus completing the operation.
"It will be seen that the "It will be seen that the
grooves C C serve to support grooves C C serve to support
and guide the staple-legs during and guide the staple-legs during
their penetration through their penetration through
the papers, and the recess F is the papers, and the recess F is
so shaped that, as the staple-legs so shaped that, as the staple-legs
enter thereinto, they will enter thereinto, they will
strike the concave or slanting strike the concave or slanting
*595
walls of said recess, and thus walls of said recess, and thus
be bent inward toward each be bent inward toward each
other sufficiently to insure other, as shown in Figs. 2 and
their being bent down properly 3. A plate, a, may be advantageously
when again struck between the employed to overlap
faces of the guide B and driver the staple-crown, for preventing
E. A plate, a, may be advantageously the latter from bending
employed to overlap while the legs are being forced
the staple-crown, for preventing through the papers.
the latter from binding
while the legs are being forced
through the papers.
"It will be seen that the
staple-support or anvil A', with
the slotted or recessed hammer,
operates to insert a staple
through layers of stock to be
united, and simultaneously
bends over its projecting ends.
"In my original specification
I described the further
separate operation of completely
flattening down the ends of
the staple thus bent over, by a
second blow between the upper
and lower jaw of the implement,
believing that the same
was new; but I have since
learned that the same result
was obtained by devices described
in previous letters-patent
of the United States.
Should the legs of the staple,
when bent over by the same
blow which drives the same, as
is hereinabove described, be
found not to lie sufficiently
close to the surface of the
*596
paper, the same may be further
flattened down by a second blow
between flat surfaces in front
of the staple-channel and bending
recess, respectively provided
therefor.
"Figs. 1, 2, and 3 show a
hand-stamp embodying my invention,
in which the driver
reciprocates in a fixed head in
the manner of a plunger, while
Fig. 5 shows the same invention
embodied in a hand-stamp, in
which the driver is mounted
at the end of a vibrating arm
pivoted at its rear extremity
to the base, which rests upon
the table. It will be seen that
the devices which constitute my
invention are to be found in
both these modifications, and
that both operate in precisely
the same manner, to insert by
a blow upon the knob G of the
hand-stamp, the staple through
layers of stock to be united, and
simultaneously bend over the
projecting ends in the opposite
bending recess provided therefor.
"Having thus described my "Having thus described my
invention, what I claim as new, invention, what I claim as new,
and desire to secure by letters-patent, and desire to secure by letters-patent,
is is
"1. The reciprocating driver "1. The combination of the
E, constructed with a flat face stationary staple-support or
recessed, substantially as described, anvil A', and the sliding staple-guide
whereby the projecting B, with the reciprocating
*597
ends of staples may be first slotted or recessed hammer,
bent over by entering the recess operating to insert a staple
and then flattened down by through layers of stock to be
pressure from the flat face. united, and simultaneously
bend over its projecting ends,
substantially as and for the
purpose set forth.
"2. The self-adjusting guide-block "2. In a device for inserting
B, having staple-guiding metallic staples, the combination
grooves C C and a flat face, of the staple-guide B,
upon which to complete the anvil A', spring D, and reciprocating
clinching of the staple, substantially driver, provided with
as and for the purpose the knob G, the whole arranged
set forth. to operate substantially as and
for the purpose set forth.
"3. The combination of the "3. A staple-inserting implement
stationary staple-support or having two opposite
anvil A with the sliding guide jaws arranged with relation to
B, grooved to partially embrace each other, substantially as
and guide the staple-legs, substantially shown, one of which is provided
as and for the purpose with a recess, the other
set forth. with a vertically channelled
staple-guide, an anvil, and a
spring, so that, when the jaws
are separated, after driving a
staple, the guide will be open
for the reception of the succeeding
staple, substantially as
described.
"4. The combination of the "4. An implement for inserting
stationary staple-support or metallic staples, consisting
anvil A with the reciprocating of two opposite jaws, one of
slotted or recessed hammer, which is provided with a staple-bending
operating to insert a staple recess, and the other
through layers of stock to be with staple-guiding grooves and
united, and simultaneously an anvil fitted thereto, in combination
bend over its projecting ends, with a knob to receive
substantially as and for the the blow of the hand and insert
*598
purpose set forth." a staple by a sudden percussion,
substantially as described.
"5. In a staple-inserting
machine constructed to operate
substantially as described, the
staple-guiding block B, having
staple-holding grooves CC,
forming side extensions of the
vertical slot S, substantially as
shown and described.
"6. An implement for inserting
metallic staples, consisting
of two opposite jaws, one of
which is provided with a staple-bending
recess, and the other
with staple-guiding grooves and
an anvil fitted therein, the said
jaws being arranged to be separated
and stand apart, to
admit the requisite manipulation
for conveniently placing
a staple in the open end of the
staple-guiding grooves, substantially
as set forth.
"7. The combination of the
stationary staple-support or
anvil A' with the sliding-guide
B, grooved to partially embrace
and guide the staple-legs, substantially
as and for the purpose
set forth.
"8. In an implement for
inserting metallic staples, a
reciprocating driver provided
with a knob to receive the blow
of the hand, in combination
with a grooved staple-guiding
block and an anvil attached to
*599
a stand of convenient form for
use upon a writing-desk, the
said stand having an arm
arising therefrom, and over
and above it a guide for the
purpose of guiding the said
driver to the said anvil, substantially
as and for the purpose
set forth."
The differences which thus appear in the descriptive parts of the specification are these:
In the original, in stating the operation of the machine, it is said that the points of the staple point "upward" when the staple is within the grooves. In the reissue, it is stated that those points are "turned toward the bending recess F."
In the original, it is said that the papers to be united are "placed upon the face of the guide B over the staple-points." In the reissue, it is said that the papers to be united are placed "beneath the driver."
In the original, it is said that "the guide B gives way, and the staple-legs come up through the papers into the recess F, where they are bent over preparatory to the final clinching." In the reissue, it is said that "the staple-legs come through the papers into the recess F, where they are bent over by the slanting ends thereof."
The original then contains the following statement, which is wholly omitted in the reissue: "The hand is now released from the knob of the driver, the latter then rising, and the papers are drawn somewhat forward, until the staple-crown rests upon the face of the guide B, when another blow is imparted to the driver, and the flat portion of its face descends forcibly on the staple-legs, so as to bend the latter close to the paper, thus completing the operation."
The reissue omits the statement of the original, that, as the staple-legs strike the slanting walls of the recess, they will be bent inward toward each other sufficiently to insure their being bent down properly when again struck between the faces of *600 the guide B and driver E, and substitutes the statement, that, when the staple-legs strike the slanting walls of the recess they will be bent inward toward each other, as shown in Figures 2 and 3.
The following sentence, not in the original, is found in the reissue: "It will be seen that the staple-support or anvil A', with the slotted or recessed hammer, operates to insert a staple through layers of stock to be united, and simultaneously bends over its projecting ends."
The specification of the reissue then states that the separate operation described in the original, of flattening down by a second blow the ends of the staple when bent over, was not new, but that the legs of the staple, if not laid sufficiently close to the surface of the paper, when bent over by the driving blow, may be further flattened down by a second blow between flat surfaces.
Figure 5 of the drawings, though contained in the drawings of the original patent, was not described or referred to in the original specification, but the reissued specification speaks of Figures 1, 2, and 3 as showing a hand-stamp in which the driver reciprocates in a fixed head in the manner of a plunger, while Figure 5 shows a hand-stamp in which the driver is mounted at the end of a vibrating arm, pivoted at its rear extremity to the base which rests upon the table; that the devices which constitute the invention are found in both of these modifications; and that both operate to insert, by a blow upon the knob G of the hand-stamp, a staple through layers of stock to be united, and to simultaneously bend over the projecting ends in the opposite bending recess provided therefor.
On the question of novelty, the alleged prior invention principally relied upon is a patent of the United States, No. 187,189, granted to George L. Ward and Orianna S. Smyth, assignees of James C. Smyth, February 6, 1877, for an "improvement in machines for stitching books with staples."
The Circuit Court, in its opinion, accompanying the record, held that the patented invention was not anticipated by that of Smyth; that claims 1 and 2 of the reissue were substantially the same as claim 4 of the original patent, when the *601 latter claim was read in the light of the specification; and that the defendant's device infringed claims 1 and 2 of the reissue.
Claim 1 of the reissue is for a combination of (1) the stationary staple-support or anvil; (2) the sliding staple-guide; and (3) the reciprocating slotted or recessed hammer or driver; the conjoined operation of the three being to insert a staple through layers of stock to be united, and to simultaneously bend over its projecting ends. Claim 2 of the reissue is for a combination with the same three elements, of (4) the spring D, and (5) the knob G. Claim 4 of the original patent was for a combination of only two of these elements, namely, (1) the stationary staple-support or anvil and (2) the reciprocating slotted or recessed hammer or driver. It left out the sliding staple-guide, and yet the claim stated that the combination of the two elements, without the staple-guide, would operate to insert the staple and simultaneously bend over its projecting ends. It would, however, wholly fail to so operate without the use of the sliding staple-guide. The use and operation of the sliding staple-guide, its arrangement so as to slide, the use of the spring D to keep it in its normal elevated position, so that it will not drop prematurely, and the use of the knob G, with which to impel the driver, are fully set forth in the original specification, and described as necessary, in combination with the stationary staple-support and the reciprocating slotted or recessed hammer, to insert a staple through layers of stock and simultaneously bend over its projecting ends; and the invention is stated, in the original specification, to consist in a hand-stamp by which metallic staples may be forced through sheets of "paper documents" and secured by clinching the legs on the reverse side. We do not find it necessary, however, to decide whether the reissue is to be considered a proper one, so far as claims 1 and 2, rightly construed, are concerned, on the view that it was an inadvertence, accident, or mistake to have left out of claim 4 of the original the elements which, by the description in the original specification, were made necessary to the performance of the operation specified in that claim. We dispose of the case on the assumption that the reissued patent is valid as respects claims 1 and 2.
*602 What is the proper construction of those claims? In claim 1, the staple-support or anvil is described as being "stationary," and the slotted or recessed hammer or driver as being "reciprocating." In claim 2, the anvil must be regarded as a "stationary" anvil, and the hammer or driver is expressly stated to be "reciprocating." In claim 4 of the original, the staple-support or anvil is said to be "stationary," and the slotted or recessed hammer to be "reciprocating." So in claim 1 of the original, the driver is said to be "reciprocating," and in claim 3 of the original the staple-support or anvil is said to be "stationary." In the description in the original specification, the anvil is described as being "a stationary anvil," and the hammer or driver as being "a reciprocating driver." In the specification of the reissue, the staple-support is described as being "a stationary anvil," and the driver or hammer as being "a reciprocating driver."
The file-wrapper and contents in the matter of the reissue are part of the evidence in the case, and throw light upon what should be the proper construction of claims 1 and 2. The application for the reissue was filed May 10, 1881. In the application as then presented eleven claims were proposed, the first and ninth of which were as follows:
"1. The staple-guide B, driving head A', operating therein, recessed bending block E, spring D, and knob G, combined and operating substantially as and for the purpose set forth."
"9. The combination of the anvil or driving head A' with the reciprocating slotted or recessed hammer, operating to insert a staple through layers of stock to be united, and simultaneously bend over the projecting ends, substantially as and for the purpose set forth."
On the 12th of May, 1881, the applicant cancelled claims 1 and 9, and converted claim 9 into a new claim 1, and claim 1 into a new claim 2, as follows:
"1. The combination of the stationary staple-support or anvil A' with the reciprocating slotted or recessed hammer, operating to insert a staple through layers of stock to be united, and simultaneously bend over its projecting ends, substantially as and for the purpose set forth.
*603 "2. In a device for inserting metallic staples, the combination of the staple-guide B, anvil A, operating therein, spring D, recess F, and knob G, the whole arranged to operate substantially as and for the purpose described."
On the 14th of May, 1881, the examiner notified the applicant as follows: "Upon further consideration of this matter, in connection with amended specification, applicant is advised that the 1st clause of claim does not present an operative combination of mechanical devices for the purpose stated. It is obvious that without a staple-holding device the parts enumerated would be inoperative, in view of which a staple-holding device should be included. In reference to the 2d and 3d clauses of claim, the statement that the anvil operates in the guide-block is unwarranted, inasmuch as the anvil is stationary and the guide-block slides up and down upon the anvil. With proper correction as to this point, the 2d and 3d clauses of claim may be allowed."
On the 31st of May, 1881, the applicant adopted the suggestions of the examiner and amended claim 1 by inserting after the words "stationary staple-support or anvil A'," the words "and the sliding staple-guide B," and amended claim 2 by cancelling the words "operating therein," so that claims 1 and 2 then read as follows:
"1. The combination of the stationary staple-support or anvil A' and the sliding staple-guide B with the reciprocating slotted or recessed hammer, operating to insert a staple through layers of stock to be united, and simultaneously bend over its projecting ends, substantially as and for the purpose set forth.
"2. In a device for inserting metallic staples, the combination of the staple-guide B, anvil A', spring D, recess F, and knob G, the whole arranged to operate substantially as and for the purpose described."
On the 4th of June, 1881, the examiner notified the applicant as follows: "Upon further consideration of this matter, in connection with the last amendment, it is obvious that the `recess F' should not form an element of the mechanical combination, as such recess is a provision of the `hammer' referred to in the first clause of claim, and such recess is not an operative element independent of such hammer."
*604 On the 14th of June, 1881, the applicant made further amendments, leaving claim 1 as last recited, and as it is found in the reissued patent, and amending claim 2, as last recited, by striking out the words "recess F," so that it read as follows:
"2. In a device for inserting metallic staples, the combination of the staple-guide B, anvil A', spring D, and knob G, the whole arranged to operate substantially as and for the purpose described."
On the 15th of June, 1881, the examiner notified the applicant as follows: "Upon further consideration of this matter, with a view to final action, the 2d clause of claim is found defective, in the absence of any mechanical combination between the `knob G' and the other elements included in the combination. To obviate this objection a `reciprocating driver' should be added to the combination."
On the 18th of June, 1881, the applicant amended claim 2 by substituting for the words "and knob G" the words "and reciprocating driver provided with the knob G," so that the claim, as thus amended, read as follows, the same as claim 2 in the reissued patent:
"2. In a device for inserting metallic staples, the combination of the staple-guide B, anvil A', spring D, and reciprocating driver provided with the knob G, the whole arranged to operate substantially as and for the purpose set forth."
From these proceedings in the Patent Office, in regard to the allowance of claims 1 and 2 of the reissued patent, it is apparent that the applicant carefully limited himself, in those claims, to a stationary staple-support or anvil and a reciprocating slotted or recessed hammer or driver. This result must also follow in view of the devices existing in the various prior patents introduced in evidence, showing the state of the art. The various elements entering into the combinations of claims 1 and 2 of the reissue were old, considered singly. The recessed clinching base was old; the driver in the staple case was old; the combination of those two devices in a power machine was old. The J.C. Smyth machine was a hand-lever machine, and contained in combination all the elements of the Heyl device, *605 though differently arranged. In both the Smyth and the Heyl devices there are means of forcing out a staple from a case by a contained plunger, and bending the legs against a concave recess. In view of this Smyth machine, the plaintiffs' expert stated that the novelty of the Heyl devices consisted particularly "in the automatic adjustment to various thicknesses of paper, by means of which, without any added parts, the jaws are adapted to grip and hold all thicknesses of paper while being stapled and clinched; in their capacity for being opened to allow the eye to see the staple while being inserted by hand at the open end of the staple case, whereby a length of staple may be adapted or selected to suit the material; in the retracting spring to keep the staple case constantly open for a new staple; in a hand knob for driving down the plunger; and in the general construction and adaptation of all the parts to be used as a light, portable desk tool, low in price, simple in construction and operation, and of universal use."
In prior devices, the clinching part was the base and the inserting device was above it. This arrangement did not permit of the proper support of the staple in the tube. Heyl reversed the position of the parts, and placed the inserting device on the base, so that the staple could be inserted by hand into the open mouth of the tube, and be supported, until it should be driven, by the tube and its contained driver, this reversal of the parts necessitating the use of a spring underneath, to support the tube and keep it above the end of the driving blade, or of a spring at the side to press against the guide and keep it in place by friction. Claims 1 and 2 of the reissued patent must, therefore, be limited to the specific combinations and arrangements of parts described and shown in the specification and drawings, and enumerated in those claims. The staple-support or anvil must be stationary, and the slotted or recessed hammer or driver must be reciprocating.
In the defendant's device, called the "Victor tool," the anvil or staple blade is movable, and the recessed clinching base is fixed or stationary. It is a device constructed under and in accordance with letters-patent No. 218,227, granted to William J. Brown, Jr., August 5, 1879, and a second patent, *606 No. 260,365, granted to the same person July 4, 1882. The drawings of No 260,365 are as follows:
An expert for the plaintiffs testifies, that he regards the lower part of the defendant's device, which is fixed or stationary and contains the clinching cavity, and resists the driving and clinching blow of the hand from the opposite part of the tool, as the equivalent for the "reciprocating driver provided with the knob G," mentioned in claim 2 of the reissue. As the defendant's tool is constructed with the stationary recessed clinching base made to rest upon a table, and to receive the impact from above of the detached driving tool, it is a misnomer to say that such stationary base is the mechanical equivalent of the reciprocating driver E of the Heyl patent. The patentee having imposed words of limitation upon himself in his claims, especially when so required by the Patent Office in taking out his reissue, is bound by such limitations, in subsequent suits on the reissued patent. Such have been the uniform decisions of this court, in like cases. Leggett v. Avery, 101 U.S. 256; Goodyear Dental Vulcanite Co. v. *607 Davis, 102 U.S. 222, 228; Fay v. Cordesman, 109 U.S. 408; Mahn v. Harwood, 112 U.S. 354, 359; Cartridge Co. v. Cartridge Co., 112 U.S. 624, 644; Sargent v. Hall Safe & Lock Co., 114 U.S. 63; Shepard v. Carrigan, 116 U.S. 593; White v. Dunbar, 119 U.S. 47; Sutter v. Robinson, 119 U.S. 530; Bragg v. Fitch, 121 U.S. 478; Snow v. Lake Shore Railway Co., 121 U.S. 617.
Assuming, therefore, that claims 1 and 2 of the reissued patent are valid, they are to be construed as covering only the precise combinations enumerated in them and described in the specification and shown in the drawings; and they do not cover the defendant's device, which has a stationary recessed clincher and a movable detached staple-inserting tool, because claims 1 and 2 of the reissued patent expressly call for a reciprocating clincher and a stationary staple-supporting anvil. Those elements, in those forms, in claims 1 and 2, were made necessary by the requirements of the Patent Office, before it would grant the reissue, and the applicant, having voluntarily made the limitations, is bound by them.
Although, in the proofs, the plaintiffs undertook to show that three other claims of the reissued patent, in addition to claims 1 and 2, were infringed by the "Victor tool," the Circuit Court, in its interlocutory decree, states that it considered only claims 1 and 2; and, as the decree holds those claims alone to be valid and to have been infringed, and the master's report and the final decree apply only to those claims, and the counsel for the plaintiffs does not contend, in his brief, that any other claim is infringed, we necessarily have confined our consideration of the case to those two claims, leaving all questions as to every other claim of the reissued patent entirely open for consideration in a case which may involve them.
The decree of the Circuit Court is reversed, and the case is remanded to that court with a direction to dismiss the bill of complaint.